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I Bake Bread…Really Good Bread

The photo is of the sourdough boules I made last week. They are from scratch, from a starter I started months ago, and comprising nothing more than flour, water, and salt, including the starter.

I bake almost every week, never less than every-other week, and it has been a couple of months since we’ve purchased bread of any kind, except for hamburger buns once when we had a last-minute guest to dinner and I didn’t have time. It takes me all day to make the dough and shape the boules, which then have a final proof overnight and get baked the following day. It is a discipline and, for me, an exercise in mindfulness, presence, and perseverance.

I grew up cooking. I literally cannot remember a time when I didn’t cook. My mother was a gender traditionalist and, being the only daughter, it didn’t matter that I was substantially younger than my brothers–I had to cook for them, first with her then on my own, later. From my very beginning of my own consciousness, I remember being in the kitchen or the grocery. I actually have (and often use) the cast-iron flat small oval pan I remember trying to make pancakes on, by myself for the first time, when I could not have been more than five [1].

Mom was a very good cook and so am I, and I (like her) cook intuitively rather than by following recipes (see “there is fat in the batter” thinking in FN1… ha!). When my brother took cooking lessons as an adult he asked for my recipes and I could not give him more than a rough “some of this, a bit of that” kind of litany. Honestly, I don’t know how I make a lot of what I make–I just make it.

I’m one of those people who can look in a fridge and cupboards and, no matter how bare, will be able to come up with a couple of tasty “peasant food” meals. I learned this ability from Mom, and our poverty. It was a great tool for surviving college, grad school, and law school.

Anyway, Mom, for all her cooking, didn’t bake much and so neither did I. Basic cakes, yes, and the occasional cookie, but those are pretty forgiving if you stray from the recipes. Breads, though, require a certain scientific discipline she never could (or, perhaps, would choose to) grasp. I think some of it was because her mother was such a good baker that, just to be difficult, Mom chose not to follow Grandma’s baking tradition. My very Polish grandmother would rarely appear from the east (Wheeling, WV–we lived in Columbus, OH) but, when she did, it was always with paper grocery bags filled with enriched, yeasty, often raisin-filled, tasty baked goods. I can still remember the smell of her and it’s the smell of the goods in those bags. Sadly, we never baked together and thus bread making was fairly foreign to me. I wanted to learn so I did, later in life.

Cooking is like shooting photography–you can play a lot with and stray a lot from the recipe and still get good (sometimes great) results. Baking however, especially bread, is like traditional photo printing in the darkroom–you have to mix hard science with the art and if you stray too far from the science, you get crap results. In other words, you need to understand and respect the science of bread-making (yeast, heat, gluten formation, proteins, etc.) in order to make decent bread and to learn the science to the point of mastery to make really good bread.

For me, baking bread well is also like being a good lawyer: the more you learn about your particular field of law, the better you create. You have to respect the traditions, statutes, rules, and the processes, but you’ll make better lawyering when you have internalized how the law works so, for example, you can know the feel of that right spot in any of your drafting. Just as a Tartine sourdough loaf is to Wonderbread, so is a beautifully crafted document to a boilerplate one. When you know the specific law in real depth, you can find the hidden issues in a case and the winning legal points. It’s like learning how bread dough feels when it’s been worked enough or proofed right.

So why am I sharing all this? Because I think there is a lot of Wonderbread in my profession, especially in copyright law these days. I want you to know that is not what you’ll get with me. There are large firms who have a gazillion associates and paralegals who will take your case and treat it like it’s debt collection. They don’t know any more than the minimum about the law; they are competent, not obsessed. I’ve read the complaints and other papers they file and I don’t know how some of them can look at themselves in the mirror and call themselves “good lawyers.” I can tell you there has been more than one where I feared the client would get stuck with paying the other side’s attorney’s fees because the case should never have been filed.

Moreover, these massive firms won’t care why this particular image means more to you than another or look at the case in any depth, they’ll just do the minimum to get something and often not even remember your name. Worse, there are companies not owned or run by lawyers and so they care first and foremost about making their own bank, not you or your case.  But they’ll be happy to take about half, if not more, of your settlement for their efforts.

That ain’t me. I know and care deeply about the law and how it works. I’m a dweeb, a nerd; I read case law and journals not because I have to but because I love it. I’m a passionate lawyer and obsessively so about copyright law. I agonize over my drafting, the rules, and making sure the law I cite is the best for the issue. I file only a few cases at any one time because litigation is time-intensive and I refuse to take on more and maybe do any less well.

