Yikes, It’s Not Even Been A Year Since Law Schools Were Honoring Lin Wood

L. Lin Wood (photo by Gage Skidmore)

A tipster alerted us to this video of Lin Wood giving a Mercer Law School Legal Legends speech less than a year ago. It’s an interesting time capsule back to a day when Wood was a fantastically successful personal injury and med mal lawyer and wasn’t facing Rule 11 sanction motions and spending his day tweeting about summarily executing Mike Pence.

Or at least that’s how he spent his days before yesterday when Twitter permanently banned him.

I assume now he’s Parlez-ing them or whatever Parler posts are called.

The video is from January 16, 2020. It’s amazing what a difference a year makes.

As he dramatically tells students, “You gotta know the law… as best you can. You gotta know the facts… as best you can,” one wonders how different things might be for him today if he’d taken his own advice.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Will They Be Held Accountable, And If So For What?

(Photo by Win McNamee/Getty Images)

President Donald Trump caused a riot this week. He and his warm-up team (Rudy Giuliani, Eric Trump, and others) riled up the crowd to the point where they scaled the walls of the Capitol, broke through doors and windows, and laid siege to that citadel of democracy.

The people inside, captured on video, selfies, and security cameras, should be easy to identify. Many were already known. Take Jake Angeli, known as “Q Shaman,” from Phoenix, a QAnon adherent. He stood on the dais bare-chested, furry hat and horns atop his head, proud to be holding an American flag, and sitting in the Speaker’s chair. Or, Richard Barnett, aka “Bigo,” of Arkansas, who brazenly lounged in Nancy Pelosi’s office, feet on the desk, leaving a message on a file folder in bold print: “We will not back down.”

Then there’s the newly elected delegate from West Virginia, Derrick Evans, who live-filmed himself while rushing with the mob through the Capitol doors shouting, “We’re in, we’re in. Derrick Evans is in the Capitol!”

With what crimes can these men be charged?

Well for starters, they can be charged with trespass, a misdemeanor, but easily provable. Then there’s charges of malicious destruction of property, as paintings were pulled off walls, windows broken, and media camera equipment smashed. For those who left two pipe bombs, there’s charges of illegal possession of a destructive devices and even terrorism, a crime that carries a life sentence.

For those outside who provoked the violence, there’s the crimes of “rebellion and insurrection” [18 U.S.C 2383] defined as: Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

There’s also “seditious conspiracy”: If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both. [18 U.S.C. 2384].

While Donald Trump is only president for another few days, it’s important he be prosecuted. Although he now distances himself from the violence of Thursday’s riot, his words ring hollow. They are the words of a man ready to say anything that serves him best in the moment, whether that means inciting violence by claiming the election was stolen or distancing himself from the very people he spurred to action.

The nation needs a formal reckoning with the outrageous acts of our president and the people who broke into the Capitol. But I’d trade the prosecution of any of the men who stormed the Capitol, scaled its walls and invaded its inner chambers for the prosecution of its leader, Donald Trump.

In any criminal prosecution where there are underlings and a leader, it is the leader who is generally the most sought after and most severely punished. After all, without that leader, the group may not have been inspired to act or pushed to violence.

No amount of rhetoric can save Trump from the fact that he started the conflagration. His actions fit the definition of rebellion and insurrection. “He who sets on foot” or “gives aid or comfort” is liable. Trump exhorted his followers to march to the Capitol saying, “You’ll never take back our country with weakness. You have to show strength. You have to be strong.” His lawyer, Rudolph Giuliani, ranted to the crowd “Let’s have trial by combat.” Trump later told his followers after they’d invaded the Capitol, “We love you.” How’s that for giving comfort.

Trump set this rebellion on foot long before Thursday. Ever since he lost the election, he fueled his right-wing and conservative bases through his delusional rantings that the election was stolen, that the fraud was widespread, and that his victory was obvious and overwhelming. He’s now scapegoating the people who entered without accepting any of the blame.  One might argue that the killing of Air Force veteran Ashli Babbitt, shot by Capitol police while breaking and entering, should be laid at his feet.

Besides a needed reckoning this country deserves, prosecuting Trump achieves another important benefit. According to the statute, a person convicted “shall be incapable of holding any office under the United States” again.

That goal, in and of itself, is worth fighting for.


Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Republican Attorneys General Association Encouraged Supporters To Attend Wednesday’s Action At The Capitol

(Photo by Tasos Katopodis/Getty Images)

The Republican Attorneys General Association runs a nonprofit called Rule of Law Defense Fund (RLDF). Alabama Attorney General Steve Marshall is the head of RLDF, saying at the time of his election, “I am honored to lead RAGA’s policy branch, the Rule of Law Defense Fund, and bring conservative attorneys general together in promotion of federalism, freedom, and the rule of law.” But now that group has been fingered as being involved in organizing the march on the Capitol Building that turned into a deadly insurrection, so, perhaps some of that honor has been tarnished.

According to reporting by the Alabama Political Reporter, RLDF is listed as a participating organization for the March to Save America on the march’s now defunct, though archived, website, along with Stop the Steal, Tea Party Patriots, and Turning Point Action.

But it gets worse. As reported by Documented, RLDF did more than just lend their name to a laundry list of participating organizations. They paid for robocalls to encourage folks to march to the Capitol building to “stop the steal.” We all know what happened next.

“I’m calling for the Rule of Law Defense Fund with an important message,” the robocall stated, according to Documented. “The march to save America is tomorrow in Washington D.C. at the Ellipse in President’s Park between E St. and Constitution Avenue on the south side of the White House, with doors opening at 7:00 a.m. At 1:00 p.m., we will march to the Capitol building and call on Congress to stop the steal. We are hoping patriots like you will join us to continue to fight to protect the integrity of our elections. For more information, visit MarchtoSaveAmerica.com. This call is paid for and authorized by the Rule of Law Defense Fund, 202-796-5838.”

Marshall made a statement on Wednesday condemning the coup, but failing to mention how an organization he’s in charge of encouraged people to attend the event. He also conveniently omits how he signed onto the failed lawsuit challenging the election results — the exact kind of legal machination that encouraged the patently false belief in right-wingers that Donald Trump was the rightful winner of the 2020 election. This inaccurate belief that the election has been stolen from Trump is a direct through-line to Wednesday’s violence. But none of that gets a mention in Marshall’s statement:

“I condemn, in the strongest possible terms, the actions of those who today attempted to storm the Capitol, a place where passionate but peaceful protestors had gathered and lawmakers debated inside,” Marshall said in the statement. “Our country is built upon the foundation of the rule of law. American democracy guarantees the right of peaceful protest. Those who chose to engage in violence and anarchy should and will be held accountable under the law.

“I stand by the brave men and women of law enforcement as they work to restore order. God bless the Capitol Police and all members of law enforcement who, as always, have showed such great courage in protecting their fellow man.”

After RLDF’s role in the events of Wednesday came to light, RAGA’s executive director Adam Piper had this statement, which desperately tries to distance the organization from the insurrection:

“The Republican Attorneys General Association and Rule of Law Defense Fund had no involvement in the planning, sponsoring, or the organization of yesterday’s rally,” Piper said in the statement. “No Republican AG authorized the staff’s decision to amplify a colleague speaking at the rally. Organizationally and individually, we strongly condemn and disavow the events which occurred. Yesterday was a dark day in American history and those involved in the violence and destruction of property must be prosecuted and held accountable.”

I guess responsibility is for cucks.


headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Scalia Gives Josh Hawley’s Whiny Argle-Bargle About Canceled Book Deal Major Side-Eye

(Christopher Scalia, son of the late Justice Antonin Scalia, commenting on Sen. Josh Hawley’s tweet about the loss of his book contract following the violent insurrection at the U.S. Capitol that he helped to incite. Hawley has been condemned by former supporters, and many are now calling for his resignation.)


Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

And Now BOTH Biglaw Lawyers Have Resigned Over The Trump Call

(Photo by Chip Somodevilla/Getty Images)

The week began with an explosive audio recording of Donald Trump pressuring Georgia election officials to accept debunked conspiracy theories and “find” enough ballots to allow him to win the state. While most of the country marveled that Trump was caught on tape seemingly committing the requisite acts of attempted election interference — query whether he’s capable of mens rea at this point — the legal world marveled that three lawyers sat in on a call like that.

And then the Capitol was ransacked by a violent mob and election fraud seemed somewhat quaint by comparison.

One of the lawyers, Cleta Mitchell, was a partner at Foley & Lardner as the week began. As the firm scrambled to respond as clients protested the firm’s involvement in the dubious election effort and groups began to agitate for clients to boycott en masse, the firm indicated that Mitchell had gone rogue and began offering professional succor to the president’s quixotic QAnon quackery. A day later, Foley & Lardner announced that Mitchell was out — resigning in a letter that blamed “leftists” and not the problematic business and ethical morass she’d tried to drag her firm into.

Alex Kaufman of Fox Rothschild didn’t speak on the call, though was introduced as one of “the attorneys that represent the president.” He remained unidentified for a few days before we revealed his involvement yesterday morning. The firm informed us last night that Kaufman and his father, Emory Law Alumni Board member Robert Kaufman, had agreed to leave.

