Articles – Page 6 – Burns the Attorney, Inc.

February 10, 2020February 10, 2020

Buddhist + Lawyer… Why?

As you may have guessed, I call myself a “Buddhist” and, obviously, I’m a lawyer. Why does that matter? Well, in short I think my Buddhist practice makes me a better lawyer.

I had my first formal lesson in meditation decades ago, back in my home state, when I went to a small dharma center near Ohio State (aka THE Ohio State University). There, a pudgy, kind, bald-headed, white man in saffron robes told me how to sit and taught me to pay attention to my breath. We sat for maybe 20 minutes all told and it was lovely. For lots of reasons, I never went back, but I did remember the instructions.

I started reading books about Buddhism, especially those written by the Dalai Lama and later Pema Chodron; but it took me many more years before I made meditation a regular practice. Luckily, I did so in the years before I started law school. Mindfulness, learning to be in the moment, and accepting what you cannot control—those tools alone helped me survive not only the pressures of law school, but the spectacular death of my marriage which occurred at the same time.

Law school, much like the profession itself, is competitive by nature. Virtually all law students want to be the best and this is made tough since each course’s grades must fit the bell curve (meaning one top student only, per course). One’s grades and rankings matter for large (lucrative) law firm hiring later. I had no interest in joining such a firm, but I had to make grades for another reason: my full-ride scholarship depended on it.

Some people take law school competition as a sort of blood sport: attack and destroy the others so you end up on top. Cheating, stealing/hiding research materials, refusing to help other students who miss a class for illness or something—those behaviors run rampant in some schools. Luckily, my law school wanted all the students to do well and did what it could to make that happen, mostly very successfully. My classmates were generally kind, shared information and class notes, and were supportive of each other. We competed, but respectfully. Rising tide lifting all boats, as it were.

Still, I wanted and needed to do well. Buddhism taught me that I had no control over what my fellow students did but only over what I did. Further, I had the power to reduce my own suffering when things did not go well by not reacting mindlessly. These ideas were liberating. It meant it didn’t matter if Ashley studied until 2am every night while I was asleep by 8:30pm (to get 8 hours sleep), or that Christina’s outline for Crim was 5 times as long as mine—I could only do my own work, my own way, and try to be as prepared for classes and exams as I could be. I also couldn’t control the professors, so when I was told by a (female!) legal writing professor that I came off as too masculine in my oral argument assignment and (I believe) got downgraded for it, I didn’t get in her face but instead shrugged it off and make sure I did better on some other part of the graded materials; because my goal was to get a good grade, not make her like me or my style.

Finally, Buddhism taught me about impermanence: nothing is solid and permanent, everything is constantly changing; so, even if something is really good, it won’t last; but neither will the really bad thing. That meant I could celebrate successes without trying to hold onto them and that I could suffer less through the bad things, knowing they wouldn’t last. I loved it every time I made the Dean’s List and I hated it when my marriage blew up, but both came and went.

Fast forward to my actual practice of law, now: I use my Buddhist practice every day in it (and yes, notice that we call each a practice). Most of my law practice involves negotiating with infringers or their attorneys (or insurance people). They want to pay as little as possible, I want to get my clients as much as I can, reasonably. Unfortunately, sometimes some people call me names and I have even been threatened with rape and death, just for standing up for creators’ rights. I know those names and threats aren’t actually about me—those are about the other person feeling out of control and trying to reassert it through bullying and fear. My Buddhist practice lets me be mindful enough to remember that none of this discussion with the nasty infringer or his rude lawyer is about me, it’s about my client’s case, so who cares if they call me names? I just stay on the actual topic, the law and the facts of the case, and try to work to a reasonable solution. Those people can sling all the monkey poo they want at me—I’m poo-proof—because I am focused on my client’s best interests, not my ego/feelings. This means I am less distracted/-able and so some lawyer’s other flashy technique will simply fail to move me off my point of focus: my client’s case.

Buddhism taught me that it is better to slow down and do less, better, than to do lots only okay. For example, I don’t take every case that is brought to me or make promises about the huge settlements/awards I will get my clients, not just because that behavior isn’t technically ethical but more because it is just wrong. Some cases should not be pursued because they are bad cases. No amount of bravado is going to save a client from paying attorney’s fees to the other side when the lawyer lies about the registration status, for example, and gets caught by the court. Sure, maybe trying that would work sometimes to get a defendant to pay up out of fear, before the status is discovered, but that is a horrible misuse of the law. I don’t want clients who think that is okay. You shouldn’t work with an attorney who thinks it is.

