Category: DMCA

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Ah, the Case Act

Assuming that Trump actually signs the huge bill that includes the CASE Act, something that has not yet happened as I post this (and, knowing how crazy he is, it’s not a for-sure thing he will), the much-touted bill will become law. **UPDATE 12.28.20: he signed**
What does it change in copyright law and what does it mean for the average creator? Here’s my take…

First, the CASE Act changes nothing in existing law except that, before, you absolutely had to have a timely registration to get any statutory damages but you can get some without it under CASE; also, you can file a claim without having your certificate as long as you have filed an application for registration. For statutory damages, if you choose to use the small claims system without a timely registration, you can get very limited ones—up to $7500 per infringement but with a maximum per case of $15,000. That maximum limit means, for example, if one infringer used 3 of your photos, you can’t get more than $15K total, even though 3 x $7500 is more than that. As for the application/registration issue, you can file a small claim as long as you have applied for a registration and that application has not been refused. Under existing law, you must have a certificate in hand (or a refusal) to file suit. Under the CASE Act, if the registration application is later refused, the claim is dismissed but can be re-filed later (for example, if the registration is later fixed and then approved, file again). 

Besides those changes, the existing copyright law is left pretty much as it was, only added to with the small claims system regulations. For example, you can still get actual damages and the infringer’s profits attributable to the infringement in the small claims system, you still own the copyright from the moment of creation, the exclusive rights are still the same, the statute of limitations doesn’t change, etc.

What do you give up if you use the small claims system? Besides procedural things like the number of witnesses, discovery limits, etc., which are all lawyer stuff, really, here are the things people need to know they are giving up if they choose to use the new system:

  • The constitutional right to a jury trial
  • Increased damages for willful infringements
  • Appeal in the regular courts (there are appeal-ish procedures, in the small claims system, but no appeals or re-litigation in regular court)
  • Attorney’s fees, except for bad faith situations (notoriously hard to prove up) and then generally limited to $5000.

Also, you can’t bring claims for CMI removal or false assertion (§1202 claims), in the small claims system. That is a big deal, in my opinion, since you’d be giving up a minimum of $2500 (and up to $25K) per violation, and attorney’s fees, if you chose to use the small claims system. While this may change down the road (the bill requires study of issues in three years, including probably the §1202 one), for now, you have to let go of those claims. That is walking away from money.

Here’s the other thing: any party can opt-out, so you could be throwing away at least $100 (filing fee) and likely more (service costs, etc.) often, as your infringers say, “Nope, I won’t do the small claims court—sue me in regular court if you want to bring a claim!” and there is nothing you can do about it. 

But let’s say the opposing party doesn’t opt-out, and it’s a big enough company that it has in-house counsel or is willing to pay an outside attorney to represent it. If you were planning on going without an attorney, you’re going to get your ass kicked, more often than not. No matter how much the powers-that-be try to simplify the system, copyright lawyers simply know more than you and know how to use that knowledge to make the right kinds of arguments to other legal pros (those making the determinations in the small claims system). That means you’ll have to find counsel. If you can only get a maximum of $7500 and probably no attorney’s fees, it’s going to be much harder to find an attorney to take your matter on contingency or your going to have to pay an hourly rate that’ll eat up your award quickly.

I wrote a lot about how I didn’t like the CASE Act, as a litigator and counsel to copyright plaintiffs, in a post more than 3 years ago. My reasons still hold in regards to its final form, today. But if this is the new reality, I will, of course, work within it. As will we all. 

So, here’s what I still recommend for all creatives: apply for copyright registrations as soon as possible after the creation of your works. Just like before, this is still the best thing to do. Post-CASE, it is even more so. If you have a timely registration (effective date is either before the infringement started or the registration is made within 3 calendar months of the first publication of the work infringed—see here for more), and you choose to use the small claims system, the maximums increase to $15,000 per infringement and $30,000 total per claim. That’s double the amount available if the registration is untimely. 

Most importantly, a timely registration gives you much greater leverage to negotiate a settlement without filing a claim at all because your opponent knows you can file in regular federal court where the maximums are as they have been ($30K non-willful, $150K willful, per infringement and no maximum overall total, possible attorney’s fees). Also, you don’t have to give up your CMI-related claims (which, by the way, are not dependent on timely registration, see more here). When it comes to settlement negotiations, those timely registered factors and the CMI-related ones give a creative a much stronger starting position, which will generally result in more settlements, less litigation, and lower attorney’s fees (contingency fees often go up when any sort of litigation starts). More money in your pockets.

