Category: Articles

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Pursuing Infringers: Good For You & Your Clients, Too

I just read this interview with photographer Andrew Buchanan, on the Copyright Alliance site (by the way, if you aren’t a member of the Copyright Alliance, you should be, in my opinion). In it, he says that he pursues infringers not only because he deserves to get paid for his work, but also because his clients pay him for his original work and if infringers use the work, then his clients are getting hurt.

I love that attitude and smart business thinking. By pursuing infringers, you are serving your clients as well as protecting yourself. You can even use that in your marketing! Let your clients know that while you can’t get every infringer, you do make efforts to make sure that infringers don’t use the work you are licensing. That is an added service value.

Mr. Buchanan is right in that registration is still a pain in the ass in some ways (like the whole published/unpublished thing, to start), but it’s part of what you need to do to ensure the viability of your cases, especially the more minor value infringements. I read a case recently, Gonzales v. Transfer Technologies, Inc., 301 F. 3d 608, 609 (7th Cir. 2002), that noted:

No one can prosecute a copyright suit for $3,000. The effect of the district court’s decision if universalized would be to allow minor infringements, though willful, to be committed with impunity, to be in effect privileged, immune from legal redress. The smaller the damages, provided there is a real, and especially a willful, infringement, the stronger the case for an award of attorneys’ fees.

That’s great, and it also shows what I keep saying: you can (and should) go after small infringements and they don’t all cost $100K to do (not even close). But, and this is a big BUT, you can only possibly get attorneys’ fees if you have registered the copyright in your work before the infringement in question starts (or within a 3-month window of first publication for published work only).

So, register your work asap after creation, go after infringers, and tell your clients you are protecting them as well as yourself by doing so. You might even consider raising your rates to reflect your added value to your clients.
Just a thought. 🙂

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Money is Not a Bad Word

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.

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Artists At The Forefront

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.

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2017 Planning Ideas

The end of the year brings out the compulsion to make lists and I am no exception to that. It is a good time, now, in the days before the new year, to make some plans and changes to your business. Hopefully, the list below will give you some ideas of things you can do in 2017 to have a happier, more productive and lucrative, and more legally prepped (think, preventive) creative business.

  1. Register your copyrights regularly and often. If you are a photographer, register your copyrights in newly (first) published work every month; you can do this as a group published registration for one fee ($55). For all artists (not just photographers), here are some helpful links to the USCO about how you can register your works: https://www.copyright.gov/eco/help-registration-steps.html, https://www.copyright.gov/eco/help-type.html, https://www.copyright.gov/eco/eco-tutorial-standard.pdf, https://www.copyright.gov/eco/eco-tutorial-single.pdf.
    This is the cheapest insurance you can get–remember that a the minimum statutory damages for an already registered work is $750, more than the cost of your registrations.
  2. Stay aware of changes in copyright law and registration procedures. Things change and keeping up will make your life easier (like there will probably be a new way to register group unpublished photographs, soon). To stay informed, read this blog and others like my mentors (photoattorney.com) and copyrightalliance.org.
  3. If you havent yet (and dont feel bad–many of you havent), get separate business banking accounts, credit card(s), insurance, and software to track it all (like Quickbooks, Xero, etc.).
  4. Run your business like a business, including: get things in writing, including (especially!) your licenses and contracts (and invoices, etc.); have strict policies about payment schedules (like 50% up-front) and stick to them; and, pursue infringements so that you protect your rights and dont let people rip you off.
  5. If you do work for free or on a discount, from now on, do it right. First, only do it because you want to (like you get total creative freedom or its a charity you want to help). Second, invoice the client, even if the total due is $0. How? Like this:
    Creative Fee: $2000
    License Fee: $8000
    Total Fees: $10,000
    One-time Discount: -$10,000
    Total Due: $0
    This shows the value of your work and for the license; if anything goes wrong later, the invoice can be used as evidence for those values (this will make your lawyer happy; note also that the license fee is greater than the creative fee which will make your lawyer extra happy, see here for more).
  6. Plan time off. Im just as bad as most small businesspeople on this one so dont beat yourself up over it, just make it a priority this year. If you lose one project for a vacation, it is totally worth it as all the science shows you will be more creative and productive after the vacation.
  7. Work a reasonable schedule. Especially if you work from home, its vital that you have work time and not work time. Schedule a reasonable number of hours per week (like 40) and if you need to work more sometimes, then work less another. Relatedly, when you are working, you are working, so no kid interruptions or the like. If at all possible, have a separate space (room) for your work (the IRS will like you better for that, too).
  8. Pay others on time. This is just good to do, even when your clients string you on. Others behaving badly does not excuse you doing the same, so knock off that excuse. Also, in California, you must pay your crew and talent in full on the final day of any project. No exceptions (except for motion pictures, sort of). See https://burnstheattorney.com/2016/08/pay-your-people-now/
  9. Plan for the future: marriage, divorce, and death. As a creative professional, these life events have an extra impact because the copyrights you create are very seriously affected. See https://burnstheattorney.com/2016/08/i-do-what-did-i-do/ and https://burnstheattorney.com/2016/09/thinking-long/
  10. Make archival prints of your best work (at least) and back up everything connected with your business in multiple ways. This is really imprtant for many reasons. First, I think having tangible work is great. There is a big difference between opening a file on your Mac and opening a file in a drawer and finding the work there. See (from my old blog) http://www.burnsautoparts.com/blog/2014/01/09/tangible-matters/. But more importantly, if you keep your job files in print, you wont lose the contract due to some digital hiccup. Think about it–how many of you have a zip drive now? At least, do the 3-2-1 system. This guy has it right.