I don’t use generic templates for the filings I draft, because I draft with intention, including arguing the specific case’s facts and the appropriate law. Same with emails and letters to infringers and their counsels. This process is slower and as a result I probably do not make as much money as others might who have more clients and cases, but I know I’ve done my research and made the best arguments possible for each client in each document I write.

Besides, I do just fine, thank you very much. I am proud that many of my clients have been clients for many years. This wouldn’t happen if they weren’t happy with my work and its results for them. I’m always happy for new clients and cases (please do tell your friends about me), but I respect the honor of having long-time clients. I blame my Buddhist practice for that. 😉

Although I am tenacious, I am not what some people call a “bulldog” kind of lawyer. All bluster and ego makes famous (and often infamous) lawyers, but it doesn’t make them good ones. Good lawyers work with deep respect for the truth and logic, and in the service of their clients, not for fame; Buddhism respects rational logic, the truth, and wants to be of benefit of others.
Interesting how similar those are.

Now, I’m not trying to suggest that any of you start studying Buddhism—what you do spiritually is totally your own business. But after reading this, now you understand why I talk about my Buddhism and its relationship to my work: I think it makes me a better lawyer for my clients.

January 28, 2020

Ah, Love… in California

If you’re in a non-same-sex relationship, 2020 brought you a new option if you live in California: domestic partnership. Before now, if you were not a same-sex couple, you could get married or stay completely single (even if you co-habitate—there is no common law marriage here). Now, you have the option of being in a civil union, without the marriage part.

For opposite-sex couples, this option was available before only when at least one person was 62 or older. For the general opposite-sex population, it was marriage or singlehood, period.

Forming and living in a domestic partnership is very much like a marriage, legally-speaking. You have to be 18 or older, file a short docu ment (pdf) just like you do a marriage certificate and pay a small fee ($33 for the non-aged), but you don’t have to have any sort of ceremony so no officiant is needed. Of course, if you want to do something to celebrate the union, you can.

You can change your name(s), but you can’t pay taxes jointly (must do “married filing separately”). You also get the rights and privileges of marriage. In California, that means community property ru les apply, although I wonder if the weird California treatment of copyrights will apply (see previous link). You also get to avoid real estate revaluation (for property tax purposes) if one of you dies, and you’re officially next-of-kin in emergency/medical situations.

Ending a domestic partnership within five years can be much easier than getting a divorce, but only if neither party owns real estate or has too much money or has a lease that won’t expire for more than a year. Once you have any of those things, you have to go through the same process as any dissolution of marriage. But without those things and within the 5-year window, you can end the partnership by filing a document and waiting six months for the split to be final.

Last thing: once in a domestic partnership, you can still get married to your partner, if you choose to at some later point. However, just like with marriage, you can’t marry someone else without legally dissolving the partnership first.

You can learn more on the California state government website, here.

December 19, 2019

Regret

I started running in March, 2010. I was in law school and dealing with a painful divorce and I come from Polish folk who, over-40, rapidly turn into, well, very large people. I needed to do something to prevent or at least postpone the babushkafication of my body and to keep depression at bay. In short, drastic changes needed to be made to keep my sanity and my health. So, I bit the bullet and started running.

To be clear, I am no runner’s runner (even today, I am slow as hell) but, back then, I had never run at all before. Still, I went from never having run more than a block to doing a 10k without stopping, in just a few months. Later, I even did an accidental half-marathon one Saturday morning at Torrey Pines State Park (although there was walking involved, as well as lots of hills). I even inspired one of my law school classmates to become a runner. It was a bit of a miracle.

I loved the discipline of doing it regularly and the meditation of actually doing it. No music, just the sound of my breathing and the prompts from the running app “Run… walk.” Even though I sucked hard at it and I never got the runner’s high from it, I loved it. It was, for sure, work, but I never regretting running, even when I fell hard once and looked like I’d been in a bar fight.

And then I got an injury, and had to stop for a while. But I went back to it. And then I had GI issues, and had to stop for a longer while. In fact, I had to stop for almost a year, last time, and it sucked. A lot. I did yoga and weights, but it wasn’t the same. I missed my pre-dawn discipline, and its effects.

On my last visit to the doc (October) the scale revealed that I was at my highest weight ever. This I already suspected, but hadn’t wanted to admit. After all, my clothes didn’t fit right any more and, despite the boyfriend assuring me I looked great and the flexibility I had from the yoga, I didn’t like how I looked or felt. That large number just sealed the deal.

The next morning, before the sun was up, I put on my Nikes and my running shorts (that were much tighter on my thighs than I’d recalled) and hit the road. Restarting the practice, again. Despite the very short (and slow!) running intervals and the short total time of running/walking, I was panting like a kick-boxer by the time I was done, soaked in sweat. I was a mess. But I was happy. No regrets about how much work I had to do to get back in shape. No regrets about a slow, sweaty run. Just happy that I did it. And then 2 days later, I did it again.