Now I know lots of creatives see the CASE Act as a good thing, and I get where they are coming from. It sounds great and it does open a door to getting some money that didn’t exist before. But I still think the downsides are significant. I also know that when I talk to other copyright lawyers who actually litigate, their positions have been much like my own.

As in all things legal, talk with your own attorney to learn what may be the best for you.

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On FB/Insta’s Image Manager Tool

Recently, news broke that Facebook, owner of Instagram, is rolling out a new tool to “protect” photos across both platforms. See https://techcrunch.com/2020/09/21/facebooks-new-rights-manager-tool-lets-creators-protect-their-photos-including-those-embedded-elsewhere/ and https://about.fb.com/news/2020/09/helping-creators-and-publishers-manage-their-intellectual-property/. Call me a skeptic, but I’m not jumping for joy at this. While it looks better than nothing, I don’t trust Facebook to do anything that isn’t in its own best interest. More importantly, photographers need to be aware of what they may be losing and what risks they are taking if they use the tool.

My main concern about this new tool is that photographers will use the takedown part of the process too quickly and potentially hurt their ability to get the money they deserve from these infringements. At the very least, before issuing any takedown, photographers should make sure to capture as much evidence about the infringement, including screenshots and metadata, so that if they decide to go after the infringer, they have the proof they need.

Let me back up a bit because I suspect some readers may really understand the purpose of takedown notices and what they mean. That is, many people are not aware that when you send a takedown notice and the work is removed, you can still sue the poster/user for the infringement; you just can’t sue the ISP/platform (probably…there are other requirements the ISP must follow for this safe harbor from liability). Again, after a takedown notice, you can still go after the actual infringer—the person or entity that posted your photo to the platform.

However, to pursue an infringement, you need proof. If you send a takedown notice too quickly, you’ll lose your evidence. So, before doing anything like submitting a takedown notice, make sure to capture all the evidence you can—like screenshots of the use and any metadata you can gather. See my article on evidence gathering for more info. Better yet, talk to an attorney to see what your options are beyond a takedown, before pulling that trigger.

By the way, registering your copyrights before you release your work into the wild is always a good idea. However, you may still have a case even if you haven’t registered the copyright at issue yet. For example, maybe the infringer removed your watermark—that would be a violation of a different part of copyright law that doesn’t require registration for you to be eligible for statutory damages and maybe even attorney’s fees and costs (more on that here).

Worse, however, than losing the evidence needed to pursue the infringement is that if you send a takedown notice too quickly, you may not do the research necessary to make sure that the use is actually an infringement and not excused by fair use or some other defense. If you send a takedown notice without doing that research, you can be sued by the user of your photo for submitting a bad faith takedown notice! If that happens and you lose that suit, you could end up paying the other side’s legal fees. Ouch!

So, if you are still using Facebook or Instagram (and I heartily encourage you not to for many reasons, including the facilitation of the downfall of democracies worldwide), you might consider using this new tool. If you do, take care to use it right.

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Copyright Registration Suggestion

I’ve written a lot on the importance of registering your copyrights and, no, this won’t be another nag on that topic. Instead, I want to talk about something you aren’t required to do when you register, but which would be potentially very helpful down the line: make copies of your deposit copy uploads.

Often, an infringement defendant will demand proof that the work was submitted to the USCO as a deposit copy in the registration cited. Now, it’s not the plaintiff’s responsibility to provide that proof[1], particularly if the registration is before or within 5 years of the first publication of the work, but it does help shut up a defendant if you can whip out screenshots of your upload pages along with the works so that they can see, yup, that work was indeed included in the deposit copies submitted to the USCO.

Keeping a folder of everything you submit to the USCO for a registration is a great idea, and if you aren’t doing that yet, start. I suggest you keep copies of the titles list (for group registrations), the actual files submitted, any correspondence you get from the USCO (or send in reply), etc. When you get your certificate, make a scan of it and include the whole thing in that folder, too. Making screenshots of things like the upload page(s) and confirmation(s) takes little time but completes that folder[2]. Then, when the infringer tried its “prove the work is in there” you can not only show the list of title names on the certificate, you can show the work as it was submitted. That’ll shut ’em up… at least on that point.

Basically, the idea is to take away as many of the BS defenses defendants try to assert whenever they’re caught ripping off work. For example, use a proper copyright notice on or adjacent to each work you publish on your website and then no one can claim “innocent infringement” (more on that, here). This “is it in the registration” issue can be a big block with some defendants; removing their ability to claim the work isn’t part of a cited registration can significantly help move negotiations forward.

