Author: Leslie Burns

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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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A Rant

Business is hard. To paraphrase a favorite movie, anyone who says otherwise is selling something. Business is work and doing the stuff you don’t want to do. Business is hiring accountants and lawyers and making pitches to potential clients and doing research and paperwork and making trips to Costco.

Oh, and making your art, too. More on that in a bit.

It’s sacrifice and frustration. It’s making tough choices like to take what may be a cashflow hit now (like by saying no to a shitty, lowballing client) for the possibility of a long-term gain. It means having to say “no” to a lot more than you ever imagined, like to buying you or your kids stuff because you need to pay your over-priced health insurance.

It means having to smile to clients who are driving you nuts.

But, don’t forget, you chose this path.
Stop and think just how great that is. You are Here, as the sign says.

No matter how tough it gets, no matter how much you struggle in your business and to make your art, you are here and doing it. No matter how psychotic the client demands, how long the hours, how much you miss your life partner because you’ve been locked in post for the past week, or how frustrating the airlines are being about your gear, it beats the hell out of the Alternative, as my father used to say before the Alternative caught up to him at 92.

Take a moment to remember those who have inspired you and then honor them by recognizing that we’re all here temporarily and need to embrace the fantastic opportunity that presents. Play your music a little louder, do the drudge work with a better attitude, and push your art more.

About that last bit… are you playing it safe? Are you making the work you have been told you ought to make, that clients want to see, that won’t scare off potential clients? Then do us all a favor and quit now.

No one will pay more for your art than the next person’s “content” unless you believe in its value and, most of all, you make something original. If you feel like “anyone could have done this” about your work, you are probably right. Moreover, it’s not worth anything. So why are you wasting your time? Worse, why are you wasting everyone else’s? Why are you making the people who love you suffer more because you don’t have a regular job with normal hours and vacation days? Stop pretending to be a creative professional and whining about the state of the industry while doing what not only hurts you, but what directly causes the industry’s downfall.

Harsh? Maybe. In the words of the fabulous Margo Channing: fasten your seatbelts, it’s going to be a bumpy night.

Look, if you feel like your work could be made by anyone, then you aren’t working hard enough to make your art. I don’t know what you are doing, but it’s not being an artist. A poseur, an influencer, a faker, maybe, but sure as hell not an artist.

If that’s you, quit now, because that “play it safe” attitude is bullshit, especially today. You are only contributing to the illusion that anyone (or, in the case of AI, anyTHING) can be a creator. You are lowering the perceived value of creativity by flooding the market with even more shit work. Those creative pros who are busting their asses making really creative work are having to fight harder than ever to get seen, not to mention dollars for their efforts, because people like you make artists look like lazy, spoiled children who don’t work hard and simply luck out when they actually make something more. Like artistic nepo-babies.

In case you didn’t know, making art is hard damn work. Art requires more. More effort. More bravery. More of you. You need to put yourself out there to make the work. You should be spent, having given a part of you in the making. If it really is totally easy for you, you aren’t trying hard enough.

But, damn, y’all are sure whining about how no one wants to hire you or pay you enough. Funny how you can’t seem to accept that if you are phoning it in, you are a big part of the problem.

Put the pieces together and the equation is simple: you won’t get work playing it safe because safe work is shit and no one wants to hire someone who makes shit, no matter how nice you are; so, you might as well make the stuff you have in your soul, the stuff you hide from everyone, even quite probably yourself, the stuff that lots of people might actively hate or at least not understand, the stuff that is real.

Here’s your new mantra:
You don’t need everyone’s approval.
You don’t need anyone’s approval.
You don’t need to be liked.
You just need to make the work, your work, your real work; and bill its value rather than some lowball rate or, worse, for the “exposure.”

You make your real art? Then no one can touch you.

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10 Commandments for Commercial Photographers*

    The 10 items below are written primarily for photographers but, really, the ideas apply to all commercial artists, whatever your speciality.

