Category: Uncategorized

Your case is the most important legal thing in your life. At times it can feel like the most important thing in your life, full stop, but really it’s probably not (the people we love are more important in my book, just for starters). Still, your case is really damn important and it should be.

Your lawyer knows that. Even when you don’t hear from your lawyer for a few days, that doesn’t mean s/he isn’t thinking about or working on your case. You and your case matter to your lawyer. Thing is, your lawyer has a bucketful of cases s/he is handling at any one time so you have to remember that yours is not the only case in your lawyer’s head.

Your lawyer should update you regularly as to the status of your case; maybe that is weekly, maybe that is every-other week, but regularly. If that isn’t happening, then it’s reasonable for you to ask for updates–both immediate and regular. If you want a status report on your case, sending a polite, “Any updates on the Bob’s Widgets matter?” kind of email to your lawyer when you haven’t heard anything in a week or so is fine, especially if you have established a sort of schedule that your lawyer missed.

However, emailing (or calling) your lawyer every/every-other day to ask what is happening is only going to add stress to your lawyer’s life and won’t make you feel any better. Your lawyer can’t control the opposition so if, for example, you’re waiting on a response to a demand letter, you bugging your lawyer isn’t going to make that happen any sooner. All it will do is take time from the lawyer’s busy day for him/her to draft a response to you or take your call.

That might not seem like much, but there is ample science pointing to how interruptions are much more stressful than we ever thought. Having to stop, say, working on a draft complaint for another client to respond to you isn’t nothing–it means having to put attention on a completely different thing. Stopping one line of thinking and starting another and then switching back.

In short, you need to respect your lawyer’s time and brain. Your lawyer needs to respect your emotions and need for information. Mutual respect.

The best way to demonstrate that respect is by clear and open communications, on both sides. Don’t lie to your attorney, or hold back details. If, for example, your lawyer asks “where did you post the work yourself” don’t say “Facebook” when, in fact, it was Facebook and Pinterest and your own blog and… Your lawyer, on the other hand, shouldn’t hold back in sharing information about your case. If s/he is getting any info from the other side, you have a right to that info.

Sometimes, I’ll get a client who will email (usually this is an email thing) something like “Oh, that image was not the one on the facebook page but it was on that other website–did you ask them about that?” That’s it. Um, what image, which case, which facebook page… huh? No context means I have to dig out all that client’s files and see if I can make sense of the email or ask the client to fill in the blanks, which can make the client upset that I don’t know immediately the context of the email. It’s as if I’m supposed to be able to magically recall every detail of every case of every client and when I don’t the client thinks I don’t care. Nothing can be further from the truth–I do care; I’m just not a machine.

By the way, there’s an easy (at least partial) fix for this: make the email subject line relevant. For example, don’t say “infringement matter” (I get loads of these!) but rather “Bob’s Widgets infringement matter.” That lets me know which case (assuming Bob’s Widgets is the infringer) and I’m much more likely to then be able to recall the rest.

Anyway, you and your lawyer both need to have reasonable expectations of each other as well. Just as you (client) can’t expect your lawyer to instantly remember every detail of your case when you call out of the blue, your lawyer can’t expect you to know all that s/he is doing for you and what may be needed from you without telling you, or for you to understand the law fully (that’s not your job). For example, I can’t expect my clients to understand the niggling details of the Section 512 safe harbor so I need to take the time to explain it to them, in their own language, when it’s an issue in their cases and how I then must check all the different parts of that to see if the defendant might be covered by the safe harbor.

Your relationship with your lawyer is exactly that: a relationship. The foundation for any great relationship is good communication and, of course, mutual respect.

After far too long of an absence (mea culpa), I’m back with the first of a series of posts I’m calling: How to Work With Your Lawyer

Today’s Post: How To Work With Your Lawyer: Trust

Creative professionals are often very smart people. Whether formally educated or not, your brains tend to fire pretty well. This is generally a good thing and can definitely make for better art, no matter what your medium. However, it can become a negative when you think you know more than you really do, especially about a very technically precise field like the law.