Two months later, I’ve lost inches off my body (I should note I’ve changed my diet too) and, with each run, I do a little better. Every run day, no matter how much my brain says it doesn’t want to go out in the cold (it was 44º this morning) and the dark, or that I’m old (over 50) and parts ache, I throw on the togs and go. I never regret it by the time I’m rounding that last turn for home, if not sooner.

So why am I sharing this story and what does it have to do with your creative business? What I hope you get from this is not that you can lose body fat if you run (although you can) but rather that we have the power to change our lives, every day. It’s never too late. It’s not the drastic, big change things but rather the every day small choices we make that reflect our power to do more, be better. Even after distractions that take us off our path, even with aging, worries, busy-ness, responsibilities, and world news that could make a saint drink vodka at 9am, we can choose to do one thing we know works for us. Then choose to do it again. Then, rather than live in the regrets of not doing, rather than each morning complaining about how hard it is out there and dragging yourself to work, you can recognize that you choose do what you do, what you love, what you know, and you can develop the discipline to push yourself to be just a little better at it. A little better at life. A little better at your work. Today.

December 2, 2019

Your 2020 To-Do/Please Don’t List

As we wrap up 2019 and start to look ahead, I thought I would give up some of my best thoughts on both business and legal issues, for creative pros, in list form. I think I should to warn you, though, I’m not holding back on the language. I think someone needs to play Carol Kane in Scrooged to the creative industries and, well, I’m just the broad to do it.

So, here’s what you should/should not do for your business in 2020:

