Category: Articles

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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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Buddh-ish: Business Planning and Change

2023 has simply flown by for me. It has been a particularly eventful year for me: I had a couple of medical things that were scary, including some gnarly surgery, all of which turned out well (luckily); we did a lot of old house maintenance stuff; I got my motorcycling license and put a deposit down on a new bike; I got engaged1; and I’m currently holding down the fort while the fiancé is off on a two-week solo motorcycle trip for some much needed renewal2.

With the exception of the old house stuff, because there is always old house stuff, none of this was anticipated when the year started. 

I’m a big planner. I’ve got great natural organizational skills which were first honed by my years of repping and producing photoshoots and then rather perfected by attending law school after age 40 while also going through a divorce3. Planning is great; it can really help you be more successful in whatever you are doing. I’m a huge believer that one should make a business plan every year at least for their business. I do and I follow it as much as possible. But planning has its limits: you have to be willing to roll with what life actually throws at you. 

That last part is tough for many people, especially people who like to control. It requires letting go and just riding through whatever the changes are. It means potentially shifting plans and priorities. It requires bending with the wind. Control freaks like me have to learn those skills: the skill of letting go; of being able to sit in uncomfortableness4; of letting things be as they are.

Most creatives, oddly like most lawyers, are control freaks. I think this comes from many of both groups having experienced traumas in our lives, especially as children, but I’ll leave assigning the causation to the mental health professionals to sort out. Point is, creatives (and lawyers) like to control things in their lives and often do not feel well when they feel out of control.

I have a secret to tell you: we are always out of control. 
I have another secret: we always get through it.

What do I mean? Just that humans like to feel in control but really, we can’t control anything other than our own behavior. We can’t even control our own thoughts, often! In Buddhism, they talk about thoughts arising—as if they were their own beings. We can’t control them from arising5, only notice them. But behavior? Yup, that we can control. We can choose to respond thoughtfully rather than react thoughtlessly, for example. Or to be kind. Or to be generous. Or to be compassionate. So, when the world goes on being the world, you do have the ability to choose what you do in it. And, no matter what you choose, impermanence6 dictates that whatever it is that is making us feel out of control will pass even if we do absolutely nothing about it.

Yeah, control freaks hate this…at first. We want to fix, or stop the bad feelings, or hold onto the good feelings… but really, we can’t do anything but ride the waves and choose how to behave well. Once we accept that reality, the bumps in life become much less troublesome, even the big scary ones. 

In my case, all the weirdness of this year, could have easily thrown me into a tizzy. I could have panicked about a gazillion times or tried to force an outcome, but it would have done more harm than good. Instead, I observed the unexpected and rode out the discomforts, without trying to control them. I worked my plans, but changed them as needed to accommodate the unexpected. In the end, I have had a very good year, both personally and professionally. In my work, I have helped my clients and received both many kind words and some greenbacks in the process. I am grateful for it all.

Now, I’m getting to work on my 2024 business planning. And life planning. Knowing that both are as flexible as prairie grass in the wind. I encourage you to do the same. 

  1. It was a surprise proposal, for sure. Also, in case you were wondering, no date set nor is one likely to be any time soon—we’re in no rush and are rather more likely to just elope sometime when we feel like it. ↩︎
  2. Something I deeply encourage everyone to do at least once a year—take some time to yourself to get grounded again. ↩︎
  3. Definitely not a combo I recommend to anyone, but it was a great way to prove up my resilience and organizational skills. ↩︎
  4. I highly suggest reading Pema Chödron’s works on this subject. She’s been incredibly helpful in my practice. ↩︎
  5. Well, most of us can’t. There are higher techniques in Buddhism to train the mind to control thoughts more but, for most of us, just knowing that thoughts arise on their own is enough to handle. ↩︎
  6. Everything is impermanent and constantly changing. In short, there is no there there. Good or bad, it will come and go. ↩︎
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Say Yes to No

I’m a firm believer in saying yes and generally being positive about things; have done for years. For example, if a client has a technically gnarly project, saying “Oh, that looks super hard” and then explaining how much work it is going to be or, worse, even hinting that you might fail, is not a good idea for your business. Instead, saying “Oh, that looks super hard…I love a challenge! I’m sure my team and I will find a solution!” will engender confidence in your client. Later, when you hand them a big estimate, they’ll remember you as the creative who said they could do it, increasing your chances of winning the project even with big numbers. So saying yes is a great thing for your business… except when it isn’t.