Also, I build relationships with my clients and I take pride in that. I know about their families and they know about me and those close to me. I know the history of the works they ask me to protect, whether that is a work made for a client or personal work, and why it matters. While I get paid (usually much less than the infringement mill companies, by the way), I also sometimes get gifts from my clients–usually their own art–and that is something that has brought me to tears more than once.

If you want Wonderbread, I suppose you may be satisfied with the big firms or infringement “enforcement” companies. You wouldn’t be a good client for me, then. But if you want a relationship with a lawyer–something more than just a form and a rotating list of associates for your cases–shoot me an email and let’s get to know each other.

You might even a bread recipe out of it.
Really good bread.

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[1] Sadly, they were a bit of a fail as couldn’t remember if you needed to grease the pan and I errantly decided that, since there was fat in the batter, I didn’t need to. Mom came in as I was trying to scrape off the first batch.

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Be an Artist

Someone asked me recently why I don’t blog about every copyright case opinion that hits Pacer (Pacer is where all federal cases are listed, fyi). I’ll tell you why: because I need to know all the details about those cases, you don’t. My job is to know the law, yours is to make art. Let’s not confuse these things.

I try to write this blog for artists, especially those who are or may be my clients, but for all creatives generally. That doesn’t mean I’m talking down to my readers, but it does mean I don’t write on the same topics or in the same depth or in the same language as I would if I was writing for my colleagues. Like all professions or trades, lawyers have their own jargon and we have interest in weird (and often weirdly important) things that our clients really should just not bother to think about.

It’s one thing for an artist to stay informed generally on the law as regards her/his/their business, but it’s a whole ‘nother thing to read law blogs and case opinions or to rely on non-lawyers for opinions on legal things. I encourage non-lawyers do the first but highly discourage the others. In fact, I’d go so far as to tell artists to let go of trying to understand business-related law (including copyright) at any level beyond the same way they understand traffic laws. I mean, an artist should know the law enough to know to do this, not that, and basically leave the rest to the lawyers (and to ask the lawyers, privately, for those answers).

Some of you may get your hackles up at that, but I’m not being demeaning here. Rather, just as I should not act as if I know as much as a professional artist about art, although I can do some creative things, artists shouldn’t try to be their own legal advisors (much less lawyers[1]). Humans simply do not know everything and we are (without great study) incapable of knowing multiple professions in equal, or even sufficient, depth.

The internet has done a great disservice to us in this. It’s turned us into believing we can and do know and understand much more than we really do. In reality, it’s shallow information overload. We get exposed to things we never would have before this beast[2]— but the knowledge we actually acquire is at best at a thin depth.

By “sharing” all sorts of data, much of which is highly suspect (but let’s not even go there now), average folk suddenly think they know as much as anyone about almost everything. This can seem to work for us in the short term or on occasion, but it is a dangerous seductress.

For example, my retired-graphic-designer brother recently fixed my father’s air conditioner, thanks to a tutorial on YouTube. Great, except my brother doesn’t really know anything in sufficient depth about how wiring and electricity, not to mention an air conditioner, actually work; so maybe his fix will work in the long run or maybe he’s created a fire hazard. The sad part is he (like all of us) can’t look for what he doesn’t know, and he doesn’t know a lot since he is not a trained air conditioning repairman. But he has a very strong illusion of knowing, the illusion of full competence, at least insofar as this one repair[3].

When I had my last physical, I asked my doc about whether the internet is making his job harder. He said it definitely had. He gets more people coming in thinking they not only know what is wrong, but what the best cure would be, and basically get frustrated that he wants to examine them and instead ask him just to fill out the prescription. Or, they have ignored symptoms until something has become critical because they read online that if they just do a “cleanse” or something, it will pass.

I told him I felt his pain. I get potential clients who tell me what they think the law is, all the time. It sucks to have to say “no” or “you’re wrong” to these people, when what I want to do is help.

Worse yet, too often I read industry online publications that get the law completely wrong and it is clear that they have read something legal that they simply didn’t grok. Perfect example: a major professional photographer’s organization (or perhaps 2) published that photographers could register a copyright anytime, just as long as it was within one month of finding an infringement they’d be able to get statutory damages for that infringement. That is totally NOT the law–it is a mis-reading of the statute and has to do with an inapplicable “pre-registration” provision of the Copyright Act. Still, the bad information is out there and being promoted by what are supposed to be reputable sources.