When I was in law school, I wrote a post about how, before law school, I thought I knew copyright law pretty well and how I learned that while I knew more than the average person, what I knew was actually very, very little. There is so much more to copyright law (and law in general) than I ever could have imagined without having gone through all of law school. The interplay between the statutory scheme and constitutional issues and how the courts interpret all of it, you just can’t possibly grasp it unless you, like I did, immerse yourself for three years in intensive, undistracted study. Even then, you aren’t fully informed and won’t be until you’re actually in the trenches, so to speak. Plus, I spend a ridiculous amount of time reading cases and highly technical academic articles to learn more, every day.

But I was one of you before law school–one of those who even debated my now-colleague Carolyn Wright on legal questions that appeared in places like the APA Forums. I look back on those debates with more than a little embarrassment. I thought I knew the law well enough to challenge her opinions when, really, I knew just enough to probably frustrate the hell out of her when she was trying to help by teaching the community the (actual) best practices*.

Now, I know what it feels like to be challenged by people who think they know more than they do. I have the headdesk-induced scars to prove it.

I’ve been practicing law for four years now and the most frustrating thing that happens isn’t when the opposition pulls some chicanery or the like. Nope, the worst is when a client or potential client comes to me with a question which I answer based on my expertise in the law (and often additional research to make sure my info on that particular issue is current), and then s/he doesn’t like the answer and tells me, “Well, I feel that you’re wrong.”

First, you don’t feel that I’m wrong, you think I am (language matters!); and second, if you aren’t going to trust my opinion, then you shouldn’t ask for it. That’s not me being petty, that’s me knowing that I can’t do the best for you unless you trust me when it comes to legal issues. My job is to fight for you and to have your back but I can’t do any of that if you don’t trust that what I am telling you is the best, most accurate answer and advice based in the law that I can give you. I’m happy to talk to you and explain what I can, but in the end, you just have to trust me. Besides there being rules of ethics that say we have to do what is best for you, lawyers actively want to do what is best for our clients.

Look, none of us lawyers likes having to tell a (potential) client bad news. We know it’s unfair that a screwed up copyright registration can scuttle an otherwise beautiful case and that the Copyright Office makes it damn easy to screw up (especially the published/unpublished thing). It sucks that if we can’t document the value of the license is $30K we can’t get $30K for you; that while any normal human can see your work has been knocked off stylistically, proving it’s actually infringing would cost god’s own wallet to litigate and we could still lose so we can’t take the case on a contingency fee basis; or, that you can’t not do X now (without repercussions) because you agreed in your contract to do X.

We want to be able to help, that’s why we do what we do (especially in our firm but, honestly, I think all good lawyers still hold that as their first principle). We look for ways to say yes to whatever it is that you want, to enable you to achieve your goal, to fix the wrongs, promote the good, and to defend your rights, but sometimes we have to say no or not like that you can’t or well, you can try it but here’s what you’re risking, or it just isn’t worth that much, or even, it sucks, but just write the check and move on.

I (and others) describe law school like military bootcamp for the brain: a law student is stripped of her old way of thinking and taught a new way in her first year, then trained to use that new way to an impressive level of competence in the next two years. Then, we go out and apply it all in the real world, honing as we go. Maybe the Vulcan Science Academy is a better analogy, because we learn to process data with dispassionate logic. But the best of us also reintroduce humanity to the practice and become weird hybrids of logic and compassion.

The result of this training is that lawyers think strategically as well as tactically about each of your issues and formulate a plan to achieve the objectives. There is balance and judgment involved. It’s tough work that requires more time and energy than you know, just as your work is much more complicated and subtle than any outsider ever understands. You know how to do what you do. So do we.

So, to have an effective relationship with your lawyer, you don’t have to like what we have to tell you, but you do have to trust us when we give you that advice. It’s the only way we can help you.

___________
*To be sure, I really appreciate not only Carolyn’s patience then, but her recognition that I had a good brain that, once trained in the law, would be a good asset to the legal part of the photo world.

…get thee to this ASMP presentation by my colleague, the brilliant Evan Andersen.