And while Mitchell blames “leftists” for pressuring Foley & Lardner, this bellyaching is just a sad reflection of the culture of irresponsibility that’s grown up around the conservative movement. In both cases, the respective firms refused to get involved in election challenges as a matter of policy… and the lawyers went ahead anyway. The firms made their decisions based on an assessment of both professional and business concerns. To be dragged into asserting claims that had already been rejected by courts across the country  (and are triggering sanction motions against other lawyers) hurts the reputation and business of every other partner in the firm. But these two, whether they thought about it in these terms or not, put themselves ahead of all that.

Just like the anti-mask brigade puts their convenience ahead of public health. And how the rioters put their delusions ahead of the safety and the sanctity of the American government. And, now, how Lindsey Graham is trying to blame Portland for the mob he spent four years whipping up. Nothing is ever these people’s responsibility. They can do whatever they want and if not, it’s the fault of leftists, or Dominion, or Hugo Chavez, or China, or Fauci, or the Woke Crowd, or AOC, or Pelosi, or Portlandia reruns.

But instead of casting about for some third-party to blame, in the immortal words of Ice Cube, if you take a moment to check yourself, you can often avoid wrecking yourself.

Earlier: Cleta Mitchell Out At Foley & Lardner After Troubling Donald Trump Call
Donald Trump Drags Biglaw Firm Into Middle Of Election Interference Effort
There Was ANOTHER Biglaw Firm Partner On The Donald Trump Call With Georgia Election Officials


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Mick Mulvaney, Who Promised A Graceful And Peaceful Presidential Transition, Makes His Own Craven And Hasty Exit

As we write, people—very rich people—are being actively solicited to hand over between $1 million and $30 million to Mick Mulvaney, a man who’s never before managed money professionally. Why would they do so? Well, of course, for the “advantage over everyone else” provided by Mulvaney’s penetrating insights into “how Washington works,” like this one:

Call Upon Departmental New York Disciplinary Committee To Disbar Rudy Giuliani

(Photo by Drew Angerer/Getty Images)

We are all still processing what happened at the U.S. Capitol on January 6, and people far better at it than I have already been meticulously laying out the story of the insurrection. But there is one small piece of this disgusting segment of American history that I do feel equipped to talk about.

Admitted lawyers, supposedly in good standing, played a prominent role in this coup attempt. Some served as deranged foot soldiers and rightfully lost jobs as a result. I don’t want to talk about them, though. I want to talk about Rudolph William Louis Giuliani.

Even before urging that a mob engage in “combat” during a coup attempt, Rudy Giuliani was an embarrassment to the legal profession and was clearly incompetent as an attorney. In fact, there’s a good case to be made that Giuliani, after an exemplary early career, eventually became the most incompetent attorney in the history of the legal profession. He repeatedly butt-dialed important people. He left rambling voicemails after accidentally calling the wrong person. He let his hair dye, which frankly wasn’t going to be fooling anyone even had it stayed on his head, run down his face at a public event. He booked a news conference at Four Seasons Total Landscaping instead of at the Four Seasons hotel. He doesn’t know what strict scrutiny is. After first refusing a COVID-19 test, he let Borat trick him into “tucking in his shirt” in front of a woman so far out of his league astronauts could probably hear those warning bells going off from the vacuum of space. He didn’t go into federal court for nearly three decades, and then somehow thought he should be the go-to election litigator for the president of the United States. Oh, AND HE REPEATEDLY PUSHED DEBUNKED CONSPIRACY THEORIES TO UNDERMINE DEMOCRACY AND TO TURN AMERICA INTO A DICTATORSHIP!

Before the mob of angry and armed pro-Trump domestic terrorists descended on the U.S. Capitol, Giuliani stood before them and urged them to engage in “trial by combat” to change the legal election results. I’m looking at Giuliani’s Attorney Detail Report on the New York State Unified Court System website right now, and at the moment, he has no record of public discipline. We should change that.

Since I first wrote about Giuliani being a national disgrace, I have received many emails from readers asking how to go about getting him disbarred and/or how to lodge an ethics complaint against him. Pretty much uniformly I thanked them for reaching out and explained the basics of how to lodge a complaint with an attorney disciplinary body, but discouraged them from taking further action, as it was my assumption that nothing would be done about an ethics complaint filed by some random member of the public who wasn’t the client of the lawyer and didn’t directly work with him.

