Author: Leslie Burns

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Reminders

I’ve had a couple of cases (or, I should say, cases I had to say “no” to) recently that make me think creatives could use a few reminders.

First, on the bad idea of trying to make your infringement matter into a breach of contract; second, some Don’ts to remember.

 

In other news and speaking of reminders, yes, I’ve been terrible about posting lately. Mea culpa. I have had some cases in litigation that are time-sucks on top of my usual case load, plus I just experienced my first summer as a parental-ish figure (to my BF’s lovely home-from-college-for-the-summer daughter), but, really, I owe you all a better frequency of posts. I’ll try to do better. 🙂

Finally, my office partner Ruth Bader Catzburg just celebrated her second birthday. She is as small and feisty as her namesake.

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Be an Artist

Someone asked me recently why I don’t blog about every copyright case opinion that hits Pacer (Pacer is where all federal cases are listed, fyi). I’ll tell you why: because I need to know all the details about those cases, you don’t. My job is to know the law, yours is to make art. Let’s not confuse these things.

I try to write this blog for artists, especially those who are or may be my clients, but for all creatives generally. That doesn’t mean I’m talking down to my readers, but it does mean I don’t write on the same topics or in the same depth or in the same language as I would if I was writing for my colleagues. Like all professions or trades, lawyers have their own jargon and we have interest in weird (and often weirdly important) things that our clients really should just not bother to think about.

It’s one thing for an artist to stay informed generally on the law as regards her/his/their business, but it’s a whole ‘nother thing to read law blogs and case opinions or to rely on non-lawyers for opinions on legal things. I encourage non-lawyers do the first but highly discourage the others. In fact, I’d go so far as to tell artists to let go of trying to understand business-related law (including copyright) at any level beyond the same way they understand traffic laws. I mean, an artist should know the law enough to know to do this, not that, and basically leave the rest to the lawyers (and to ask the lawyers, privately, for those answers).

Some of you may get your hackles up at that, but I’m not being demeaning here. Rather, just as I should not act as if I know as much as a professional artist about art, although I can do some creative things, artists shouldn’t try to be their own legal advisors (much less lawyers[1]). Humans simply do not know everything and we are (without great study) incapable of knowing multiple professions in equal, or even sufficient, depth.

The internet has done a great disservice to us in this. It’s turned us into believing we can and do know and understand much more than we really do. In reality, it’s shallow information overload. We get exposed to things we never would have before this beast[2]— but the knowledge we actually acquire is at best at a thin depth.

By “sharing” all sorts of data, much of which is highly suspect (but let’s not even go there now), average folk suddenly think they know as much as anyone about almost everything. This can seem to work for us in the short term or on occasion, but it is a dangerous seductress.

For example, my retired-graphic-designer brother recently fixed my father’s air conditioner, thanks to a tutorial on YouTube. Great, except my brother doesn’t really know anything in sufficient depth about how wiring and electricity, not to mention an air conditioner, actually work; so maybe his fix will work in the long run or maybe he’s created a fire hazard. The sad part is he (like all of us) can’t look for what he doesn’t know, and he doesn’t know a lot since he is not a trained air conditioning repairman. But he has a very strong illusion of knowing, the illusion of full competence, at least insofar as this one repair[3].

When I had my last physical, I asked my doc about whether the internet is making his job harder. He said it definitely had. He gets more people coming in thinking they not only know what is wrong, but what the best cure would be, and basically get frustrated that he wants to examine them and instead ask him just to fill out the prescription. Or, they have ignored symptoms until something has become critical because they read online that if they just do a “cleanse” or something, it will pass.

I told him I felt his pain. I get potential clients who tell me what they think the law is, all the time. It sucks to have to say “no” or “you’re wrong” to these people, when what I want to do is help.

Worse yet, too often I read industry online publications that get the law completely wrong and it is clear that they have read something legal that they simply didn’t grok. Perfect example: a major professional photographer’s organization (or perhaps 2) published that photographers could register a copyright anytime, just as long as it was within one month of finding an infringement they’d be able to get statutory damages for that infringement. That is totally NOT the law–it is a mis-reading of the statute and has to do with an inapplicable “pre-registration” provision of the Copyright Act. Still, the bad information is out there and being promoted by what are supposed to be reputable sources.

Now, I get that one of the reasons that people look to the internet to get answers is because usually that information is free. In the case of the law, people think it’s going to cost them a bucket of greenbacks to get answers from an actual lawyer (and for BigLaw lawyers, that is usually the case). Usually, it won’t be that expensive and, more importantly you’ll get the right answer for your particular situation. Even if you spent, say, $350 for an hour of an attorney’s time and expertise, it is very likely you would, in the long run, save much more than that with the personalized and precise advice you would get.

