Category: Articles

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A Few Don’ts

I have posted often (especially on the old BAP Super Premium blog) about things you should do, like registering your copyrights. Today, though, I think it’s time for some don’ts. Most of these are things that people seem to think are really good ideas but, when the rubber hits the road, they aren’t. Some of them can be downright dangerous. Some of these are legal-related, and some are just general business advice. So, here’s my list of 10.

Please, don’t:

  1. Before you actually hire an attorney, and I mean have a written agreement covering that particular matter (and paying a retainer, if required), cc the lawyer-you-think-may-be-your-lawyer on your email to some potential opposition. This sucks for the attorney on multiple levels, including being blindsided (never good) and pissing off the attorney’s malpractice insurance provider. Most of all, and I’m sure you don’t realize it, but you are using that lawyer’s professional reputation without her/his permission or payment! You know how you don’t like having your work ripped off? Same for us. You have, in a way, forced the attorney to represent you without that person’s permission. It’s just all kinds of bad.
  2. In any email–whether you cc’ed the attorney (who is not yet actually your attorney on that matter) or not–tell the potential bad guy “My lawyer will make you pay $X” or “My lawyer says you will owe me $150,000!” or even “If you don’t pay me $X now, you will regret it! My lawyer will rip you a new one” and the like. Ugh, even typing that gives me the willies. Don’t put words into a lawyer’s mouth; you are pretty much sure to get the law wrong and more often than not, when I’ve had potential clients do that, they didn’t even have a good case (register your copyrights, already). The threats end up hurting you. Later, when you do hire a lawyer, you will have dug a bigger hole for her/him to work out of and, it’s possible, that you could have traipsed into the realm of extortion. So very not good.
  3. Make unreasonable demands and then get pissy when they aren’t met. If you contact someone who has potentially breached a contract or infringed (or whatever), giving them an arbitrary 24 hours (ish) to fix it/pay up just makes you into the jerk. Real life sometimes takes time. Give people time to do the right thing. Sometimes they have to get their heads out of their butts first and that doesn’t always happen overnight. Same goes for money demands–don’t ask for $20,000 when a photo is used (without a license) on a personal blog–you won’t get it and now you just look like a bully.
  4. Generally, act like an ass.You get more flies with honey is a good old saying for a reason: it works. Sure, it’s not 100% effective, but I think it works much better than being a jerk. If you make it easy for someone who’s done you a wrong to make it right, without humiliating him/her or beating him/her up (verbally, I mean, please tell me you don’t hit anyone), you are much more likely to achieve your goal. When someone gets caught doing something wrong, it can be embarrassing and humans often react defensively (read: like idiots) when embarrassed. Don’t rub the person’s nose in it–rise above the nasty gut-reaction s/he may initially respond withand talk instead about how “we” can “make it right.” Look for solutions, don’t make more problems.
  5. Be greedy. Let’s say you want to get $5000 from a potential infringer (and, yes, you should always have a number in mind that you would be perfectly satisfied with from the get-go; not a pie-in-the-sky number but one that you would happily take). You’re going to ask for more than that as an opening offer–that is expected. Whenever the other side agrees to pay $5000 (or if it offers more), take the deal–you got what you wanted. You don’t have to push for even more. It isn’t about getting all you can, it’s about getting enough. Satisfaction doesn’t mean “all you can squeeze out of the bastard.” This is also true for project estimates and all negotiations in your business.
  6. Beat up Betty for what Bob did. By that I mean, it’s important to take each matter on its own merits and each potential person on hers/his. Don’t be a chump, but if Bob said he was poor and couldn’t pay a dime and it turns out he owns a mansion and a yacht, don’t expect that Betty is lying when she says she’s poor. Give each person a chance to prove her/his side of the case. Sometimes it really is a hacking or someone really is on foodstamps. I’ve found that when someone legitimately has extenuating circumstances, s/he usually is more than willing to provide some proof.
  7. Try to sound like a lawyer when someone does you wrong. You’re not one and mostly you end up sounding like you’re trying too hard and being unnecessarily nasty. You can be appropriately assertive (and be assertive, not aggressive) in your own voice and without using $20 words. See #4 above, too.
  8. Refuse to have a plan. There are a bunch of plans you should have as a businessperson. You need to have a business plan, a marketing plan, and an estate plan, just to name three. None of these need to be complex, but you do need to have an idea of where you are (A) and where you want to be (B) to be able to get from A to B. When you have a work project–be that a photoshoot or a series of illustrations for the New York Times Magazine–you plan out what you need to do to accomplish that project. Do the same for your business as a whole. As for the estate plan, well, don’t be Prince.
  9. Expect to learn the law from a creative professional (or, worse, the interwebs). Okay, I know this is going to ruffle some feathers, but creative professionals, even those who have been in lawsuits often or who have registered a gazillion copyrights*, are not lawyers and do not know the law the way a lawyer does. I swear I’m not tooting my own horn here–I can’t do what a great photographer can do even though I’ve worked with them since the 1990s. It’s just not the same as devoting yourself to the intensive study and practice for years and years. Anyway, you wouldn’t go to a graphic designer for medical advice, right? Why then do you spend good money to have one teach you about business law or copyrights? There is a reason we lawyers have to be licensed, just like doctors–when we get things wrong, it can really be life or death in some cases (there is a reason I don’t do criminal law) or at least economic life or death in others.
  10. Get angry and take things personally. This one is huge. In business (and law) the ego gets in the way too often. When people do things that negatively affect you–be that infringe on your work or try to get you to agree to work for half your normal rate, whatever–it really isn’t about you, it’s about them. Maybe the art buyer is getting yelled at and squeezed by an impossible client or the infringer is oblivious to copyright, who knows what is going on in their heads. I can tell you that almost always what is not going on is “I want to screw over this artist.” Even when the other side is acting like total jerks, it’s still about them. For example, I’ve had cases where infringers have called me horrible names; what the infringers were really trying to do was make the problem go away– each knew it was caught and was embarrassed so it lashed out in anger. Taking that anger personally would have been wasted energy. Instead, I think it’s better to approach it more dispassionately like “I understand you’re upset; there is a problem here and now we need to find a way to fix it” and then start trying to think of solutions. Your goal is to find a solution that works for you so keep your focus there.