If anyone talks about ROI or value propositions or anything else that smacks of weasel-in-a-suit when it comes to your marketing, run away. All that shit is dead. Sure, you want to get the best bang for your buck, but the most effective marketing for a creative business is simply not quantifiable. Lest you forget, you are not selling widgets or some service that anyone can do, but rather a very specialized service that has virtually no competitors. Much of that MBA mumbo-jumbo just doesn’t apply to highly specialized service providers, and all artists are (or should be) exactly that. Despite our hyper-image-based social media world, your marketing today needs to be honest, real, and a reflection of who you really are. I sure as hell hope you are not a “suit.” Stay away from buzzwords–don’t use them and be skeptical of those who do.
Forget about old selling tools like “elevator speeches.” Look, when you shill, no one gives a shit who you are or what you do. It’s totally off-putting to get the spiel–be that at a party or (yikes) in an actual elevator. Car salesman-esque. Fake. Ew.
My “elevator speech” is I’m a lawyer for creative professionals. That’s it, because all I’m doing is answering the question “What do you do?” Why only this? Because I’m not pushing the sale (that is very old and disliked) and I leave space for a dialogue by NOT answering all the implied questions (see #3). I’m letting go of trying to control the interaction and, in so doing, get better results.
When meeting someone new, especially a target, after saying that you are a commercial artist of whatever stripe you are, always follow up with a question (or more than one) about the other person: Do you work on the Widget campaign? What other ones? Who’s your dream to work with? etc. And respond honestly to their responses and use follow-up questions: I love the Widget work–where did you find that actor? You are a hell of a lot more interesting to a potential target when you are interested in her/him, especially (in this context) his/her work (it’s good to do research on your targets ahead of time so you know enough to have questions).
SEO is a waste of your time. People who sell SEO services are the used-car salesmen of the 21st century. The reality is that Google has like 97% of search traffic and it manipulates its results something wicked. Really, chasing that SEO goal is wasted effort. Moreover, good buyers are not using Google to find their creative providers. At best they may do an image search of some kind (mostly for inspiration, not to hire) and then that’s going to be more about effectively using your work’s metadata than “optimizing” your site.
Yes, we all know of someone who got a great gig from Google: and that person is the exception, not the rule. It’s like what we do often with dating: we hear about the one friend of a friend who ended up getting happily married after the guy/woman didn’t call forever and we think that can happen to us. We could get hit by lightening, too. Probably better odds of that.
4.a Anything blockchain or AI-related as some sort of saviour tool for creative businesses is also total crap.
Put on your big boy/girl panties and, for the love of Buddha, stop whining that you can’t do X or Y. I’m so tired of hearing “Yeah, great idea, but I can’t do that,” like you’re somehow different. That attitude is bullshit: yes, you can do it, whatever “it” is. It might be hard and it may be risky, but you can do it. I don’t care what it is, almost always you can find a way. Just get a set already. Look at me: I started law school when I was over 40 and had my marriage blow up before my first set of exams; I started my own business first in 1999, then again as a lawyer. Life ain’t always easy, but it’s worth it. Business is often hard and there are no guarantees. You want a guarantee, buy a blender. You want to be a creative pro? Accept that it is tantamount to doing the flying trapeze, without a net. Let go and have fun with that. You chose to be an artist–stop whining about the risks. Be a friggin’ ARTIST, unapologetically.
5.a. The answer to the question But what if someone doesn’t like my work? is always Fuck ’em. In short, they aren’t your target audience.
The “trick”to business is finding the right people to market to. Actually, this isn’t that hard: when you see work you love and that you wish you could have been a part of, research who made that work and add them to your marketing lists. Like attracts like. See Number 3, above. Don’t be afraid to reach out to those people–it’s not like they’re going to have you killed if they’re not interested in working with you; they’ll just say “no.” More importantly, they might say “yes.”
Make art for yourself, as often as you can. Don’t create for any other reason (like to specifically make something for your portfolio) but rather create for the love of creating and for making the work that excites you. Don’t worry if it’s good or right or what you should be doing, just make some damn art for you (see 5.a. above). That is your job and you have to do it for your business just as much as you have to pay your web hosting bill.
Get out of your office/out from behind your computer and interact with people. Social media is a form of connection but it’s a weak and highly manipulated one. You want to get work, you need to meet people in real life. Yes, that means actual meetings. It means traveling to the places where your targets are and meeting with them there or putting on events to get them to where you are. Go to portfolio shows. Oh, and at the end of any portfolio meeting, do NOT ask for a job on the spot. They hate that. You are not selling, you are marketing–it’s a long game.
Getting out also means going to events connected to your targets, like AIGA presentations, Ad Club events, or even lectures by lawyers (look up your closest Lawyers for the Arts chapter). Take people to lunch (or bring it with you), throw studio parties, put yourself out there. And have fun with it!
Register your damn copyrights. Please. I beg you. If you are a creative professional, stop making excuses and start doing this. There are services, but I don’t recommend using any of them because the resulting registrations might not be anything more than maybe adequate and they might possibly be deficient. A well done registration can make a potential defendant in an infringement matter settle fast and for more money. A wonky one may be challenged by a wily defendant or will at least give one pause. Registration is not hard anyway, particularly for visual artists and even more so for still photographers.
9a. Relatedly, stop thinking about the cost of registration as a reason not to register–first, it is a legitimate business cost and so you can write it off and, second, it is like insurance that you pay for once but off which you can make many claims (and for much more than the original cost). You will (almost assuredly) make more money in your business if you register your copyrights, and do number 10.
Pursue Infringers. Not every case has to be worth 5-figures or more to get legal help. Some attorneys, like me, will take on small cases because they believe in fighting for the “little” artist and, besides, small cases simply do add up. Let’s say you have small value infringements, but a bunch of those that are worth $2500 average settlement (that number is just for sake of argument). 10 of those cases over the year is $25K. Now, let’s say your attorney gets 36% of that: you’re still pocketing $16K. How about 20 cases and $32K in your bank? I have clients who make 6-figures annually because they register their work and go after the infringers–some bring in $2500, some bring in much more. Don’t wait for the CASE Act (which may never pass)–you can register work today and for infringements that start after that registration, you can wield the enhanced remedies stick!
I don’t care what any consultant or other artist tells you, separate out your Usage Licensing Fee from your Creative Fee. Better yet, make sure the License Fee is where most of the “cost” lies. As more and more work is getting ripped off you need to be able to prove the value of your license (even if you are going for statutory damages–it helps) and you just can’t do that if you use a combined fee on your estimates and invoices. The other side will have a great argument that most of that number is the Creative/Shoot Fee and you get screwed a second time. Why do you think buyers say they want them combined? Because it benefits their companies, not you. They are protecting their asses–you need to look after your own.
You can do this if you want to make sure not to piss off a buyer: on the cover/summary page of your estimate (and invoice!) you lump your numbers together into two main categories (Fees, Production Charges) so that there is a simple, one-page overview for the buyer to glance at. Inside, however, you break out every Fee and Production Charge, line item by line item, and make sure to line item the License Fee separately.
Speaking of fees, increase your rates in 2020, especially your license fees. Every creative pro who does this is terrified the first time. I have, however, never heard anyone regret it later. You may lose some clients, but really, you needed to kick those cheapskates to the curb already. Ever notice the inverse relationship between budget and pain-in-the-assishness? Why bend over backwards for the clients who nickel and dime? Just stop. Demand more money and you will get more money and you will respect yourself more.
Watermark your visual art. Do this and, for bonus points, make it a proper copyright notice. See here for the details but, the short answer is that if you do that you (a) have a stronger case for willful infringement (more money); (b) eliminate the “innocent infringement” defense; and (c) if it gets removed, then you may have a good case for a lawyer to help with even if you have not registered the copyright and can’t prove your damages!
Get your paperwork in order. Yeah, I know, contracts are not sexy but they are a very necessary evil in business. Get contracts drafted for you by your own lawyer so that your interests are in first position. If the other side insists on using theirs (yeah, big companies can be bullies), get those reviewed by your own lawyer. Have releases and licenses crafted for your needs. Think you can’t afford that? Think more about how signing one bad contract can wipe you out. Besides, not all lawyers demand insane retainers to be there for you. Check out my Burns Less program for a very cost-effective option (by the way, I am not the only lawyer with alternative fee structures!).
This last item is the most important: be yourself and be proud of yourself in everything you do. Honesty, ethical behavior, and real connections are what will make your business successful now. Have convictions and don’t apologize for them. Most of all, be passionate about your work. That’s what I’m demonstrating here. Sure, some people are going to be offended by my language and/or say it’s inappropriate in business, but in creative businesses (including lawyering for creatives), being real beats convention, every time. So here I am: I swear (in multiple languages even), I’m passionate, and I’m unconventional, but most of all I want y’all to succeed and I work hard to make that happen. I love my work, even though there are days when I want to throttle certain infringers and set fire to certain online platforms. I’ll tell a client when I think s/he/they are making a bad choice and I’ll fire a client who isn’t ethical. A few years back I decided to be more real and open with my thoughts and opinions–I’ve never regretted it and most of my clients and readers have appreciated it.

