Category: copyright

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Update Your Contracts

A client informed me yesterday that Vox Media had announced a partnership with OpenAI that permitted that leech-of-a-tool to use Vox Media content to train. This is bad and very likely goes beyond agreements it has with many writers and photographers, but it’s going to do it anyway because tech companies have no decency and too many media companies have no spines.

So, first, if you have work that you have licensed to Vox Media, check the language in your agreements and, assuming you didn’t sign away too much already, contact Vox to remind them that your work cannot be used for AI-training purposes. Period. Don’t let them try to talk you into some piddly bump in fees–what they are doing is enabling tech to put you entirely out of your work so just say “No.” You need to think long term here–an extra few bucks here isn’t worth torpedoing your particular creative industry.

Second, look at your own contracts, which you should be using anyway but, yeah, I know, you probably don’t because the bigger companies are bullies about that. Anyway, you should add something to your own contracts that makes it absolutely clear that any use that may result in the training of AI is not permitted under your license. You need this for contracts you use with individuals (like for event/wedding photography) as well as for companies for their marketing or advertising use.

Remember, when you permit your clients to use your work on certain platforms, you are permitting those platforms to use your work to train AI. That is bad. Spectacularly bad. So don’t do it. Make it absolutely unambiguous–if they do that you will sue them for infringement.

Finally, if you aren’t already, start registering your copyrights. Now. It’s the best tool you have to fight these sharks. Don’t think “I can still use the CCB if my work isn’t registered” because (a) you still have to register your work to sue using the CCB; and (b) you won’t get very much from the CCB, especially if your work is not timely registered (no more than $7500, and probably MUCH less).

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A Win for Artists at SCOTUS

Last Thursday, I participated as a panel member in a ABA Copyright group online meeting. The majority of the meeting was discussing the Copyright Claims Board–how it’s been working (or not) and its results thus far. But, we also looked at a recent SCOTUS ruling that affects copyright cases in a big way: Warner Chappell Music v Nealy (No. 22-1078, 144 S. Ct. 1135 (U.S. May. 9, 2024) for you legal geeks out there). That’s what I want to talk about here.

That case looked at the interplay between the discovery rule and damages. Lots of people were hoping the court would address the discovery rule generally, but instead the court rules only on the question of damages and whether they were limited to a three-year lookback. Not to bury the lede: nope, damages are not so limited. 

Since the Petrella (aka Raging Bull) case, some courts (especially the 2nd Circuit–that’s NY and environs, for you regular folk) have said that while the discovery rule applies as to when a claim arises  and starts the statute of limitations clock (that is, when a plaintiff discovered or reasonably should have discovered the infringement), it also limits the time period for damages such that the plaintiff can only get three years of (for example) lost license fees.  Scotus said, in essence, no–the statute of limitations three year period is ONLY for the bringing of the case, not the damages. 

This is important. Imagine finding that a company used one of your works on a t-shirt for sale starting in 2015 but you just now found that infringement. Now, assuming you are in a circuit that applies the discovery rule (and most, but not all do), you can file suit and ask for damages all the way back to the start of the use in 2015. Since your actual damages include the profits directly attributable to the infringement, you can now get all the profits from all the t-shirt sales, not just those from 2021 until now. Since courts often look at actual damages as one factor in setting statutory damages, now they have to look at that much larger number, too. 

While this case doesn’t settle the injury-versus-discovery rule split (see more about that here) and those folks in the injury rule circuits are still screwed (IMO), it does mean most people now have the possibility of being made whole, not just partially so. Good news for the artists. 

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Say Yes to No

I’m a firm believer in saying yes and generally being positive about things; have done for years. For example, if a client has a technically gnarly project, saying “Oh, that looks super hard” and then explaining how much work it is going to be or, worse, even hinting that you might fail, is not a good idea for your business. Instead, saying “Oh, that looks super hard…I love a challenge! I’m sure my team and I will find a solution!” will engender confidence in your client. Later, when you hand them a big estimate, they’ll remember you as the creative who said they could do it, increasing your chances of winning the project even with big numbers. So saying yes is a great thing for your business… except when it isn’t.

How often have you heard a (potential) client send you a contract and say “Everyone agrees to this” or “Oh, sure, the doc says you are assigning us your copyrights and that you can’t use the work, but we’ll let you use it” or “It’s industry standard to have a 90-day payment period,” or “You have to indemnify us against any claim that arises when you’re shooting for us, not just those related to your work or employees–no one ever makes an issue of that” etc. ? A bunch, I’ll bet and I bet you’ve often accepted those terms, trusting your client. Then, later…well, as Marlon Brando in Guys and Dolls says,“Daddy, I got cider in my ear!”