So, here’s my general advice: if you’re an artist, be an artist and let go of trying to do everything. Honor your profession by honoring others, including not trying to get it all for free. Instead of taking a couple of hours to look something up on the internet, and vetting it on several sources, hire a pro and use your freed-up time to make better/more of your art. You’ll end up making more money and your over-stimulated brain will thank you.

As for me, I’ll keep writing about the law and your art and your business, but you’re not going to get in-depth legal analyses (usually) from me here. I don’t want you to get bogged down in the details, like specific code sections and treatises–I want you to know, rather and for example, that you should register your copyrights as soon as possible or not sign a Work For Hire unless you want to give away your copyright.

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[1]By the way, this applies to any profession that isn’t your primary one–you are not a doctor, or an accountant, or a farmer, or economist, etc.

[2]Just think about TV–trying to decide what to watch now is an exhausting process because of all the choices. There is just too much to choose from–how do we know what is best?

[3]He’s going to hate me for using this as an example, but it’s kind of a perfect example. My brother is brilliant in many ways; while it is entirely possible this fix is perfect, there is simply no way for any of us to know because we are not a/c pros.

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Talking about Death

Yesterday, I had a conversation with my father about his approaching death and his estate plan. He’s got terminal cancer and he’s 92[1] so, while he’s doing relatively well right now, the reality is that he’s going to die sooner rather than later.

Now, many people might think that sounds cold, but it’s not: none of us gets out alive, after all. I love my father and will miss him, but as a (bad) Buddhist, I know about impermanence[2] and accept it, including when it means accepting death and loss. I’ve been lucky to have my dad in my life for so long; my mother died when I was 18. If you look, you’ll find a (fake) quote from the Buddha on my site that sums it up: Impermanence is a bitch.

As a lawyer, regardless of my thoughts on impermanence, I know that estate planning is important. However, that combined with an acceptance of impermanence meant that asking Dad about his estate planning now, while he’s still doing well, was the right thing to do. That he was an attorney before retirement helped make it easier. These can be difficult conversations, but they are needed.

It’s one thing to think about estate planning for our elders, but the sad reality is that things can kill any of us, any day. If you haven’t planned for it, then when it happens you force your loved ones into a bunch of extra work and emotional hell. This is true even if you don’t have much of anything but, as a creative pro, you have more than you think: your copyrights are assets that live beyond you. You also probably have art on your walls or notebooks full of sketches or other objects that might not seem of financial value, but that you don’t want falling into the hands of, say, your crazy brother who has joined a cult.

There are many things that can be done to make that difficult time much easier: wills, trusts, pay-on-death accounts, life insurance, just to name a few tools. In some states, there are transfer-on-death deeds, even, for real estate. Basically, you can keep almost everything out of probate, if you plan appropriately[3].

Of course, I think getting the plan executed and all the tools in place is the best thing to do, but I think talking about this as soon as possible, with the people you love, is important. That can be done today. Ask people what they want and tell them what you want. At the very least, even if it isn’t leally binding, at least you’ll know that, say, your camping-loving girlfriend wants her ashes chucked off Mount Whitney rather than in the desert; then, if necessary, you can try to do that for her.

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[1]Yes, I am the youngest of my siblings and there is a gap. 🙂

[2]For more on impermanence: https://tricycle.org/magazine/impermanence-and-four-noble-truths/

[3]Here is some good info for Californians: http://www.calbar.ca.gov/Public/Free-Legal-Information/Legal-Guides/Estate-Planning. While a lot of that basic info may be the same in other states, the law is state-specific.

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More Is Not Better

Contrary to the assertion of at least one copyright lawyer getting a lot of press out there, filing more suits is not better than filing fewer. Certainly, it’s not a valid metric for evaluating an attorney’s abilities. In fact, I’d say it’s not better on any level, except, maybe, increasing that attorney’s bottom-line.

I’m not saying that one should never file, but rather it should be a last resort, not a first (or second) salvo. Sometimes, you have to file suit; some people refuse to negotiate a reasonable settlement. Doing it right off or often though, especially in large numbers overall, is much more likely make things worse in the long run than give you a fast win.

First, judges notice. A plaintiff or attorney who is very litigious will raise the eyebrows of the judge or judge magistrate (JM). That is never a good thing. It can happen even when the total case count is small but still more than a couple. I was once in an Early Neutral Evaluation[1] where the JM said that she noticed that my client had (while represented by other counsel, I would note) filed “more than a few” cases before this one. Actually, the number of cases was not at all large, but she still noticed. I explained that my client’s work was often infringed and, when necessary, he’d filed to protect his rights. Whether the JM accepted that or not is not important here (she seemed to, though); the fact that she raised the question meant it was on her radar, and not in a good way. Imagine if he’d previously filed 20 or 50!