For the others who don’t, well, see number 5.a., above.

November 12, 2019

Registration Needed, or Not?

Earlier this year, the Supreme Court clarified that a work’s copyright has to have been registered (or had registration refused, but let’s not go there for now) in order to bring a suit for copyright infringement. [1] No longer would applying for the registration be enough–you had to have that certificate in hand when you file suit. So there will likely be a ton of confusion when people start talking about the ruling that came down in Texas last week [2] in which the court ruled that a failure to register a work didn’t kill a copyright case.

Not to bury the lede: the Texas case was not an infringement case, technically; it was a case with a claim for improper removal of the owner’s copyright management information (CMI) under Section 1202. Hence the different result.

In the ruling, the Texas court points out that, although Section 1202(b) includes language about how the removal must be connected to an infringement, it is not a claim for infringement. The court then explains that the plain language of section 1202 does not indicate that the registration requirement under Section 411 applies and that, furthermore, a claim under 1202 is not an infringement claim but rather a claim for removal or alteration of CMI. While there is an infringement underlying the removal of CMI, the claim under 1202 is about the scienter (a fancy legal word for “knowledge”) of the infringement, not the infringement itself. The court then explains (citing the same SCOTUS opinion mentioned above):

Although a DMCA claim requires the defendant to know of potential infringement, such requirement does not necessitate registration because infringement can occur absent registration. A copyright owner’s exclusive rights vest at the time of the creation of the work, and infringement occurs any time those rights are violated, even if registration has not occurred.

This is going to confuse lots of non-lawyers (and probably more than a few lawyers). Let me try to explain, roughly. Infringement happens whether or not a work is registered. That is, the copyright in a work comes into creation the moment the work is made (“fixed in a tangible medium”). At that moment, the creator (usually) owns the copyright in that work and has the rights in and to that work. When that work is copied illicitly, the copyright is infringed. However, an artist whose copyright is infringed cannot file suit for that infringement unless that work’s copyright is registered before the case is filed. The registration is the key that unlocks the court’s door, so to speak, for an infringement claim. Registration gives an artist standing (legalese for the right to bring a specific claim to court). So, the artist has to register the work, even after the infringement, to get to sue for that infringement[3]. However, since CMI removal (or the addition of false CMI, under subsection a) is not a claim for infringement, the artist does not need to have registered the copyright in the work to have standing for the CMI-related claim.

Now, standing is claim-specific, so just because one has standing for a CMI related claim under 1202, one doesn’t get to throw in an infringement claim. No sneaking around the rules–each claim needs its own key to unlock its own door, to continue the metaphor. If you filed a complaint with a 1202 claim and an infringement claim, without a registration, the infringement claim would get dismissed for lack of standing but the 1202 claim would stay. Got it?

So, the skinny is that you still need a registration to sue for infringement, but you can bring a claim related to your CMI without registration. While the statutory damages are from $2500-$25,000 for each 1202 claim, less than the max $30,000 for non willful or $150,000 for willful infringement (assuming the registration was timely, i.e., before the infringement or within 3 months of the work’s first publication), it still isn’t nothing. Proving a CMI claim is more complicated because of that scienter requirement I mentioned earlier, but it’s worth considering the next time you find your unregistered work infringed. But, as mentioned, that’s only if you have visible CMI on or immediately adjacent to your work in the first place, as I explain here.

