Richard Samson is the Vice President and Assistant General Counsel the New York Times, and recently spoke as a panelist at the JIPEL Careers in IP Symposium. Parts of the conversation have been condensed and edited for clarity.
Q: How did you end up practicing intellectual property law?
A: I had a really strong interest in entertainment and media before I even went to law school. I thought, without really knowing too much about what it meant, that I wanted to be an “entertainment lawyer.” As a result, I took classes in law school that would lead me in that direction: intellectual property, and trademark and copyright specifically, were areas that I really enjoyed. So, when I was looking for a summer associate job, I looked for law firms that had entertainment and intellectual property practices. Ultimately, this led me to Proskauer, which had and has a very strong entertainment practice.
Q: How have you seen the media and entertainment industry change over the course of your career?
A: The entertainment industry has changed in so many ways in the last ten, twenty years. It has gotten so much easier in so many ways to break into the entertainment industry as an artist. There used to be this whole mechanism, this structure that stood between the artist and the audience. Now, because of the Internet, everyone can immediately self-publish all of their work to the public.
I think that is the biggest change. If you are a talented person you can get your work seen by masses of people through social media or through the Internet in ways that just did not exist at all twenty years ago. Now, it is so much easier to create something and to get it either through Amazon, through YouTube, through all of these channels where there is no barrier to entry. One of the consequences of all of that is it has really made it challenging as an IP lawyer because everything is so easily pirate-able in a way that it was not twenty years ago.
Q: How has the role of an entertainment lawyer had to adapt over the course of your career?
A: I guess I am more of a “media” lawyer now than an entertainment lawyer, but the same issues apply. It is so easy to steal intellectual property now, either intentionally or accidentally. The New York Times publishes all of its work on a website that is accessible every day all over the world. All it takes for infringement to occur is a copy-and-paste to some other site by a bad actor. This has greatly increased the risk of infringement, and it has made intellectual property lawyers maybe a little bit more valuable because there are so many ways for New York Times content to show up on third party sites, on apps, on all kinds of products and services.
I think a corollary to that is there is a lot of misinformation about copyright and what it actually protects. I think a lot of younger people around the country might assume that anything on the Internet is a kind of “free for the taking” because they think that if it is out there to grab then there must not be intellectual property issues surrounding taking that content. It has become a crazy, wild, wild west of content. When these young people need a picture, they think that all they have to do is perform a Google Image search and take a photo off of someone’s Facebook page, off of their LinkedIn page, or anywhere they find it on the Internet and republish it somewhere else. Because things are just so easily accessible in a way that they weren’t even ten years ago, it has made the role of intellectual property lawyers that much more essential to every kind of business—not just in media and entertainment. For that reason, a big part of my job is actually educating our staff about the rules around copyright protection. When do we need to get protection? How do we go about getting protection? When might fair use apply?
Q: One thing I have heard about being an attorney, and particularly in-house, is that you always end up being the guy at the meeting that has to say “no” to everyone else. Do you find this is true at a news company like the New York Times?
A: We fight very hard against that stereotype that the legal department is where you go to have your story die. At the New York Times, we have a really strong commitment to the legal department being an ally to the news room, and we are here to try to help them get their stories and content published. So, it is less a question of saying “no,” and it is more a matter of explaining how we can get the proper permission, or how we can use something in a way that it does not raise the possibility of some kind of liability.
Q: Is there anything that you think is specific to the New York times about how you all approach the intersection of journalism and the law?
A: Absolutely. Working for a company like the New York Times means you are working for an institution that has been on the vanguard of First Amendment principles for decades. Every day we create content, and create hundreds of pieces of intellectual property—whether it is an article, a photo, a video, a podcast, or a virtual reality video. You can take the position that intellectual property is our single biggest asset, so as creators of intellectual property we have to take protecting intellectual property very seriously. That means protecting not only our own IP, but also respecting third parties’ intellectual property, and being careful about being a good “IP citizen.” I think it does make a difference when you are working for a company that is founded on those kinds of principles, as opposed to working for a company that makes staplers or something.
Q: How, if at all, has this era of “Fake News” and executive branch attacks on the press changed the way you operate at the Times?
A: I think it has mostly not really changed anything. I think it has probably energized the whole company, not just the newsroom, but all parts of the company, to do our jobs as well as possible, and create the best possible product because it is more important now than maybe ever in our history. The fact that our subscriptions have kind of gone through the roof since election day is, I think, an indication of how the public is looking to organizations like the New York Times to actually disabuse people of fake news, and to report what is true, and what is important, and what is real. I think we all feel a sense of obligation—and to kind of rise to that challenge. It is very unusual to have the President of the United States tweeting directly to the organization you work for. Feeling the eyes of the world on the company you work for makes what you do really important in a real-world sense.
Q: Could you run me through what a typical work day is for you as Assistant General Counsel, or the kinds of issues you are looking at?
A: The easy answer to that is there is no typical work day. I like to think of it as I come in, I turn on my computer, and I have no idea what is going to hit me. It is like this firehose of problems that people are asking us to solve kind of hits us, and on a given day there can be literally thirty different questions about can we do this? or how do we do this?