 

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Thank you

Every year I’m thankful for what I get to do. Usually, I express that at the holidays by buying toys for Toys for Tots, in the names of my clients. This year I was motivated to do something a bit different.

The photo above isof kits I have put together for the homeless here in San Diego. San Diego has a huge problem with homelessness, for many reasons including that it is damn expensive to live here, and many of them live in Balboa Park and nearby areas. I see these people often (my boyfriend lives near the park) and each time I’m reminded of how fortunate I am not to be one of them. I could have and, if the statistics were predictive, one could say I should have, but somehow I managed instead to not end up on the streets; in fact, I’ve done okay.

Obviously, I can’t fix things for these people. I can’t even come close. But I thought that maybe some fresh basic necessities would make a fewlives a little less difficult. So, I purchased a bunch of things like socks and soap and microfiber cloths and chapstick (and other stuff). For the women, I bought a ton of tampons, as the only thing worse than being homeless has got to be being homeless on your period. I got really big ziplock bags to hold each kit and, the otherevening, I put them together (which is a bit of a stunt with a little kitten in the house). In the next few days, with the help of my boyfriend, I’ll be handing these out.

I could have sent my clients individual gifts but, really, I think most of them have the things they need and can buy most of the things they want, andthe money will do these other people more good.

[UPDATE: We handed them out yesterday (Sunday the 18th) morning and the recipients were happily surprised and gracious. All save one (who said nothing but noddded) said things like “Thank you!” and “God bless you!” so I’m passing their thoughts on to you.]

What I want to say, though, is that I couldn’t do this if it weren’t for each one of you, my clients. Thank you for a successful first six months of this practice and for trusting me with your legal needs. I appreciate every one of you more than I can say.

May you have the happiest of holidays with whomever you love, and in 2017 may you be healthy, happy, at ease, and free from suffering.

 

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New Rules (probably)

The US Copyright Office is proposing new rules for registering photographs and it is asking for comments on these rules. There are three main categories with proposed changes: supplemental registrations, group registration of contributions to periodicals, and group registration of photographs.

The last one is likely the most important one for most photographers, so I want to talk about it, mostly, in this post. You can go here to read the official information(pdf), but I suspect most of you would rather poke yourself in the eye with a sharp stick as it’s written in governmental legalese. Here’re the basics you might want to know before wading into the Federal Register.

First, all group registrations of published photos (designated GRPPH) will have to be submitted electronically (no more paper options) with digital images submitted as deposit copies. Second, the maximum number of photos permitted in a single registration will be 750. Third, photographers would have to submit a separate list of all the photos being submitted as a part of the group “with a title, file name (matching the file name of the corresponding deposit copy), and in the case of GRPPH, the month and year of publication 29 (e.g., January 2016, February 2016, etc.) for each photograph in the group.” Finally, the deposit copies must be submitted in electronic form but you can send them on a disk or flash drive or upload them (with a 500MB limit per file uploaded).

Importantly, the last significant changeis that they are proposing a new category of Group Unpublished Photographs (designated GRUPH); before one could do an “unpublished collection” but this new category would replace that and have all the same requirements as the Group Published Photographs, including the 750 photos limitation and the list (but without publication dates, of course).

The only major difference between the two groups is that for published photos, the photos have to have been published within the same calendar year but the unpublished ones are not limited by time. Besides that, the groups must be only photographs and the photographs must be created by the same photographer–no mixing like 25 photos by Photo Bob and 32 photos by Photo Betty. Both the Group Published Photographs and the Group Unpublished Photographs registrations will be $55 per registration.

As always, you still may not mix published and unpublished in a single registration. That isn’t going to change with these rules chages, although I suspect that these changes may be a step in that eventual direction (maybe).