Attorneys have it even worse. Judges recognize our names more than you might expect and they do talk about us with their colleagues. I heard a JM talk about that at a recent event. Anyway, if you’re that attorney, no matter how neutral judges try to be, they’re going to have your litigiousness in the backs of their minds. It’s not a good look.

Not surprisingly, some people think that attorneys who file a lot of suits must be good, aggressive litigators. Well, those lawyers may be aggressive litigators, but are they good? I’d argue no. Time alone makes that impossible.

Litigation is time (and brain-power) intensive. There is no way an attorney can simultaneously handle many (much less hundreds of) cases in active litigation and do it well, not even with a bunch of support staff.

Right from the start, it takes a lot of time to draft a good complaint. Even if the attorney is working off a template of some kind (and, honestly, we all do), a well-drafted complaint must be detailed, present the facts of the case in a logical-yet-compelling manner, and yet still be concise.

It is storytelling in a way, but non-fiction (of course) and with technical limitations that make the process much harder than just filling in the blanks. That “storytelling” also happens after the attorney has already thought through the whole matter to make sure s/he is asserting all the claims s/he legitimately can (or should), has checked to make sure the filing is in the right district (there are rules about that), and also has tried to predict what defenses will be asserted, to thwart as many as possible. It’s not easy and it’s not quickly done.

Before the drafting starts, the attorney will also have to research the district’s local rules to make sure to follow them in the drafting itself (numbered lines? font requirements? caption format? etc.). While drafting, the attorney will have to fight with Word which, although the standard tool for lawyers, seems to hate line numbers and other legal oddities (I swear the chances of a photograph being inserted without glitches on the first try are less than 25%). Add it all up and the attorney will have spent hours and burned out many grey cells before even filing a thing.

Filing the complaint is only the beginning. If the defendant doesn’t immediately try to settle after being served (or waiving service) and you get into discovery, well, that is a whole different (larger) pile of work for the attorney: interrogatories and requests for admission and requests for production and depositions, plus responding to the same from the other side. It’s a ton of work, all detail-oriented (or it should be), and not something you can do (or should even consider doing) half-assedly.

In my own practice, I limit the number of cases in litigation that I will take on at any particular time because I believe it is my ethical duty to be present for each client, in each case, at all times. I would never send someone else to cover a hearing[2] unless there was an absolute emergency (and even then I would contact the court, first, for permission) or that attorney was already a part of the case (like, local counsel or other co-counsel). I research the law and double-check previously cited cases before including them in any filing to make sure I’m doing the best by each client I represent, in each matter I handle. And I agonize if I somehow miss a typo after proofing and re-proofing anything I draft. All of that necessarily takes time and attention and all good attorneys know and do that.

Importantly, here’s what “aggressive” attorneys aren’t likely making clear to their clients: the financial risk is mostly on them, I mean on the clients. If a copyright case is dismissed or if the plaintiff loses otherwise, then the plaintiff may have to pay the defendant’s attorneys’ fees and costs[3]. If an attorney doesn’t follow court orders, there is a chance a judge or JM will impose penalties or even strike entire filings[4]. Yes, attorneys may be sanctioned directly, too, but a lot of the penalties for bad acts fall on the party, not the attorney.

Especially since losing carries a significant risk of having to pay the other side’s attorneys’ fees, I think a good attorney owes it to her client to make sure the case is a strong one and truly worth filing before suggesting that step to her client. And a good attorney should do all in her power to get her client satisfaction without filing, if possible.

I don’t see how any of that can be done if one is filing hundreds of cases a year.

Finally, a client certainly can’t get personal attention and regular updates if the attorney has too many cases in litigation. One of the biggest reasons for unhappy clients (and malpractice claims) is a lack of communication by attorneys to their own clients. It’s your case–make sure to pick an attorney who will give it, and you, her full attention.

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[1]An ENE is like a mediation, but with the assigned JM on the case functioning as the “mediator.”

[2]See, Footnote 1 in this order, for an example of why this is bad: https://assets.documentcloud.org/documents/4404749/Reynolds-v-Hearst-Liebowitz-Bond.pdf

[3]17 USC §505 says that a winning party may get her/his attorneys’ fees and costs–that includes successful defendants.

[4]I had this happen in my very first litigated case as an attorney–the defendant’s attorney didn’t show up to two hearings then made a lame excuse so the judge threw out the defendant’s answer and my client won in a default.

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Do You Suffer with CRAP?

