By Vivek Jayaram
A lot has changed in the 15 years I have been practicing law. And nearly as much has evolved since we started Jayaram Law 10 years ago. There are entire empirical studies on practice area trends, industry growth, and firm profitability. This post isn’t necessarily about any of those things. But because we represent so many entrepreneurs and innovative brands, we tend to see things that ultimately migrate to the mainstream. With that in mind, here are a few brief thoughts on why every firm advising the leaders of tomorrow needs to stay on top of these practice areas.
Intellectual Property. Obvious, right? IP has always been a key component of long-term success. At the end of the day, as I have written on countless occasions, all that’s left is IP. Sure, it will still be important to assess whether one image or piece of music is “substantially similar” to another. But IP lawyers need to form creative, specific, and implementable strategies around the protectability of content in the AI generation. By replicating aspects of human cognition, AI systems have the potential to engage in acts of content creation, which have the potential of creating a litany of copyright issues.
And what about social media? The past decade has been a veritable IP free-for-all with everyone posting, sharing, and creating content on social media. Rights of publicity, likeness, and other creatures of state law have largely been ignored by litigants and brands. That will probably change. Absent legislative change, lawyers need to be able to train their clients to look at content on social media like any other content. So the next time you want to post an inspirational image of Michael Jordan on your brand page with a caption that reads “Just Do It,” take a moment to think about the litany of copyright, trademark, and publicity issues that may create.
Finally, the courts are finally starting to deal extensively with the new-ish 2016 Defend Trade Secrets Act. With a federal trade secrets law now in place for the first time, brands are beginning to implement system-wide policies that allow them to protect content and information under the Act.
Venture Financing. Every lawyer working with tomorrow’s leaders needs to know the basics of fundraising. With the extraordinary amount of cash that is moving through the ecosystem today, nearly every entrepreneur (and their lawyers) have to wrestle with the best – and most efficient – ways to raise capital to scale a business. If you’re a litigator, it’s worth understanding how today’s convertible securities may end up in court tomorrow. If you’re an IP lawyer, what rights do these noteholders have if the Company defaults on any of the obligations in a Convertible Note or SAFE? And if you’re a corporate lawyer, there’s work waiting for you if you can competently advise a client on how and when to set a valuation cap or set attractive preferred terms in an early stage raise.
For those of us that work in this space, it seems so obvious. But the overwhelming majority of lawyers – even corporate lawyers – don’t understand or deal with venture funding issues enough (particularly those lawyers that are not in the handful of metropolitan markets that have serious venture ecosystems).
And make sure you also have access to really good tax advice. With money moving across borders more than ever before, the ability to attract and lure investors with concise tax strategies will continue to be a useful area for law firms.
Data Privacy. We recently added Heidi Yernberg Echols to our team. She advises some of the country’s largest healthcare systems, technology startups, and insurance companies on issues related to Data privacy and security. During the many discussions I’ve had with Heidi these past few months, I have come to finally understand the importance of data from a legal perspective. Just as important, I have come to learn that any company that has access to or gathers information from its customers, employees, or others needs to think critically about how to protect, use, and even commercialize that data in a way that is lawful and socially conscious.
Data is one of the most important assets any company has. Given today’s big data economy, companies find remarkable value in collecting, sharing and using data. FANG (Facebook Amazon Netflix and Google) have built extraordinarily large and profitable businesses based on data. With that profitability, however, comes an enormous responsibility. Transparency in how businesses request consent, abide by their privacy policies, and manage the data that they’ve collected is important to building trust and accountability with customers and partners who expect privacy.
The siloed “I’m a real estate lawyer” approach is and will be fading. Sure, we will always have the areas in which we have deeper expertise than others. But every lawyer who wants to represent the FANGs of tomorrow and increase their currency with emerging companies needs to have some sense of the areas above.