How often have you heard a (potential) client send you a contract and say “Everyone agrees to this” or “Oh, sure, the doc says you are assigning us your copyrights and that you can’t use the work, but we’ll let you use it” or “It’s industry standard to have a 90-day payment period,” or “You have to indemnify us against any claim that arises when you’re shooting for us, not just those related to your work or employees–no one ever makes an issue of that” etc. ? A bunch, I’ll bet and I bet you’ve often accepted those terms, trusting your client. Then, later…well, as Marlon Brando in Guys and Dolls says,“Daddy, I got cider in my ear!”

The sad truth is that, whenever someone in a financial transaction with you says one thing but the paperwork says another, they have an ulterior motive and it ain’t good for you. Hearing anything like “oh, don’t worry…” or “You’re the only person who has ever asked…” is your signal that you absolutely must go with what the papers say. Always. Your clients, no matter how nice, are not on your side. They can’t be—they are negotiating for their best deal, not yours. You can like them, but don’t ever trust their word over what is on the page.

The terms they are insisting on are good…good for them, that is, and so they do use them. If they didn’t, the terms would not be there. Always. So, if they are saying “oh, we never do this thing the contract says we can do” and they won’t take it out, then you know they want to do exactly what they claim they never do, and will do exactly that if they can. 

Relatedly, if your client/buyer tells you “my way or the highway,” waste no time in politely taking the second option. As the current writers’ and actors’ strikes confirm, bullying and fear-mongering is pervasive in the creative industries. All of them. Threats about not getting work are just manipulative bullshit. You didn’t have the gig but then lose it by saying “no”; nope, they just wanted to scare you into accepting a bad deal. Walk away. Use the time to get a better client. 

Don’t bother trying to fix them or teach them the errors of their ways. You can’t control what your clients/buyers do and you’ll drive yourself mad if you try. But, you can control what you do. 

The first thing is to know where your boundaries are. You can negotiate lots of things, but you should always know what lines you will not cross and respect those limits. No one will respect them if you don’t. You can and I think MUST set your own limits; and you should do it before any negotiations so that you know what they are. Write them out like a list if that helps: will never sell copyrights; will only indemnify for my own actions; will not lower my price without getting something (besides just getting the gig) in return; etc. 

Once you have your limits defined, then you can respond rationally to whatever demands are made. So, for example, if a client insists on owning your copyrights created for the project, you can say “No” if your line is ownership, or, if you’re willing to sell at the right price, say “Not at this price—if you want full ownership, that will cost $X.”  Don’t explain, don’t rationalize, and don’t be suckered in by them. Stick to your own boundaries. For example, “I hear you, but I won’t sell my copyrights for this price–you need to either pay more or get a license instead.” If they ask “Why?” you can simply say that this is how you run your business. Period.

You can use your boundary list for contract negotiations of all kinds: time to pay, deposits, usage license terms, indemnification clauses, you name it. When you do that, you are taking good care of your business: You set your limits. You have control. 

Saying “no” to bad terms and bad deals does not make you a jerk, it makes you a smart businessperson. And, although standing up for your rights and doing what is best for you and your business is not always easy, it is vital. The other side is surely going to stand up for theirs.

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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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Buddh-ish: Stress

Today is the first of the new series I mentioned in my last post and the topic is stress. This is a huge problem for lawyers and creatives. These days, pretty much everyone I know has some issues with it, thanks especially to the pandemic and Trump years.

Stress can be a good thing–it helps us do well in athletics, for example, but even there only if it isn’t too great. Chronic stress can be a big negative to our health, both mental and physical.

The folks over at the Greater Good Center have published a quiz to help us evaluate our stress–that quiz is embedded below. After you finish, they offer suggestions for coping.

The really great thing about the Greater Good folks is that they do science-based work. While there are lots of references to things like mindfulness (a very Buddhist-y thing), they don’t offer woo-woo but rather evidence-based ideas. There are concrete things to do which, if you’re anything like me, makes all the difference in the world. I mean, it’s one thing to say “lighten up” but it’s much more effective for me if someone suggests something active like “write in your journal at least 3 good things that happened to you today.”

So, if you’re feeling stressed, I’d like to suggest you take the quiz and try some of the options suggested. Tailor them to your own life and try some things just to see if they help. I know, for me, meditating every morning as well as taking the time to do about 10 minutes of breathing exercises (I do it with deep stretches) make all the difference in my day. I can go back to these tools every time I feel the stress crank up, too.

As always, I hope this helps.

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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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