Category: Uncategorized

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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.

______________

[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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Estimated Taxes With a Twist

[UPDATED 9.10.20]

It’s almost that time again… time to make your third quarter estimated tax payment to the IRS (and to your state, if it does that). Despite COVID and everything else, the IRS is still expecting you to make your payment by September 15, as usual. That’s next Tuesday.

This year, though, there have been twists every quarter. First there was a deferral for first quarter 2020 payments and payments for any taxes owed from 2019. Then, you had to pay all those taxes as well as your second quarter estimated taxes in July. Now, the Mango Mussolini has declared that all workers, including the self-employed, can skip paying payroll/self-employment taxes, for now.

For the self-employed, not having to pay 15.3% (self-employment tax is both parts of FICA) sounds fabulous! But, contrary to the spin on this move, this is not a good thing.

What isn’t being made really clear is that this is only a deferral of the payment of those taxes, not that you won’t owe them eventually. Trump claims he wants to make these cuts permanent, but that would gut Social Security and Medicare and be incredibly harmful to people who already rely on those systems as well as those of us who haven’t yet aged into them. It is not likely to ever get approval even by his henchmen in Congress, but if he stays in power, he intends to do just that. See this article for more of the gory details.

Also, it may not actually apply to self-employed people, as this article points out, and it starts September 1, so no one seems to know if that means you still need to pay the whole thing for this 3rd Quarter payment or not (my bet is yes, you do).

For the average creative worker, cashflow is probably a big issue right now; so taking the deferral will be very, very tempting. Although I am not a CPA (at all!), I would counsel against giving in to that temptation, if you can. There is an old saying: money now is cheaper than money later. In this situation, paying your full boatload of taxes now rather than taking the deferral is going to save you heartache, bookkeeping hell, and the need to somehow come up with more money later when you might not have it.

For those of you who are employees, you might consider asking your employer NOT to defer withholding your FICA payments. It’s all going to make for real bookkeeping nightmares down the line but, just like for the self-employed, better to have that money already paid than to have to come up with the tax equivalent of a balloon payment later.

Times are tough for so many of us and it is easy to be seduced into making short-term choices that hurt in the long term. This scheme is just such a seduction. Don’t be fooled. Cut back on other things (like Netflix, etc.) if you need to, but pay your tax bill in full next week, if you possibly can.

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One Thing to Save Your Business

If you could do one thing that you know would save your business, would you do it? Of course you would. There is such a thing–an easy one, in fact: back up your computer and project drives.

Taking care of your data and your projects should be your number one priority. If you lose your files, you will have angry clients (at best) and you will lose money because you will have to recreate whatever you lost. Remember, time is money. 

I just went through this. Over the weekend, my computer died. My trusty MacBook, that has served me so well for the better part of a decade, turned into a brick. We’re talking a power issue—possibly a fried motherboard—who knows. It won’t make so much as a peep or ding, much less actually turn on, despite the various tricks tried by me, Apple, and my tech-savvy brother. It is so dead, that recovering anything from its drive is probably going to require an expert and lots of money. 

Dead-dead-dead-y-dead. 
The MacBook is dead, long live the new MacBook.

Okay, you get it. 

Anyway, I would be so terribly screwed…except that I regularly back up. I’m religious about it and it totally saved me here. Every week, I back up on two separate outside drives plus I have some things backed up to the cloud with every change, too. So, instead of losing a ton of data (like client files…eeek!), I lost very little—like a couple of screenshots, it seems. 

So yeah, I’m still out the cost of a new MacBook and my Sunday was all about trying to fix my old one, then getting a new one (thank heavens Apple delivers via courier here!), then doing the migration from one of the drives. Still, I’m up and running, mostly normally, this Monday. Whew.

More importantly, my clients will be virtually unaffected by the failure. That is both a client management issue, like it would be for anyone in any business, and an ethical one for us lawyers (I have a duty to protect my clients’ files/data). 

If you are not backing up regularly, start today. Best practice is the 3-2-1 system: three back-ups, on at least 2 separate media (2 different drives, 1 drive + cloud, whatever), and 1 copy kept off-site (the cloud can be this). Then, do it every week at minimum. 

A backup plan is just like insurance: we hope we may never need it but, boy howdy, we’re glad it’s there when we do. 

