Category: News

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Update Your Contracts

A client informed me yesterday that Vox Media had announced a partnership with OpenAI that permitted that leech-of-a-tool to use Vox Media content to train. This is bad and very likely goes beyond agreements it has with many writers and photographers, but it’s going to do it anyway because tech companies have no decency and too many media companies have no spines.

So, first, if you have work that you have licensed to Vox Media, check the language in your agreements and, assuming you didn’t sign away too much already, contact Vox to remind them that your work cannot be used for AI-training purposes. Period. Don’t let them try to talk you into some piddly bump in fees–what they are doing is enabling tech to put you entirely out of your work so just say “No.” You need to think long term here–an extra few bucks here isn’t worth torpedoing your particular creative industry.

Second, look at your own contracts, which you should be using anyway but, yeah, I know, you probably don’t because the bigger companies are bullies about that. Anyway, you should add something to your own contracts that makes it absolutely clear that any use that may result in the training of AI is not permitted under your license. You need this for contracts you use with individuals (like for event/wedding photography) as well as for companies for their marketing or advertising use.

Remember, when you permit your clients to use your work on certain platforms, you are permitting those platforms to use your work to train AI. That is bad. Spectacularly bad. So don’t do it. Make it absolutely unambiguous–if they do that you will sue them for infringement.

Finally, if you aren’t already, start registering your copyrights. Now. It’s the best tool you have to fight these sharks. Don’t think “I can still use the CCB if my work isn’t registered” because (a) you still have to register your work to sue using the CCB; and (b) you won’t get very much from the CCB, especially if your work is not timely registered (no more than $7500, and probably MUCH less).

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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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The BOI Filing (how to)

I mentioned in a previous post about the new federal requirement to file a statement of information regarding the “beneficial owners” of an entity–that is, a corporation, partnership, LLC or, in some cases, even a sole proprietorship. Since my firm is a corporation (note the “Inc.” at the end of the name), I had to file one of these, too. 

The good news is that is it pretty simple, especially for businesses that were in existence before January 1, 2024. It’s done online and is pretty straight forward. It’s also free. You just need to have some info ready ahead of time. 

The bad news is that determining who you need to name on the form can be a little confusing.

If you want all the details, this guide (pdf)  is helpful, but I explain the process for most creative businesses, below.  

First, determine who needs to be included on the form. To do that, you need to ask yourself:
1. Who owns 25% or more of the company (be that stock/equity, profit interest/membership, whatever)?
2. Who has substantial control over the running of the company (all the major officers, for example)?

Anyone who fits either of those categories, or both, needs to be included. 

Once you have the list of people to include, you need to get the following info for each person:

  • Full Name
  • Full Address
  • Date of Birth
  • Number, issuer, and expiration date for proof of identity (a US driver’s license or passport is best)–also, you need a scan of the document, saved (pdf, jpg, png) without spaces or weird characters in its name (I did “BurnsID.pdf” for mine, for example) and less than 4MB in size.

Now, you need to have the following information for the business entity itself:

  • Legal Name (that includes its designation like Inc. or LLC–for mine it was “Burns the Attorney, Inc.” for example).
  • Address
  • State of Formation (where did you form your entity–likely your home state; but it may be DE for some of you, or NV, or anywhere, really)
  • Tax ID (EIN or TIN) number.

Okay, now you’re ready to file your report. Here is a simplified step-by-step through the questions*:
(*I highly encourage you talking to an attorney or CPA for best advice before doing this–these steps are probably right for your creative business, but they may not be depending on some things–actual professional advice is best)

1. check “Initial report”

2. date (auto filled)

3. If you want to get issued a FinCEN ID number (especially, if you have employees or will some day): check “yes”

4. (skip)

5. Your entity’s full legal name

6. An alternate or dba name(s) you use, if any

7. What kind of Tax ID are you going to report (SSN, EIN?)

8. Your entity’s tax ID number–WITHOUT its hyphen(s)

9. (skip, unless you have a foreign company)

10. The place (usually the state) where you first formed your entity

11-15. Current US address for the entity

16. If your entity was in existence BEFORE Jan 1, 2024, check yes.

17. (skip)

18-34. Skip if your entity was in existence before January 1, 2024.

35. Skip unless you are reporting a minor child owner.

36. Skip (Unless you already have a FinCenID but I doubt you do)

37. Skip (you’re not exempt)

38. Beneficial Owner #1’s Last Name

39. Their First Name

40. Their Middle name (if they have one)

41. Their name’s suffix, if they have one (like “Jr.”)

42. Their Date of Birth: MM/DD/YYYY format

43-47. Their address.

