Category: Uncategorized

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“Oh Shit, I’m Slow”

I am hearing the above from lots of creative pros. Work is sloooow for many of you. Clients just are not hiring. Hopefully, hearing this truth will help you to feel emotionally a little better. That is, you can know it very likely is not you, it’s just the way things are.

The political situation is putting financial pressure on all sorts of businesses (and individuals) and, arguably stupidly1, when a business gets slow the first thing cut is often the marketing budget. Less money for marketing means less money to hire freelance creatives to produce material. Older work gets reused. Everyone holds their breath.

Most creative pros think they have one revenue stream: new sales (that is, new projects). Maybe one-and-a-half: new sales and re-licensing of existing work. That’s it. So, when your clients slow down and don’t have as many projects to offer, you slow down and you make less money. All your eggs are in that basket.

However, if that describes your business, you are almost certainly missing another revenue stream: getting paid for infringements of your copyrights.

Okay, some people consider it crass or at least tacky to call pursuing infringers for payment a revenue stream. They need to get over it. Actually, I think that most of these people either are the ones infringing or have a vested interest in keeping artists from recognizing their own financial power. Or scared artists.

The reality is that anyone who uses your work without paying you for it is depriving you of revenue. Anyone using your work for any reason other than purely personal, and certainly for any business, is getting something from it–increased engagement at the very least. You should be paid for that. If they aren’t paying you in advance by legitimately purchasing a license, then having them pay damages or a settlement is your only option to be made whole.

When things are slow, infringements increase in my experience. Businesses either get sloppy and fail to license work they use, often because of budget cuts (fewer knowledgeable employees, for example), or they actively try to get away with using work without paying. Either way, I find I get more clients with more infringements when those same creative pros are not getting hired by their clients as much.

Moreover, this can be a mostly passive income stream. Yes, you need to register the work but, after that, it’s not that onerous2. Infringers take work you have already created, there are tools3 to find your work being used online (you can do searches as often as you choose), and, if you hire someone else to go after the infringers (like me or another lawyer4), they will do most of the work.

To be clear, I am absolutely not suggesting doing anything nefarious. No honey pots or whatever. I have, sadly, fired a couple of clients when I found out each had lied to me and had, in fact, made their work available someplace for free, then claimed infringing uses. DO NOT DO THAT, EVER.

No, what I am saying is that you should register the copyrights in your work and look to see if those works are being used without permission or license. If you find that you have work that is being used improperly, go after the infringer(s). They owe you.

When things are slow, the money you make from this can (help) get you over the hump.

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  1. I’m a big believer in marketing more when things are slow, not less. How can you get more business by being less seen? Makes no sense to me. If everyone is pulling back, it’s a great time to break through the clutter and get seen! ↩︎
  2. And, really, registering your work is not onerous anyway–it can be daunting the first time or so, but quickly it becomes a familiar process. ↩︎
  3. E.g., https://copyseeker.net/; or browser add-ons like https://addons.mozilla.org/en-US/firefox/addon/image-reverse-search/?src=search ↩︎
  4. There are companies/”services” that do this, but I think they take far too big of a cut for what they provide; they also generally get you less in settlement, per infringement, than a lawyer will. ↩︎
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Life Happens, Again

A couple of years ago, I wrote a post called Life Happens. It discussed my then-pending surgery and how I had to take care of some documents before undergoing general anesthesia. You should read it.

Spoiler alert: I came through it all very well.

But, life continues. In my case, not terribly long ago, life happened again: last summer, my then-fiancé decided to end our relationship and move away. It was very sad, of course, but I wish him well and happy.

We’d been together for 10 years. Understandably, our lives had become very entwined. The breakup, of course, meant disentangling our lives, our finances, etc. Bluntly put: it has been a chore, even without having to go through the actual divorce process. That’s life. You can’t avoid bad things happening, no matter how you prep. But, you can prepare for some of those eventualities.

Besides the obvious splitting stuff (like divvying up the housewares) in the case of a breakup, when there is an end of a long relationship, whether by breakup or death of a partner, there is also a lot of paperwork to be done. For example, if you have your (now former) partner as a beneficiary on insurance or as a POD (payable on death) on financial accounts, you’ll need to change that. Was that person your emergency medical contact? You’ll need to get someone else. If you cohabitated, is your homeowner’s or renter’s insurance through you or your ex? What about ownership of the house or car(s)? Get that fixed. You’ll also need to take that person off your listed drivers on your auto insurance.

