Category: Uncategorized

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Ah, Love… in California

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

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

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

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

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

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

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

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Regret

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

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

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

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

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

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

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

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

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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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Put on a Gorilla Suit

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

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

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

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

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

(Yes, that really is me)

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

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

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

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

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

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

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

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

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On Abundance, redux

I wrote this originally back in 2012, but it is even more needed today so I decided to update it.

Everyone talks about how there is an abundance of content creators today. How there is more creative work than ever. How everyone is a photographer, a writer, a curator (don’t get me started on how that word is misused), a musician… we’re all making stuff. And, the argument goes, because there is an abundance of stuff, none of the individual work is really worth much if anything now.

Here’s what these arguments about abundance in creativity and the pricing model get spectacularly wrong: the reality is there is no abundance of good creative work. Sure, there is an abundance of photography and music and writing and art, but most of it is, frankly, shit.

There is abundance in the creative industries in the same way there is abundance in drivers–there are billions of car drivers globally and just about anyone can do it–but how many people do it well? I don’t just mean those who drive better than Mr. I-go-55-in-the-fast-lane-man and his crappy driving brethren out there. No, I mean, how many professional race car drivers are there? Not very many. Ergo, they are highly valued.

Real creative professionals (in whatever discipline) are like pro race car drivers. They can do things very few others can. Their skills are extremely specialized and what they do is, simply put, not of the same quality as what regular people do.

The media and, worse, the tech companies that control the discourse on this subject within the media, have tried to convince us that your creative work is the same as anyone who tries to make something of the same media. Further, because it is the same (in their argument), that work is of the same value and, final coffin nail, because there is so much of that work available now, that value is near zero. In their world, for example, any pro photographer’s photography is the same as mine (for the record, I am not a photographer) and hardly worth anything since there are so many “photographers” out there. That’s like me saying I’m just like, and of the same value as, Mario Andretti or Michael Schumacher because I know how to drive a stick-shift and don’t completely suck at it.

Bullshit.

Every time you let them call you a “content provider” rather than by your proper title you let them define you as less than you are. You are a Photographer or an Illustrator or an Artist or a Writer (etc.). You CREATE. There are damn few people on this planet who actually create and create well. How dare you accept their belittling bullshit about who you are and the “abundance” of what you do. Worse yet, how dare you call yourself anything other than by your proper title!

You, creative professional, are scarce and your creations are of high value. You are a professional race car driver. Don’t let anyone bully you into thinking otherwise.

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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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In Memoriam: Robert H. Burns

For some reason, my father abbreviated Robert as Rob’t in his signature, but he never omitted the H. I never asked why.
Now I can’t.

Dad died yesterday. Quietly. After what obituary writers might call “a short illness” but really, I’m not sure what to call it. He was at home and fine (relatively speaking–the man was almost 93) less than three weeks before his demise. Then he fell and gashed his hand, ended up in the ER for stitches, got admitted for rehydration as well as IV antibiotics for some old infected wounds, got better, moved to rehab to learn to use his walker better, and two days later was readmitted to hospital, then hospice, then gone.

I’m glad for the speed of it, for his sake. He would not have liked to linger and would have hated living in any sort of facility for anything more than a brief stay. He was fiercely independent. Dad lived on his own, alone, in his townhouse condo (with its stairs!) up until the end. My brothers generally hated that, but I respected his choice. He knew it increased his risks of accidental death at his age, but he was willing to take those risks for his independence. He drove, too, for which I feel a bit compelled to apologize to the people of Atlanta.

I got my love of driving, including stick shifts and cheap(ish) sports cars, from my dad. I got a lot from him, actually. A short list would include:

  • brown eyes that are getting lighter/more hazel-green as I get older
  • a love of the law
  • an ability to see both sides of issues and look for rational solutions
  • honesty, which (unfortunately) can be a bit too harsh for some folks
  • a loathing of yelling, particularly in fights
  • a love of, but not the guts for, acting
  • a strong whistle
  • athleticism
  • respectful competitiveness (I don’t like to lose, but I’ll respect whoever beats me at whatever)
  • enjoying watching football and baseball, but without rabid fanaticism
  • religiously doing the NYTimes Sunday crossword, in ink
  • quiet rationalism that can be perceived as coldness (aka Midwestern stoicism)
  • liking gin martinis, steaks on the grill (although I prefer mine rare), and ice cream.

As a kid, Dad taught me to swim, to ski, to play Hearts, Spades, and Blackjack, to ride a bike, to drive, and that one didn’t actually have to stop for a pee half as much as you’d think on long car trips across the country (while arguably a bit tortuous as a kid, this was great training for college bars). On his post-divorce weekends with me, sometimes we’d go horseback riding or ice skating. We’d go to Snowshoe, WV mid-week for a ski break or to Boyne, MI or take a half-day and go to a local hill. Spring breaks were often long car trips to Vail or Park City or Ft. Lauderdale, with stops in New Orleans or Mt. Rushmore or Joker Joe’s in Benton, TN to buy fireworks. Thanks mostly to Dad, I’ve been in each of the 48 contiguous states.

In recent years, we usually spoke weekly, on the phone. FaceTime or whatever was really beyond him–I mean, he’d still call me to say he’d received an email or, on the rare occasion, to tell me he’d sent me one. Each call, he would ask me about my practice and my cases, even though he didn’t understand copyright law (he had been a general practitioner, doing mostly real estate, divorces, and probate). He’d also ask about the weather, whether I had been swimming in the ocean lately, and how the animals were. He referred to my live-in boyfriend as my “friend,” almost never by his name, although more recently he did say he was really glad I was happy with him. That was unusual–Dad just wasn’t the warm-fuzzy type. For example, I’d always end the calls with “I love you” and he never said it back. It just wasn’t his way. I knew he did, though, of course.