48. The kind of document they are using to prove ID

49. The number from that doc (for example, DL number)

50. ID doc jurisdiction (country for passport, state for DL)

51. Attach the scan of the document you are using for ID.

That’s it, if you are the only owner! If not, you can add another owner in exactly the same way. 

When you are done, make sure to download a copy of the submission (there’s a button saying “download transcript” for that. Your CPA and/or attorney will likely want copies for their files, but you for sure should hold onto a copy in a safe place with all your other super important business records. 

Now, if you don’t ever move or add or remove owners from your business, you won’t have to file again. If you do, you will have to file an update within 30 calendar days of that change. 

Assuming your business was in existence before 2024, you have until the end of the year to do this but, unless you are planning big changes in 2024, there is no reason to wait. You can do it sooner and get it off your list. Good luck!

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Taxes and More!

It’s getting near the end of January and, if you’re a US-based business, that means you’re likely facing a couple of tax-related deadlines.

  1. If you hire freelance contractors of any sort, you need to get their 1099s to them by the end of the month.
  2. If you have employees, they need to receive their W2s by the end of the month.

You should also check with your CPA about any state or local reporting requirements.

Also, for all US-based businesses, there is a new reporting requirement that has nothing to do with your taxes: the Beneficial Ownership Information report. I wrote about it on the Architectural Photography Almanac; but, the short version is that if you are any sort of entity (LLC, corp, partnership) or if you have a fictitious business name (probably filed with your county authorities), then you will need to file one of these reports. Who needs to be named is more complicated than it first looks, but your attorney or CPA can help you out with that.

Oh, and that last thing? If your business was formed before Jan 1, 2024, you have all year to file that report; so don’t rush it but don’t wait until the last minute, either.

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Drop Your Ego and Raise Your Usage Fees

I have written before about the importance of separating your fees and costs/expenses on your invoices (actually, on all your paperwork) so I’m not going to go into that again, but I will once again nag you to make your license fees the largest number of your fees, if at all possible. Why? Because there is a new (tentative) ruling in the CCB that shows how low license fees can hurt you.

In this case, a photographer made the work as a part of a large shoot for a client. His original bill was well into the six figures, yay! However, as the Board notes:

During the shoot, Hursey shot approximately forty-two scenes, with a scene consisting of multiple versions of the same setting and activity with minor differences. Hearing Tr. at 39:00 – 39: 57. In the present case, the scene consisted of a family at a picnic with a pastoral background. Evidence Doc B (Dkt. 17). Hursey was paid $185,524.45 in total for the shoot, but most of that amount was reimbursement for costs and payment for his time, while $17,500 was for an unlimited license to use all of the photographs taken over the course of the shoot. 

Proposed Default Determination, at p.3 (bold added)

An unlimited license should definitely be the largest number on your paperwork–it is HUGE usage! Let’s conservatively estimate that in this project, the photographer provided finals of 3 variations of 42 scenes, or a total of 126 images (it was likely much more, of course), $17500 divided by 126 is a whopping $138.89 per photo licensed. That’s insane.

Photographers and other creatives have got to stop billing their Creative Fee as if it is the most important thing. That is just your ego talking–a bigger Creative Fee means YOU are somehow worth more…. **HURL**! It’s short-sighted, at best.

Worse, using time as the basis of your Creative Fee makes you into the equivalent of a wage slave and insults your professionalism. It doesn’t matter if it takes you 30 minutes or 3 days to create your work–it is your TALENT and ABILITIES that count. If you have 30 years of experience and can make the difficult shot in an hour where a newer photographer would take all day, why should you be penalized for that?! So, stop billing as if time and your ego matter. Instead, think long term: you can re-license for more if you bill more for usage from the start! And it will help you if you ever get ripped off. Bill a reasonable Creative Fee, not time-based, and bill a large (but reasonable) Usage License Fee.

On the good side in the case cited above, the photographer has an online calculator for his stock licenses and that provided a number of $1000.70 for the same use as the infringer made of the photograph (still too low, in my opinion, but better). The Board relied on that number and awarded $3000 for the infringement here. Id. at 9. Whew. I mean, I think that is still way too low an award but it’s a hell of a lot better than 3 times $138.89. If the photographer here did not have published rates as he did, the court would very likely have awarded him $750, the minimum statutory damages available.

Respect your work by billing its worth. Your future self will thank you.