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*I can tell you from personal experience that more than a few creative pros who think they know how to register their work have done it wrong. So wrong, in fact, that some of their registrations could be broken by defendants.

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Before Means Before

Y’all are probably sick of hearing me nag about registering your work as soon as possible, but here is a great example of why I do that. In a recent opinion the court wrote (emphasis added by me):

Because Compass did not register its copyright until February 17, 2012 one day after the alleged infringement commenced the court finds as a matter of law that Compass is not entitled to an award of statutory damages or attorneys fees.

Ouch. That really sucks.

Remember that yourregistration has to be before the infringement actually began (or, in the case of published work, within 3 calendar months of first publication), not just before you discover the infringement, for you to be able to get statutory damages or attorneys’ fees. Clearly the courts are willing to say “One day too late, tough.”

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What’s With the “Compassionate Lawyering” Stuff?

You may have noticed the practice’s tag line, compassionate lawyering for creative professionals, and wondered “What the heck does compassion have to do with lawyering?” Well, I’ll tell you.

First, I refer to myself, semi-jokingly, as a “bad Buddhist.” I meditate, I read a lot by people like the Dalai Lama, Pema Chodron, and Thich Nhat Hanh, I believe in the Four Noble Truthsand try to follow the Eightfold Path. I also still drink alcohol, eat meat, and far too often suck at my practice.

See, bad Buddhist.

Anyway, a big part of Buddhism is being compassionate–understanding that all beings suffer, even the bad guys. My clients suffer too, of course, and I want to help them suffer less. So, voil, compassion.

How does this affect how I practice the law? I think it makes me a better lawyer. I take the time to see the whole case before proceeding and I am very present in the process. To use a sadly overused term today, I practice mindful lawyering.