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Your Creative Business is (surprise!) a Real Business

Yesterday, I read a tweet about how artists must see themselves like start-ups—they are in business and must treat their business as, well, a business. While the author was referring to musicians, the point is absolutely true for all artists—writers, photographers, designers, et cetera. 

Self-employed does not mean you don’t have a job or that you are not in business. In fact, it’s the opposite. You are more closely tied to your business than regular employees. Being self-employed myself, I know whereof I speak (I’ve not had an actual employer since the 20th century). There is a special intimacy between the worker and the work and the money it brings in that doesn’t, or at least doesn’t usually, occur in employees. 

I think for artists, that intimacy may be even deeper since, generally speaking, you are expressing something inside you in your work. Or at least trying to, when you can, even when you’re making commissioned work. 

Sadly, though, too often that intimacy includes a mingling of Artist and Artist’s Business, especially in the financial sense. This, dear readers, is a really bad thing.

From a legal perspective, it can make for lots of issues. For one example, mixing the personal and the business can affect any corporate veil you may think you have because you have an LLC or incorporated. When the finances are mingled and corporate formalities are not followed, someone suing you has a much better chance at getting to your personal assets (“piercing the corporate veil”). 

More importantly, though, if you don’t treat your business like a business, there will come a day when it will bite you in the butt—like when you are trying to get credit for some major purchase, like a car or, more importantly, real estate.

When you want to buy a house (or even rent one in some places), proving your income and your business’ viability is crucial. Self-employed folk generally have to provide extra documentation to prove they are a good risk.  We have to provide P&Ls, balance sheets, and bank records. Since we all try to get our taxes down through deducting every possible business expense, (self-employment tax is a pain) our tax returns might show we make less than we actually do. If you’ve been claiming some personal expenses as business expenses, this will be even worse (and it’s illegal). 

Now, with COVID, it’s even harder to get a mortgage if you are self-employed. Fannie Mae has imposed extra hurdles to make sure potential borrowers aren’t faking it. I know because I have just been through this.

My partner and I had been pre-approved for a loan larger than what we ended up asking for; but we just learned that we had a real chance of not getting the loan we needed because of those new proof requirements. The requirements are changing often right now and, lucky us, the newest changes happened just as we went into contract. Surprise! On top of the usual pile of documents, I needed to prove that I had more business in the pipe, so to speak, and that my business has income fluctuations throughout the year, and that those trends are fairly consistent over time. Holy cow!

Now, I’m religious about my bookkeeping and records-keeping and keeping my business and personal finances truly separate (not to mention my firm’s trust account separate from it all, too) so, luckily, I could produce the extra reports and statements necessary. Short answer: we got our loan. But I know too many artists who do not take the time to keep things separate or to even do some effective bookkeeping. Yikes! Those artists would be totally screwed. 

Keeping accurate business records and keeping them and your accounts separate from your personal ones, is vital. If you treat your business like a business, your records will be there when you need them. Don’t beat yourself up if you haven’t been doing this—just start now. 

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Control

I know… I suck… I haven’t been keeping up with posting here. In my defense, my boyfriend and I are in the middle of selling his condo and buying a house. In San Diego. In the middle of a pandemic. Which brings me to the theme of today’s post: you can’t control others but you have control over what you do.

Real estate transactions are one of the most stressful things in life. Several articles like this one point out that home buying ranks above planning a wedding, becoming a parent, or even losing a job, for being stressful. In San Diego, like other very expensive places, I think it is even more so. For example, we looked at a 1300 sq. ft. house the other day that was priced at $825K (like most properties here, it will likely sell for more, but not from us); its ceilings were practically falling in and its floors were warped from water damage, amongst other problems. Almost a million dollars for a fixer-upper. INSANE!

We did find a house we loved and submitted an offer. The owner countered in a totally greedy, irrational, and frankly insulting manner. First, we got pissed; then we remembered that we can’t do anything about how a seller acts. In this situation, we let go of the hurt feelings and walked away. Let someone else over-overpay. Now, we’ve found another and just submitted an offer. It’s likely we won’t get the house because the owners are flippers and will only care about making bank, but we submitted a generous offer with terms that both make it more attractive and yet still protect us in the process. Still, I suspect someone will out bid us and do so without an appraisal contingency and maybe even “as-is” and even without an inspection contingency. We can’t control the other offerors nor the sellers, so we’re not going to worry about it. Either we get this house, or not. 

