Counseling Creatives

Colorful Dandelions
By: Wynne Reece 

Lawyers are scary, they are expensive, they don’t understand what I am asking, I don’t understand what they are saying, they tell me no…and honestly, I have no clue where to start.” I can’t tell you how often I heard some iteration of this messaging before I started The Creative’s Counsel® in late 2015. The practice of business law and intellectual property was not a new type of law, but for some reason this messaging still persisted, which got me thinking—why?

As professions, the law and creative work can seem diametrically opposed. One leans conventional, structured and risk averse; the other—innovative, fantastical and adventuresome. But a perceived diametrical opposition isn’t an impermeable barrier, rather it highlights an opportunity for attorneys to embrace a timely update to the lawyer-client approach.

I recall the first time I spoke to a room of Creatives about the law. I stood there, suited up, in front of 50 faces with nothing more than an inkling of this industry’s perception of lawyers. I knew many of the attendees from my prior life in the events industry, but rather than a joyous twinkle, I saw eager-to-learn eyes filled with apprehension because, well, the topic was the law. At that moment I realized this practice area, my future practice, would be anything but conventional.

The world of creative entrepreneurship is ever evolving on a micro and macro level. On a micro level, entrepreneurs are pivoting to stay afloat in the digital era. On a macro level, there were over 803,000 businesses less than a year old in the United States in 2020. Ok, yes, I hear you saying that is because of lay-offs and the pandemic, but in 2019 there were over 770,600, and there has been a 43.5 % growth of new business startups since 2010.

While this is likely attributable to a variety of reasons, I think it boils down to the evolution of expectation in work-life balance, and the self-assessed value of one’s time. Creative entrepreneurship isn’t just a profession, rather it is a way of life, and as counsel to Creatives, it is important to both recognize and respect that.

"Creative entrepreneurship isn’t just a profession, rather it is a way of life, and as counsel to Creatives, it is important to both recognize and respect that."

So, who are these Creatives? The answer may surprise you. Logically, one would think of persons who are in business in a creative field, such as content creation, brand design, writing, film and music—anyone from an Etsy seller to Walt Disney. However, I have found that the idea of what is creative is incredibly broad, and rather than focusing on the profession, the question more often takes into account the person(s) behind the business. We work with those logically fitting into the “creative box,” yes, but also with fellow attorneys, community group developers, dentists, city coordinators, financial advisors, psychologists, and architects, all of whom have decided to infuse creative energy into their traditional professions, thereby self-identifying as a Creative. Creatives embrace collaboration and are generating new ideas, redefining conventional wisdom and taking action (or furthering existing action) to effectuate change in their respective industries.

Three Things to Remember When Representing Creatives

First, it is incredibly important to support Creatives in defining their niche. I wouldn’t say that it is appropriate to tell someone what their niche is, but through business counseling, competitive analysis and asking questions—What are you good at doing? What makes you money? What do you enjoy doing? What do you dread doing?—you can support them coming to their own definition. One theme that holds true is that Creatives dream big—it is what makes them so fantastically unique, but it also can be an Achilles heel. Opportunity is endless when you are dreaming, it is easy to become overloaded with projects and directions when risk is not top of mind. While my clients will tell you that I am a strong advocate for exploring various paths in one’s profession to find a niche that will fulfill them, finding their niche is also imperative in bypassing their competition and finding financial success.

Second, address their legal basics. Many Creatives you work with will likely have the knowledge of business basics somewhere in their brain. However, growing up in the home of a musical composer, I can say from personal experience that creative thinking is a different kind of brilliance. Even the most successful Creatives may need assistance with the legal elements of a business: incorporation, worker classification, which parameters can be legally imposed on whom, client contracts, and identifying risk.

Third, it’s important to address defending their business, both the legal and practical remedies. I suggest doing this from the outset, as it may shape decisions that are made throughout business growth. Now, it’s been said that no one will value what it took to build a business more than the person who in fact built that business. In working with Creatives, you can help educate them about the importance of being inspired by those who came before them, but also how to identify and combat opportunistic behavior. Nothing upsets a business owner more than when a budding entrepreneur emulates what they have built or riffs off of their brand, an unfortunately common problem in today’s evolving entrepreneurial world.

There are issues with breaches of restrictive covenants, infringement of intellectual property, and violation of human principle and decency. The reason? Some of those copying may not see a problem with it and label it as standard competitive practice ‘which everyone does,’ and usually those whose businesses are being copied are so focused on protecting what they built that they are frantically looking for real help in trying to stop it. However, to defend one’s rights, even in a nearly open and shut case, can be very expensive and will usually take enormous time and energy away from the work Creatives love and need to do for their livelihood. As a lawyer for Creatives, it is important to try to come up with solutions to this practical problem. These solutions require creativity by the lawyer tailored to the problem at hand and may be outside the scope of standard legal ramifications.

The Lawyer-Creative Relationship

Working with Creatives is my greatest joy, but in understanding how the term Creatives is defined we must also look at how Lawyer is defined in this relationship. It is vital in the early days of your lawyer-client relationship to address roles and expectations. I often have Creatives ask me, “What makes you different from another lawyer?” and my most common response can be boiled down to the simple fact that I am me, and they are them. Relationships really matter when working with Creatives. And it is OK to say no to the wrong clients in order to open yourself up to the right ones. Choose the clients you truly believe in, with whom you have mutual respect and with whom you share similar principles.

"The resounding message for lawyers representing Creatives is to become comfortable with being uncomfortable."

The resounding message for lawyers representing Creatives is to become comfortable with being uncomfortable. That pesky risk factor that lawyers stay away from, Creatives leap into. The conventional work product lawyers have banked for years is not appealing to Creatives. They don’t like the way it sounds and don’t want to work with drafts to fix it. In fact, many would rather turn to downloadable forms, which can be relatively inexpensive to buy but which often require an inordinate amount of time to tailor them to the clients’ business. The formality of conferencing is countered with coffee-filled walks around their neighborhoods. The communication which most Creatives who I have worked with seem to prefer often happens outside of working hours (including on weekends and vacations), over text, voice notes, Instagram DMs or some other informal platform. When we aren’t counseling on their business, we are supporting them emotionally, dreaming of innovative business solutions and being their friend.

When it became apparent that this was the direction my legal career was going, I flew to New York City to spend the weekend with my elected Godmother, a brilliant attorney who specialized in international law at a large firm. She shared with me her insight, her years of experience and her perspective on working with Creatives. She passed away just a few years later from breast cancer, but her mantra, shared by one of the great legal minds in our lifetime at her life celebration is something I carry with me daily—may the wonder of your work always dazzle you.

My respected colleagues, I leave you with this: when working with Creatives, one must always look for that dazzle, for Creatives are fantastically unique and they seek out a team that shares the wonder that lies within creative entrepreneurship.

ReeceBy: Wynne Reece

In less than four years, Wynne Reece started two successful businesses and at just 30 years old, she successfully sold one of them to devote her energy to a legal niche, The Creative’s Counsel®. The Creative’s Counsel focuses on supporting business owners, by offering them affordable and approachable legal work, with counsel they can relate to. Reece Law was founded in 2013 and to date she has worked with over 900 businesses in an outside counsel capacity, as well as quite a few more individuals.
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