Instead of coming into any interaction with the other sidewith overt aggression, swinging right off, I try to point out the issues and then give the bad actor the understanding and space to correct its bad behaviour. I listen, I try to see things from the opposition’s perspective (to understand, not to agree). I don’t humiliate or threaten, and I hold the line with, I hope, a certain graceful strength. Importantly,I don’t react to the hateful stuff that can be dished out (remember, when we feel attacked, even if we aren’t actually being attacked, we humans tend to lash out). When I get called names or otherwise get personally attacked (and that happens, a lot), I don’t retaliate. I don’t permit the other side to distract me from my purpose of protecting my client, her/his rights, and getting her/him satisfaction (besides, it’s never about me anyway–it’s about the case). That is being present and mindful; it is not being passive or weak.

These techniques have worked much more often than you might at first expect. I’m proud of my success rate. I think thatthe bad actor feels heard (is, in fact, heard), isn’t attacked (no retaliation, remember), and eventually has no place to go with all its aggressive energy so it becomes able to get my client’s position; that opens the doorto working together toa solution. Boom,an honorable win with no loss of face for the other side.

If, however, those techniques don’t work, I use what I’ve learned in that process to, um, let’s say lead the bad actorto a change of mind. Subtle pressure applied in the right manner, so to speak–in this case, using logic applied to the facts, including the additional data learned in the previous process, and arguing effectively until the other side has no choice but to recognizethat it’s got a loser case on its hands*. A colleaguereferred to what I do as legal jujitsu, and I think that’s pretty accurate since that practice is all about using the opponent’s energy against him/her. Eventually, the opponent will tap out*.

Lawyers are often called “pit bulls,” but that is definitely not me. I know some who are and I respect their process–it just isn’t mine. I think of myself more like the great shepherding breeds who get the sheep to do what they ought, without ever actually attacking them. Think Border Collie–they are damn fine and running circles around the sheep and wearing them out. Maybe that’s why I have a thing for black-and-white (clothes, car, photography…).

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* To be clear, I don’t win every matter and I certainly don’t mean to imply that; also, past results are not predictive of future outcomes.

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Timing Matters

Today, I learned about two cases which each serves to highlight errors creatives are prone to make when it comes to their registrations.

The first was a case (opinion here, if you want to bother reading it) from Massachusetts, where the plaintiff was granted summary judgement on its claim of copyright infringement but, because it registered the work after the infringement started, it can’t get statutory damages.

The rule about no statutory damages available unless the work’s copyright is registered before the infringement is one of the few clear ones in copyright law. You can’t skirt it and, besides a very limited “safe harbor” period to register published work within three calendar months of its first publication, there are no exceptions. So, register your work as soon as you can, to make statutory damages (and attorneys’ fees) available as soon as possible.

The second case makes me twitchy because I know some photographers (especially) teach this wrongly. In that case, the plaintiff registered a pile of works as unpublished when it knew that some of them were published. Tonya Gisselberg of Seattle Copyright Watch explains it well on her blog and links to the opinion, but the short version is that a defendant may be able to void your registration for any of the knowingly published work (and remember that published in copyright law isn’t published like most people think).

I have been in workshops where pro photographers have advised “register everything as unpublished because that is cheaper and easier” but, if you aren’t careful to follow the rules, you could not only be wasting your time and money in the registration process, it is conceivable that a defendant who successfully breaks your registration could be awarded its attorneys’ fees. Yikes! You definitely do not want that to happen.

The lesson here is much like Star Trek’s matter/anti-matter, rule: do not mix.

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Launching July 1

I’m excited to announce my new practice! Burns the Attorney will officially launch on July 1, 2016!

I’m also a little wistful about it. See, when I graduated from law school and took the bar, Carolyn Wright (PhotoAttorney.com) called me and offered me paralegal work while I waited for my results. When I found that I’d passed (huzzah!) and, shortly after, took my oath (5 years ago, today!), she offered me part-timework with her firm; not too much later, after proving myself worthwhile, I was brought on full-time. In other words, I’ve worked with her for my entire legal career thus far. Carolyn has been a true mentor in every way and I’m going to miss working with her; but, she’s reducing her practiceso it is time to move on*.

It is my intention to carry on much as she has. She’s been a great role model and it will be my honor to continue what she has taught. That is, I want to serve photographers as I have been, protecting their rights and helping them with their businesses.However, I also want to work more with other creative professionals like designers, illustrators, writers, etc., and I will be offering more legal services like estate planning.

