Ten Questions to a Media Lawyer
R. David Hosp is a partner at Orrick in Boston.
How did you get interested in media law and what was your first job?
My first love was always the performing arts. I loved being in plays and musicals in high school, was always in choirs and bands and loved writing fiction. I stayed active in theater throughout college and considered pursuing an acting career, but that always seemed like such a hard road and I decided against it.
The law also interested me from a very young age. My mother was a lawyer, and I figured that having a background in theater would be helpful if I wanted to be a trial lawyer. When I was considering different law schools, I focused in on GWU because it had a reputation for being the best school in the country for intellectual property, and I thought that might be one way to combine my interest in the arts with my interest in the law. I anticipated that I would somehow fall into a job as an entertainment lawyer immediately after law school.
I unexpectedly did well in law school and ended up at the venerable Wall Street law firm of Winthrop, Stimson, Putnam & Roberts (now the New York office of Pillsbury Winthrop Shaw Pitman). Because of the nature of the firm, most of my early litigation experience was in the financial industry, but I kept my eyes peeled for any copyright or trademark cases that came in and tried to make sure I was assigned to those. I used that same strategy when I moved to Boston as a second-year associate and joined Goodwin Procter, and though it took a long time, I eventually managed to carve out the practice I really wanted, which focusses on copyright, trademark and media law.
What is the best advice you received as a young lawyer?
I’d offer two that I found memorable and helpful. First, get “it” done. It doesn’t matter what the “it” is. In my experience, what senior lawyers want most from junior lawyers is to see that they are engaged and motivated no matter what the task is. That could be research or cite checking or photo-copying cases in the library (a dated reference, but you understand the idea). The fastest way to get more interesting work and be given more responsibility is to show that you are dependable on the more mundane blocking and tackling that is such a critical part of litigation and trial work.
Second, don’t take yourself too seriously. This job can be stressful enough; always make sure that you can laugh at yourself — it takes the edge off.
What was your highest profile or most memorable case?
There are three that are tied. The first was Lorillard v. Reilly, a First Amendment case that I worked on as a senior associate that eventually made its way to the Supreme Court. It involved Massachusetts regulations that, as a practical matter, banned all tobacco advertising in populated areas in the Commonwealth. Ultimately the Supreme Court knocked down the regulations as being overbroad. Working on a First Amendment case that was in the Supreme Court was such a great experience as an associate.
The second was Cartoon Network v. CSC Holdings (the Cablevision case), a case where I was the junior partner overseeing the day-to-day activities of the matter. It dealt with novel issues related to Cablevision’s remote-server DVR technology, both with respect to reproduction rights and performance rights under copyright law. That was a meat-grinder of a case that I worked on for several years. We argued that at the District Court to Judge Denny Chin in New York’s Southern District and lost spectacularly on summary judgment. The Second Circuit, though, accepted the arguments we had developed at the District Court and overturned the defeat, establishing many of the principles that guide an infringement analysis in many technology-related copyright cases to this day.
The third was ABC v. Aereo, another copyright case where we represented a technology company that applied the principles established in Cablevision to offer over-the-air transmissions of broadcast television online. We succeeded on summary judgment at the District Court, and also won at the Second Circuit (ironically, we drew Denny Chin, who had been elevated to the Second Circuit following the Cablevision case, on our three judge panel, and he dissented from the decision). The case ultimately went to the Supreme Court, where we lost in a split decision. I still have PTSD over that case, but it was a great experience.
In addition to being a lawyer, you are a published author. Tell readers about your other career as an author of legal/crime thrillers.
I think calling it a “career” might be giving it a little too much credence, but I appreciate the sentiment. Let’s just say I’m keeping my day job for now. I have been lucky enough, though, to have had eight novels published by major publishers over the years, many of which have been translated into other languages and optioned for various film and serial projects (no cameras have rolled yet, but hope springs eternal!). It’s been an enormous amount of fun, and I’ve had the opportunity to get to know a number of other writers who are amazingly talented. I’ve always loved to write, and I’ve found it to be a great escape throughout my career. For reasons I’ve never quite figured out the books have sold more successfully in the U.K., and other countries than they have in the U.S. One of the books, Next of Kin, was a selection for the Richard & Judy Book Club (that will mean nothing to Americans but may amuse some Brits) and I actually went on their show while I was on a book tour in the U.K. years ago. It was a blast!