Now, I get that one of the reasons that people look to the internet to get answers is because usually that information is free. In the case of the law, people think it’s going to cost them a bucket of greenbacks to get answers from an actual lawyer (and for BigLaw lawyers, that is usually the case). Usually, it won’t be that expensive and, more importantly you’ll get the right answer for your particular situation. Even if you spent, say, $350 for an hour of an attorney’s time and expertise, it is very likely you would, in the long run, save much more than that with the personalized and precise advice you would get.

So, here’s my general advice: if you’re an artist, be an artist and let go of trying to do everything. Honor your profession by honoring others, including not trying to get it all for free. Instead of taking a couple of hours to look something up on the internet, and vetting it on several sources, hire a pro and use your freed-up time to make better/more of your art. You’ll end up making more money and your over-stimulated brain will thank you.

As for me, I’ll keep writing about the law and your art and your business, but you’re not going to get in-depth legal analyses (usually) from me here. I don’t want you to get bogged down in the details, like specific code sections and treatises–I want you to know, rather and for example, that you should register your copyrights as soon as possible or not sign a Work For Hire unless you want to give away your copyright.

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[1]By the way, this applies to any profession that isn’t your primary one–you are not a doctor, or an accountant, or a farmer, or economist, etc.

[2]Just think about TV–trying to decide what to watch now is an exhausting process because of all the choices. There is just too much to choose from–how do we know what is best?

[3]He’s going to hate me for using this as an example, but it’s kind of a perfect example. My brother is brilliant in many ways; while it is entirely possible this fix is perfect, there is simply no way for any of us to know because we are not a/c pros.

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Talking about Death

Yesterday, I had a conversation with my father about his approaching death and his estate plan. He’s got terminal cancer and he’s 92[1] so, while he’s doing relatively well right now, the reality is that he’s going to die sooner rather than later.

Now, many people might think that sounds cold, but it’s not: none of us gets out alive, after all. I love my father and will miss him, but as a (bad) Buddhist, I know about impermanence[2] and accept it, including when it means accepting death and loss. I’ve been lucky to have my dad in my life for so long; my mother died when I was 18. If you look, you’ll find a (fake) quote from the Buddha on my site that sums it up: Impermanence is a bitch.

As a lawyer, regardless of my thoughts on impermanence, I know that estate planning is important. However, that combined with an acceptance of impermanence meant that asking Dad about his estate planning now, while he’s still doing well, was the right thing to do. That he was an attorney before retirement helped make it easier. These can be difficult conversations, but they are needed.

It’s one thing to think about estate planning for our elders, but the sad reality is that things can kill any of us, any day. If you haven’t planned for it, then when it happens you force your loved ones into a bunch of extra work and emotional hell. This is true even if you don’t have much of anything but, as a creative pro, you have more than you think: your copyrights are assets that live beyond you. You also probably have art on your walls or notebooks full of sketches or other objects that might not seem of financial value, but that you don’t want falling into the hands of, say, your crazy brother who has joined a cult.

There are many things that can be done to make that difficult time much easier: wills, trusts, pay-on-death accounts, life insurance, just to name a few tools. In some states, there are transfer-on-death deeds, even, for real estate. Basically, you can keep almost everything out of probate, if you plan appropriately[3].

Of course, I think getting the plan executed and all the tools in place is the best thing to do, but I think talking about this as soon as possible, with the people you love, is important. That can be done today. Ask people what they want and tell them what you want. At the very least, even if it isn’t leally binding, at least you’ll know that, say, your camping-loving girlfriend wants her ashes chucked off Mount Whitney rather than in the desert; then, if necessary, you can try to do that for her.

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[1]Yes, I am the youngest of my siblings and there is a gap. 🙂

[2]For more on impermanence: https://tricycle.org/magazine/impermanence-and-four-noble-truths/

[3]Here is some good info for Californians: http://www.calbar.ca.gov/Public/Free-Legal-Information/Legal-Guides/Estate-Planning. While a lot of that basic info may be the same in other states, the law is state-specific.

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More Is Not Better

Contrary to the assertion of at least one copyright lawyer getting a lot of press out there, filing more suits is not better than filing fewer. Certainly, it’s not a valid metric for evaluating an attorney’s abilities. In fact, I’d say it’s not better on any level, except, maybe, increasing that attorney’s bottom-line.

I’m not saying that one should never file, but rather it should be a last resort, not a first (or second) salvo. Sometimes, you have to file suit; some people refuse to negotiate a reasonable settlement. Doing it right off or often though, especially in large numbers overall, is much more likely make things worse in the long run than give you a fast win.