And then there is the other stuff, like I talked about in the original Life Happens: medical power of attorney, will, trust docs…all of these will need to be updated.

No one wants to think about their relationships ending, but they all do (breakup or death). If you have contingency plans in place, that can be helpful. For some things, you can add secondary beneficiaries or emergency contacts, for example. For others, maybe make a list of all the things you’d need to change should something unexpected happen. If you are married, you can get a post-nup that clearly explains who gets what in the case of a breakup. If you live together, you can get an agreement that does similarly. Sure, not very romantic, but it can make a hard part of life much easier.

Oh, and if you are in business together, you really need to have an agreement on how any split or death will affect that business. Do that now, please. Dealing with a business is an extra level of pain in the butt in a breakup or death.

No matter what, though, dealing with losing someone from your life is a chore. If you need help, there are plenty of pros like me or other lawyers, CPAs, insurance professionals, and therapists to help. Get the help.

I will say that taking care of all the paperwork can be a good distraction from the sadness of an ending, though. Any ending is tough, regardless of the circumstances. Forcing yourself to take care of the practical bits around it can give you a sense of grounding–that you will be okay.

And, no matter how you may feel at the time, you will.

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Undercharging

Ever since I first got into the photo biz as a studio manager (back in the last century), lowballing has been a problem. Usually, this is not done intentionally but rather out of fear and not knowing the actual value of the work.

Here’s a little data point that might help you understand value better: a general rule of thumb that companies use when budgeting their marketing and advertising projects is 10% creative costs; 90% placement/media.

You read that right 10% of the budget goes to creative costs, 90% to buying the placement/media.

Now “creative costs” are inclusive of things like talent; but I suspect that, even with that, many of you are undercharging. Some of you are way undercharging.

What are companies marketing/advertising budgets? Well, the consensus is that companies should budget at least 5% of their gross revenue (that is their sales–what they bring in before any costs or deductions), but some say it should be more like 7-10% for a small business. I read one article recently that said 15%! Here is a good breakdown of actual numbers from Small Business Trends. When you look at those numbers, and those are for small businesses, are you charging enough for your work?

Look, your clients are almost never going to tell you the truth about what their budgets are and how much others charge. The latter, especially. When I was a rep, I had some poor fool tell me that Photographer X estimated 10% of what my guy was asking…not knowing that I also repped Photographer X who wasn’t even asked to estimate on the project. Whoops! So I counsel doing your own homework.

If you take the time to learn what your clients are actually spending (and learn the language for all the various marketing channels, etc., so you sound like you know what you are talking about, too), you will be able to increase your rates with more confidence.

Finally, never be concerned about what you hear others are charging–it’s likely untrue and, if it is true, matching those numbers is a sure way to fail. Next time you do an estimate, do your research and present a higher rate. If the client balks, don’t over-explain–just say that you are confident that your total numbers are well under the 10% of the budget rule-of-thumb number they have for that marketing project.

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Real, Human Lawyering

I have been reading more and more articles about lawyers using AI to do their jobs. This, in my mind, is malpractice. The whole point of lawyering is to think; offloading that to some LLM makes no sense at all.

AI/LLMs aren’t even good at it, actually. There are more cases every day where a lawyer gets sanctioned for submitting a brief with fake citations. These are irritatingly called “AI hallucinations,” something that implies sentience and which the machines do not actually have. Whatever, these errors happen often. The tools produce answers their creators think we want–what will make us pleased. Need a citation to say what your client did was okay but there really isn’t a case that says that? No problem, one will be invented. Ugh!

Why use a tool when it can’t even do what it is supposed to with any accuracy and without legitimacy?

I won’t. In fact, I feel confident in saying I will NEVER use AI in my practice. I got rid of my Microsoft 365 subscription when it forced Copilot into its tools. I turned off Apple Intelligence. I am now running my practice using tools that reside on my devices, not the “cloud” and which do not access any LLM/AI-tool that I am aware of. My bookkeeping, trust accounting, case management…all of it is done offline. Research is necessarily online, but even there I try to use non-AI or the least AI-assisted tools available (this is getting harder but is something lawyers really should be fighting).

And it all works, in my opinion, better.

What you get when you hire me, then, is someone who writes all her own emails, letters, briefs, filings, and even blog posts. My work product is made by me, period. It is my brain that researches the law, the facts, and puts the pieces together to tell your story, argues your case, negotiates and persuades. If I cite a case it is because I have read the actual case and think it applies, not because some LLM has spit out a summary of it to give me what, in its digital mind, is a pleasing answer.