 

No, this isn’t a post about legal stuff (although yes, you should get all that in print)–this is about printing your work. The tangible is simply better and I encourage prints whenever possible. Cheap prints at the very least, even if chucked into a box for years and ignored, will still be there when technology shifts and you can’t access your digital files on that weird old media any more (Zip drives, anyone?). We’d never have discovered Vivian Maier, for example, were it not for boxes of tangible stuff she stored away (I believe they were negatives, but still).

Speaking of her, the doc Finding Vivian Maier is going to be on Showtime on January 8.

Anyway, print your work, if only for you and your legacy. However, if you’d like some nice tangible stuff to show your work, maybe for a promo or client gifts, check out Artifact Uprising. Not inexpensive, but some fabulous products.

The end of the year brings all sorts of looking back. I say, fuggidaboudit. Why? Because the past is done. Whatever it was, whatever happened, has already happened. Past tense. Over. Unchangeable. This is true if you had a good year or a crappy one. It’s done. So, it’s wasted effort to review it over and over again. Besides, as most creatives are wont to do, you’ll likely get stuck focusing on the errors you made and beating yourself up for them. That is massively non-productive. Instead, I suggest you take these probably slow days around the new year to let go of the past and look forward.

Take an afternoon and go to a museum or something equally relaxing and inspiring, something that gets your creative and mental juices flowing. Once in that good mental space, then go sit in a cafe (or a bar, if you prefer) with a notebook (an actual paper one–this is important) and a writing instrument that you love to use (this is also surprisingly important) and think of things to do for your business, looking forward. No editing–just write down any idea that pops into your head about your business and your creativity. Be specific and, this is a big part, focus on things over which you have control. Maybe you’ll come up with ideas for personal projects, or promos, or a new creative technique, or imagine adding a marketing assistant to your business–doesn’t matter. Don’t limit yourself to things you think you might actually be able to do (financially or whatever), but instead just write all things you’d like to do. It doesn’t matter if you have the money to hire an MA or move to Paris, this is just about brainstorming so don’t get hung up with the downside of reality. Do, however, keep in mind that you can only control yourself so writing things like “have a client hire me for a $100K project” is not a good thing to have on your list because that is out of your control (you can market to clients who are capable of offering such projects, but you can’t make them actually offer one).

The next day (yes, sleep on it), look at your list. Separate it into three parts: Doable Now/Soon, Doable in 2015 Sometime, and Doable After 2015. Note there is no “not doable”–everything is (probably) doable…eventually. Rewrite your original list into the three separate lists (again, best done by hand). For example, maybe you had “move to Tibet to shoot monks” on your brainstorming list, but you don’t want to take your young kids out of school or leave them behind–put that item in “Doable After 2015.”

Then, take the items in the first two lists, those for 2015, and figure out how you can do the things on those lists. Write out the steps to achieve each item. For example, if you have “follow undocumented migrant workers in Texas for 1 week” then you’d have items like “contact migrant worker organizations in TX; decide how to shoot/make equipment list; book flight; book lodging or get camping equipment…” and so on. Take these mini-lists and schedule them on your 2015 calendar (you can always move the items later if they need to be changed due to shoots).

The third list, the Doable After 2015 one, you need to look at to see if there are steps you can take in 2015 to facilitate their achievement–that is, steps to help make those items happen sometime later. For example, if you want to go to Tibet as mentioned earlier, you’ll need to save up money. So, items like “starting a Tibet Project savings account” and “saving at least $2000 for Tibet Project” are some things you could do in 2015. Schedule those items as well in your 2015 calendar.

Do all this and, voilà, you have a plan for 2015–a plan to achieve the things you want to achieve. Each step is concrete and doable. And each step will lead you to your goals for 2015 and help you on your way to your longer-term goals as well. These are all individual things you can do–basic tasks–that, when combined, will help take you where you want your business to go. You are thinking about your present and your future, not wasting effort worrying about mistakes you may have made in the past or things that happened out of your control in the past or things out of your control in the future.

Stay focused on each day as it comes, be present, work the items as they appear on your calendar, and you’ll be surprised at how much you get accomplished in 2015. I hope it’s your best year yet.