    1. Understand and accept that you will make mistakes. You are going to forget a battery or mess up a setting or forget to double-dog confirm that one stylist or something. None of this is terminal, even if it is hard now. You’re a creative problem-solver–you’ll find a way through it. 
    2. You are not your images. If you show your work to someone and they don’t like it, don’t take it personally. Art is subjective. Just because your work isn’t right for them doesn’t mean you suck. 
    3. No matter how much you know, someone else will always know more. Always be learning and be willing to learn. Take classes. Listen to clients. Be open to other ideas. 
    4. Don’t get stuck on the final. You may know exactly what image you want to make, but if you stop there or hyper-focus on making only that image, you may miss out on an even better image. Play. 
    5. Treat people who know less than you with respect, kindness, and patience. Your corporate “suit” client, let’s call him “Bob,” may offer up the lamest idea in the universe on a shoot. Be kind to him–he is trying. Be kind to your assistants and crew too while you are at it. You are not a god (read #1 again) but just another human being like those around you, even if you have talent in an area they don’t. Don’t be an egotistical jerk. 
    6. The only constant in the world is change. “While we’re here, can we just shoot…” or “I just found out we need the model to be blonde” and the like are opportunities, not difficulties–if you choose to look at them that way. Same for market changes and technology changes. Be open to change. 
    7. The only true authority stems from knowledge, not from position. You can’t force a client to respect you, but you can earn that respect by demonstrating your professionalism compassionately and openly at every opportunity. 
    8. Advocate for what you believe, but accept defeat graciously. They client may say they want your look, but sometimes the boss of the client’s boss’ boss wants it how they want it and that is just that. Pitch your ideas, advocate for them passionately, then let go when it won’t change a thing. When that happens, just make the best work you can within your client’s parameters and, when it’s done, move on and cash the check in peace. 
    9. Reach out. You can’t expect people to know about you and your work just because you have a social media presence. You need to get out there and meet people. The more you put yourself out there to the world, the greater the chance you’ll connect with someone who really wants to work with you. 
    10. It’s art–not a tumor. If your work feels like, well, work, I mean like drudgery/work, then you might want to think about another career. You need to love what it is you are doing–making images needs to be a joy, a release, a passion–it needs to be the fun part. The rest of business is generally not fun (bookkeeping, insurance, taxes, etc.); making the work should be joyful. If you don’t absolutely love it, you need to try to re-find that fun/passion/joy. Otherwise, you might as well do something that has a regular paycheck and benefits like health insurance. 

    (* I originally wrote the first version of this in 2008–I’ve updated it here but the original has held up very well, almost 15 years later)

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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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    Ho Ho Holy Crap, Where Did the Year Go?!?

    Blue heeler unhappily wearing fabric antlers with a bell dangling off the right one.
    Mongo no like antlers

    The other day, on NPR, they ran a story about people who are studying how we (humans) experience time and one of the commonalities is that the pandemic affected that. For most people, it was a slowing of time–a day felt like many more than 24 hours, a week more like a month, et cetera. But as things have opened up, for many people time has started to fly.

    I am definitely one of those people. In short, while 2020 and 2021 slogged, 2022 has flown by. I can’t believe the end-of-the-year holidays are upon us already.

    My usual plans for the end of the year got bumped when my partner got Covid just days before Thanksgiving. Then, despite mask wearing and his isolation, he still gave it to me, forcing me to isolate for the week after Thanksgiving. Luckily, we both came through with only mild (me) to moderate (him) symptoms (thanks to the vaccines), but it has forced a change in our usual holiday activities.

    Anyway, here we are. This year, I incorporated my law practice, got some new clients (thank you!), got threatened with a lawsuit for daring to send a demand letter to someone (ugh), started writing for the Architectural Photography Almanac, quit Twitter and moved to Mastodon, and handled many matters for my clients. It was, overall, a good year.

    In thanks to all of you who permit me to do what I am passionate about and, as is my custom, I have made donations to a couple of charities rather than sending you tchotchkes as thank-you gifts. This year, I made a single donation to the NPPA’s fund and committed to a monthly contribution to the Souther Poverty Law Center. Both organizations do much good in a difficult world.

    Thank you, all of you, my clients past, present, and future, for permitting me to serve you. I hope I may do so for some time to come.

    Here’s to a wonderful 2023 for us all.

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    Flipping the Bird

    In case you hadn’t noticed, I’m no longer on Twitter. I dumped the bird site as soon as Musk closed the deal. I switched to a couple of different platforms, but it looks like I’m settling on Mastodon.

    It’s been interesting over the past week as I build a whole new network of people, but I’m actually enjoying it. I miss some of the folk I was following, but there are a lot of artists and academics and generally really interesting and thoughtful folk on Mastodon. I feel like it’s a higher IQ version of a platform, sort of.

    One of the best things about Mastodon is that not only are there no ads, there are no algorithms. Huzzah! My feed is chronological and I see, depending on my settings, either the people I follow (the home timeline), the people who are also on the same “instance” (think server, in my case, that’s @legal.social)(the local timeline), or people who are people who are followed by those whom I follow, regardless of server (the federated timeline). I’m not fed what some ones and zeros think I should see. I am not fed at all. No one is.

    I also happen to like that there are a lot of non-Americans on Mastodon. Tons of Europeans (especially Germans). This is great because it helps one to see other perspectives on all sorts of issues. I also like it because I’m a linguistics nut and the more languages the better.

    Anyway, the point is that I will be tooting (what posting is called) mostly on Mastodon (see link above to find me), and posting longer format stuff here.

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    Answering Questions

    I’ve just started writing for the Architectural Photography Almanac, to answer general legal questions and discuss issues that their readers face. Many of these issues and answers will be applicable to all photographers and all creatives, generally. The posts should be monthly, and comments are welcome!

    Check out my first post, here.

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    Next Steps at the CCB

    As you may remember, back in late July I filed my first CCB case. Since then, I’ve filed two more, each for different clients. Today, I received notice that a claim had passed its initial review and could be served on the respondent–it is for the first case I filed.