First, judges notice. A plaintiff or attorney who is very litigious will raise the eyebrows of the judge or judge magistrate (JM). That is never a good thing. It can happen even when the total case count is small but still more than a couple. I was once in an Early Neutral Evaluation[1] where the JM said that she noticed that my client had (while represented by other counsel, I would note) filed “more than a few” cases before this one. Actually, the number of cases was not at all large, but she still noticed. I explained that my client’s work was often infringed and, when necessary, he’d filed to protect his rights. Whether the JM accepted that or not is not important here (she seemed to, though); the fact that she raised the question meant it was on her radar, and not in a good way. Imagine if he’d previously filed 20 or 50!

Attorneys have it even worse. Judges recognize our names more than you might expect and they do talk about us with their colleagues. I heard a JM talk about that at a recent event. Anyway, if you’re that attorney, no matter how neutral judges try to be, they’re going to have your litigiousness in the backs of their minds. It’s not a good look.

Not surprisingly, some people think that attorneys who file a lot of suits must be good, aggressive litigators. Well, those lawyers may be aggressive litigators, but are they good? I’d argue no. Time alone makes that impossible.

Litigation is time (and brain-power) intensive. There is no way an attorney can simultaneously handle many (much less hundreds of) cases in active litigation and do it well, not even with a bunch of support staff.

Right from the start, it takes a lot of time to draft a good complaint. Even if the attorney is working off a template of some kind (and, honestly, we all do), a well-drafted complaint must be detailed, present the facts of the case in a logical-yet-compelling manner, and yet still be concise.

It is storytelling in a way, but non-fiction (of course) and with technical limitations that make the process much harder than just filling in the blanks. That “storytelling” also happens after the attorney has already thought through the whole matter to make sure s/he is asserting all the claims s/he legitimately can (or should), has checked to make sure the filing is in the right district (there are rules about that), and also has tried to predict what defenses will be asserted, to thwart as many as possible. It’s not easy and it’s not quickly done.

Before the drafting starts, the attorney will also have to research the district’s local rules to make sure to follow them in the drafting itself (numbered lines? font requirements? caption format? etc.). While drafting, the attorney will have to fight with Word which, although the standard tool for lawyers, seems to hate line numbers and other legal oddities (I swear the chances of a photograph being inserted without glitches on the first try are less than 25%). Add it all up and the attorney will have spent hours and burned out many grey cells before even filing a thing.

Filing the complaint is only the beginning. If the defendant doesn’t immediately try to settle after being served (or waiving service) and you get into discovery, well, that is a whole different (larger) pile of work for the attorney: interrogatories and requests for admission and requests for production and depositions, plus responding to the same from the other side. It’s a ton of work, all detail-oriented (or it should be), and not something you can do (or should even consider doing) half-assedly.

In my own practice, I limit the number of cases in litigation that I will take on at any particular time because I believe it is my ethical duty to be present for each client, in each case, at all times. I would never send someone else to cover a hearing[2] unless there was an absolute emergency (and even then I would contact the court, first, for permission) or that attorney was already a part of the case (like, local counsel or other co-counsel). I research the law and double-check previously cited cases before including them in any filing to make sure I’m doing the best by each client I represent, in each matter I handle. And I agonize if I somehow miss a typo after proofing and re-proofing anything I draft. All of that necessarily takes time and attention and all good attorneys know and do that.

Importantly, here’s what “aggressive” attorneys aren’t likely making clear to their clients: the financial risk is mostly on them, I mean on the clients. If a copyright case is dismissed or if the plaintiff loses otherwise, then the plaintiff may have to pay the defendant’s attorneys’ fees and costs[3]. If an attorney doesn’t follow court orders, there is a chance a judge or JM will impose penalties or even strike entire filings[4]. Yes, attorneys may be sanctioned directly, too, but a lot of the penalties for bad acts fall on the party, not the attorney.

Especially since losing carries a significant risk of having to pay the other side’s attorneys’ fees, I think a good attorney owes it to her client to make sure the case is a strong one and truly worth filing before suggesting that step to her client. And a good attorney should do all in her power to get her client satisfaction without filing, if possible.

I don’t see how any of that can be done if one is filing hundreds of cases a year.

Finally, a client certainly can’t get personal attention and regular updates if the attorney has too many cases in litigation. One of the biggest reasons for unhappy clients (and malpractice claims) is a lack of communication by attorneys to their own clients. It’s your case–make sure to pick an attorney who will give it, and you, her full attention.

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[1]An ENE is like a mediation, but with the assigned JM on the case functioning as the “mediator.”