The Copyright Office is proposing to eliminate the pilot program for the Group Published registrations and to change the application process, to streamline it more. The Unpublished and the Published processes will be very much the same. Photographers will be encouraged to list the titles (and publication dates for published works) on the application itself as that will put them on the Certificate and that gives you advantages legally (I’m not going into that here, though–just do it) but, at a minimum, you’ll have to submit the list with all that information with the deposit copies (still, take the time to list the titles, it will be worth it).

Most importantly, the proposed rule would clarify that the single registration of a group confers full protection for each individual photograph in the group. That would eliminate the arguments that defendants use to try and limit the damages (or argue fair use) we see in court sometimes, like that using one image out of a registration of 500 items is de minimis since it’s only 1/500th of the whole. This is a very good thing.

To submit comments on these new proposed rules, first read the details in the pdf linked to above, then you can comment by going here. Note that comments are due by January 3, 2017.

The Supplementary Registration is used to correct errors or make changes to an existing registration. Hopefully, you’ll never need to file one, but if you do you’re very likely going to have to do it electronically in the future. For more information on the proposed changes or to make comments, go here.

If you make contributions to periodicals, you may use that form of registration (GRCP) and there are changes there as well. Mostly, it is about making the registrations electronic, much like the Group Photo options I described above (are you seeing a theme here?). Notably, the Copyright Office notes in the Group Registrations proposed changes that it encourages photographers to use those options instead of the GRCP as there are fewer limitations. Still, if you use this form of registration (and this applies to text as well as photos, by the way), you should go here to read about the changes and to submit comments.

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It’s not new if it’s the same

Here is yet another sad story of the timing ofregistrationbiting creatives in the butt. The short answer is that tattoo artists didn’t register the design in tats made on NBA players (including LeBron James) when theymade them, but instead after the first infringement of the tattoosby a video game company. That is, when the players were reproduced in video games, the tats were also reproduced, and since they weren’t licensed by the tattoo artists, the copyrights in the tats wereinfringed. In 2015, after the 2013 infringements (in NBA 2K14), the artists registered the work and when the same video game used the players (with tats) again but in the NBA 2K16game, theybrought suit seeking attorneys’ fees and statutory damages of up to $1.2 million.

The court said the “new”infringements weren’t actually new but rather the game was an iterationof the original one, with the original infringements. Sincethose started before the registrations, boom, statutory damages and attorneys’ fees were barred.

Ouch.

The artists are claiming the actual damages (still available under the law) are still significant, but they’regoing to have to prove up those damages; that is going to be a bear.

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Lift & Separate

(updated 12/2020)

Long before I became a lawyer, I advocated for two things when it came to photographers fees: raise them (particularly the license fee) and separate the creative fee from the license fee. The big push-back was often that buyers don’t like it. Well, the buyer has its self-interests but you must respect your own.

I bring this up because I’ve seen it repeatedly in my practice: a photographer comes to me with a possible infringement and, not having timely registered the copyright in the work (grrr!), leaves me no option but to see if there are sufficient actual damages in the form of lost licensing fees to make the case worth my efforts. When asked what her/his usual and customary license rate is for a similar use, the photographer will respond with something like, “Well, I would have asked $2000.”

My next question is, “Do you have invoices to back up this rate?” And the responses are either “No, but that is what I would have charged,” (ugh) or I am presented with an invoice for the creation of the work with a combined creative/license fee of $2000 (ick), or, worst of all, I get the invoice for the creation and licensing of the work where the photographer only charged $500 on some sort of mega-discount but it only shows as a $500 total fee (hurl!).

Obviously, none of these are good answers to a lawyer’s ears.

In the first case, no history of licenses, it could be worse. I can at least argue for the fair market value of a license and then, using common metrics like Fotoquote and online calculators for stock license rates, get a number. Sadly, as we all know, those numbers are likely to be low, particularly since there are more and more cheap stock sites out there. But still, at least I’ve got nothing the other side can use against my client.

In the last case, you’ve just set you price, forever. You are never going to get anyone to believe that a license similar to the original one is worth anything more than a few dollars because you have told the word that you’ll make and license it for so little! Now, if you are going to offer a super-mega-discount (and that’s totally cool, sometimes), make sure that you spell it out on the invoice like:

Creative fee: $2500
One-time Discount: -$2300
License Fee: $4500
One-time Discount: -$4200
Total Fees: $500

That way you are saying “my usual price for this license is $4500” and that can be used as evidence later of your actual fees. That’s great! But, if you just list the discounted price, you’ve only got your word that you normally would have charged more. That won’t hold up.

In case #2 above, all bets are off. The other side can argue that $500 was the license fee and $1500 was the creative fee, or worse. It is almost impossible to argue successfully that the majority of a combined fee is for the license and not the creation of the work, unless it is spelled out in the paperwork. I’m good, but I can’t make butter with a toothpick and there are plenty of good attorneys on the other side who can present evidence that the fair market value of the license is only $200. If you’ve got nothing in your records to show otherwise, then it’s quite possible that all you can get for actual damages will be that $200. At the very least, in court, it would cost a hell of a lot more in expert testimony to try and prove up your damages, and the other side knows it, so they can stonewall in pre-suit negotiations. You got no bat, as they say. Go home.