The more evidence you have to support your claims, the more likely your attorney will be able to negotiate a good settlement for you, so it’s worth the minor effort to make those copies, even if it isn’t your legal responsibility to do so.

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[1] This point was again made in the recent Iantosca v Elie Tahari, Ltd. No. 19-CV-04527 (MKV), 2020 WL 5603538 (S.D.N.Y. Sep. 18, 2020) where the court noted “It is the Defendant’s obligation, during discovery, to contact the USCO and request deposit copies to be used to rebut the validity of the copyright registration.”

[2] Remember, when you make the screenshots, the metadata about their creation date, etc., will be in those screenshot files, too. More handy proof in case they try to claim you created the screenshot, nefariously, later (and yes, they might).

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You Are the Cause of Your Own Suffering

I heard a dharma teacher speak those title words on a podcast this morning. A related Buddhist phrase is “Pain is inevitable; suffering is a choice.” In my spiritual practice, I think about this idea often. It is, roughly speaking, that bad things happen to us all the time and we can never protect ourselves against all of these bad things (not even most of them); however, how we react to the bad things in our lives is directly related to the suffering we feel.

I also think about this idea often in my other practice, my legal one. What does this have to do with the law and, more importantly, your business? Lots! 

For example, when you find an infringement of your copyrights, like your art on someone else’s website, that is painful. The infringer has violated your rights and it seems perfectly reasonable for you to feel angry and upset. Instead, as an attorney, I counsel quiet acceptance of the way things are. This isn’t flakiness, it’s wise legally. I mean, you can’t control the infringer’s behavior and the infringement has happened already: no matter how angry or hurt you get, you won’t change those facts. But if you get angry and strike out, you’ll definitely feel worse, not better. So, take a breath and, gather your thoughts… and your emotions. 

If you strike out at the infringer in anger (even righteous anger), that will make things worse. You might send an email that amounts to legal threats/extortion, or publicly shame someone and later find out you had the wrong “bad guy,” or lose a client because you embarrassed it. But even if none of that bad stuff happens, attacking like that will not make the infringement go away or get you made whole. Instead, you’ll just suffer more because you’ve behaved badly and you haven’t made the pain go away or changed the reality of the infringement. 

Playing the victim won’t help either. It won’t make the infringement stop, it won’t punish the infringer in any way, and it won’t get you paid (if that’s what you want). You’ll just feel worse. There is your suffering, brought on by your own choices.

Now, “quiet acceptance of the way things are” doesn’t mean “do nothing.” Instead, after you take that breath and gather your thoughts, gather evidence. Here’s a post I wrote on that. Even if you decide to do nothing now (one option), you’ll have the evidence if you change your mind (you have three years from when you discovered the infringement, usually, to file suit). After you get the evidence, think about what will make you feel better, feel whole now. Then, take the calm and rational steps to make that happen, like hire a lawyer to get you money, ask the infringer for a credit line and payment yourself, filing a DMCA Takedown, whatever.  

As for protection, you can’t stop determined infringers. You can let go of feeling guilty, like it’s your fault they infringed–it’s not– and feeling guilty is choosing to suffer. However, you can make it easier to get satisfaction after they do their bad deeds if you take the right steps like using watermarks (especially in the form of proper copyright notices), registering your copyrights, using good metadata in your files, and getting good evidence.

Things like infringement are going to happen to you. When they do, there is no reason for you to suffer.

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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:

  1. 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.
  2. 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.
  3. 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).
  4. 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.
  5. 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.
  6. 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.”
  7. 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.
  8. 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!
  9. 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.
  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!
  11. 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.
  12. 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.
  13. 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!
  14. 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!).
  15. 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.
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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.

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Showing 2018 the Door

As we show 2018 the door, and just like we did last year, now is the time to take a look at the year that was and think about the year yet to be.

In 2018, many of us were still reasonably pre-occupied by the lunacy in Washington, DC. It’s been a tough year for anyone who respects the law and has any sense of human decency. Still, while we can’t give any of that bad stuff a pass, we also need to focus on our own lives and, crass as it may sound, our businesses.

With that in mind, here is a list of some things to do, to stop doing, and at the very least to consider as you gear up for 2019.