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Buddh-ish: Breathing

Every morning I do stretches (some yoga-based, some just basic stretches) while also doing a breathing exercise. The exercise is called Ujjayi and the variation I do is seven seconds of inbreath through the nose then seven seconds of outbreath through the nose. Each breath is into the belly, not the chest and, in some ways, it’s much harder than it sounds. In fact, I started with a shorter interval, and worked up to the 7/7. Now I do 50 of those, mostly while also doing deep stretches. Takes just under 12 minutes. I follow up that practice (usually) with a formal sitting mediation.

I got into the idea of doing formal breathing exercises after reading Breath, by James Nestor. He was on Fresh Air with Terry Gross at the start of the pandemic and also on the 10% Happier podcast; I found his work fascinating. In his book, he discusses just how poorly we humans in modern society breathe, generally, and how that affects our bodies and (importantly) our minds. 

Backing up a bit… I’ve had anxiety issues since, oh, birth practically. Probably all of us, especially those of us with those issues, have experienced someone telling us to slow our breathing when we’re upset or panicky. Generally good advice, but often difficult in the moment. I mean, it’s one thing to be told to slow down and breathe deeply, but how to do that when your brain is set to 11, that’s a trick! 

Nestor, in his book, really gets into the science of breathing and the breath. For a nerd like me, that was incredibly helpful. He experimented on himself with all sorts of techniques so he writes about how doing something might have felt awful (especially at first) but really it was better for the body. The science proved it up, even if it felt like he wasn’t getting enough air.

After reading the book the first time (I’ve read it twice now), I got the app iBreathe to coach me through different breathing techniques. It’s the app I use every day now for my 50 breaths. I also practice the 4-7-8 technique sometimes with that app. 4-7-8 breathing (in for 4, hold for 7, out for 8) helps activate the parasympathetic nervous system which is what helps us relax and calm down. The parasympathetic nervous system is the counter to the sympathetic nervous system, which is the seemingly wrongly named system that rather than calming us is what puts us on alert or in fight-or-flight mode. 

Anyway, I use 4-7-8 to get through things like scary medical appointments and procedures and really think it was a huge part in how I survived my surgery and its pre- and post-op pain with minimal medication. Whenever I get upset or anxious, I do 4-7-8 and it helps very quickly. 

The 7/7 breathing I do is more about training my breathing generally. 7/7 makes me very conscious to breathe into my belly rather than chest-breathe and to breathe through my nose (both ways), both of which are what my body wants to do by default. Breathing through the nose is much better for us and what our bodies are designed to do, and yet we are a bunch of unconscious mouth and into the chest breathers, as Nestor points out. 

Since I’ve started doing the 7/7 training, I find I become breathless when exerting myself much less than before. I’m just starting to run again, after the surgery, and it feels like I am not struggling with the breath the way I have in the past when running. I attribute that to the training.  I also take fewer breaths, overall. In slowing my breathing, the anxiety doesn’t hit the way it used to or at least nowhere near as often. 

In Buddhist meditation, we often use the breath as an anchor of focus. Rather than controlling the breath, we simply notice “inbreath…outbreath” or maybe count them, as they come naturally. So, breath is a regular part of the practice. Training the breath has, for me, been an obvious outgrowth of that simple practice. Along with traditional mediation, learning to breathe longer, slower breaths, through the nose (7/7) and techniques like 4-7-8, increase my being in the present moment and generally made my life better. I hope this information may help you as well. 

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New Series for Creatives and Lawyers: Buddh-ish

As many of you know or may have noticed from this site, I’m a lawyer and a (bad) Buddhist. Some people think this is contradictory, but really, it’s not. My Buddhist practices enhance my lawyering skills.

Now, I say “(bad) Buddhist” because I’ve never formally “taken refuge” (formally taken vows) and consider myself secular and still struggle greatly with the idea of reincarnation; but I have to say that studying Buddhism and practicing as I do has made my life, including my work as a lawyer, immeasurably better.

For example, in lawyering I have to deal with people who get nasty, who lie, and who generally would have made the 30-year-old me react by verbally ripping them to shreds in very personal attacks. Now, I don’t take their behaviors personally but instead take a more objective view of it all. Those people are experiencing their own suffering and striking out–like a reactive dog. That doesn’t mean I let them walk over me/my clients, not at all, but I do stick to the law and the facts rather than attacking the people themselves. Oddly, this often has the additional result of frustrating the hell out of the opposition as I don’t rise to their bait and works as a sort of intellectual jiu-jitsu making them stumble. More often than not, their further attacks just make me laugh to myself at the absurdity of their actions while I stay on-point and get the job done for my client.