In short, if you make art, I want to help you and your business.

You can find me on Facebook at /burnstheattorney (just click the Facebook icon in the footer, below) where I’ll be posting bits of news of interests to creatives, and on Twitter at BurnstheLawyer (or click the Twitter icon below). Longer format posts will appear on this page.

I’m really looking forward to this new adventure and to serving my clients, new and old, mindfully, with compassion, and as much like a normal human as any lawyer can be. 😉

* Carolyn will be keeping her license; also, PhotoAttorney will be wrapping up its cases over the next few months so I will be finishing up my work there over that time as I help the transition.

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Oxymoron: Simple Thoughts About Fair Use

I have been following the work of Seth Godin for years. I have many of his books and have found most of his works (particularly older ones) to be extremely helpful and accurate. Recently, however, his posts have been, for lack of a better word, sloppy. Maybe this is a result of his going outside his best body of knowledge, I don’t know, but because he has a huge following, it has serious effects when he gets something wrong. Today, he got something wrong.

He starts off poorly with the title: Simple Thoughts About Fair Use. Unfortunately, you can’t simplify Fair Use. It would be lovely if there was a way to do that, but you can’t.

Fair Use is an exception to the exclusive rights under copyright. Basically, someone can use a copyrighted work, in part or in some situations in its entirety, if the factors for Fair Use are sufficiently fulfilled. In every Fair Use analysis, there are four factors (quoting from the Copyright Office):

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

All the factors have to be examined and any one in and of itself doesn’t outweigh another. When you read cases with Fair Use claims, each factor is broken out and looked at by the court. Result? The opinions tend to be long reads with lots of detail.

If you go into the history that resulted in the codification of Fair Use in 17 USC 107 (the actual statute for Fair Use–before that it was just a judicial doctrine), you’ll find that it evolved out of an understanding of the importance of “free” reproductions/use for scholarly work or criticism (including parody). In fact, those uses were written into the law. Quoting the statute itself:

[…] the fair use of a copyrighted work, including such use by reproduction incopies or phonorecords or by any other means specified by thatsection, for purposes such as criticism, comment, news reporting,teaching (including multiple copies for classroom use),scholarship, or research, is not an infringement of copyright.

Because we have gotten sloppy ourselves about how we use language, we commonly misuse the idea of what, for example, news reporting is. Or teaching, etc. This results in the idea that just because someone has a blog and, for example, “teaches” on that blog, Fair Use applies. The reality is, it might not be teaching under the law.

To that point, Congress noted in its record on the adoption of this law (Historical and Revision Notes House Report No. 94-1476)that “no generally applicable definition is possible, and each case must be decided on its own facts.” In other words, you can’t make sweeping generalizations about Fair Use.

Thus,Godin can’t just throw out words like “Most web users should know a few simple guidelines, principles so simple that you can generally assume them to be rules” without understanding that he is misleading his readers.

He is likely right in saying that you can use works if you are parodying them or commenting on them, although he should emphasize that point. For example, you can’t use someone else’s photo of a doghouse to illustrate an article on spouses fighting (“being in the doghouse”), but you might be able to if you are discussing doghouse design and reference the design shown in the photo.

His last example is particularly worrying as it can be entirely wrong, depending on the facts:

You can quote hundreds of words from a book (for an article or book or on your website) without worrying about it and you certainly don’t need a signed release from the original author or publisher. Poems and songs are special exceptions. Then you can worry.

If you are writing an article on (for example) the allusions used in a specific poem (or song), you can probably quote the whole poem (or song) under Fair Use. On the other hand, you’d be taking a risk using a single sentence out of someone else’s novel (or article, or whatever) and reproducing it in your own novel (whatever), just because you liked the sentence and want to use it. That could be an infringement.

See, it all depends. Fair Use is really one of the best examples of “It depends” in intellectual property law. There are no easy answers.

Oh, and his comment about photos? He should have said “Contact the photographer and ask before using any photo” as the default process. That is the best thing to do, because most people do not make their living off the licenses they sell and so cannot get into the mind of the photographer, as he suggests.