[2]See, Footnote 1 in this order, for an example of why this is bad: https://assets.documentcloud.org/documents/4404749/Reynolds-v-Hearst-Liebowitz-Bond.pdf

[3]17 USC §505 says that a winning party may get her/his attorneys’ fees and costs–that includes successful defendants.

[4]I had this happen in my very first litigated case as an attorney–the defendant’s attorney didn’t show up to two hearings then made a lame excuse so the judge threw out the defendant’s answer and my client won in a default.

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Proposed Higher Fees at the USCO

The USCO has proposed significant increases in copyright registration (and other) fees. You can read the whole shebang here, but the gist is that it is going to cost you more to file your registrations, no matter what your art is.

For example, a group published photographs registration is now $55 but it’s suggested new cost would be $100. That’s almost double and, although the USCO does make a good argument for increasing its fees, it’s going to hurt a lot of artists.

The good news is these new numbers are not yet written in the proverbial stone. Instead, they are seeking public comment before deciding on final numbers to submit to Congress.

You have through July 23, 2018 to submit a formal comment (see link above) and I encourage you to do so. However, please remember that it will serve no purpose to get nasty in your comments. Politeness (and logic) can go a long way. These are public comments, so think before you write.

Whatever the comments the USCO receives, it’s safe to say the prices will go up–it’s just a question of how much. For now, though, they are as they have been. I suggest, if you’ve been putting off registering, now may be a good time to catch up.

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What To Do, part 2

So you’ve found a probable infringement and you’ve gathered all the evidence you can (see previous post), now what? You have choices[1]: do nothing, contact the infringer yourself and send an invoice, contact the infringer yourself and send a cease and desist/demand letter, send a DMCA takedown notice to the infringer’s ISP[2], or contact a lawyer.

Of course, I’m going to say “contact a lawyer” is your best option (um, duh!), but I’d like to discuss the other options a bit here, too.

First, I think that doing nothing is not a good option, with one exception: if you are so utterly risk-averse that you can’t bear the slightest chance that you may end up in court over the illegal use of your work, then sit on your hands and seethe, but do nothing. That is, if you do anything else like the options described below, you do run a small (and usually is a very, very small) risk that the other side will file suit against you for declaratory judgment that it did not infringe. This is really rare because copyright infringement is strict liability and so, unless you missed something like a license granted to the infringer, it’s a loser case for the infringer. I had this happen once–the infringer tried to use it to scare off my client. Didn’t work and, not too much later, we negotiated a settlement that my client was quite happy with (plus, my client saved the cost of filing the suit). Still, if you don’t want to face the generally tiny possibility of going to federal court, do nothing.  Otherwise, read on.

Some people suggest sending an invoice to infringers, but I don’t encourage that. It’s likely you will undervalue the infringement and maybe even miss additional claims that will add value to the overall matter, so you sell yourself short. Worse yet, an invoice sent will virtually neverresult in you getting a check for your invoice’s full amount. At best, the invoice will be a start to a negotiation; but, if you’ve already undervalued the matter and then you end up at, say, 50% of that, you’re bleeding money. You also set your price without knowing all the facts and that could bite you if you end up in court later. Nope, invoicing is not a wise idea in most cases[3].

Similarly, I generally don’t encourage creatives to send cease and desist (aka demand) letters of their own drafting because they usually (of course, accidentally) screw them up because of language errors as well as under-valuation. If you don’t know the law, you may  (as mentioned above) miss legitimate claims that add to the value of the matter and you could end up offering to release a $25,000 claim for $5000.

As for language, there are two main areas of concern: misusing legalese and slipping from legitimate demand into extortion. The latter, first: “Pay me $10,000 or I’m going to go public with what a thief you are!” is going to get you in trouble but a demand for $10,000 to settle the claims is not inappropriate if the facts support it.  The line isn’t so obvious sometimes and, since anti-copyright folk scream Extortion! at any demand, you want to be sure you don’t actually cross that line.

Using legal language incorrectly happens often and often it is by people who are very smart but, not being attorneys, they have no clue that using certain words means something different in a legal context (like published in copyright law, for one example). To paraphrase Inego Montoya, “I do not think those words mean what you think…” and that can get you in trouble when the other side lawyers up.

Another error in artist-drafted letters is you can be a doormat: “I’m sorry, I’m sure you didn’t mean to, but you used my work. Would you be willing to pay me $100?” is differently but arguably just as bad as accidentally extorting the infringer. You’re undervaluing the infringement and groveling…ick! Overall, unless you have a form letter drafted by an attorney and you are very confident in evaluating your cases for all the potential claims and their damages, I encourage you to refrain from drafting and sending letters yourself.