(This is a slightly altered repost from many, many years ago. Sometimes, y’all need reminding, though…)

Do you believe you are a creative professional? An artist of some form? That is, a person with a gift, a talent, a set of abilities like no other person? Believing that is an act of faith and, rather surprisingly, it’s damn hard for some creatives to do. Are you one of those creatives who honors that gift, or one of those who acts almost embarrassed or ashamed of it? Do you put down your abilities, malign your gift? Ever catch yourself saying things like “Oh, it wasn’t anything special” or “I just kinda shot it–got lucky with the light?” Do you refer to yourself and your path as “the guy who liked to draw as a kid and ended up in art school” or “the adult version of the kid who liked taking pictures for the yearbook but couldn’t do anything else?” Do you feel, on some level, like apologizing every time you get paid for your creative work? Are you waiting for the day when someone finally tells you you’re a no-talent hack who has only managed to fake it this far?

If you answered “yes” to any of those statements, you’ve got Cognitive Reduction of Artistry Pathology
or CRAP*.

One of the main signs that you’re afflicted with CRAP is that you refuse to use the term “artist” for who and what you are. You may call yourself at best a creative professional, but the word “artist” is never used except, maybe, in the  popular variation “commercial artist.”  That may be used as a work-around because somehow that makes you less of an artist. If it’s commercial, it’s not real art–-that’s what you tell yourself.

If you have CRAP, your art’s value is downgraded in your own head. And yet, you admire people like Annie Leibovitz, Frank Gehry, and Chip Kidd; people who are (commercial) artists. Famous artists in any field, no matter how commercial, are somehow different from you and are (real) artists. But you? No siree! Not in your CRAP-filled head.

CRAP Facts
CRAP afflicts many people in all the creative industries: designers, photographers, writers, architects, illustrators, musicians, actors, etc.
CRAP can bog you down just as sure as walking in a muddy, well-used cow pasture in a pair of high heels. Depression can follow CRAP.
CRAP-sufferers often struggle with business–how can you demand more money or better rights if you’re not really an artist?
CRAP is a self-fulfilling disorder: after all, if you’re not a “real” artist you don’t have to push yourself creatively, right?
CRAP can be insidious; it’s one thing to be modest (a good thing) but one step too far and you CRAP all over yourself.

But you can rid yourself of CRAP. Here are some simple steps you can start today:

  • Call yourself an artist and call what you make art. Do it out loud, every single day.
  • Remind yourself that your work has value– if an ad costs $300K just for its space (placement), the art for that ad is worth a hell of a lot more than $2K.
  • Most people will not like your art, and that’s a good thing, after all, most people like Wal*Mart and lawn ornaments; but the ones that will like it are the only ones that count and they’re the ones to market to.
  • You have every right to get paid and paid well for your abilities, just like a doctor or a plumber or any other pro; your skills are just as rare and valuable.
  • And, most importantly, you deserve to be happy–you are doing what you love, what you should be doing in this life–don’t crap on it.

[* CRAP was, of course, entirely invented by me. That makes it no less real in many ways.]

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Proposed Higher Fees at the USCO

The USCO has proposed significant increases in copyright registration (and other) fees. You can read the whole shebang here, but the gist is that it is going to cost you more to file your registrations, no matter what your art is.

For example, a group published photographs registration is now $55 but it’s suggested new cost would be $100. That’s almost double and, although the USCO does make a good argument for increasing its fees, it’s going to hurt a lot of artists.

The good news is these new numbers are not yet written in the proverbial stone. Instead, they are seeking public comment before deciding on final numbers to submit to Congress.

You have through July 23, 2018 to submit a formal comment (see link above) and I encourage you to do so. However, please remember that it will serve no purpose to get nasty in your comments. Politeness (and logic) can go a long way. These are public comments, so think before you write.

Whatever the comments the USCO receives, it’s safe to say the prices will go up–it’s just a question of how much. For now, though, they are as they have been. I suggest, if you’ve been putting off registering, now may be a good time to catch up.

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New Tool! (For infringement searching)

I’ve been hearing from clients how they are frustrated that they can’t find a decent service that actively monitors multiple images for possible infringements. That is, one that doesn’t then require them to use the monitoring company’s services to pursue claims, like ImageRights or Pixsy (etc.) do.

Lots of photographers don’t want to have to pay 50% or more of their settlements, often on top of subscription fees, and I don’t think they (or you) should. It’s your money and fees like that, in my opinion, are outrageous. It’s like when stock agencies went from the photographer getting most of the licensing fees to the photographer getting practically nothing–it’s your work and you deserve to keep most of the money collected!

Anyway, like I said, clients were asking for options and I didn’t have a good one to present. So, I started digging.

The usual suspects of Google Image or Bing Image are strong tools but aren’t for monitoring. You can’t upload a bunch of images then get a report about them–you can only do one-off searches. There is a Russian site called Yandex that a client recommended, but I honestly do not trust any Russian site not to then take your images and re-sell them behind your back[1].TinEye has been around for some time, but they’re way pricey, especially for a solo artist.

Finally, after some Reddit hunting, I think I have found the answer: a UK company called Infringement.report.