AI/LLMs promise speed and increased work volume–a lawyer can handle more cases with these tools, we are sold. But, in my book, I would rather be a better, more human lawyer than one with a gazillion cases. I am rather like an artisanal worker, like the guys who made and installed some windows in my 100-year-old house: the windows were custom made and fitted with extreme care. Your matters matter to me, and I will always do my best to give each matter the full attention it deserves, not offload my work to some digital tool that, frankly, is incapable of caring.

I care. It is why I became a lawyer in the first place.

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This Isn’t a Humblebrag; It’s a Buttkick

I was reminded by a client recently that what I do actually has changed (at least some of) my clients’ lives for the better. That was very meaningful for me. While of course I need to make a living, I do what I do to try to help creatives be successful (at least financially). When I hear that I have succeeded in helping, that makes me feel great.

For example, I helped fully-fund one client’s retirement accounts; for another, some serious and unexpected home repairs were much less a problem. I’ve had other clients, over the years, tell me I helped pay for vacations or their kids’ college funds. All sorts of things that simply made their lives a bit (or a lot) better.

To be sure, none of these were huge cases. I do not have any million-dollar awards or settlements…. not even close, to be honest. There have been some that have been larger, relatively speaking, but mostly my practice consists of handling what many people would see as “small” cases.

What do I mean by small? I did some math to figure that out. Most single-infringement, pre-litigation settlements in my practice lately (2024-2025) land between $7,500 to $12,0001. In the legal world, those are not big numbers. But for the artists I represent, they are not insignificant. Those numbers mean roughly $4,750 to $7,700 in the client’s pocket2. Per case. Most of my clients find multiple infringements that they ask me to pursue so, it is not at all unusual for a client to net (that is, after paying me), over a year, more than $30K or $40K. Sometimes, much more.

In other words, these cases, although what many people would call small, add up.

The key to these cases, almost always, is that the client has a timely registration. I’ve nagged about that for years, but look at the return! You can register multiple works (photos, 2-D art, blog posts, etc.) with one application and one fee (usually $55-$85, depending on the kind of works). If the work infringed is registered before the infringement at issue started3, then the minimum statutory damages (if the case is litigated) are $750 (up to $30K for non-willful). You also may be awarded attorney’s fees. That statutory (that is, written into the law) reality and the case law supporting the amounts make it possible for me to negotiate settlements like mentioned above, in many cases4.

And yet, I still have difficulty convincing some creators to register their copyrights and go after infringers. Like having that additional revenue isn’t worth the effort. That makes no sense to me. Artists of all stripes work hard to make their work (even when they feel it is easy themselves); why let someone rip it off? It isn’t a compliment to have some business use your work–it is a way to exploit your talent and efforts for its own benefit. As long as we live in a capitalistic society, you will need to make money and your work is valuable. The companies that use your work know that–they chose your work to make money… for themselves. By pursuing infringers you are not begging but rather standing up for yourself, your work, your talent, your own business.

So yeah, it feels great to know that I help people. But it is frustrating to know that I could be doing more for more of you. So please, whether you ever work with me or someone else, get off your butts, register your work, and stand up to the infringers.

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  1. REMEMBER! Previous results are not predictive of future results and each case is its own thing; just because someone got $10,000 for a case, for example, doesn’t mean you or anyone else will for a similar case. ↩︎
  2. The contingency fees (a percentage of the gross settlement or award) I charge are negotiated with each client prior to us working together. ↩︎
  3. Or if the registration is within 3 calendar months of first publication of the work. ↩︎
  4. Certainly not all cases, though. Some infringers will not negotiate, for example, meaning the case must be litigated or dropped by the client. ↩︎
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Adobe (and others) Avoidance

As Adobe has turned into a hellscape of subscription and AI making, I have just learned of this open source alternative: DarkTable. Some people I respect (and know from Mastodon) use it so I’m passing the info on to you. I have no relationship to the makers and have no personal knowledge about the tool, but anything that enables artists to get away from Adobe (and any of the other online & subscription tools) can’t be all bad.

Many of these same artists are using PixelFed instead of Instagram, for example, or have gone back to having their own websites and showing their work there. I think that is great because using platforms like Instagram (or, heaven forbid, X) feed the fascists. Literally.

Does it take more work? Sure, at first especially, but it is worth it.

I have been taking my own business off of subscription-based products as well. It took a bit of doing, but I’m just about there. The most difficult tool to replace was the bookkeeping application. Lawyers have some strict reporting requirements and we have things like trust accounts to keep track of. I also do cash basis accounting, which often is not supported. I’m now using Manager for my business books and it has so far been solid (I have not cancelled my Xero subscription yet, just in case, but I think I’m going to quite soon). It had a learning curve, but not terrible.