 

(in case this article seemed kind of familiar, it’s an updated version/revision of an article I posted in 2008)

Today, I got to do the thing I most love doing during the holidays: I bought and donated a trunkful of games and HotWheels to Toys for Tots. I say “I got to” because what enables me to purchase a pile of gifts for kids who don’t have much in their lives is you, my clients. You give me the joy of being able to give to them.

I am grateful for every one of you. Thank you for that holiday gift.

In the current business culture, all creatives are struggling with the devaluation of their work. Although I primarily work with visual artists, I have been lucky enough to be involved with the Content Creators Coalition which has exposed me to the struggles of people working in music as well. Last Sunday, here in San Diego, the 3C had a fundraiser concert where they played the trailer for the unfinished movie Unsound. I met the filmmaker, Count Eldridge, as well (although we had talked several times on the phone before this), and to say he’s passionate about this issue would be understating it a bit.

As a firm believer in the rising tide floats all boats theory, I’d like to encourage all of you to share the link to the film and promote it. Musicians’ issues are very much like your issues. Also, if you can, donate something to get the film finished. Count has spent years of his time on this project and now needs to raise the funding to finish the editing. Every bit helps and there is a link on that site to contribute.

Finally, think about your own use and acquisition of music. Yes, tools like Spotify and Pandora are cheap and convenient, but they aren’t paying the artists anything close to a fair rate. How can you expect to be paid a fair rate for your creative work if you don’t buy music in forms that are best for those artists?

Heather Elder continues to share really helpful information for photographers. In today’s post, she lets us know what art producers think about treatments, specifically, what information is the most important to include. It’s a definite must-read for photographers, but I’ll give you a little spoiler here: it’s mostly about your vision.

In this PDN interview, now-former rep Julian Richards lays it all out there. It is a painful read, but an important one.

Mr. Richards says at one point, “The photographer’s role as sorcerer and custodian of the vision was diminished.” I could not concur more. This is something I have been railing against for some time and something I think you can change, but it will be a fight. For a photographer to be seen as the minor miracle worker s/he is, s/he must control the process more. The mystery of the art must be recaptured.

I have been hearing about a few photographers who, if not shooting film (and yes, there are still film shooters out there), will not permit the clients to look at a monitor… at least not until the photographer reveals. That is a very big thing. It is also only one part of the shift.

Overall, you have to say “no” more often, especially when saying “yes” compromises your vision in any way. You have to make it unquestionably clear that while you will work with the art director and other creatives, you will not do what they want just because they want it. Most importantly, you should align with the ADs (who really do want this although they have their own fears, as have always been there) to tell the clients that they need to trust you to provide the best creative because that is what you do.  Yes, that is politely telling end-clients to shut the eff up.

As Mr. Richards says, “By abdicating those responsibilities to the guy who’s paying, you’re undergoing a sort of self-inflicted castration.”

Ouch, but accurate.

Think about how much you have sold out. How does that make you feel as an artist? What you can do to change? As much as I agree with Mr. Julian’s comments, his choice to leave the business was based on more personal reasons than just his frustrations with the state of the photo business world. You don’t have to give up as he has. Change is possible, although it won’t be easy. I don’t think any of you should give up or give in, but rather let’s stop the slide to mediocrity.

It has been far too long since I’ve posted. This is what happens far too often when one stops being religious about scheduling the things one should be doing and instead does all the stuff one feels one must be doing….now now now.

Now now now is rarely good. Even for creatives. There is a difference between being in the moment–being mindful and aware–and now now now. The latter is reacting, often on the verge of panic, to the outside. You can’t make your best work when you are reacting to the outside. Good creative has to come from the inside. You have to make the mental space available to do that.

You also need to do some things that aren’t as creative, in order to keep the business humming. When you get work and get in that now now now mindset, I’ll bet the first thing that gets pushed off your agenda is your marketing. You’re suddenly too busy to send emails or research new clients. Must plan the shoot! Can’t take time to work on your portfolio.

You’ll regret that when the brief work flurry is over.

Make sure that, even when you get swamped with work, you make the time to at least touch in with your marketing (and other biz stuff like invoicing, bill paying, etc.). That way not only will your work be more regular, you won’t be faced with the overwhelming mountain of crap you don’t enjoy doing when you get back to it.