Furthermore, Godin at the end of his piece throws out this line, almost in passing:

And… “all rights reserved” doesn’t mean anything any more, just fyi.

This advice will hurt his readers, for sure, if they follow it and ignore such notices. If a creator posts his/her work with a notice “all rights reserved” and someone else uses that work without permission, the creator has a strong claim for willful infringement. Willful infringement means higher damages. Whoops!

Also, people who use Flickr and who want to make it clear that the work is copyright protected and not available for free use (that is, not under a CC license) use the setting “all rights reserved” and it appears with their images, like these.

 

The biggest problem with this whole situation is someone like Seth Godin has a big reach. So, when he misstates the law as seriously as he does in his piece, it can cause big ripples downstream. I hope he posts a retraction or does something to correct this misinformation and its spread.

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Doing Your Part

In the very recent past I’ve had more than a couple of photographers contact me about possible infringement situations. That’s great… it’s what I do. My first question, as always, is “Is the image’s copyright registered?” For almost every one of those photographers, the answer has been “no.”

Sigh. That is so frustrating. It just kills me to have to tell someone that they are unlikely to be able to get much of anything if they go after the infringer; but, if the image’s copyright isn’t registered, that’s the likely scenario.

At the most basic level, your demand letter (assuming you start there) isn’t going to have as much punch if there is no registration. Why? Because you can’t get statutory damages for the infringement, nor can you get attorneys’ fees or costs, so the demand letter will be weaker because it will lack those sticks.

Also, the power of citing the registration number is a helpful factor in your opening position, before negotiations get under way. Without it, you have a very weak negotiation starting point which, combined with the unlikeliness of a good size settlement, isn’t going to help you. Frankly, it’s not likely you’re going to find an attorney willing to bother with your case unless you are willing to pay the lawyer’s time. A time-based arrangement with an attorney will probably eat up any money you might get from the infringement pretty quickly so you’re not going to want to take that path.

Also, if you ever want to file a case, well, you’re going to have to register the copyright before you can do that anyway. No registration at all means the door to the courthouse is essentially locked for you. While there are related claims that may get you in (and I am not going to try to start explaining that in this post), the infringement won’t do it unless you register the copyright before filing your complaint. You just have to do it–that’s your part in this.

Look, every attorney goes through at least 4 years of undergrad plus 3 years of law school plus taking at least one excruciating Bar exam. Some of us have a lot more education than that, plus experience (for example, I’ve been working in commercial photography since the last century and I did PhD coursework). There is also the constant learning on top of that to keep up with the Law. We (lawyers in general) do our part to try and be the best prepared advocates for our clients. In the case of those of us who do copyright-related work, especially for artists and not the big corporations, we’re in it for the love of art, artists, and the Law and we want to help. But we need your help to help you.

If you do nothing else, please register the copyrights to all your work. Start today and do it for everything you make going forward. Over time, you can register your older work, but at least add registration to your workflow today. Infringements happen all the time and for us to be able to really help you, you have to do your part. Register.

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What NOT to do

When you find your work has been infringed, there are many things you can do. Many of those things, however, are not good ideas to do. For example, sending an invoice for three times the amount of the license fee is something you hear about from many sources, but there is no legal reason for that amount (or form) of a demand. Calling and threatening the infringer is another bad idea. Rolling over and ignoring it is also not a good plan.

Recently, an author found that his works were (allegedly) infringed by Amazon. Sadly, he’s going to serve as another example of what not to do. After apparently hiring and then firing a lawyer (if what he says in his complaint is at all accurate), he took matters in his own hands and filed suit on his own. This is usually not a good idea because copyright law is complex and it’s important to get the details right. This man, regardless of the legitimacy of his actual claims, will likely have his suit dismissed at the first level simply for all the errors in his complaint.

Oh, and the fact he’s demanding over $50 million in damages won’t help either. You can read his complaint for yourself here.

So what should you do if you think your work has been infringed? If you see it online, take screen shots immediately to record the use. Then, call a lawyer who understands copyright and discuss your case in confidence so that you get the best advice for your own particular situation.

(HT to @ericgoldman via Twitter for the heads-up on this story)

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