Leaving off contingencies makes an offer stronger in the seller’s eyes. However, what it does for the buyer is put them in an unreasonably risky situation. For example, the appraisal contingency protects you in case the house is overpriced. An appraisal is necessary so that the loan provider knows it can make money if you default on your loan by making sure it will hold enough equity in the house to make money on a foreclosure. See, if the house is sold at $800K but appraises at $750K, without an appraisal contingency the loan company will only fund up to $750K and you’ll have to make up the difference somehow… like in cash. If you make a large downpayment, a loan company may forego the appraisal and tell you it’s okay to waive the contingency, but that’s because it knows that it’s going to make money selling your house if you default because its loan to you was only $400K (50% down), not $640K (20% down) or more. But you are still overpaying for the house.

If our offer is countered with contingency removal demands, we’ll just say “no” and walk again. We may end up renting for a while, but we will not pay a huge sum for a house without protections in the process. It would not be good for us and we can only control what we do. 

I bring all this up because what I’m hearing from sellers is just like what creatives hear all the time, and what creatives must learn to say “no” to. That is, you’re told “everyone does this” or “sure, the doc says you are assigning us your copyrights but we’ll let you use the work” or “it’s industry standard to have a 90 day pay window,” or “you have to get releases from everyone you shoot at this event or indemnify us against claims if you don’t,” etc. Whenever someone in a financial transaction with you says one thing but the paperwork says another, 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.

Moreover, the terms they are insisting on are good for them and they do use them, or the terms would not be there. Always. So when 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 what they claim they never do, and will if they can.

If your client/buyer tells you “my way or the highway,” take the second option, for sure. Bullying and fear-mongering is pervasive in the creative industries. Threats about not getting work are just manipulative bullshit. You didn’t have the gig and lose it by saying “no,” they just wanted to scare you into accepting a bad deal. Walk away. Use the time to get a better client.

But don’t bother trying to fix them or teach them the errors of their ways. Like the real estate situations mentioned above, 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. You 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 in return (besides the gig); 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 you’re line is ownership, or “Not at this price—if you want full ownership, that will cost $X” if you’re willing to sell but for the right value. 

You can use your list for contract negotiations of all kinds: time to pay, deposits, usage license terms, indemnification clauses, you name it. You set your limits. You have that control. Stick to them because they are best for your business. 

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 what is best for you and your business is not always easy, it is vital. 

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Are You The Problem?

Okay, I usually try not to get political here; but I believe that, as a good American, I must stand up and speak some hard truth to you, the creative community. It’s going to look political but, really, it is so very much more than that.

Here is that hard truth: if you want to help keep the orange monster in the White House and people like him in power, losing any social benefits or chance at upward mobility and ruining the future for the next generations, please, continue using Facebook and Instagram (for ease, I’m going to call them collectively “FB” because you know, or should, they are both owned by Zuckerberg*). If you don’t want that and are using those platforms, wake up: you are the problem.

FB not only enables the worst of the worst—anti-Semites, racists, homophobes, sexists, revenge-porn incels, the whole host of uglies—it actively encourages them. Do a search of “facebook incels” if you don’t believe me. FB makes a lot of money from these twisted people and their hate groups. Zuck hides behind the idea that blocking these groups would be against the first amendment, but that is bullshit: the first amendment does not apply here. Free speech is about the government silencing or compelling speech, not a private entity doing so. So, the first amendment argument is a total fake. It is FB (etc., see Google, EFF…) using a powerful symbol of our fundamental rights (the phrase “first amendment”) as a manipulative tool to make us think it is doing the right thing, while it’s actually taking that right (and others) from us, the regular folk. 

Rather, FB/Zuck have an interest in promoting one rule of law for the rich, white, and powerful, and another for all the rest of us. Zuck loves money and power. He has made it clear, over and over, that he is lacking anything resembling actual compassion—he wants what he wants and will run over anyone or anything that gets in his way. Trump and his similars are his (and others like him—see, e.g., Ek, Musk, Thiel, et al.) ticket to this new America; they will never de-platform him or those who use terror and cruelty to support his “reign.”