Well, I’ve changed my mind. Rudy Giuliani is the definition of unethical, and he is a danger to democracy, just one step below Trump himself. Giuliani has no right to go on calling himself an attorney, and every moment he continues to have a law license is doing irreparable harm to the legal profession. The more ethics complaints lodged against him, the better. If you want to file an ethics complaint against him, here is a helpful article from the New York State Bar Association that nicely lays out the process. The gist is, you must file a written complaint with the appropriate grievance committee, and then, if the conduct complained of is serious enough, that grievance committee may refer the matter to court for action following an investigation, up to and including disbarment. Giuliani’s given business address is 445 Park Ave., Floor 18, in Manhattan, making the Departmental Disciplinary Committee for the First Department the appropriate committee to address any complaints you may have to. Here is a link to their webpage.

Giuliani did halfheartedly condemn the violence the day after the coup attempt, while failing to apologize for his role in inciting it. That’s not good enough though. Before we can heal as a nation, there has to be a reckoning for what happened at the Capitol. Frankly, a law license is a small price to pay for trying to destroy democracy. But it’s a start.


Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

So. You Survived Your First Coup. — See Also

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New Technology Without Adoption Is Worse Than Doing Nothing

Despite the never-ending promise of how software will help transform your legal practice, most attempts at legal modernization still fall short in practice. By realigning your strategy along with the implementation of new software, you can get not only a return on investment, but real change.

Despite the never-ending promise of how software will help transform your legal practice, most attempts at legal modernization still fall short in practice. By realigning your strategy along with the implementation of new software, you can get not only a return on investment, but real change.

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New Technology Without Adoption Is Worse Than Doing Nothing

New Technology Without Adoption Is Worse Than Doing Nothing

Despite the never-ending promise of how software will help transform your legal practice, most attempts at legal modernization still fall short in practice. By realigning your strategy along with the implementation of new software, you can get not only a return on investment, but real change.

Despite the never-ending promise of how software will help transform your legal practice, most attempts at legal modernization still fall short in practice. By realigning your strategy along with the implementation of new software, you can get not only a return on investment, but real change.

The Seuss Is Loose!

(Image via Wikimedia Commons)

‘Tis the season for a massive copyright opinion. In the run up to the new year, the Ninth Circuit issued its decision in the long-gestating Dr. Seuss Enterprises, L.P. v. ComicMix LLC case. Its clear-eyed analysis brilliantly ventilates the “fair use” defense, which has recently become one of the most misapplied (and thus popular among infringers) doctrines in all of copyright.

Dr. Seuss, while not a holder of an M.D., wrote and illustrated some of the most iconic stories of all time, each of which are dappled with his unique and fanciful language and imagery. One of the good Doctor’s best books, Oh, the Places You’ll Go!, is an evergreen work that has been widely popular for decades, and not just with those looking to give a thoughtful but whimsical graduation gift. It has repeatedly graced the The New York Times Best Seller list and, along with other Seuss works, made Seuss the number one book brand of 2017. 

An obscure company named ComicMix thought they could cash in on the popularity of Seuss by creating a Seuss-y book that was not actually authored by him. To do so, ComicMix copied verbatim a number of original illustrations from Go! and other Seuss works, reproduced the structure and overall look and feel of the Go! story, and then sprinkled in some characters and references they copied from another work, Star Trek. The end result was Oh, the Places You’ll Boldly Go!, a book that the Ninth Circuit found to be no more than a “repackaging” and “copying” of Seuss’s work. As such, ComicMix’s attempt to target Seuss’s market and profit from this book was decidedly unfair.

This appears to be such a clear and obvious case of copying and infringement that you may wonder why the Ninth Circuit’s decision is so important. Chiefly, it is due the Circuit’s savage dismantling of ComicMix’s ultimately misguided Section 107, or “fair use,” defense. As we will discuss, this defense was credited by the District Court and has recently emerged as a massive area of confusion for the courts. The ComicMix decision greatly clarifies the application of the doctrine and will remove some of the uncertainty from the litigation process.

There is a four-part test that, while nonexclusive, is meant to guide the Section 107 analysis. When an infringer has copied an artist’s work without consent but then claims the copying was fair, the court, under 17 U.S.C. § 107, should look at (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The Ninth Circuit applied these factors to the ComicMix knockoff and easily found that Section 107 defense provided no safe harbor. Indeed, it concluded that not a single factor favored a finding of fair use and reversed the District Court’s finding to the contrary.