Moving on… sending a DMCA takedown notice to the ISP is a tool you can wield, and it will probably get the infringement stopped, but it does nothing about getting you the money you deserve for the illegal exploitation of your work. Usually, I think it is better to notify the actual infringer first (as a part of a demand letter) and then, if it doesn’t remove the work, send the takedown notice. This can be a strategic choice that is worth evaluating with an attorney too as, for example, continued use after notice can be a factor for willfulness. Also, you do want to be sure to send a technically proper notice, if you choose to send one at all.

That brings us to the final option: contacting an attorney. A competent copyright attorney will avoid the issues described above, will evaluate your claim(s) and your opposition’s potential defenses, and will advise you on your best course of action. We have to–there are rules (actually, laws[4]) that demand it of us. So, as opposed to companies[5] that claim to help you with your registrations or infringements, attorneys, once hired, must put your best interests first, including above our own. It’s part of why we have to be licensed–to provide competent counsel to our clients.

While we attorneys can’t take every case that is brought to us, we are required to hold your information confidential even if we don’t take the case so it is worth talking with one of us before you do anything.

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[1]As long as it is still less than three years since you discovered the infringement (in most cases/places), you have options. The statute of limitations is 3 years for infringement and usually that clock starts ticking when you discover the infringement. Don’t wait until the last minute.

[2]DMCA takedown notices do not go to infringers but rather to the ISPs that host the infringement. For example, if I were an infringer of the post office photo I showed in my last post, the author of the photo would send the notice to my host, not me. It gets the work removed and gives the host/ISP a legal protection (safe harbor) against being sued for infringement, but the author could (and arguably should) still go after me as the actual infringer.

[3]An exception may be with an existing client who has used work beyond the scope of a license; then, for a continuing-business-relationship reason, an invoice may be wise.

[4]See, e.g., Cal. Bus. & Prof. Code §6068, including sub-section (g) that says an attorney must not “encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.”

[5]Companies are required to make as much money as they can for their shareholders, first and foremost.

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What to Do (Collecting Evidence)

When one finds one’s work being used by someone without permission, much less payment, there are some things to be done besides just swearing about it. Before doing anything regarding the infringer, especially before contacting it, do the most important thing: collect all the evidence.

If your work is appearing in print someplace, or in 3 dimensions (depending on your art), take copious photographs of it. Try to get close-ups and photos of the context (in a bank, on a billboard, etc.).

If, say, the work appears on a product, note the store where it is being sold and ask the manager for the name and contact information of the supplier, if it’s not a company you recognize. You can also buy example products (or publications) bearing your work, if that is an option.

Online? Make screenshots. Get the whole page if possible (try an app like Paparazzi) and also try to get a screenshot showing as much of the URL as possible while also capturing the infringing use. When you do that, however, make sure to hide your favorites and close all other tabs–you want a clean example of the infringement[1].

Got the shots of the work on the public-facing pages of the site? Great, now find it on their servers. In Safari, go under Develop>Show Web Inspector and you’ll see a folder called Images. Here, I have a screenshot looking at this site that way where I’ve ID’ed a photo of the La Jolla post office I made (selected in the screenshot below):

Double-click that highlighted icon and it will open the link to the work as it appears on the infringer’s server (here, on my server). Get screenshots of that as well and note the URL(s).

Okay, now do you use metadata in your images? Please say you do. If so, then check the metadata on the infringing photograph–see what has/has not been deleted or altered. Preserve that evidence as well (make pdfs of the results, for example).

Finally, for web-related infringements, preserve the infringement on the Wayback Machine at archive.org. You do that by checking to see if the page is there already (and do this for the front-facing pages and the server pages); if it’s not, then you’ll see that you can add it. Here is what I got when I put in the URL for the server page holding my post office photo, for example:

Once you’ve done all that you need to find, in your own records, your copyright registration for the work and copies of your deposit copies. If it’s not registered and it is still within three calendar months of your first publication of the work[2], register it immediately[3]! Also note where you have licensed the work to be used and where you have published the work yourself (exact URLs for everything–not just “on my site”). Basically, think of every place that your opposition may have found the work and note the URLs.

Put all of the above into a folder for that infringement, before you do anything like contacting the infringer.

Yes, this all is some work, but evidence is so important that it is totally worth it. I can’t begin to tell you how many times someone has contacted me with what sounds like a great case but, because s/he hasn’t preserved evidence of the infringement, there is noting that I can do for her/him. I may know it is an infringement, but if I can’t prove it, there is nothing I can do for you.