This stuff is complicated. Please seek personal legal advice before proceeding on any of these claims, including sending that angry email you may really want to send when you find your work being used without your consent. You can run any infringement/CMI claim by me for free review by using the form here.
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[1] Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019).
[2] Diamondback Industries, Inc. v. Repeat Precision, LLC, et al., Case No. 4:18-cv-902A (ND Texas 2019), available at https://www.courtlistener.com/recap/gov.uscourts.txnd.309307/gov.uscourts.txnd.309307.83.0.pdf
[3] Unless you register the work (a) within three months of its first publication anywhere by you, or (b) before the infringement started, you won’t be able to get statutory damages or attorney’s fees, but you will still be able to file suit.

September 26, 2019

Why Not?

I recently noticed that I have a lot of non-US clients. Canadians, Germans, Scots, Australia… they’re from all over, really. Percentage-wise, it’s a very surprisingly large chunk of my business. While I’m thrilled for the work and that these people are protecting their rights here in the USA, it does make me wonder why I don’t have more American clients.

All of these non-American clients have registered their copyrights properly here in the USA (some with English not being their first language) and pursue infringers with the assistance of their own personal attorney. They track their own work online and send me cases they find. Despite being overseas (or at least in Canada), I have filed suit for some of them, even. Those clients couldn’t do that without the understanding that at some point in the process they would have to make the trip here to the USA, on their own dime, er, pence/Euro (whatever), to appear in court. For some of these clients, that would be a big hit financially, but they believe in their rights strongly enough to do it and, of course, it has paid off for them.

So, the question I find myself asking is why don’t American artists take the simple steps to register their works regularly and do the same? What is it about the process that compels Americans either to not bother registering at all (and far too many of you fall into that category) or to choose to use a “service” that compels the artists to use the company’s “infringement protection” process where the company will collect a far greater percentage of any settlement than an actual, personal attorney. Oh, and the settlements are often for far less than an attorney will negotiate, for bonus points.

I know of some very well respected artists who make beautiful work that is ripped off all the time, but who tell me they can’t be bothered with registering much less going after the bastards. At the same time, they complain about how often they find their work being used… all over, by companies large and small. I tell them “Register it now and future infringements will have statutory damages available!”

They nod, say they know they ought to, but then do nothing.

The logic escapes me.

September 16, 2019

We Bought A Vehicle. You Get A Blog Post.

The boyfriend and I bought a new vehicle over the weekend and it made me think about how creatives really need better legal help—and probably don’t even know when they need it. Yes, my mind does that—thinks about my clients while I’m doing something like car shopping. Whatever, the result is you get this blog post and hopefully are awakened to some legal issues you might be unaware of.

So, our story. This vehicle is the first major purchase between us as a couple. We’re not married but we do live together and are as committed as two people could be; still, as unmarrieds, the purchase would not be community property as it would here in California, by default, if we were married. That is, if you are in a community property state, like California, and you acquire an asset when you are married, that asset will be (usually—there are exceptions) community property of the spouses. Roughly speaking, each spouse owns the whole asset with the other spouse, equally. But, as unmarrieds, we didn’t have that option so we had to ask ourselves, “How should we title the new vehicle?” We could have held title jointly (i.e., both of our names on the title, as co-owners), which would mean we both would have to sign anything related to the vehicle (like upon selling it) and if we broke up, we’d have to negotiate the ownership; on the good side, if one of us died the other would automatically own the whole thing without going through probate (much like community property). Another option: one of us or the other could hold the title individually; but then if the owner dies, who gets it? The answer is it depends on whether there is a will but, whatever, it means probating the vehicle and that takes time and money. In California (and some other states), another option is naming a “transfer on death” (TOD) beneficiary. There, a vehicle can be titled in one party’s name with “TOD Beneficiary [name of person]” on the actual title, which means that, kind of like with joint ownership, on the death of the titled owner, the vehicle is automatically the property of the TOD beneficiary named. The risk? The titled owner could change the TOD beneficiary at any time without the consent of her/his/their partner (that could be an ugly surprise, later).

I’ll bet money most of you didn’t know these options, especially the last one. In fact, the dealership (a major one) we worked with didn’t even know about the TOD option. Anyway, with the exception of “community property” anyone—married or not—can choose any of those options, it just takes the right paperwork to make it legit. However, each option has advantages and disadvantages, so you need someone who has only your best interests in mind to facilitate. Speaking with an attorney can help you make the best choice for you.