The best business practice, both for now and to protect your values in the future, is to separate out your fees on your paperwork and, very importantly, to make your license fee the higher portion of those fees. Later on, you can use those higher numbers to support getting higher actual damages. Also, if you do timely register your work, the courts will often look to the actual damages in setting statutory ones (like maybe doing a multiple of actual damages). If you can prove up substantial actual damages (a high license fee), you are more likely to get higher statutory ones. Proof of higher fees will make it easier for your attorney to argue for higher pre-suit settlements as well.

As for the argument that your clients want combined fees, well duh–and you’d like a million bucks for the shoot. They don’t get to tell you how to run your business–they are not doing you a favor by hiring you. They’re hiring you because you are good at your job; moreover, you have to run your business your way, not how they want it. Besides, they can’t complain if you do as in the example above: that is, you can give a final number that is combined, just make sure that the line items are separate. If they argue for a higher creative fee and lower licensing one, you know they are thinking of the future when they want to re-license; so should you and a higher license fee now means higher re-license fee later.

Run your business like a business. That includes thinking about future value and long term effects.

It’s not hard, it just takes some guts. You can do this.

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Song? Dance? Seltzer in the Pants?

What do I have to do to get you people to register your copyrights?!?! Look, I love you creative types, but I’m getting a dent in my head from the repeated headdesking caused by cases that would be as close to perfect as you can get, except that the work was not timely registered and thus are either essentially worth nothing or proving up the damages would be a nightmare.

I want to be able to help you and this firm will take smaller cases than many other firms, but I can’t take cases for a contingency fee where actual damages are the only option and those are the lost license fee for use on social media which you’ve either never actually licensed or you have for almost no money. Proving up the damages, even if possible, won’t be worth the time and effort.

However, if the work is timely registered then I have a much larger stick to wield on your behalf: statutory damages of between $750 and $30,000 (for non-willful infringement) plus a good shot at attorneys’ fees if the matter is litigated.

Timely registration isn’t that complicated. A registration is timely only when one of the following is true:

  1. the effective date of the registration is before the infringement starts; or
  2. for published work only, the effective date of the registration is within three calendar months of the first publication of the work, and that could very likely be the date you provided the work to your client rather than the date when your client used the work.

Thats it. Thats all. Those are the law’s only options. You’ve got to register your work and the registration has to fit either #1 or #2 for you to be able to have access to awards of statutory damages and the potential for winning attorneys’ fees and costs in litigation.

So how can you make those rules work for you? First, for any new work that is likely going to be published in the sense the Copyright Act uses the term (and how I mean it throughout this post, which includes work you’re going to provide to your client for their consideration and possible use, as well as work you offer for license on your own website or elsewhere) either register it as unpublished before doing anything with it, or, provide it to your client or post it on your stock site (etc.) and then register your work as published within that three-calendar-month window.

I prefer the second option for photographers for a bunch of reasons, some of which are very nit-picky technical legal ones that I’m not going to bore you with here. Mostly, I prefer the register-as-published option because, these days, almost everything posted anywhere is published. So, I suggest a photographer should, for everything created AND in any way released to the world in any one month, register it all (as published) on the last day of that month, and that way you don’t have to worry about missing the three-month window*. For best protection be sure to remove any images you know weren’t published and register those separately as unpublished at any time before you publish them. Mixing published and unpublished is like crossing the streams in Ghostbusters, that is, bad.

If you’re a photographer, you can do group published photo registrations online for one fee ($55). Following the once a month plan above, for a year that would be 12 x $55, or $660. Group published photo registrations are slightly more complicated to do but, after you have done it once, youll see it isn’t that bad and, best part for now, is that your first time you will be supervised by the Copyright Office itself as a part of its pilot program, so theyll help you through it.

If you are creating other non-photo works, like illustrations, you should not let the work out into the world at all and, instead, register your pile of works as a “collection of unpublished works” once a month, for the same fee (then you can let the work out). Sadly, there isn’t yet a simple group option for multiple published works as there is for photographs.

Now, before you start whining about that cost, let me point out, again, that the minimum statutory damages award for a single infringement is $750. The math is totally in your favor.

So please, register your work. I beg you. I’ll do anything to get you folks to register your work. Someone get me a new seltzer bottle (mine is an empty antique as you can see above) and I’ll prove it.

(The subject line of this post is a reference to Chuckles the Clown’s philosophy)

 

*It also helps you avoid another rule that for a group published photo registration the work must be published within the same calendar year so, if you do it on the last day of each month, you won’t screw that up.

 

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