The sad truth is that, whenever someone in a financial transaction with you says one thing but the paperwork says another, they have an ulterior motive and it ain’t good for you. Hearing anything like “oh, don’t worry…” or “You’re the only person who has ever asked…” is your signal that you absolutely must go with what the papers say. Always. Your clients, no matter how nice, are not on your side. They can’t be—they are negotiating for their best deal, not yours. You can like them, but don’t ever trust their word over what is on the page.

The terms they are insisting on are good…good for them, that is, and so they do use them. If they didn’t, the terms would not be there. Always. So, if they are saying “oh, we never do this thing the contract says we can do” and they won’t take it out, then you know they want to do exactly what they claim they never do, and will do exactly that if they can. 

Relatedly, if your client/buyer tells you “my way or the highway,” waste no time in politely taking the second option. As the current writers’ and actors’ strikes confirm, bullying and fear-mongering is pervasive in the creative industries. All of them. Threats about not getting work are just manipulative bullshit. You didn’t have the gig but then lose it by saying “no”; nope, they just wanted to scare you into accepting a bad deal. Walk away. Use the time to get a better client. 

Don’t bother trying to fix them or teach them the errors of their ways. You can’t control what your clients/buyers do and you’ll drive yourself mad if you try. But, you can control what you do. 

The first thing is to know where your boundaries are. You can negotiate lots of things, but you should always know what lines you will not cross and respect those limits. No one will respect them if you don’t. You can and I think MUST set your own limits; and you should do it before any negotiations so that you know what they are. Write them out like a list if that helps: will never sell copyrights; will only indemnify for my own actions; will not lower my price without getting something (besides just getting the gig) in return; etc. 

Once you have your limits defined, then you can respond rationally to whatever demands are made. So, for example, if a client insists on owning your copyrights created for the project, you can say “No” if your line is ownership, or, if you’re willing to sell at the right price, say “Not at this price—if you want full ownership, that will cost $X.”  Don’t explain, don’t rationalize, and don’t be suckered in by them. Stick to your own boundaries. For example, “I hear you, but I won’t sell my copyrights for this price–you need to either pay more or get a license instead.” If they ask “Why?” you can simply say that this is how you run your business. Period.

You can use your boundary list for contract negotiations of all kinds: time to pay, deposits, usage license terms, indemnification clauses, you name it. When you do that, you are taking good care of your business: You set your limits. You have control. 

Saying “no” to bad terms and bad deals does not make you a jerk, it makes you a smart businessperson. And, although standing up for your rights and doing what is best for you and your business is not always easy, it is vital. The other side is surely going to stand up for theirs.

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Drop Your Ego and Raise Your Usage Fees

I have written before about the importance of separating your fees and costs/expenses on your invoices (actually, on all your paperwork) so I’m not going to go into that again, but I will once again nag you to make your license fees the largest number of your fees, if at all possible. Why? Because there is a new (tentative) ruling in the CCB that shows how low license fees can hurt you.

In this case, a photographer made the work as a part of a large shoot for a client. His original bill was well into the six figures, yay! However, as the Board notes:

During the shoot, Hursey shot approximately forty-two scenes, with a scene consisting of multiple versions of the same setting and activity with minor differences. Hearing Tr. at 39:00 – 39: 57. In the present case, the scene consisted of a family at a picnic with a pastoral background. Evidence Doc B (Dkt. 17). Hursey was paid $185,524.45 in total for the shoot, but most of that amount was reimbursement for costs and payment for his time, while $17,500 was for an unlimited license to use all of the photographs taken over the course of the shoot. 

Proposed Default Determination, at p.3 (bold added)

An unlimited license should definitely be the largest number on your paperwork–it is HUGE usage! Let’s conservatively estimate that in this project, the photographer provided finals of 3 variations of 42 scenes, or a total of 126 images (it was likely much more, of course), $17500 divided by 126 is a whopping $138.89 per photo licensed. That’s insane.

Photographers and other creatives have got to stop billing their Creative Fee as if it is the most important thing. That is just your ego talking–a bigger Creative Fee means YOU are somehow worth more…. **HURL**! It’s short-sighted, at best.

Worse, using time as the basis of your Creative Fee makes you into the equivalent of a wage slave and insults your professionalism. It doesn’t matter if it takes you 30 minutes or 3 days to create your work–it is your TALENT and ABILITIES that count. If you have 30 years of experience and can make the difficult shot in an hour where a newer photographer would take all day, why should you be penalized for that?! So, stop billing as if time and your ego matter. Instead, think long term: you can re-license for more if you bill more for usage from the start! And it will help you if you ever get ripped off. Bill a reasonable Creative Fee, not time-based, and bill a large (but reasonable) Usage License Fee.

