Author: Leslie Burns

Yesterday evening, I read a Facebook post by a photographer. The long post was all about releases and what he does or, more accurately, does not do. After the post there were several comments thanking him for his advice and help. The problem? It was bad advice. He got a lot of the law wrong and his legal advice is going to end up hurting others who rely on it.

This photographer, like some others, hasa side business offering advice to other photographers. I think that’s a great idea: teaching photographers about how to estimate and market or how to light is a great alternate revenue stream. Creative professional organizations like APA, AIGA, and the GAG regularly offer seminars/webinars and workshops with peers teaching peers how to be better pros. These are generally great programs and they can really help you be more successful.

However, when it comes to legal things, leave it to us lawyers.

I’ve written about this before, back in 2011. Back then I was a “baby lawyer,” freshly barred and idealistic. I’ve got lots more experience now and, probably surprisingly to some, I still have that idealism. I believe that we should leave medicine to doctors, taxes to CPAs, architecture to architects, and law to the lawyers. There is a reason that these professions (and some others) require all sorts of hoop-jumping to get and keep a license.

Now, that doesn’t mean you shouldn’t inform yourself as well or that as a layperson you can’t have a good level of knowledge on the law (or medicine, etc.). I encourage and try to teach my own clients to understand the law as it relates to their matters. But that is one of the big differences between a pro and a layperson: I understand that each matter, each case, is its own thing and my advice is for that person on that matter. Many laypeople who offer their well-meaning advice don’t get that what they learned from experiencing their own legal matteroften won’t apply to others’. They end up giving poor advice and that hurts people. Oh, and don’t get me started on how it can actually be illegal as well (the unlicensed practice of law is just as serious as the unlicensed practice of medicine, etc.).

Anyway, you all knowpeople think they are qualified but really aren’tin your own fields, too. People who can change a font in Word think they knowdesign. Anyone is a photographer because s/he can use a digital camera (or just an iPhone!). Someone with a hot glue gun is an artist. It’s frustrating! You as a pro know (or should know!) that the experience and education (and talent) you have is what makes you a pro. You know you bring a depth of knowledge to any of your projects that laypeople do not have. You correctly want to be respected and valued for your professionalism. Great! You should!

All I ask is that you do the same for other professions, including mine.

I have been helping photographers and other creative pros with their businesses since even before I launched Burns Auto Parts as a photographers’ rep company back in 1999. The whole reason I got into the creative world was because I could use the logical side of my brain to help creative pros, whom I loved and had mad respect for (still do!). I went to law school to be able to help them more, but the underlying idea of helping creative pros be successful in their businesses lies at the root of it all. In short, I’ve been trying to figure out ways for you folk to be successful for (sigh) decades now.

There has been one thing I’ve had to fight in the creative community itself, all that time: the cultural myth, especially in artists’ own heads, that making money somehow makes art less, well, art. That is, artists make art (and writers write and musicians make music–all of which I’m short-handing to art/artists from here on) because they are driven to do it–they are passionate about their art–and many of them would make their art even if they didn’t make money from it. That’s fine, great in fact, but if you want to be a professional artist of any kind, you have to make money. It’s not filthy lucre, it’s the fundamental necessity in our capitalistic system. You can’t pay rent or buy supplies with “likes” or credit lines. Try telling the electric company that you’ll trade a credit line in your next work for a month of free power and tell me how that works for you.

The myth of the starving artist as somehow a better or more noble (hurl!) artist than a profit making one is, in my opinion, nothing more than sour grapes or an excuse not to try harder. Poverty isn’t success, no matter how you slice it. And buying into the guilt offered by some who know artists have this myth etched in the brain, those who encourage artists like you to think that, somehow, standing up for your rights and insisting on getting paid for your work taints the artistic value of your work, well that isn’t being noble, it’s being a sucker.

Don’t get me wrong–I don’t believe that an untalented hack who makes a lot of money is a better artist than a talented one (thinking that the converse of something is true is a logical fallacy, by the way). This past weekend I was at a charity event where a financially successful “artist” “performed” his so-called art, and it was all I could do not to stand up and tell the crowd it was being buffaloed (in his defense, at least it appeared he licensed the art he was copying). But a talented artist who doesn’t do what s/he can to be a financially successful one, well, that just makes me sad and frustrated. It doesn’t have to be that way.

My favorite excuse is “the business isn’t what it used to be.” Y’know what? You’re right, it’s not; but that just means you need to be playing on today’s field, not yesterday’s. You need to ask yourself: what can you do today to make money with your art? In my opinion, the answer comes down to doing two things:

1. Make the best art you can–the stuff that moves you and that you really love to make–and market it to the right clients who use work like yours. This is how you get assignment work in your field as well as requests for secondary licensing of your existing work (stock photos/illos or republishing of writings).
2. Register your copyrights as soon as possible, then go after the infringers who steal your work; and they will, because it’s fabulous work (see #1) so people will want it. If they don’t pay for a license before using it (again, see #1), then hold their feet to the legal fire. It is your right. More importantly in this context, it’s good business.

That second part gives many artists pause, but there is nothing wrong with standing up for your rights and there is nothing wrong with making money in the process. The laws were created to do exactly that: to protect the value of your art! But you have to do your part to make those remedies available.

I have anecdotal evidence from more than a couple of artist-friends (and clients) that they are not only making up for “lost” stock/relicensing sales through pursuing infringers, they are making more. Contrary to another popular myth, it doesn’t always (or even usually, in my experience) cost a ton of money to file an infringement suit but even if it did, most infringements are settled long before suit is filed.

Now, as I have to say (and it is true), past results are not predictive of future outcomes and every case is its own set of facts so no one, certainly not me, can guarantee any result. But I can say, with a high level of certainty, this: you aren’t going to improve your bottom line by wringing your hands, bemoaning the new business world, and cursing the necessity of making money.

The New York Times Magazinelast week included an article about how artists are exposing the internet-related privacy issues most people have been oblivious to. I think it is a must-read for everyone, but particularly for creative pros. Why creatives? Because sometimes y’all need a reminder of your power.

Artists of all stripes look more deeply at the world around them; those who inform themselves the most tend to make very strong art. Strong art is, in my opinion, that which challenges the observer in some way. The projects discussed in this article are great examples of that; they expose how the internet has become (mostly) a corporate space and how the “service providers” are taking much more than they give.

You, as an artist (regardless of your medium), havethe power to confront authority and the complacency of the masses. You can make us see the things we have been blind to. You can challenge us to do better, to be better. You can find ways to do that which, perhaps, on the surface appear pleasing and gentle; once past the surface, though, we see the harsherreality and, maybe, you show usa way to change it.

As we move into what may be very dark days indeed for many people, especially those on the margins, including creatives, remember your power. Use it to help shape our cultural future and, in the doing, you will help write a better history.