Infringement.report’s service is a subscription, web-based tool at a ridiculously fair price point. Seriously. How does $25 a month grab you? That level will cover many of you but even if you are the busiest and want to track a ton of images, the most expensive monitoring plan is $150 a month.

They have no contracts, no limitations on who you can work with, and they specifically do not pursue claims. In their own words, “We don’t pursue infringements, leaving you free to choose your own lawyers and keep 100% of settlements.”

Huzzah!

And, most importantly, it works[2]. I did a small test (you can test drive for free with up to 3 images) and was stunned at the results. One of the images I tested is a client-friend’s that I knew had been ripped off before. In an hour it found at least 19 uses of that photo, most of which were unauthorized.

You can get reports emailed to you. You can download the data as a .csv file to put in Excel or your own database. It’s got an API (maybe you have software it can talk to directly?). The results are dead easy to read and understand. And you don’t have to be a geek to figure out how to use the tool. Payment is made via PayPal and the terms of service are not sneaky.

Honestly, I keep looking for a big negative but, so far, I can’t find one.

So go forth and monitor your work[3]. When you find infringements, hire your own, personal copyright attorney (like me) with whom you can build a relationship. And keep most of your own money.

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[1]Go ahead and call me “racist” if you want–I know what I’ve seen in my practice and Russian sites are some of the worst infringers.

[2]Okay, I have to admit (1) there was a little bug that gave me a warning about having uploaded too many images for the free trial, when I hadn’t, but it worked anyway; and, (2) I having been testing it long, yet.

[3]Register the copyrights first, m’kay?

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What To Do, part 2

So you’ve found a probable infringement and you’ve gathered all the evidence you can (see previous post), now what? You have choices[1]: do nothing, contact the infringer yourself and send an invoice, contact the infringer yourself and send a cease and desist/demand letter, send a DMCA takedown notice to the infringer’s ISP[2], or contact a lawyer.

Of course, I’m going to say “contact a lawyer” is your best option (um, duh!), but I’d like to discuss the other options a bit here, too.

First, I think that doing nothing is not a good option, with one exception: if you are so utterly risk-averse that you can’t bear the slightest chance that you may end up in court over the illegal use of your work, then sit on your hands and seethe, but do nothing. That is, if you do anything else like the options described below, you do run a small (and usually is a very, very small) risk that the other side will file suit against you for declaratory judgment that it did not infringe. This is really rare because copyright infringement is strict liability and so, unless you missed something like a license granted to the infringer, it’s a loser case for the infringer. I had this happen once–the infringer tried to use it to scare off my client. Didn’t work and, not too much later, we negotiated a settlement that my client was quite happy with (plus, my client saved the cost of filing the suit). Still, if you don’t want to face the generally tiny possibility of going to federal court, do nothing.  Otherwise, read on.

Some people suggest sending an invoice to infringers, but I don’t encourage that. It’s likely you will undervalue the infringement and maybe even miss additional claims that will add value to the overall matter, so you sell yourself short. Worse yet, an invoice sent will virtually neverresult in you getting a check for your invoice’s full amount. At best, the invoice will be a start to a negotiation; but, if you’ve already undervalued the matter and then you end up at, say, 50% of that, you’re bleeding money. You also set your price without knowing all the facts and that could bite you if you end up in court later. Nope, invoicing is not a wise idea in most cases[3].

Similarly, I generally don’t encourage creatives to send cease and desist (aka demand) letters of their own drafting because they usually (of course, accidentally) screw them up because of language errors as well as under-valuation. If you don’t know the law, you may  (as mentioned above) miss legitimate claims that add to the value of the matter and you could end up offering to release a $25,000 claim for $5000.

As for language, there are two main areas of concern: misusing legalese and slipping from legitimate demand into extortion. The latter, first: “Pay me $10,000 or I’m going to go public with what a thief you are!” is going to get you in trouble but a demand for $10,000 to settle the claims is not inappropriate if the facts support it.  The line isn’t so obvious sometimes and, since anti-copyright folk scream Extortion! at any demand, you want to be sure you don’t actually cross that line.

Using legal language incorrectly happens often and often it is by people who are very smart but, not being attorneys, they have no clue that using certain words means something different in a legal context (like published in copyright law, for one example). To paraphrase Inego Montoya, “I do not think those words mean what you think…” and that can get you in trouble when the other side lawyers up.

Another error in artist-drafted letters is you can be a doormat: “I’m sorry, I’m sure you didn’t mean to, but you used my work. Would you be willing to pay me $100?” is differently but arguably just as bad as accidentally extorting the infringer. You’re undervaluing the infringement and groveling…ick! Overall, unless you have a form letter drafted by an attorney and you are very confident in evaluating your cases for all the potential claims and their damages, I encourage you to refrain from drafting and sending letters yourself.