  • Register your copyrights. Please. I beg you. If you are a creative professional, stop making excuses and start doing this. As I mentioned last year, while there are services for this, I do not recommend using any of them because they might not be anything more than maybe adequate and quite possibly 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 that hard anyway, particularly for visual artists and even more so for still photographers.
    • 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.
  • Pursue infringements. 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 simply do add up. Let’s say you have small value infringements but a bunch of those– worth $2500 average settlement, just for sake of argument. 10 of those over the year is $25K. Now, let’s say your attorney gets 35% of that: you’re still pocketing over $16K.  How about 20 cases and more than $32K in your bank? Why not see of they are worth getting a lawyer to pursue (I review cases for free)?
    • Relatedly, consider using this tool instead of some much more costly “service” to find those infringements.
  • Make the time to make art for yourself. Whatever your medium/media, make making your own work, for you, a priority. Yes, you can probably use it later in your portfolio (because work made for yourself usually is your best work, if you let yourself really be free with it) but mostly, you need to give yourself total permission to explore, play, make utter crap, screw up, take risks, and re-find the joy in your work.
    • Relatedly, (re)learn how to fail. It is through failure that we achieve the abilities to be successful.
  • Get off social media, even for (most of) your marketing. The Terms of Use on pretty much all those services really do suck for creative pros, and all they do is make promises they can’t deliver.  And they are a huge time suck. And many of the companies have actively participated in bringing us the political hell we are now in. So stop facilitating their shitty behavior and quit using them. Besides, when it comes to your marketing, it’s virtually impossible to get seen by the right people by using social media, particularly if you are relying on trying to trend/go viral. Instead, do better targeting (make lists of the clients you want to work with!) and get back to the basics in your marketing plan. Back off the electronic crap and consider investing in really good print mailers. Also, try to interact in real life with potential clients. Make calls, go to industry events, volunteer with professional organizations of your potential clients–get out there in three dimensions!
    • Importantly, instead of posting everything on Facebook, Instagram, etc., keep your work on your own server/site and post links on social media, if you insist on using social media.
  • Use a watermark on visual art. Preferably, it should be in the form of a proper copyright notice (that is © year of first publication Name, for example: ©2018 Leslie Burns) but if not that then the copyright owner’s name (not your URL). For non-visual art, include the notice somehow like in the audio file for a podcast or both on the doc and in its metadata). I’ve already written about the wizbangery that is the CMI-related part of the DMCA–don’t ignore those protections!
    • Also, if you don’t know what metadata is or how to edit it for the digital forms of your works, learn now. Everything digital has metadata and that metadata can be crucial evidence in a lawsuit (it may also be CMI).
  • Make plans, including for death. Life changes, including the ultimate one, will affect your business and assets. That is basic reality. I lost my own father this year and you can trust me, having things properly organized and documented before the fact is a huge help in the grieving process. Take the time to look at where you are and what might happen, and plan accordingly (see my previous article on this, and this one on marriage, too).
  • Most of all, make time to be with those you love. Be fully present, and not just during the holidays. Also give to those who are worse off. Time and caring are things we can’t bank or buy; being present with those whom we love and who love us, and giving to others who are struggling somehow (and there are plenty of those these days) will do more for you than having another thing to own.

Here’s hoping 2019 is a happy, healthy, and prosperous year for us all.

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Safe Harbors, Piracy, and Your Value

I could write on this issue, but I’ll save the time and point you toDavid Newhoff over at Illusion of More. In this post, Mr. Newhoff discusses the differences and, importantly, the similarities facing artists in the USA as compared to the Canadians when it comes to the (false) promises made by tech to improve the lives of artists. Miranda Mullholland made a wonderful and passionate speech to the Economic Clubof Canada about her (and others’) life as a musician–one who works her ass off but who barely makes a living. Watch her video and read Newhoff’s comments. I won’t reiterate it all here.

I will say this, though:

  • You make the art, be it music, photographs, design, illustrations, and it is art–the platforms can’t be successful without you.
  • Stop calling the art you createcontent and stop letting people rip you off both directly and by devaluing what you do (like, by calling it content).
  • Don’t rip off anyone else and support all other artists, yes, even (especially) when it costs you more.
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The No-Pin Tag (who knew?)

I dont like Pinterest.

Anyone who knows me knows Ive complained about it since I first learned of it. In my opinion, its business model is based on exploitation of creative works, mostly without the authorization of the creators/copyright owners of the works. All its money has been generated on the back of creatives, few of whom ever get any real benefit from it.

One of the things I do not like about Pinterest is how it not only exploits the safe harbor of the DMCA (takedown process) to protect itself, but also it flips the entire idea of how copyright is supposed to work on its head. In short, rather than making its platform opt-in, it forces creators to opt-out.