On the good side in the case cited above, the photographer has an online calculator for his stock licenses and that provided a number of $1000.70 for the same use as the infringer made of the photograph (still too low, in my opinion, but better). The Board relied on that number and awarded $3000 for the infringement here. Id. at 9. Whew. I mean, I think that is still way too low an award but it’s a hell of a lot better than 3 times $138.89. If the photographer here did not have published rates as he did, the court would very likely have awarded him $750, the minimum statutory damages available.

Respect your work by billing its worth. Your future self will thank you.

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The CCB Results are in…and Yikes

So, the first photo-related Final Determination is in at the Copyright Claims Board (link to pdf). I wish I could tell you otherwise, but it does not bode well for photographers.

The case was pretty straight-forward: an attorney illicitly used a timely-registered photo on his website, got caught, blamed his daughter for having sourced and posted it as his web “designer” and, despite all the notices that the work was protected, got away with only having to pay $1000. 

Why so little? Because the photographer had never licensed that photo and so provided no proof of his license value and, in the board’s determination, there must be a relationship between actual damages and statutory ones.

It was there that, in my opinion, the board screwed the pooch. Courts have said the direct opposite, like in Thomas-Rasset where the 8th Circuit noted that the Supreme Court stated that there should NOT be any relationship between the actual damages and statutory ones because statutory damages are imposed as a punishment for the violation of a public law. Furthermore, the court noted:

It makes no sense to consider the disparity between “actual harm” and an award of statutory damages when statutory damages are designed precisely for instances where actual harm is difficult or impossible to calculate. See Cass Cnty. Music Co. v. C.H.L.R., Inc., 88 F.3d 635, 643 (8th Cir. 1996). Nor could a reviewing court consider the difference between an award of statutory damages and the “civil penalties authorized,” because statutory damages are the civil penalties authorized.

Capitol Records, Inc. v. Thomas–Rasset, 692 F.3d 899, 907-8 (8th Cir. 2012)(cert. denied).

In that same case, by the way, the court noted:

Congress no doubt was aware of the serious problem posed by online copyright infringement, and the “numberless opportunities for committing the offense,” when it last revisited the Copyright Act in 1999. To provide a deterrent against such infringement, Congress amended § 504(c) to increase the minimum per-work award from $500 to $750, the maximum per-work award from $20,000 to $30,000, and the maximum per-work award for willful infringement from $100,000 to $150,000. 

Id. at 908.

In fact the board noted that the 9th, the law of which is controlling over this matter, has held that courts are not reliant on any formula and can award anything between the minimum and maximum, but then it relies on errant lower court rulings that ignore that to justify its low award.

Worst of all for artists here, according to SCOTUS (Woolworth, etc.), statutory damages are supposed to deter the infringer from doing it again and, arguably more importantly, to deter others from doing the same. Who the hell is going to be deterred by $1000? No one, really. 

Most of all, this is telling photographers (and probably other artists) that their work isn’t worth protecting unless it has already sold/been licensed for a lot of money. Yikes, for sure.

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CCB Cases Update

For those of you who have been following along, you know that I have filed a couple of Copyright Claims Board cases for my clients. That number is now 4. Of those, one settled shortly after filing and one was just filed in late December and hasn’t even been approved for service yet. That leaves two.

One of those had the respondents opt out just before it was too late for them to do so. Bummer and, frankly, dumb of them I think. My client can still file in federal district court and, if that happens, that is going to be much more expensive for the former-respondents-now-likely-defendants. This was a small use infringement and the CCB would have seemed perfect for the matter–well, settling before any of that would have been perfect, but outside of settlement a low-cost litigation alternative made sense for all the parties. Oh well, they had the right to opt out. Anyway, there is still a possibility that the matter could settle; but, if the other side doesn’t make a serious effort very soon, I think there will be a new case filed with the appropriate district court.

That leaves the last of my four cases. It’s actually the first case I filed with the CCB and it has now moved past the opt-out stage, meaning that my client has paid the second part of the filing fee (remember, the filing fee is paid in part at the time of filing then, if the case proceeds past the opt-out window, the rest is then due) and everyone has agreed to litigate in the CCB. We just recently received our scheduling order, laying out how the case will proceed. The next step is that the respondents must file their response to the claim, and that isn’t due for about 2 months. After that, we’ll have a pre-discovery conference (online) and then discovery opens.