In an example from my personal life, I’m pretty sure I would not have gotten through the medical stuff I just went through (I’m actually not fully healed yet, but well on my way) without a strong meditation practice. It doesn’t make pain magically disappear or anything like that, but it does help to remind me that all things are impermanent, including pain and fear, and learning to focus on the breath helps when relaxation is much needed. I suspect that I got off the heavy meds a lot sooner for it, but that’s just a guess.

Anyway, in an effort to help others, in some posts this year (and maybe longer) I’m going to pay less attention to the law and more to some Buddhist and Buddhist-adjacent topics and tools. I’m calling the series Buddh-ish, because I’m a goofball and like the linguistic shorthand. The point of all this is not to convert anyone (any Buddhist who tries to convert someone to Buddhism is doing it wrong, IMO) but rather to offer up some of the tools/practices I’ve used and have found helpful so that you can try them out for yourself if you choose. None of it requires changing your own religious/spiritual beliefs and all if it is offered with the best of intentions.

The first post will go up in the next few days. Until then, I’ll leave you with what I say at the end of every meditation:

May all beings be happy;
May all beings be healthy;
May all beings live with ease and in safety;
May all beings be free from suffering and the causes of suffering.

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Life Happens

There is an old saying that life happens while you’re busy making other plans. I have found this to be profoundly true, generally. It’s a good Buddhist reminder to stay present, but it’s even better at reminding us that no matter how carefully we plan our lives, things will arise that will demand our attention, no matter what plans we have made otherwise. I am currently experiencing one of those moments. 

For some time, years actually, I’ve been having some minor medical issues that I have been ascribing to aging and how our bodies are imperfect. Things would flare up now and again and I would treat myself better, then things would go back to a relative normal. Until a few months ago when the things got much more annoying. No amount of breathing, stretching, changes in diet, meditation, laying off running, etc., were working. The pain was ratcheting up and my sleep was getting disturbed, even more than the usual caused by our animals in bed. I virtually never take so much as an Advil, and suddenly I was taking them on the regular. My quality of life took a slow nosedive and, finally, I ended up at my doc’s office. He sent me for a surgical consultation; and, well, next week, I will be getting surgery. 

It’s outpatient, but still kind of gnarly and I’m not looking forward to the immediate post-op recovery phase. I don’t like taking meds generally and certainly not strong pain meds which, by all accounts, I will need. I don’t like being reliant on others, not being permitted to drive, and not being permitted to work (pain meds and lawyering do not mix!). But the procedures have a very high success rate, the pain meds will be a short-term thing (hopefully only a couple/few days), and, once fully recovered (which will take time), I should be good as new. 

So, what does this have to do with lawyering besides the fact that I will have to take a few days off? Well, not to be morbid but there is a teeny chance I could never wake up or something could go wrong and I, like the cobbler’s son, didn’t have proper shoes. That is, like most of us, I didn’t have some very important legal things taken care of.

I have had my will, a durable power of attorney, and a medical power of attorney completed and sitting on my desk for more than 6 months, waiting to be executed. In California, all of these docs need to be signed in front of and attested to by two disinterested witnesses (that is, people who have no financial incentive like being an inheritor) and it was a minor hassle to get that accomplished. So, the docs just sat there on my desk, waiting to be executed. This impending procedure got me off my ass and, last week, I called two neighbors who agreed to be my witnesses and executed the docs. 

Now, like I said, it is very unlikely that any of those docs will be needed soon, but I can go into my procedure knowing that my chosen person will be able to make decisions, if necessary, rather than having a certain pushy relative try to step in and do, most likely, exactly not what I would want; and that my assets won’t go to anyone I don’t want to get them. I can now, generally, sleep at night knowing that I won’t be making my loved ones’ lives more difficult if I get incapacitated or die at any time. 

Far too many of us haven’t made plans for our incapacity or death, and we really need to. It’s terrible to love someone and not be able to do what they want, because you don’t have the legal authority. Worse yet, imagine being subject to the medical decisions of your QAnon-kool-aid-drinking parent or sibling because you’re not legally married (making that spouse probably legally able to step in) or you don’t have a proper doc naming a person you trust! Yikes!

So, if you don’t have all your docs in order, including updating them if you have new kids or a new partner since previous drafting, do it now. Trust me, you’ll sleep better.