By using the FB platforms you make it financially possible for FB’s continued promotion and support of Trump and his followers. In short, every time you use FB, you are helping keep Trump in the White House and people like him in power. That is not an exaggeration. You are trading your freedom and the opportunity for yourself and your children to live in safety and freedom, for the convenience of the platforms’ reach. That’s it. 

It’s bad enough if you use FB just to stay in contact with friends and family, but if you are using those platforms as a part of your business marketing, you are very much literally providing the content (I hate that word) that drives the whole machine. You are providing the fuel for this cross-and-book-burning-deep-state-conspiracy-make-the-rich-richer-dumpster-fire. You are enabling and enriching those who do not want you to succeed; in fact, they don’t give a shit about you except for how you can make them more money and be used to help them make America a whiter, christian, hetero-only, male-centric safe place for their greed. They want to put a sexist, homophobic, racist, (pseudo)theocratic oligarchy yoke on you and your descendants. And you are helping them.

So just stop.
Please.

If FB lost the photographers, illustrators, filmmakers, musicians, etc., it would not be able to get the advertising dollars it does. I believe that losing the creative class as users would mean FB would eventually fail, and probably sooner rather than later. The quality of content would drop dramatically. Fewer people would be interested in visiting. Remember MySpace? Same thing can, and should, happen. Besides, at the very least, by quitting, you could go to sleep at night knowing you were not contributing to the problem. 

We need to stop thinking about what is easy and begin not just thinking about but doing what is right. By writing this, posting it, and posting links to it, I am risking backlash to my business; but I cannot ignore this basic-yet-hard truth and raising attention to it is the right thing to do. If I lose some clients, I can live with that. Staying silent? Not so much.

Rather than getting pissed at me for pointing out this hard truth and maybe making you uncomfortable, I hope that you’ll recognize that what it means is that you have incredible power. Each of you, when working together, absolutely can change this. Voting, yes, of course, but economically, when we work together, we are a huge force! In 2017, the arts added almost 900 BILLION DOLLARS to the US economy and independent artists made up over 50 billion of that (see https://nasaa-arts.org/nasaa_research/facts-figures-on-the-creative-economy/ for lots of arts-and-money stats). Those numbers don’t include the money your work generated for the tech companies/platforms—numbers we’ll probably never get, since the platforms never want you to know the truth of your power.

Speaking of your power, the other side of this truth is that those now in power, those like Zuck and Trump, are terrified of us. They know we can wake up to our ability to get our shit together and stop their exploitation of us. They know that, when we do, many of them are going to see their money lost or seized and, better yet, the inside of a jail cell. We can do this, it just takes the internal fortitude to make the choice (and a little more effort in your marketing). 

So I call on each of you to reclaim your power and stop using the platforms. Also, I call on the professional organizations who represent each of the creative industries to (1) stop using the exploitative platforms themselves; (2) encourage their members to stop using the platforms; and (3) put more efforts into providing members alternative tools to use for their marketing.

While this is a political issue in the sense that it is manifested in Trump, and perhaps an organization doesn’t want to play politics, at its foundation, this is much greater than that and organizations should recognize that.

I would go so far as to say that we can and must save these United States; we must stand together to do it. True republicans don’t want this corrupt, greedy reality any more than true democrats (or socialists, or greens, etc.). Once we get past the current crisis and restore the actual checks and balances both in our governmental system and our economic one, we can move back into our politely apolitical postures.

So, in closing, I say: cut off Facebook and Instagram from their content-fuel! De-platform the platforms! Take your power and wield it for the greater good. 
Please.

___________________

[* Yes, there are shareholders, but he has the only real power because of how the shareholder voting rights are structured.]

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Things to do During Stay-at-Home

If your state or city hasn’t issued an official stay-at-home order because of COVID-19, it’s likely only a matter of time before it does (or it is being run by a terrible leader, and you should stay in anyway). If your work is usually not at home or even if you are someone who usually works at home, you can make good use of this time “off.” I have some suggestions…