Moving on… sending a DMCA takedown notice to the ISP is a tool you can wield, and it will probably get the infringement stopped, but it does nothing about getting you the money you deserve for the illegal exploitation of your work. Usually, I think it is better to notify the actual infringer first (as a part of a demand letter) and then, if it doesn’t remove the work, send the takedown notice. This can be a strategic choice that is worth evaluating with an attorney too as, for example, continued use after notice can be a factor for willfulness. Also, you do want to be sure to send a technically proper notice, if you choose to send one at all.

That brings us to the final option: contacting an attorney. A competent copyright attorney will avoid the issues described above, will evaluate your claim(s) and your opposition’s potential defenses, and will advise you on your best course of action. We have to–there are rules (actually, laws[4]) that demand it of us. So, as opposed to companies[5] that claim to help you with your registrations or infringements, attorneys, once hired, must put your best interests first, including above our own. It’s part of why we have to be licensed–to provide competent counsel to our clients.

While we attorneys can’t take every case that is brought to us, we are required to hold your information confidential even if we don’t take the case so it is worth talking with one of us before you do anything.

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[1]As long as it is still less than three years since you discovered the infringement (in most cases/places), you have options. The statute of limitations is 3 years for infringement and usually that clock starts ticking when you discover the infringement. Don’t wait until the last minute.

[2]DMCA takedown notices do not go to infringers but rather to the ISPs that host the infringement. For example, if I were an infringer of the post office photo I showed in my last post, the author of the photo would send the notice to my host, not me. It gets the work removed and gives the host/ISP a legal protection (safe harbor) against being sued for infringement, but the author could (and arguably should) still go after me as the actual infringer.

[3]An exception may be with an existing client who has used work beyond the scope of a license; then, for a continuing-business-relationship reason, an invoice may be wise.

[4]See, e.g., Cal. Bus. & Prof. Code §6068, including sub-section (g) that says an attorney must not “encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.”

[5]Companies are required to make as much money as they can for their shareholders, first and foremost.

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What to Do (Collecting Evidence)

When one finds one’s work being used by someone without permission, much less payment, there are some things to be done besides just swearing about it. Before doing anything regarding the infringer, especially before contacting it, do the most important thing: collect all the evidence.

If your work is appearing in print someplace, or in 3 dimensions (depending on your art), take copious photographs of it. Try to get close-ups and photos of the context (in a bank, on a billboard, etc.).

If, say, the work appears on a product, note the store where it is being sold and ask the manager for the name and contact information of the supplier, if it’s not a company you recognize. You can also buy example products (or publications) bearing your work, if that is an option.

Online? Make screenshots. Get the whole page if possible (try an app like Paparazzi) and also try to get a screenshot showing as much of the URL as possible while also capturing the infringing use. When you do that, however, make sure to hide your favorites and close all other tabs–you want a clean example of the infringement[1].

Got the shots of the work on the public-facing pages of the site? Great, now find it on their servers. In Safari, go under Develop>Show Web Inspector and you’ll see a folder called Images. Here, I have a screenshot looking at this site that way where I’ve ID’ed a photo of the La Jolla post office I made (selected in the screenshot below):

Double-click that highlighted icon and it will open the link to the work as it appears on the infringer’s server (here, on my server). Get screenshots of that as well and note the URL(s).

Okay, now do you use metadata in your images? Please say you do. If so, then check the metadata on the infringing photograph–see what has/has not been deleted or altered. Preserve that evidence as well (make pdfs of the results, for example).

Finally, for web-related infringements, preserve the infringement on the Wayback Machine at archive.org. You do that by checking to see if the page is there already (and do this for the front-facing pages and the server pages); if it’s not, then you’ll see that you can add it. Here is what I got when I put in the URL for the server page holding my post office photo, for example:

Once you’ve done all that you need to find, in your own records, your copyright registration for the work and copies of your deposit copies. If it’s not registered and it is still within three calendar months of your first publication of the work[2], register it immediately[3]! Also note where you have licensed the work to be used and where you have published the work yourself (exact URLs for everything–not just “on my site”). Basically, think of every place that your opposition may have found the work and note the URLs.

Put all of the above into a folder for that infringement, before you do anything like contacting the infringer.

Yes, this all is some work, but evidence is so important that it is totally worth it. I can’t begin to tell you how many times someone has contacted me with what sounds like a great case but, because s/he hasn’t preserved evidence of the infringement, there is noting that I can do for her/him. I may know it is an infringement, but if I can’t prove it, there is nothing I can do for you.

So, once you have all the evidence, then you can decide what to do about the infringement itself. In my next post, I’ll talk about your choices.

_______

[1] No reason to give anyone any personal data accidentally, like that you also were looking at porn or something (yes, this happens).