For social media, I only do Mastodon now. When I have to go on sites like Facebook (to document infringements, for example), I’m shocked at how awful they are. And, like I said, it puts money in the fascists’ coffers.

Long story short: you can take control back from the corporate masters. I sincerely encourage you to do so.

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Timeliness

I recently had a client bring me a lovely case with multiple images infringed. Nice and clean with registered copyrights and everything. An almost perfect case…

…until I looked at the Effective Date of the registration and the source code of the online use. Sadly, the use started mere days before the Effective Date and so the registration was not timely. While the client could still get actual damages (and infringer’s profits if any), that would be a low number based on the client’s provable license fee rate; so it made the case not something I could take on a contingency-fee basis. Bummer!

Registration is wonderful for protecting your work and adding to your recovery for an infringement, but its timeliness is a big, hard line to those benefits. Sadly, lots of people misunderstand timeliness. I hope this post helps clear up some of the misconceptions.

When you register a copyright (or a group), the registration will be issued with an Effective Date[1]. That date is the magic number—the key. For any infringement that actually starts after that date, you can get statutory damages and (maybe) attorney’s fees. These are called “enhanced remedies,” by the way. Statutory damages go from $750 to $30,000 for non-willful infringement, and up to $150,000 for willful. That’s a lot of room to negotiate a decent pre-suit settlement or, if you have to litigate, to get a valuable award. 

But that date is, like I said, a hard line. There is no wiggle room, outside of one exception I’ll explain in a second. So, if your Effective Date is July 1, 2024 and the infringement actually started on July 2, 2024, cool! But if the infringement actually started on June 30, 2024, the registration is not timely and you can’t get those enhanced remedies. 

Why do I keep saying actually, in italics? Because the date at issue is not when you find the infringement but rather the date the infringer began violating your rights—copying, displaying, etc., whether you knew it or not yet. If your Effective Date is July 1, 2024 and you found the infringement on December 1, 2024, that doesn’t make the registration timely; you need to find out when the infringement started to know if your registration is timely.

Now, about that one exception I mentioned earlier, this is something people screw up often so, pay attention. If you register your copyright in a work within three calendar months from the date of that work’s first publication, the law works some magic and you can get enhanced remedies for any infringement that started after that first publication date. Congress did this to try to fix the hole where a work is made and quickly published and quickly ripped off, before you get it registered. It’s a solid fix, IF you register your work in time. 

First publication is a technical, legal thing, for added crazy here. Publication has a nebulous definition in copyright law—it doesn’t always match with what any normal human would think of as publication. If you offer the work for sale or licensing, it is published on the date you do that, even if the work doesn’t get seen by anyone until later! So, for example, if you shoot for a client, the date of first publication will be the date your deliver the work to the client (digitally, hard copies, whatever) even if they don’t run the work until later. If you shoot for yourself, then a month later post the work on your website and offer it for stock licensing, the date you post it will be its first publication. BUT, if you make a work and post it on, say, your blog without explicitly offering it for licensing, then it is (likely) NOT published. 

I know, crazy, right? The easy fix is to always include a line about your work being available for licensing, even on your blog or Instagram or whatever. Then, boom, it’s published and you have a date for that. 

To best protect your work, do a group published[2] photographs registration every year on March 31 (for works first published from Jan 1–Mar 31), June 30 (Apr 1 – June 30), September 30 (Jul 1 – Sept 30), December 31 (Oct 1–Dec 31) of each year. That way, ALL your published photos for the year will be timely registered, no matter what. Any infringement of those photos will be eligible for enhanced remedies. Yay!

Then, when you contact any copyright lawyer (like me) with a potential infringement matter, we will be much more likely to be able to help you on a contingency fee (meaning you pay no fees unless we recover something for you).

[1] This date is usually the date you submit the application online, by the way. Even if you don’t get the certificate until much later, the Effective Date will almost always be the application date.

[2] Group Published Photographs registrations require that the works be first published within the same calendar year—this schedule takes that into consideration. See https://copyright.gov/circs/circ42.pdf.

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Holding Our Breaths

A lot of businesses are finding things slow lately. This isn’t surprising, considering the political situation. When you have a democracy crumbling with a cognitively challenged tyrant at its reins, it’s pretty understandable that business would slow.