  1. Review your standard paperwork. Estimate forms, invoices, contracts, releases, licenses… if it’s paperwork that you use in business, now is a good time to review it and make updates and changes. Maybe you’ll need legal help for this, maybe it’s just a case of fixing the format so it reads more clearly; whatever, this is a great time to get your paperwork in better shape.
  2. Consider updating your business insurance. One thing lots of people have already learned in this crisis: not having business liability insurance or disability insurance (etc.) is unwise.
  3. Related to #2, inventory your gear and update (if needed) your insurance coverage. Whatever your gear is, take photos, update serial numbers, make sure you have enough coverage for your critical tools and gear, including computers and software. At worst, doing the inventory will give you a clean list you can have for later claims (keep a copy off-site!).
  4. Register a bunch of your work with the USCO. Now is a great time to play catch-up with your copyright registrations.
  5. Work on a (new) marketing plan. Eventually things will start to work again and you want to be top-of-mind with your targets when that happens. Now is a good time to look at what will get you there.
  6. Check in with clients. Don’t contact them to solicit work but rather call or email your contacts, personally, and wish them well. Simple, generous, kind human interaction now will be remembered later.
  7. Check in with your vendors/crew. Like clients, your vendors and crewpeople will appreciate the kindness, even if you can’t hire them or buy from them right now. If, though, you can buy something from them now, consider doing so to make sure they are around later.
  8. Give yourself a personal project to work on. I mean a creative project, whether that is in your usual medium or not. Some photographers and other creatives are using their art to document their experiences, which is fine, but I suggest something that is non-virus-related for this. You can do both, of course, but something creative that isn’t about the crisis would probably be good for your stress levels, too.
  9. Give yourself permission to do less. Lots of people are trying to work full-time from home and do all the other stuff that they now have to (like taking care of kids, for example) and are getting burned out fast. Give yourself a break and be flexible.
  10. Related to #8, give yourself permission to be imperfect. Too many people are trying to be perfect in this crisis–stop it. You’re going to have days where you won’t get any “work” done or that your kids won’t have formal lessons or the dishes don’t get washed… if you hold yourself up to your usual standards of perfection (like you do in your creative work), you will burn out faster. Embrace the suck, as a good friend says.
  11. (because of course it goes to 11) Do something specifically for your mental health. Meditate. Take long walks/runs (alone). Do yoga or other exercise. Watch a comedy film. Sing to the radio. Dance in your living room. Play with your dog/cat/kid/lover. Write a journal. Bake cookies. Eat cookies. Simply find something that brings you peace and equanimity, and do it. Yes, this is good for your business as well.

There are difficult times, sure, but they will not last forever. The suggestions above can help you feel more in control even when we seem to have little of that.

Wishing all of you well, safe, and happy.

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Coronavirus: What To Do

No one teaches us what to do when there is a crisis like now. I’m not going to lie to you: it is very likely that your business is going to take a hit from the coronavirus. No one can effectively predict how big or how bad it will be, but there will be an effect. The worst part for many of us is feeling the lack of control we have over any of it, especially because creatives, like lawyers, are notoriously control freaks. 

I don’t have good legal-y advice to give you here. This is very much uncharted water for everyone. You can’t contract your way out of this (so to speak) so, as a lawyer, there isn’t a lot I can do to help you through it beyond my usual service offerings. But I do think there are things we can do now that will make this difficult time a bit better, both individually and for us all, so I’d like to suggest them here.

First, breathe. I know, that sounds patronizing but, seriously, take a conscious, mindful breath now and then. If you meditate, keep it up or even add some extra sessions. If you don’t yet meditate, consider starting a practice. Calm breathing and meditation help to reduce stress and does all sorts of good for your body and mind. This is science, not superstition (see, e.g., https://nccih.nih.gov/health/meditation/overview.htm). Exercise works, too.

Second, if business is slow, use your downtime well. Get up, get dressed, go to work, and create. I think one of the best things you can do for your business is create new work and this slow time is an opportunity to play creatively—take advantage of it! Creating new work now will make you more competitive when things start picking up, because you will have fresh work to show your targets. Besides, playing creatively will make you feel better now, when things are tough. It will give you something else to focus on, something you can control more, and keep your head out of the doom and gloom of the news.

Third, read books. Put down the news, the social media, and pick up a book—preferably a novel (at least occasionally). Most people complain that they want to read more—now is your chance. It also will help keep you out of the dark places our current reality inflicts. 