What are some books that influenced you early on?
I’ve always loved Ken Follett. Pillars of the Earth came out in 1989, just after I returned from studying at the London School of Economics, where I’d taken a fantastic course on the History of London through Art and Architecture. It’s a 1000-page novel about the building of a 12th century cathedral. That may not sound like an exciting concept to those who haven’t read it, but it is really one of the best popular fiction novels of all time, in my view. His writing is engaging and I’ve enjoyed all of his books. He and I had the same editor in London for a while, and she arranged for me to have a drink with him years ago at a book event in New York, and it was really an honor to get to talk with him about writing.
I also enjoy just about anything by Elmore Leonard. One of the few reviews that I’ve kept over the years was one that compared my writing to his—undeservedly so, but I’ll take what I can get. And The Great Gatsby is still probably my favorite novel of all time.
Finally, I’d give a huge shout out to Lee Child and David Baldacci. Not only do I love their work, but they were also two of the nicest, most encouraging writers and mentors to me through the years. True gentlemen, both of them.
How do you divide time between writing novels and working in litigation and IP at Orrick Herrington & Sutcliffe?
In short, I don’t. I work full-time as a lawyer, and that is what takes up the vast amount of my time. I began writing as a hobby on my commute. I live on the shoreline south of Boston, and for most of the past twenty-five years I have taken a forty-minute ferry ride to and from the office. It’s the perfect amount of time for me to write when I’m working on a book because it forces me to buckle down and write every day. If you give me five hours to write, I can’t get anything done creatively; I have to work in short bursts.
Unfortunately, the pandemic disrupted the rhythm I’d established over the years. There were really two years or so where I was stuck at home and it really threw off my writing routine. Even now that we’ve returned to “normal (ish)” I still go into work four times a week on average, but the office location isn’t as convenient to where the boat comes into Boston, and I sometimes drive in as a result. I’m working up the motivation to begin writing regularly again, but I takes some real effort.
Is Scott Finn your alter ego?
Goodness no! I love the character (he’s the protagonist in four of my books), and I have no doubt that there’s some of me in him, but he and I are so different in so many ways. I grew up with loving, wonderful parents in a stable upper-middle class household in Manhattan and then a New York suburb. Finn grew up an orphan on the mean streets of Charlestown and South Boston. He ran with Whitey Bulger’s Winter Hill gang before he found his way to college and law school. I think it’s fair to say that we share a similar view of justice, a similar sense of loyalty to those we’re close to, and a similar sense of humor, but in many ways he is so much more capable than I am.
What actor should portray him if one of your books featuring him is adapted for the screen?
I’ve always struggled with that question. At some level, I’ve always viewed the world through his eyes when I’m writing his character, so I don’t have a good sense of what he looks like. There are so many great actors, though, who’ve come out of the Boston area who would do a great job with his character. It’s easy to default to either of the Afflecks, either of the Wahlbergs, Matt Damon, etc., but I also like the idea of someone who isn’t as well known who might bring something different to the role.
Favorite movies or TV shows dealing with the law?
I Don’t know that I’d call them my “favorites,” but when we go to trial, the more senior amongst my group demand that the younger associates watch A Few Good Men and My Cousin Vinny, simply because those of us who are older often revert to using some of the lines in those movies as shorthand (e.g. “You can’t handle the truth!” or “It’s the difference between paper law and trial law!”). I think both movies hold up.
Besides working and writing, any time for hobbies?
At this point, my children are my hobbies to some degree. My daughter is a sophomore at SMU and she and I are very close. I love hearing about the things going on in her life and spending time with her.
I still pick up the guitar for fun every once in a while, but at this point I generally leave the performing in the family to my son. He’s an indie-rock artist/singer-song writer/producer for one of the major labels who releases under the name Walter The Producer. He played Lallapalooza in Chicago this summer, which was amazing and the whole family went out to see him. It’s been fun watching him live out my dream! If your interested, you can follow him at @walteraproducer on Instagram, and his songs and music videos are available on all major platforms.