He sucked at expressing his emotions directly. Yes, there is a great irony that he had been an actor before law school, but he couldn’t say “I love you” to his daughter. I blame his mother, who was apparently a piece of work (she died shortly before my birth). Everything made sense to me when, some years ago, he said that they never had black pepper in his house growing up, because she did not approve of it. And she dressed up her cats as a child. Yikes. It’s a small wonder he wasn’t a serial killer or something, after that childhood. Anyway, his inability to be direct about his feelings meant he, for example, would tell one of my brothers how he was proud of me, and me how he was impressed with my brothers. We all eventually heard it, just never straight from him.

Oddly, the last time I spoke to him I said, “I love you and I miss you” instead of my usual closing. I had no idea that would be the last time we spoke, but for some reason I added that second clause.

It’s too true, now.
I love you, Dad, and I miss you. Thank you for everything.

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One Opinion to Remind Us

A very recent opinion in the Eastern District of Pennsylvania (Kashi v McGraw Hill Global Education, pdf here) looks at first like the photographer plaintiff lost because the court did not grant him summary judgment. However, really, the opinion has lots of good stuff for photographers/licensors in general, and maybe even the plaintiff. I’m going to discuss the highpoints below (out of order from the opinion, by the way).

First, there is the part about registration where the court followed the reasoning in Alaska Stock (etc.) that roughly says that when a person registers a collection of works and follows the steps prescribed by the US Copyright Office, then the registration conveys to the individual works in the collection. Yay!

Then, there is the part about how there can’t be an implied license if there is an express one. Implied licenses are sneaky–sort of accidental licenses that exist because of conduct–and can bite photographers (and other licensors) in the butt. However,  if you have a written license for the same work for the same client, then that client can’t later go beyond the license and try to say that there was an implied license at work. Yay!

Relatedly, the court reminded all that a defendant can’t rely on “industry custom” to excuse its bad behavior when it comes to copyright matters. However, a defendant could point to previously agreed to behavior by the actual parties as an out, but that is different. So, yay again.

Next, the court said that there may be an issue about the statute of limitations in this particular case, even though the discovery rule applies. This is important: you’ll hear people say “you have three years from the date you discovered an infringement to bring a suit” but generally attorneys will add the important “or the date you should have discovered it” into that sentence. As the court here pointed out, you can’t turn a blind eye to possible infringement then, later, say you didn’t find the infringement until much later. If you have reason to think there might be infringement happening–that is, a specific act of infringement (not just “I bet someone somewhere is knocking off my work”)–then you need to investigate. The clock essentially starts when you have good reason to suspect there is an actual infringement happening in that situation. No yay–more of a heads-up.

And finally, the big issue here was whether a use beyond the scope of a license meant there was a condition precedent or a covenant breached, which is legalese for “is this a copyright infringement matter or a contract matter?” Here, the court said payment for the specific rights was a condition precedent  to the grant of those rights so this was an infringement case.

So what’s the big deal? A contract can only get contract damages, which are usually very limited. An infringement with a timely registered work gets statutory damages and maybe attorneys’ fees–much more. But the two things are very close cousins, language-wise.

A covenant is a promise and an exchange of promises is a contract; so if Party 1 promises to do X and Party 2 promises to do Z in consideration of X, then you have a contract; if one or the other isn’t done, you can only sue on the contract. For example, “PhotoBob agrees to license the works to Client for $1000, which Client agrees to pay within 30 days” is a contract. If Client doesn’t pay on time, PhotoBob can only sue for the amount of the contract–to get paid what he is owed. Usually, you can’t get attorneys’ fees paid for if you sue for breach of contract (there are exceptions, depending on state law, but generally require that the contract specifically includes language about getting attorneys’ fees if you sue and win on the contract).

A condition precedent, on the other hand, is a condition that must be fulfilled before a duty to perform a promise in an agreement even comes into being. For example, “rights will be granted only on condition of receipt of full and timely payment” means no rights are granted unless the other side pays up in full and in time. That payment must happen first, like a trigger, that then makes the photographer grant the rights agreed to. Late payment means no rights granted means if the client has used the work, it has infringed.

So, in this one opinion, we get a bunch of reminders that photographers (and anyone making creative work and licensing it to others) need to do specific things to make sure they’re covered for all these situations, but if they do things properly, then the law is on their side:

  • Use written licenses.
  • Have language in your contracts and invoices that make it clear that payment is a condition precedent (ask a lawyer!).
  • Register your works properly (and in a timely manner).
  • Don’t be willfully blind to potential infringements then try too late to go after them.
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Potential New Service: Feedback Wanted

I have railed against companies that are not run by attorneys but that offer “infringement enforcement”; but I haven’t really done anything about it. I mean, I continue to do the legal work I do, including going after infringers for my clients, but the process of searching for the infringements, flagging those for possible pursuit, etc., is not something I’ve been able to offer.

That may be changing.

I’m not making any promises, but it may be possible that I could have a service where you would upload your photos/visual works, get regular reports on the uses online, and then be able to tag those result for legal follow-up by me. This would hopefully reduce your time/efforts in finding potential infringements and keep everything in one place, so to speak.

I’m working with a developer now to see if this can be done, at a reasonable price-point (I’m certainly not made of money nor do I want to hit y’all up for big fees).

This is where you come in: how would you like this service to work? I have developed a little Typeform survey asking some specifics about this. I’d really appreciate it if you’d fill it out and let me know what would work for you.

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