So, once you have all the evidence, then you can decide what to do about the infringement itself. In my next post, I’ll talk about your choices.

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[1] No reason to give anyone any personal data accidentally, like that you also were looking at porn or something (yes, this happens).

[2] Remember that “publication” has a different meaning under copyright law here so if you offered it to a client for its use, even if it wasn’t used, then it is published. Also, posting the work on a site where you say, basically, “you can license this work” is publishing. However, just because you posted it on your portfolio site (no offer to license) does not make it published. If you aren’t sure, ask a copyright lawyer, not your creative buddies, for advice.

[3] If it is too late, then your options are limited for how you approach the infringement, since your remedies are limited, but it still may be worth pursuing.

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Not One Month

I don’t know where this got started, but there is some bad info going around about a one-month window to register a work to get statutory damages (and maybe attorneys’ fees and costs). There is no such thing.

I thought it was just a fluke when I recently had a potential new client tell me that she had registered a work within one month of discovering an infringement and thought that meant she could get statutory damages. Then, however, I saw PDN recently publish essentially the same wrong info, so now I’m worried.

Like I said, there is no such thing as a one-month window. There is, actually, no one month anything for anything copyright registration-related that applies to most of you (especially photographers). Nada. Nichevo. Rien. Nothing. And I really don’t want any of you to get burned by learning rules that aren’t rules, so let’s get the right info out there.

Here is the law on this issue: in order for someone to be able to get statutory damages for an infringement of unpublished work, s/he must register the copyright with the US Copyright Office before the infringement in question started. Period. That’s it. No other options.

For published work, the same rule applies (register before the infringement). However, for published work only, there is also a “safe harbor”: for three calendar months after the first publication of a work, someone can register and it is as if the registration happened on the date of the first publication (thus any infringement that happens after that date of first publication is covered).

Okay, hopefully that is clear.

By the way, I’m disappointed that PDN published wrong info (and that they haven’t corrected it as of this writing, despite being told by my mentor Carolyn Wright that is was wrong). It does go to another important point, though: when it comes to the law, ask a lawyer. Though often well meaning, a writer, a photographer, any other artist will often get it wrong.

I’ll step off my soapbox now.

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Exclusive Licenses and Your Business

Have you ever granted exclusive rights to your work? If so, I sure hope you got paid enough for it because you may not be able to sue for infringement of that work. Maybe. It depends. Language matters and this is (likely, surprisingly) technical stuff.

A new case doesn’t help; actually, it kind of muddies the water and I’m sure it will be debated by lawyers in filings and cases to come. In Fathers & Daughters Nevada, LLC v. Lingfu Zhang, Case No. 3:16-cv-1443-SI (D. Or January 17, 2018) (“Zhang“) the court split a fine hair about standing and exclusive licensing and it has some copyright owners and licensors[1] worried.

Get popcorn, this is going to take some explaining.

Courts require something called standing in order to sue (for any suit). Standing roughly means that the plaintiff is the person who was harmed/affected by the defendant’s illegal actions. If you get punched by a jerk in a bar, you have standing to sue the jerk for assault and battery because you were put in fear and physically harmed. Your friend who, from across the room, saw the jerk hit you? She does not have standing to sue the jerk for assault and battery for that punch, because she wasn’t actually harmed by it[2]. Got it? Good.

Now, a bit about copyright… it is often described as a bundle of sticks where each stick represents an exclusive right. That bundle actually consists of six big sticks: one for each of the rights listed in the statute[3]: to reproduce the work, to prepare derivative works based upon the work, to distribute copies of the work, to perform the work publicly, to display the work publicly, and to record and perform the work by means of an audio transmission. Each of those big sticks is made up of its own sub-sticks, and they can be very specific sub-sticks. For example, the right to reproduce can be made up of the sub-sticks “the right to reproduce the work in print,” or “the right to reproduce the work in the USA,” or “the right to reproduce the work for 6 months,” or those sub-sticks can be combined into the stick “the right to reproduce the work in print in the USA for 6 months.”

It’s an imperfect metaphor, but it’s about as good as we can get and it’ll be helpful here.

Anyway, an original owner of a copyright owns all these sticks[4] and can share any of them by non-exclusive licensing. After granting a non-exclusive license, the copyright owner still holds the stick. The licensee doesn’t get the stick but the license means s/he/it can’t be hit with that stick now, so to speak[5].