We humans generally crave stability and security…or at least the illusion of them. When we don’t feel those conditions, many of us hold our breaths hoping to force them into being. It’s as if somehow controlling our breath will help us to control our surroundings. 

Emotionally, I get it, but it’s not very logical. Think about it: when you hold your breath, literally, what can you do? Not much and not for very long. So, when we hold our breaths, either literally or metaphorically, we don’t do anything else—including buying things or marketing our businesses or creating, etc.

When things feel overwhelming, as they do these days, many people hold their breaths and, essentially, shut down. It’s super normal. 

Pema Chodron, the brilliant Buddhist nun, has written extensively on leaning into uncomfortable feelings, of sitting with them, and of the illusion of control. Control, particularly of outside things, is an illusion. We actually do better by letting go of trying to control things over which we have no control; especially things like other people, or the political situation[1].

Part of letting go is feeling the scary feelings—of letting yourself know it’s okay to feel scared, or worried, or unsure. But, and here’s trick number 1, try to do that with a little separation: instead of saying “I’m scared” say “There is some fear arising in me.” Change “I’m angry” to “Anger is arising.” Using the passive voice may piss off English teachers and legal writing professors, but it’s a great way to be less overwhelmed by whatever is going on inside you at any moment. 

It also encourages curiosity about whatever is going on. “Pain is arising” can lead to “Is it sharp or dull? Where does it seem to be originating? Is it constant or does it kind of come and go?” The more we ask questions about whatever is sucking in the moment, the less of an onerous bugaboo it is. 

Most of us who have been in business for a bit will likely recognize that things have been slow before. It happens. Sometimes we can do everything right, and it’s slow. Sometimes a pandemic hits, or an Orange Monster gets power, and it’s like everything work-wise stops. Scary? Infuriating? Frustrating? Sure! But also impermanent. Whatever is going on with your business will change, even if you do nothing.

We can, in all of that, let go of trying to control the uncontrollable and, instead, simply do our work. Make art. Market your business. Make connections with other humans. Rinse. Repeat. In doing the mundane work, and especially by breathing through it all, we become more fearless. And, before you know it, without holding our breath, things will change. 

[1] Okay, before you get all in my grill about that last bit, we can only control what we do in regards to the political situation. We can’t make fascists stop being fascists, for example, but we can refuse to enable them by not shopping at stores that support the fascists and by voting.

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US Copyright Office Webinars

The US Copyright Office is offering free webinars to creatives. The first one is for photographers and other visual artists and is on February 19. You can register at the link above and get more info there as well.

If you have not been registering your work, this webinar will give you the tips you need to get off your hands and start. It will cover copyright basics and the registration process. Sign up today and participate!

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A Win for Artists at SCOTUS

Last Thursday, I participated as a panel member in a ABA Copyright group online meeting. The majority of the meeting was discussing the Copyright Claims Board–how it’s been working (or not) and its results thus far. But, we also looked at a recent SCOTUS ruling that affects copyright cases in a big way: Warner Chappell Music v Nealy (No. 22-1078, 144 S. Ct. 1135 (U.S. May. 9, 2024) for you legal geeks out there). That’s what I want to talk about here.

That case looked at the interplay between the discovery rule and damages. Lots of people were hoping the court would address the discovery rule generally, but instead the court rules only on the question of damages and whether they were limited to a three-year lookback. Not to bury the lede: nope, damages are not so limited. 

Since the Petrella (aka Raging Bull) case, some courts (especially the 2nd Circuit–that’s NY and environs, for you regular folk) have said that while the discovery rule applies as to when a claim arises  and starts the statute of limitations clock (that is, when a plaintiff discovered or reasonably should have discovered the infringement), it also limits the time period for damages such that the plaintiff can only get three years of (for example) lost license fees.  Scotus said, in essence, no–the statute of limitations three year period is ONLY for the bringing of the case, not the damages. 

This is important. Imagine finding that a company used one of your works on a t-shirt for sale starting in 2015 but you just now found that infringement. Now, assuming you are in a circuit that applies the discovery rule (and most, but not all do), you can file suit and ask for damages all the way back to the start of the use in 2015. Since your actual damages include the profits directly attributable to the infringement, you can now get all the profits from all the t-shirt sales, not just those from 2021 until now. Since courts often look at actual damages as one factor in setting statutory damages, now they have to look at that much larger number, too. 

While this case doesn’t settle the injury-versus-discovery rule split (see more about that here) and those folks in the injury rule circuits are still screwed (IMO), it does mean most people now have the possibility of being made whole, not just partially so. Good news for the artists. 

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