For example, today I received an urgent message from a photo editor, who had received an urgent message from a photographer, who was out on a shoot saying that they were not allowed to shoot photographs on this property without signing a release that the property owner had given them. They were waiting to hear from us about whether it was acceptable to sign this release so they could go shoot what they had to shoot. Those are some of the types of things that come in.
The nature of the job—news—means it is very fast-moving and deadline-oriented, and that is part of what makes it really exciting and fun. A few weeks ago, I was at home in the evening, and I got an e-mail saying: We understand that this famous celebrity is on her deathbed and is about to die. We are trying to put together a video package about her life. Would you be around in two hours so we can show it to you, and you can vet it for legal purposes before we run it? We may, though, need to run it at any point if she dies. So, those are the kinds of “breaking news” situations we deal with on a regular basis.
Along with the emergencies from the breaking news, there are also the standard contracts. Whether it is the Times partnering with another news organization to work on a particular story; or our licensing of content to various other news organizations that want to use our content for various purposes; or printing contracts with third party printing facilities; there is no limit to the types of issues that arise. And because we have to enter into agreements for each of those issues, we are dealing with just the whole gambit of general commercial contracts. Every day is a fast-paced day of solving problems and putting out fires. If you have to be a lawyer, I think, that is probably the most exciting kind of job you can have.
Q: How do you think your experience on the creative side of the industry [e.g. as a Broadway producer] helped shape the legal issues work that you do now? Has being trained as an attorney helped you in the non-attorney aspects of your career?
A: I have a couple of answers. First, I think that working at a law firm is the absolute best training for anything you do afterwards, whether you want to be at a law firm for your whole life or do something else. I think being at a law firm teaches you a kind of a way of thinking and problem solving and working that you do not necessarily get from law school. You only can get it from being in a law firm environment where clients or partners are coming to you to solve issues and to help logically figure out solutions.
As for working in-house, what is really interesting to me, is that you are really considered part of the company itself. You are not just adding what does the law say on this?, but rather you are actually expected to bring a certain kind of business judgment to problems and the deals that arise. So, it is a combination of both that kind of legal understanding of the law, and a logical way of thinking how to organize things, along with what is best for the business? and what is a risk that is worth taking because the business goals justify the risk? Those are things that you can only get after years of doing this kind of work. You certainly do not have that ability the day you graduate from law school, or the day you take the bar exam. That is one of the nice things about getting older—that you have years of experience that gives you the confidence to know that your judgment makes a certain amount of sense, and has some value.
Q: What do you wish people understood better when they hear you are a lawyer for the New York Times?
A: I think when you tell non-lawyers that you are a lawyer for the New York Times the first question is: what kinds of cases are you working on? It seems non-lawyers assume all lawyers are litigators. So, I think that is the first misconception attorneys in any industry have to educate people about is that just because you are a lawyer, you are not necessarily going to court to litigate cases.
The other question I get that sometimes that really confuses me is: why would the New York Times need a lawyer? Is it really so obscure an idea that a major corporation, a public corporation, that engages in news reporting would have legal issues come up from time to time?
There are ten lawyers here at the Times. We do a wide range of things. We have a full-time labor and employment lawyer. We have lawyers that deal with our SEC requirements, investor-relations issues, and disclosure requirements. We have lawyers that deal with First Amendment issues like news gathering, the Freedom of Information Act, subpoenas, and libel. Then, we have several lawyers that just do contracts and intellectual property and privacy issues.
Q: What are some interesting issues that come from having to deal with the cross-border aspects of a giant global company like the New York Times?
A: Because we consider ourselves a company that is primarily catered to a US audience, our first priority is to create a product that is legal within the framework of the US legal system. But due to our global audience, the reality is we do from time to time have to deal with the way the laws are different in other parts of the world because we might be exposed to liability under their local laws. In other countries, the laws may be different about libel, about privacy, about intellectual property. They are very different in the United States versus in England, and they are even more different in the Middle East or in Africa. We have been sued in Russia, we have been sued in France, we have been sued in England, and we have to negotiate the way the law changes in each place.
Just think about something as routine as signing a lease for office space in a country—how do you go about thinking about that? Do we have to engage local counsel to help us to do those things? We are also regularly concerned with cyber security and the security of our journalists (many of whom live in a lot of scary places). There is no shortage of issues that arise as a result of doing business all over the world.
An example of a particular country taking a huge step to affect the way we interact with our readers was when the Chinese government cut off access to the New York Times in China. It was unhappy with the way we were reporting on the government.
Q: Do you have any final thoughts or advice to law students interested in practicing in the media industry?
A: Take every opportunity you can to network with people in areas you are interested pursuing. I think it is really important today to make connections, to stay in touch with people, and to read everything you can about an area that you are interested in. The whole IP world, and everything else we have talked about, is changing so rapidly. It is really great to become an expert in a new area. Take drones, for example. Drones are very important to news organizations because they can take photographs that you could never photograph otherwise. Now that there are all these regulations around drone use that did not even exist a few years ago, there are now lawyers who have become experts in that specific area. I think as changes like these arise, there are so many resources online to become an expert in a specific area, to carve out a little niche for yourself, that makes you useful to your employer or your potential employer. I think that is what I would focus on if I was just starting out now.
Mark Sanchez is a J.D. candidate, ’17, at the NYU School of Law.