Normally, to use (copy, publish, display, etc.) a creative work, first you have to ask permission. If Pinterest wanted to do things in a creator-friendly way, it would have set up its system so that creators could opt-in to have their works (that appear on their websites) eligible to be included on Pinterest. Instead, Pinterest will permit any work to be posted from any creators site onto its site unless the creator blocks her/his/its work or site. Essentially, that is an opt-out requirement. That is dirty pool, in my opinion; its flipping the burden.

Regardless of my personal feelings, that is how it works. According to Pinterest itself, if youd like to block your work, you can do so by virtue of including a bit of code into your websites code. That code is called the no-pin tag. See https://help.pinterest.com/en/articles/prevent-people-saving-things-pinterest-your-site, which says:

If you don’t want people to save things to Pinterest from your website, just paste this code into the <head> section of any page on your site:

<meta name=”pinterest” content=”nopin” />

When someone tries to save things to Pinterest from your site, they’ll see thismessage:This site doesn’t allow saving to Pinterest. Please contact the owner with any questions. Thanks for visiting!

You can also prevent any individual image from being used by (as the page cited above notes):

add this tag to [the single image]:

<img src = “foo.jpg” nopin = “nopin” />

Now, I had no idea until today that there was such a thing as a “no-pin tag.” I’m a copyright attorney and I’ve pursued infringers on Pinterest before, and yet even I didn’t know about this. Crazy. But now I do and that’s why I’m telling you about it, as soon as I could.

I honestly dont know any creative pro who is making money from her/his/their work being taken from her/his/their own site and used on Pinterest. At best, I know of a few who have shot for corporate or advertising clients who then used the work on Pinterest, but they got paid by their client(s) for the license. Pinterest is, I think, a trojan horse of a site that scares people into thinking “I have to let people pin my work so that they see it and I get hired!” but, really, it doesn’t work that way. Housewives in Podunk, USAare unlikely to hire you.

Putting on my marketing consultant hat for a minute, I would never recommend a creative permit work to be used on Pinterest without a paid license. Instead, keep your work on your own site, preferably with a watermark on each work and a proper copyright notice on or next to each work, too. Register the copyright in your works asap after creation. Embed the no-pin tag on your site. Then, if your work gets used, including pinned, without your permission, go after the infringer and protect your rights.

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Your Notice is More than CMI

Recently, I wrote about the importance of your CMI (copyright management information) and mentioned that using your copyright notice as a watermark is your best CMI, because it kills two birds withone stone, so to speak. In that other post I talk about the DMCA and CMI removal issues (one bird). Here’s the skinny on the other…

But first, a little about a proper copyright notice. People get the notice technically wrong often, and it matters. So, here’s what it should be, in plain English:

1.  the symbol © (that’s control + g on a Mac) or the word copyright
2. the year of first publication (see here for more on “publication” as defined by the Copyright Office)
3. the owner’s name.

An example is the image above. Since I am first publishing this article here in 2016 and I created the work and own its copyright, the proper notice for this article is as you see there. In the post about CMI from late June 2016 I mentioned earlier, I included a photo (a selfie, actually) that I shot when I was in law school in, I think, 2010, but which I had not published (meaning that it had not been offered for license or given to a client for potential further use or otherwise made available to others, as well as in the sense normal people think of published) until 2015. So, the notice there is correct: ©2015 Leslie Burns. If I wrote “©2010 Leslie Burns” for the photo, the notice would be incorrect–the year in a proper notice must be the year the work was first published.

Okay? Cool. Now to the good stuff…

If you publish your work with a proper notice, that is a proper and visible notice (not just buried in the metadata), then an infringer of the work can’t try to claim “innocent infringement” in mitigation of statutory damages. It can’t even go there! Here’s the super good part of that: this is true even if the infringer got the work from some other source, without your notice! There are several cases that support this rule (and the rule is in 17 USC 401), but here are just two for your attorney’s dining and dancing pleasure: BMG Music v. Gonzalez, 430 F.3d 892 (7th Cir. 2005) and Maverick Recording Co. v. Harper, 598 F. 3d 193 (5th Cir 2010) (cert. denied). The second one is particularly helpful as it looks at the issue in more detail, but both make it clear that the defense is barred if the work is available with proper (and visible) notice, even if the infringer never saw that particular publication of the work.

So, going back to the CMI thing, if you use the proper copyright notice as your watermark, you get the protections I just described and, if the work gets infringed and the watermark is removed, the infringer just committed a violation of 1202 of the DMCA. Putting the pieces together, then, and assuming you have properly registered the work prior to this, your infringer is looking at a minimum of $750 (infringement) + $2500 (DMCA) in damages to you, plus maybe your attorney’s fees.

Those birds must not be chickens ’cause that’s not chicken feed.

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