Fourth, and maybe I’m burying the lede here, but this is really important: support others however you can. It may sound counter-intuitive but, helping others will help you more. It’s easy to fall into the fear-based and selfish hoarding behavior, but you can’t buy enough toilet paper (or potatoes or milk…) to make yourself safe. During WWII, people understood that hoarding was one of the worst things you could do while buying war bonds, donating, recycling, growing victory gardens, and generally thinking about the greater good would win the war. They were right. It’s also right now.

You can support other small businesses now by doing things like buying gift cards for later use. The businesses get the revenue now, to support them while their customers can’t or won’t visit. This is particularly needed for small service providers like salons, spas, as well as artists of all sorts. You can buy music (actual vinyl, cds, or downloads—not streaming) and merchandise from musicians, who now can’t even make money touring. Buy books (or gift cards) from indy booksellers, many of whom will ship, to help support writers. Buy a subscription to a decent newspaper, to encourage and support their reporting. 

And if you want to get really massive karma points, buy (some of) these things and gift them to people working in healthcare right now. Those people are risking their lives for us. You could order some pizzas (or whatever, especially anything chocolate) for your local ER staff, just to thank them for being on the front lines. 

Things are going to be tough for many people. You won’t be alone if you struggle. But, if you keep in mind that we are all in this together and that the virus and its effects are not permanent, you’ll get through it. 

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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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On Doing Right.

You make art, right? And I bet you find your work being infringed. You (probably) get upset about someone taking your work and using it without your permission. That’s totally rational. Then you get into your Uber, with its underpaid driver without any benefits or job security and go home where you listen to music on Spottify which hardly pays the artists or, worse, stream or download it from some free service, ripping off other artists just as you have been ripped off.

You’ve just blown your moral high-ground for your infringements. But worse than that, you’re contributing to the cultural acceptance of “the world is a shit place and if you don’t do it someone else will.” Stop. Now.

Here’s the deal: even when other people do spectacularly shitty things to you, that never justifies you doing the same to them or (yikes!) to others. Civilization (particularly its laws) only works when people refrain from doing the wrong things even when it makes things harder for themselves or when others won’t or don’t. If it were easy to always do the right thing, we wouldn’t need to regulate things with laws. But laws only work when we respect them, even when it doesn’t benefit ourselves. 

This rise in ethical failings is one of the great harms of the Trump administration: Trump flouts the law, over and over. He does horrible things, breaks the law, and the senate doesn’t hold him accountable (as it should under its constitutional mandate). He gets away with it. We all get screwed and frustrated. For people who follow the law and act ethically regardless of the law, it seems so unfair. 

Then, we are faced with a much smaller moral choice and it becomes far too easy to think things like “Why should I suffer when he gets away with it?” or “Well, the corporations don’t have to pay taxes so why should I?” or “It costs too much to rent the movie on iTunes—I can watch it for free on this other site.” We choose to do something that is objectively wrong, like buying our kid’s way into an elite college rather than making the kid actually earn that entrance, and justify it as not being as bad as, say, ripping kids from their parents at the borders. “My bad isn’t really that bad; look at what other people do!” we justify.

No matter how horrible the horribles are that are done by others, choosing to cheat or steal or lie (etc.) is still wrong. 

Long story short, every day we get to make choices. Every day we’re faced with problems and often the solutions are not very pleasant, unless we cheat somehow, like so many other people do. Regardless of politics, regardless of income or social class or race or gender or anything at all, there is right and wrong. We all know this—we just have to stop being willfully blind to our own actions that fail the test.  

Moreover, we have the power (if not the moral obligation) to choose to do right. 

A friend of mine (and, full disclosure, a client) recently announced that he is quitting all things Amazon because of how that company is abusing its workers. He noted that it will cost his family more and it will be more inconvenient, but it is the right thing to do. Bravo. Facebook has and is contributing to the rise of white nationalism, anti-LGBTQ groups, and the general thwarting of democracy. We can choose to quit it (I did quite some time ago). We can choose not to use the music “services” that pay the artists virtually nothing—claiming poverty while buying penthouse offices in NYC and partying on mega-yachts in Cannes. The list goes on and on. 

Of course, doing right isn’t always easy or convenient; do it anyway. You want a better society? You want more decency? Then do the right thing as often as you possibly can, regardless of what is done by others or to you. Treat others with more humanity than they treat you. The more of us who do these things (like quitting Amazon), the better the world will be for us and generations to follow.

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