    So, what happens is that you get three emails from the CCB informing you that something has been filed in your case. Each email includes a link to an item filed. The first says that a Notice of Compliance and Direction to Serve had been filed; the second that the Service Packet had been, and the third that the Waiver of Service had been. The last two note that they are “restricted”–that is, the public cannot get access to those items. I could, of course, after logging in. When you get those emails, make sure to download copies of everything and add them to your folder for the case.

    The Notice provides you with your instructions. It’s a one-page document explaining that your claim has passed its initial review and that you now have to serve the respondent(s)–that is, the people you are suing. You have 90 days to serve all respondents in your case. It also explains what service is, how to do it, what needs to be served (a notice, the entire claim with its exhibits, and an opt-out form), and also explains that you can ask the respondents to waive service and includes a link to the CCB Handbook where it explains service and waiving service.

    There is a second page with the Notice: the Proof of Service form. That form must be filled out and filed with the CCB within 7 days of the completion of service.

    The Service Packet includes a Notice of Official Government Proceeding, which explains that the respondent is being sued in the CCB and for what reason, and it provides instructions for the respondent. the Packet also includes the claim itself, including all the exhibits (if any). Finally, it includes a Form to Opt Out of Copyright Claims Board Proceeding which, duh, a respondent may use to opt out (or it may opt out online).

    The Waiver of Service is optional, but it makes sense for both sides to waive formal service so download it, too. That filing includes a one-page Request to Waive Service of Notice of an Official Government Proceeding and a one-page Waiver of Service form. The Request must be filled out by you (or your attorney if you’re represented) and signed by you (or your attorney). You then send the completed and signed Request, a copy of the Waiver form, and a copy of the entire Service Packet to each respondent for that matter. You must also provide a self-adressed and stamped envelope for the return of the waiver form. DO NOT INCLUDE ANYTHING ELSE–that is, no nasty letters or even polite settlement offers–just send the forms (and SASE) as described. The CCB makes a big deal out of not including other stuff so follow its instructions–you don’t want to screw up service, even if it’s not formal service.

    By the way, I highly encourage using the USPS Priority Mail system for this, in part because it is trackable and it can be a big pile of pages which you can send for a flat fee.

    Now, for my matter, I also emailed everything to opposing counsel. That step is not required but since I knew the respondent was represented I did that out of courtesy. The email simply stated that the case had been filed and the documents were attached and were being sent via the USPS as well.

    Respondents have 30 days to waive service if they choose. If you don’t hear from them by the end of that period, you should move forward with formal service. There are companies that will do that for you, if you need to do that. If the respondent here doesn’t waive service, I’ll explain about that when it happens. If it does waive service, then I will file that completed Waiver form with the CCB and then the Respondent will have 60 days to opt out if it chooses. If it does not opt out, then we’ll get a Scheduling Order from the CCB which will include the date the respondent’s answer to the claim is due.

    But first things first… let’s see if the respondent waives service. It might also choose to re-open settlement negotiations in earnest, and it is possible the matter could settle before going much further. We’ll see!

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    The Best Laid Plans

    Robert Burns, the poet and not my father, wrote about how the best laid plans often go awry. So it is with my intention to write here more often. Obviously, that has not happened in the past month…ish. Apologies.

    It also seems a fitting maxim for the CCB since I have now filed three cases there, the first being in late July, and none has been reviewed yet. This seems to be an issue. I was contacted by someone asking about my experiences and I mentioned that I hadn’t had any except for the filing of cases yet and he said he’s hearing that from others, too. So, I checked to see what’s happening with others’ cases. The results are both odd and frustrating.

    First, some cases do seem to be proceeding. However, I’ve found cases from early July that haven’t been reviewed yet but others that were filed much later which have been reviewed. As I looked for what differentiated a reviewed one from a non-reviewed, the best I can figure is that if the case looks obviously flawed, it gets reviewed faster than one that looks proper on first glance. For example, there is a case against a federal governmental entity (you can’t sue the US in the CCB) and it got reviewed in less than a month and the CCB filed a notice that the claim had to be amended for it to proceed. Another was filed on July 7 then the claimant asked to amend the claim which was approved on August 3 and then that claim was found non-compliant on September 6. There are more than one that are just crazy with filings, so much so that the CCB issues an order to stop filing docs (like this one) but even then those cases got reviewed faster.

    In short, there just doesn’t seem to be a clear system for what gets reviewed when, which is frustrating for the people waiting. It’s been 40 days since I filed the first one and if it gets reviewed and passes today, then I have to serve the respondent and then they have a good long time to opt out before anything else happens, like their answer. If I had filed in federal district court instead, my client would likely be close to if not actually starting discovery by now. If it was here in the Southern District of California, we’d likely have the ENE scheduled, even (an ENE is like a free mediation done by the court–lots of cases settle at or shortly after an ENE).

    It would, in my opinion, be helpful if the CCB would make it clear how they decide what cases are reviewed when. I didn’t see anything in the handbook on this issue so I assumed it would be simple chronology; but it is clear that something else is afoot.

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