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The CCB Results are in…and Yikes

So, the first photo-related Final Determination is in at the Copyright Claims Board (link to pdf). I wish I could tell you otherwise, but it does not bode well for photographers.

The case was pretty straight-forward: an attorney illicitly used a timely-registered photo on his website, got caught, blamed his daughter for having sourced and posted it as his web “designer” and, despite all the notices that the work was protected, got away with only having to pay $1000. 

Why so little? Because the photographer had never licensed that photo and so provided no proof of his license value and, in the board’s determination, there must be a relationship between actual damages and statutory ones.

It was there that, in my opinion, the board screwed the pooch. Courts have said the direct opposite, like in Thomas-Rasset where the 8th Circuit noted that the Supreme Court stated that there should NOT be any relationship between the actual damages and statutory ones because statutory damages are imposed as a punishment for the violation of a public law. Furthermore, the court noted:

It makes no sense to consider the disparity between “actual harm” and an award of statutory damages when statutory damages are designed precisely for instances where actual harm is difficult or impossible to calculate. See Cass Cnty. Music Co. v. C.H.L.R., Inc., 88 F.3d 635, 643 (8th Cir. 1996). Nor could a reviewing court consider the difference between an award of statutory damages and the “civil penalties authorized,” because statutory damages are the civil penalties authorized.

Capitol Records, Inc. v. Thomas–Rasset, 692 F.3d 899, 907-8 (8th Cir. 2012)(cert. denied).

In that same case, by the way, the court noted:

Congress no doubt was aware of the serious problem posed by online copyright infringement, and the “numberless opportunities for committing the offense,” when it last revisited the Copyright Act in 1999. To provide a deterrent against such infringement, Congress amended § 504(c) to increase the minimum per-work award from $500 to $750, the maximum per-work award from $20,000 to $30,000, and the maximum per-work award for willful infringement from $100,000 to $150,000. 

Id. at 908.

In fact the board noted that the 9th, the law of which is controlling over this matter, has held that courts are not reliant on any formula and can award anything between the minimum and maximum, but then it relies on errant lower court rulings that ignore that to justify its low award.

Worst of all for artists here, according to SCOTUS (Woolworth, etc.), statutory damages are supposed to deter the infringer from doing it again and, arguably more importantly, to deter others from doing the same. Who the hell is going to be deterred by $1000? No one, really. 

Most of all, this is telling photographers (and probably other artists) that their work isn’t worth protecting unless it has already sold/been licensed for a lot of money. Yikes, for sure.

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CCB Cases Update

For those of you who have been following along, you know that I have filed a couple of Copyright Claims Board cases for my clients. That number is now 4. Of those, one settled shortly after filing and one was just filed in late December and hasn’t even been approved for service yet. That leaves two.

One of those had the respondents opt out just before it was too late for them to do so. Bummer and, frankly, dumb of them I think. My client can still file in federal district court and, if that happens, that is going to be much more expensive for the former-respondents-now-likely-defendants. This was a small use infringement and the CCB would have seemed perfect for the matter–well, settling before any of that would have been perfect, but outside of settlement a low-cost litigation alternative made sense for all the parties. Oh well, they had the right to opt out. Anyway, there is still a possibility that the matter could settle; but, if the other side doesn’t make a serious effort very soon, I think there will be a new case filed with the appropriate district court.

That leaves the last of my four cases. It’s actually the first case I filed with the CCB and it has now moved past the opt-out stage, meaning that my client has paid the second part of the filing fee (remember, the filing fee is paid in part at the time of filing then, if the case proceeds past the opt-out window, the rest is then due) and everyone has agreed to litigate in the CCB. We just recently received our scheduling order, laying out how the case will proceed. The next step is that the respondents must file their response to the claim, and that isn’t due for about 2 months. After that, we’ll have a pre-discovery conference (online) and then discovery opens.

People ask me what I think about the CCB and my first response now is always “It is slooooow.” The case that is moving forward was filed in late July. It is now January and the equivalent of an answer hasn’t been filed and isn’t due until early March. Discovery should close at the end of June, then written testimony will be due about 60 days after that. Then, if needed, there will be a hearing. In short, there will not be a decision in this case (assuming it doesn’t settle meanwhile) until well more than a year after filing.

Now, that isn’t long for traditional litigation, but I think everyone was expecting this process to be much faster. To be fair, it may speed up some as they work out the bugs but, for now, you must manage your speed expectations.

I’m hoping that in the end we’ll decide that the system worked within the “fast, good, cheap” paradigm: that is, we know it’s slow and cheap so, hopefully, it will be good.

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