[2] Remember that “publication” has a different meaning under copyright law here so if you offered it to a client for its use, even if it wasn’t used, then it is published. Also, posting the work on a site where you say, basically, “you can license this work” is publishing. However, just because you posted it on your portfolio site (no offer to license) does not make it published. If you aren’t sure, ask a copyright lawyer, not your creative buddies, for advice.

[3] If it is too late, then your options are limited for how you approach the infringement, since your remedies are limited, but it still may be worth pursuing.

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Are You Getting Played?

Last night, I had the joy of going to a lecture by Dan Winters (thanks APA-SD). Even before I heard his impassioned words about his own work and about others’ art and the importance of what artists (particularly photographers) do, I had been thinking about writing a blog post like this one. It’s not going to be easy to say some of what I have to say and some feelings are going to get hurt but, honestly, everything I’m going to say is said out of love and respect.

Yes, I love creative professionals–it’s why I do what I do. Y’all amaze me with your visions and abilities and you contribute so much to our culture, but y’all need to stop. Just stop. No, not stop making great creative work, but rather y’all have got to stop not running your businesses like real damn businesses, stop looking for “easy” when it comes to doing the non-creative parts of your businesses, and generally you must stop selling yourselves short and stop getting played for it.

Artists[1] are notorious for throwing themselves into their creative work–the stereotype of the compulsive artist working without a break to make her/his art doesn’t exist without reason. Y’all have the drive to perfectionism in your art that makes your work ethic arguably greater than the average person’s; that is, for creating your art. But, when it comes to the non-creative part of your work, far too often it’s like the artist suddenly becomes dumb and lazy. You look for shortcuts and cheap/easy solutions, rather than doing the (hard, shitty, no-fun) work of being a business. It makes me more than a little crazy to witness–mostly because it is simply artists giving into fear and insecurity[2].

The reality is that what you do is amazing and valuable and you must recognize this to move forward. I mean your art is economically valuable (on top of culturally)–very valuable in fact: to the tune of $4.2% of the US economy. That is over $760B![3] Photography alone, added over $10B to the US economy and design, $19.5B[4]. Those are huge numbers and deserving of respect, including working the shitty work.

You contribute to those huge numbers.
Your contribution is worthy of respect.
Your business is worthy of (self-)respect, including the money.

So why then do we have this illusion that to be an artist means you have to hate business and be ashamed of making money? Because it is in other businesses’ best interests to hold you down. It is better for internet companies (and other clients) to call your work “content” like it is some unimportant filler for their products and tell you how they can’t pay you (much, if at all) for it but that your exposure will be worth more than money (which is, of course, bullshit)–because it increases their margins.

Okay, we all know this about clients. I’m not saying anything new–we all know that it’s in clients’ best interests to get your work for as little money as possible. But, and here is the tough stuff to hear, some of your vendors are also screwing you and, importantly, doing so with your blessing.

Maybe it’s easier for me to see this because I’m a woman and have lived my life getting mansplained and underpaid and told that I should be happy with it or happy that some guy deigned to take me out at all or lucky that someone offered me a job or that it was my fault that someone did whatever nasty shit was done. Women are used to it (I’m guessing people of color get this idea, too) and used to fighting against it. But most pro photographers (if not all kinds of pro artists) are men (mostly white, too, I’d bet) and I suspect y’all don’t like thinking that you may be being played, so you ignore even the possibility. Vendors are relying on you behaving like this because it is in their best interests.

So, out of love and a respect for each of you and what you do, I’m telling you a hard truth: some of you are choosing to work with vendors who are selling you the idea that they are offing you a great service and, because you hate doing the non-creative part of your business, you don’t look at whether it is really in your best interest. You assume that because, for example, the guy who started up company X was a photographer himself, he must have your best interests at heart and you willingly give up far too much of your money for the privilege of letting that company (ahem) “help” you.
Honey, you are being played.

You have got to take control of your own businesses and that includes doing the hard, no-fun, non-creative work. Don’t assume that some company is out to help you or that their “solution” that seems to make your business life easier is actually to your benefit in the long run. Often, they are not.

In my opinion, the worst offenders lately are the companies that offer copyright registration and protection services. These companies are ripping you off and you are thanking them for it, like Kevin Bacon in Animal House.

These companies usually charge a subscription fee for which you may get a certain number of copyright registrations and the company will then find infringements of the images you submit. However, the companies then generally require you to use their settlement services[5] for any of the infringements found and then usually take more than 50% of each of your settlements received (more, if the cases get filed)[6] [7].

Adding insult to injury, much like the stock agencies did in the late 1990s when they figured out they could get away with it, these companies often accept very low amounts in settlements–far less than each infringement is really worth, even in settlement–since the companies make it up in volume (something any individual artist cannot do). As an example, say, you get 45% of the $1000 they get in settlement for each your 10 infringements[8] (total, $4500 to you), and they get 55% of those 10 ($5500). However, they also have 999 other customers and get 55% of $1000 for each of the 10 infringements they settle for each of their other customers… and end up making $5,500,000!