Oh, and yes, we made the best choice for us.

That was just for a vehicle; if you are considering buying (or even refinancing) real estate, married or not, the options and ramifications are even more complex. Your realtor or mortgage person isn’t going to be able to explain your choices to you while specifically looking out for your best interests first (like lawyers are required to, by law). They’re going to have their own agendas to pursue. That can cost you or your partner lots of money—maybe not now, but eventually.

For example, here in California, there are property tax ramifications for transfers to non-spouses that might be eliminated with proper planning and paperwork. That is, you can add someone to your title (in certain ways) without a re-assessment, but if the original owner dies, then generally there will be a reassessment for property tax purposes. Same if you don’t add your partner to the title and then die, leaving the property to him/her/them. Imagine thinking you’ve taken care of your beloved by naming him as the inheritor of your house, only to have him hit with a massive and unaffordable increase in property tax when he does inherit!

Look, Adulting can be a pain in the ass. Lawyers can actually make it much easier. When you are considering combining homes, buying assets, or other big life choices like getting married, talk with a lawyer first to make sure you do it the best way possible.

September 11, 2019

Workers are Employees, Usually

Here in California, the legislature just passed a bill the governor is expected to sign, and it may affect you. Note, this may affect you if you are a California business (including sole props) OR if you ever do business in California, like, say, a photo shoot here, even if you are a Kentucky business.

This new law (assuming it is signed) codifies a California Supreme Court decision and, basically, says that most workers are employees, not independent contractors. That means that all the labor laws apply to those workers, including minimum wage, workers compensation insurance, payment schedules, and so much more. See my post on paying your people ON TIME for one important part.

The new law specifically carves our exceptions for many creative professions, including graphic designers, fine artists, photographers (with some conditions, more below), and writers/editors/cartoonists (also with similar conditions). But don’t try to shoehorn your crew into these exceptions—it just won’t fly.

As for the exceptions’ conditions mentioned above, the main one is if you make more than 35 “submissions” to a single hiring entity per year, then you are an employee of that entity. “Submissions” means, for photographers, essentially an entire shoot—not singular images. So, if you shoot for Company X for 5 days, that would be a single submission for the 35 count. For writers (etc.), submission is pretty poorly defined but, roughly, it seems to be that submissions on a singular topic or issue, like a series on women in prison made up of 5 articles, would be one submission for the 35 count.

Short answer: California law in this area is very complex and if you aren’t sure what’s what, please talk to an attorney. You don’t want to face the consequences if you are a hiring entity that mis-characterizes your workers, even temporary ones—those costs will be much higher than paying an attorney for advice up-front.

Finally, although I’m writing about California law in this post, I have to say that even if your state does not have laws requiring paying your crew as employees, you really ought to. Is it a pain in the ass? Does it cost your business more money? Yes, to both (you do get tax write-offs, though), but it is the right thing ethically, in my opinion.

August 13, 2019August 13, 2019

It Adds Up

One of the big arguments forwarded for the CASE Act (aka “small claims”) is that it will permit copyright owners to pursue small infringements. I’m here to tell you that anyone can do that already, even without that possible new law. Also, those small claims add up. Here’s just one example…

But first, the big disclaimer: past results are not predictive of future outcomes. I mean, each case is its own thing and just because I got $X for a client doesn’t mean I will get the same for you. There are no guarantees. Thank you for playing.

Anyhoo….I have a client I’ll call “Q” because I don’t want any future infringers to use the following against this person. This client doesn’t bring me a ton of cases but there has been a fairly steady stream: 20-something of them since 2017 and all were online uses of Q’s photos. Also, like with any client, not all of Q’s cases settle although many do. To this point, I have not litigated any of Q’s claims. In part, this is because Q is understandably litigation-averse, and that is fine by me. I will never be the kind of lawyer who says “FILE! File everything and often!” As I’ve said before, filing should be a last resort, not an opening move, and sometimes filing isn’t the right choice for all sorts of reasons; so, I’m perfectly okay with Q’s choice not to file every time a settlement isn’t reached.

Recently, Q let me know that we had topped $100,000 in settlements and that it had made a difference in Q’s financial life. I was thrilled! This is exactly why I do what I do–to get artists the money they are, in my opinion, owed.

Now, any of you doing the math at home can ballpark-estimate the average settlement amount, even though you’ll have to guess at precisely how many cases settled. Individually, in fact, most of the settlements were in the mid-ish 4-figures. There were a couple of 5-figure ones here and there, but those were rarer. Together, though, they make a healthy total, even after paying my contingency-based fees. I’m happy to have helped protect Q’s rights and increase Q’s bottom line.