The Ninth Circuit begins its analysis by concluding  that ComicMix made an “indisputably commercial use” of Go!, which cuts against “fair use.” While not dispositive, a copied work is less likely to be found protected by fair use when the copying was done to make money as opposed to a more altruistic reason. Then, the Ninth Circuit found that the infringing work was not educational or for purposes of critique or transformative given that it “merely use[d] what Dr. Seuss had already created[.]” And the Circuit found “completely unconvincing” ComicMix’s “post-hoc characterization of the work” as a transformative parody or commentary, which was helpful because it is quite common for infringers’ attorneys to simply fabricate fair use bases long after their clients committed the infringement. 

ComicMix also argued that its addition of “extensive new content” to the Seuss material — which, ironically is also copied, from Star Trek — makes its use fair. But, as the Ninth Circuit notes, the addition of new content is “not a get-out-of-jail-free card” and instead impinges on an artist’s right to create derivative works. In the end, this factor heavily favored Seuss because ComicMix, in repackaging the work of Seuss, “merely recontextualiz[ed] the original expression by plucking the most visually arresting excerpt[s]” from his work. And that is simply not “transformative.” What is transformative and whether we should even be considering the question given that the word transformative does not appear in Section 107, will be more fully vetted in the coming paragraphs. In the end, the first factor was decided in Seuss’s favor.

The second factor looks at whether a work is functional or creative, with the latter being closer to the core of the type of creativity protected by the Copyright Act, and as a result less likely to be “fairly” used. The Ninth Circuit found Seuss’s work highly creative and decided this factor in plaintiff’s favor. 

The third factor also favored Seuss. It examines the amount and substantiality of the copying at issue. The more copying, the less likely it is to be fair use. Here, large swaths of the “heart” and “highly expressive core” of Seuss’s work were copied. For example, as the Ninth Circuit held, ComicMx “replicated, as much and as closely as possible from Go!, the exact composition, the particular arrangements of visual components, and the swatches of well-known illustrations.” And the Circuit laughs off ComicMix’s claim that it “judiciously incorporated just enough of the original to be identifiable” as Seussian, finding it to be “fake math” and flatly contradicted by basically the entire record. 

The final factor, which considers “the effect of the use upon the potential market for or value of the copyrighted work[,]” also heavily favored Seuss. The Ninth Circuit begins its analysis of this factor by concluding that the District Court erred in forcing Seuss to shoulder the burden of proof, which “led to a skewed analysis[.]” Noting it as one of the few absolutes in the fair use analysis, the Circuit established that an infringer bears the burden of proof on all factors. In addressing the substance, the Circuit chastens ComicMix for failing to address the fact that it “intentionally targeted and aimed to capitalize” on the same market as Seuss. It also concludes that allowing works like the ComicMix knockoff would curtail Seuss’s right to license others to create derivative works and finds that ComicMix’s argument as to this factor “falls flat.”

In the end, the Ninth Circuit found, with ease, that not a single one of the Section 107 factors militated in ComicMix’s favor. The fair use defense here appears so obviously frivolous that one wonders why ComicMix and its attorneys would even advance it in the first place. But, given the confusion regarding the application of the factors, and the widely disparate rulings on the issue, infringers’ counsel now raise the fair use defense in even the most blatant cases of infringement and in situations where it is wholly applicable. 

And, well, the District Court here found the Section 107 defense applicable as a matter of law at the summary judgment stage despite the fact that, as the Ninth Circuit panel unanimously notes, “ComicMix created, without seeking permission or a license, a non-transformative commercial work that targets and usurps Go!’s potential market.” 

Infringers’ counsel have fomented the confusion that led to this District Court and many others wrongly applying this defense primarily by exploiting the uncertainty around the definition of transformative in the Section 107 context. Courts have found all manner of things transformative and excused infringement as fair use on that basis, resulting in havoc and unceasing appellate practice. But, as the Ninth Circuit notes, “the term ‘transformative’ does not appear in § 107, yet it permeates copyright analysis” because the Supreme Court in Campbell v. Acuff-Rose Music, Inc. noted that courts should examine “whether and to what extent the new work is ‘transformative.’” As the Ninth Circuit later acknowledges, though, transforming a work by adding new content will often rub up against or outright infringe the artist’s statutorily prescribed exclusive right to create derivative works under Section 106. With this ruling, in the Ninth Circuit at least, future infringers will less likely be able to exploit the Section 107 defense by claiming their knockoffs to be”transformative.

Artists and copyright holders, as well as those looking to engage in actual fair use of other’s work, now have a lucid and thorough opinion to guide them and the courts in future disputes. The Ninth Circuit’s clear application of the Section 107 factors and its acknowledgement of the importance of the market harm factor and derivative right will be of assistance to all as copyright litigation continues apace in 2021.


Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.