Plus, don’t forget, you don’t clear that $4500–you have to pay your subscription fees, too, plus the registration fees to the USCO and, in the end, you might make $3000. Maybe. The company, meanwhile, gets at least another $300 x 1000 in subscription fees ($300,000) plus likely more fees for more registrations than the subscription includes and, well, you can see who is making the real money here.
Hint: it ain’t you.

Finally, you are relying on non-lawyers (usually) to register your copyrights with the USCO and, if they get something wrong, you are screwed by the faulty registration. A faulty registration, if relied on in court, could result in your case being dismissed and you having to pay the other side’s attorneys’ fees and costs, under 17 USC §505.

Oh, and by the way, these companies are not legally required to have your best interests first and foremost like a lawyer must (by law!)–in fact, the companies have a legal requirement to make money[9].

As if all that wasn’t bad enough, now you have these companies claiming that blockchain will make it all easier and better. It’s bullshit, as I have explained before.

The reality is that the non-creative part of your business is a large part in creating and keeping your money–your wealth. The non-creative part of your business includes registering your copyrights, looking for infringements, and pursing infringers. It is also keeping your books, paying your employees and other crew correctly and on time (including proper withholding and workers comp), and having good insurance. It is also using good paperwork for everything, having written and well-drafted licenses, and having contracts offered to you reviewed when you don’t understand them, not to mention stuff like keeping records and files. It’s not the fun stuff, and it is not easy, but it is as important as the actual art you make. Stop looking for shortcuts.

Look at the successful artists you know and you will find that not only are they often highly creative[10], they are also equally devoted to the business side of their business. They learn about and run their business like a business and they hire people to help them, like (in-house) a studio manager and out-of-house a CPA and an attorney. They respect their creative work enough to treat the non-creative part of their businesses as equally important. They hire licensed professionals who have their best interests as first priority to do the things those pros do best. They work their asses off to make sure they are taking care of the non-creative part of their businesses and act like professional business people, without apology. No excuses, no whining; they get it done.
What is your excuse?

I was talking about all this to my boyfriend, a former CFO and financial analyst, last night. He said (paraphrasing), “The artists are totally getting screwed–they’re not recognizing that they are over-paying for a service they don’t actually need! Why don’t individual artists hire people to help find infringements or do their paperwork?”
“Money,” I said, “they don’t feel like they can afford to hire help.”
He thought for a second and said, “Why don’t they get together with others and jointly hire someone in-house to find the infringements (to hand off to their attorney) and to take care of running the other business stuff (like bookkeeping to hand off to a CPA)? Get a couple of artists together and they could totally afford to hire someone who could do this for them and it would be much more cost-effective.”
I looked at him and said, “That’s brilliant!”

Whatever you choose to do, you simply cannot keep letting others sucker you out of your money, be they clients or vendors. Stop pretending you don’t want to make and keep as much money as you can, making the work you love. Your work is too important. Your skills are too great. You owe it to yourself, to your art, and to your industry to do better. I know you can.

_____________________

[1] I’m going to call you all collectively “artists” but this all holds true for photographers, illustrators, writers, designers, etc.

[2] “Imposter syndrome” is a real thing (https://www.nytimes.com/2015/10/26/your-money/learning-to-deal-with-the-impostor-syndrome.html) and very prevalent among creative professionals. Actually, many pros in many fields (including the law) have that fear that they are not worthy or will be found out as being a big faker.

[3] https://www.arts.gov/news/2018/arts-contribute-more-760-billion-us-economy

[4] https://www.arts.gov/artistic-fields/research-analysis/arts-data-profiles/arts-data-profile-16

[5] By the way, the “agents” for these settlement services are usually not lawyers and may in fact be practicing law without a license and/or illegally sharing fees between lawyers/non-lawyers. I also have questions about whether the companies offering advice about registering copyrights are also practicing without a license. I expect that many of these companies will face Unlicensed Practice of Law suits in the near future.

[6] Most attorneys I know, including myself, have much lower contingency fees–more like 33-40% to the attorney (before filing suit); and we’re required by law to work in your best interests, not our own.

[7] Notice how these companies often word it like “You get to keep 45% of the recovery!” like it’s a present to you. Blerg. It’s your damn money–you are paying them, not the other way around.

[8] Each infringement is likely worth significantly more than that $1000, too (if the copyright is registered, likely many times more)–so you’re already starting in a hole.

[9] Each state has its own laws for corporations, but most say something to the effect that “the purpose of the corporation is to make money for its shareholders.”

[10] Yes, there are exceptions–we all know artists whose work isn’t all that but who seem to make money hand-over-fist with it.

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