Q’s total was made possible because Q registers the copyrights in Q’s photos. Those timely registrations mean that Q can get statutory damages in court (and possibly attorneys fees) when those copyrights are infringed; infringers know this or learn it from me and, when they accept that reality, they often choose to settle. Since most of these cases were small business website use, the value of each infringement is not huge (no, you almost assuredly will not get $30K, much less $150K, in court for a single small website use of a photo–yes possible but let’s be real…), so the individual settlement numbers are not large, but each is valuable enough for me to do what I can for Q. Moreover, as the title of this post says, they do add up.

Now, for anyone who says this is some sort of tainted money, you’re wrong. Getting paid by someone who has stolen your art, disregarding your right to consent (or not) to its use, is not wrong or dirty. Wrongdoers need to make amends for their actions and, until we outlaw having to pay for things, money is the best way to do that. Guilting the artist who gets money from infringers is like guilting any victim–don’t go there. This is about correcting the wrongs of the infringers–infringers who have seriously damaged so many creative businesses. I have clients who have told me that the money they make from pursuing infringers has made up for all their lost license sales, and more. This is a good thing.

Anyway, like I said in the disclaimer, there are no guarantees; however, copyright registration does open the serious possibility of additional income to any creative professional, without expensive litigation. I know I’m not the only attorney who takes these “small matters” on contingency, particularly as long as the work is timely registered. You can find a good attorney who, like me, cares about her/his/their clients and who wants to help. Don’t wait for the CASE Act to pass when you can register your work now and infringements that start after the effective date will have the possibility of statutory damages; do that and your business will thank you.

July 30, 2019July 30, 2019

Put on a Gorilla Suit

(I first wrote about this many, many years ago, but today feels like a good day to share this story again)

Several years ago, the wife of the photographer who got me into the photo biz (the fabulous Stephen Webster) bought him the at-the-time newly (re)released original Planet of the Apes movies, which he desperately wanted, for a birthday present. She wanted to surprise him with it at a dinner they were going to have, with another couple, in a nice restaurant. The surprise wasn’t just the gift– it was that someone in a gorilla suit would deliver it during the meal. Sadly, she told me on the phone as we gabbed about the impending birthday, waiting for her husband to get out of the darkroom, the person she had lined up had bailed.

I immediately volunteered! I thought it was a great idea and she seemed stuck so, I thought, why not. It wasn’t until after I hung up that I thought, “Oh hell, what have I just agreed to do?! I’m going to look an idiot…”

Then, I thought some more and the old saying “in for a penny, in for a pound” popped in my head. I decided I would be the best gorilla I could be.

On the appointed day, I parked my car, put on that gorilla suit (I had already blacked out around my eyes to make sure he wouldn’t recognize me) grabbed the gift bag, and headed out.

On a Saturday evening, in mid-July Columbus, Ohio heat and humidity, I gorilla’ed down a crowded neighborhood sidewalk, making ape noises at random people. I gorilla’ed into the restaurant, right past the maitre d’ (at whom I gorilla-hooted), and found the foursome.

Then the fun really started. I abused the poor victim and his wife and the other couple… but especially him. I pulled his hair, sniffed bits, put my fingers into his food, made lots of ape-ish noises, and even threw bread. Then, as magnificently as I could, I chucked the gift at the honoree, made very excited ape noises while beating my chest, and left, still gorilla-ing all the way back to my car, unrevealed.

The people in the place had laughed and stared and everyone had a great time. This was before ubiquitous cell phones so there are few photos and no videos, but the crowd seemed entertained.

The next Monday, at the studio, Steve excitedly told me the story of what had happened. He said how amazing the ape had been, how the person really pulled it off, and most of all that he couldn’t figure out who it was! I totally played along for hours.

He was stunned when, eventually, he found out it had been me. If I remember correctly, I had to make ape noises before he got it.

Why am I sharing this story? Because I was completely liberated by that suit. I could never imagine doing half what I did in my regular clothes, but wearing the costume, I could be the ape. Every time I have to do something I haven’t done before, as a lawyer, I remember putting on the gorilla suit.

I encourage you to do the same in your business. Play the role of the fabulous artist. Next time you have a one-on-one new client meeting or event where you might meet potential clients, wear fabulous clothes you wouldn’t normally wear, but that you imagine your professional hero would wear. Just go with it. Pretend you have confidence. Do this especially if you are normally shy and self-deprecating. Pretend you are everything you want to be. Just have fun with it.

As others have said, fake it until you make it. Don’t fake your creative work, of course, but do fake the personal image and the confidence. Wear a costume and play the role. At worst, you’ll have fun. At best, you’ll get a project and be one big step closer to making real the imaginary person you were portraying.