People ask me what I think about the CCB and my first response now is always “It is slooooow.” The case that is moving forward was filed in late July. It is now January and the equivalent of an answer hasn’t been filed and isn’t due until early March. Discovery should close at the end of June, then written testimony will be due about 60 days after that. Then, if needed, there will be a hearing. In short, there will not be a decision in this case (assuming it doesn’t settle meanwhile) until well more than a year after filing.

Now, that isn’t long for traditional litigation, but I think everyone was expecting this process to be much faster. To be fair, it may speed up some as they work out the bugs but, for now, you must manage your speed expectations.

I’m hoping that in the end we’ll decide that the system worked within the “fast, good, cheap” paradigm: that is, we know it’s slow and cheap so, hopefully, it will be good.

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Answering Questions

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

Check out my first post, here.

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Next Steps at the CCB

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

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

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

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

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

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

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

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

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

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

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The Best Laid Plans

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

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

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

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

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

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Filing at the CCB

I filed my first case in the CCB last week and thought I’d share a bit about the initial process. 

TL:dr It’s designed to be non-lawyer friendly but I’d still encourage using one anyway. 

First, don’t do anything without reading the handbook beforehand. It will make a huge difference in understanding how the forms work as well as the process as a whole. It will also give you the chance to see what things you might not understand fully, so that you can ask questions (preferably of a lawyer, not some rando on social media). For example, when you enter your certificate number, there is a very specific way to do that and it’s not “VA2-222-2222” like you would expect. Many of those little questions will be answered by the handbook.

Second, you may be tempted to look at several of the other cases to see how others are approaching the process. I did that and this can be very helpful to attorneys, but I’m afraid it may only make things worse for non-lawyers, as there is some crazy out there already. If you don’t know how filings work or what the elements are to your claim, that is, what you’ll need to plead and prove, this is where you can get into trouble. For example, there is one case where the claimant (plaintiff, in regular federal court) is essentially trying to sue the US Copyright Office. That’s not what the CCB is for and those filings will send you into a rabbit hole of bad examples. So, for most of you, I’d say skip this unless you want to run something by your attorney to see if it’s a good example to follow or maybe you have litigated in the past and know how the process usually works. 

Third, gather all your evidence and plan your case. You need to know what you need to prove (the elements of infringement claim) and what you have to get you there (evidence). Do you have any holes in your evidence? Now’s the time to try and fill those gaps. For example, you should (at least) have a copy of the original work and copies of the infringing uses and a copy of your registration certificate, if you have one (in the CCB, you have to have at least applied for registration to start a claim, but it’s better to have one in hand already)—all that is your evidence. 

You should also take the time to research your opponent, if you haven’t already. You’ll need contact information of some kind, at the very least. Gather all this information and organize it into some sort of cohesive story. In regular court, we attorneys do this in the form of the complaint we draft and file; here, there is no need for a formal complaint, but a document with the same information will be helpful. 

To create the document, write a list of how and when the work was made, when it was first published (published for the purposes of copyright law—not published in the normal English sense), when it was registered, when you discovered the infringement, how you did that, and then what steps you took after your discovery of it.

And if you haven’t already tried to negotiate a settlement before filing, now might be a good time to consider that first. It will look better if you try to get the matter worked out before filing and, if it works, then you won’t have to file! In the case of the filing I just did, we’ve been trying to get the respondent (defendant) to negotiate reasonably for almost a year before my client decided to take this step.

Anyway, back to the doc… in some sort of bullet point-like list, tell the story and, in it, point to the evidence you have. Think simple, declarative sentences. For example:

Claimant created the photograph on June 1, 2020.
Claimant first published the photograph on June 15, 2020, when she offered it for licensing on her website at https://www.photographer.com/art.jpg.
Claimant registered her copyright in the photograph, with others, receiving certificate No. VA2-222-2222 with an effective date of July 1, 2020. [Exhibit A: USCO certificate]

etc.

After you have all that done, you can start to fill out the claim forms. It will be much easier with the timeline and the evidence in order, but remember that you can always stop and save your progress, then come back to the forms later. You should, at the end of the claim, upload pdfs of the timeline and the evidence you have. Also, make the file names for these things clear, like “EX A: Cert va2-222-222.pdf.” You don’t need to do all that, but it will make reviewing things easier on the CCB attorney assigned to review the claim and hopefully get you to the service process faster. 

Pay your $40 (the other $60 is due later, if the defendant doesn’t opt-out) and then, like me now, you sit back and wait for the CCB attorney to review the claim to make sure it’s appropriate for the venue and meets the standards. Once that happens, you’ll be instructed about service. 

When that happens, I’ll let you know what the next steps are like. Stay tuned…

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