However, (and here’s the thing I bet you didn’t know) when an owner grants an exclusive license for any of these rights, these (sub-)sticks, s/he is handing that stick over to the licensee–and (often) letting go of it. The statutes and case law say that an exclusive license is tantamount to ownership of the right conveyed in the license[6]. For example, if you grant the exclusive reproduction right in print in the USA for 6 months, you no longer own any right to reproduce the work in print in the USA for that 6 months.

Now to bring the pieces together… to bring a suit for copyright infringement, to have standing to sue, a plaintiff has to be the person who owned the rights actually infringed at the time of the infringement. In other words, the plaintiff had to have that particular stick when the infringement happened. Let’s look at some examples to make that clearer.

Example 1
Betty makes an illustration and grants a non-exclusive license to Forbes for display use on its website for 6 months only. Sometime during those 6 months, BloggerBob copies the article and the illustration and displays them on his own website. Forbes cannot sue for infringement of the illustration[7] because it only has a non-exclusive license and Betty still owns the exclusive right. Betty still has the stick for website display during that time and so she has standing and can sue BloggerBob for the infringement.

Example 2
Betty makes an illustration and grants an exclusive license to Forbes for display use on its website for 6 months only. Sometime during those 6 months, BloggerBob copies the article and the illustration and displays them on his own website. Forbes can sue for infringement of the illustration because it has an exclusive license for website display for those 6 months! Here, Betty does not own the exclusive right any more–she has handed that stick to Forbes for the 6 months–and so Betty cannot sue BloggerBob for that infringement.

Example 2a
Now, just because Betty has handed a stick to Forbes doesn’t mean she didn’t keep all the other sticks. During this same 6 month Forbes license window, Tony Tshirt illicitly prints Betty’s illustration on clothing and sells the items. Betty (not Forbes) has standing to sue Tony for that infringement because he infringed on a different exclusive right that she still owns.

 

Okay, now here is where it gets uncomfortable and confusing. In a previous case[8] in the 9th Circuit (Minden, as well as other cases and in other places), the court said that a copyright owner can grant an exclusive license to a licensee and (wait for it) still keep that same stick–essentially saying both the licensor and the licensee have the stick, while excluding all others from having it. The terms of the exclusive licenses in Minden and these other cases included the owner retaining some the right explicitly or the licensor had something called “beneficial ownership” of the right (for example, was paid royalties based on the exploitation of the right granted[9]).

However, in the Zhang case I mentioned at the start of this post, the court said the copyright owner, when it granted an exclusive license for the right later infringed, gave that stick to someone else entirely and so didn’t have standing to sue. That is, they didn’t keep any of the stick for themselves (nor get any beneficial ownership), and since it was that stick’s rights that were infringed, the copyright owner could not sue. Ouch.

Yeah, I know, it sounds a lot like the same as Minden, but with a different outcome, but it isn’t, quite. The difference is very much in the wording of the licenses– technical stuff. Honestly, these issues are sometimes difficult even for attorneys to understand, and we are highly trained to understand them! Don’t feel bad if you don’t totally grok this stuff.

So why am I bothering to tell you about this? What does this mean for you as someone who licenses your work to others? Basically, you need to be very careful of your license language and, if you are going to grant an exclusive license especially, make sure you do it in a way that works for you AND that you get paid enough for it.

Too many artists just throw around words like “exclusive” without understanding that they could seriously impact rights and the artist’s livelihood. Don’t be one of them. Also, don’t sign contracts unless you fully understand all the terms and their effects.

Best practices would be to hire an attorney to draft your licenses and to read contracts offered to you by your clients. Yes, this will cost you some money but (a) you can write it off and (b) it may save you much more in the long run. Ignorance is no excuse, especially in court. Worse yet, when you throw around legal-sounding words without understanding their effects, you are still bound by their effects.

Remember: you are an artist who is running an arts-based business–you need to run it like the real business it is.

__________________

[1] A licensor is someone who grants licenses to another party (that party is the licensee).

[2] I know someone reading this is going to say she could sue for something else, and maybe she could, but I’m not going there. Just roll with the example being limited to civil assault and battery.

[3] 17 USC §106

[4] A later owner, someone to whom the copyright was assigned (transferred) may very well own all of these rights, but it’s possible s/he/it may not. To use the favorite phrase of attorneys everywhere: it depends. It can get very complicated and I don’t want to go into all that here.

[5] I mean, a licensor can’t sue the licensee for a use covered by the license granted to the licensee.

[6] 17 U.S.C. § 501(b); Minden Pictures, Inc. v. John Wiley & Sons, Inc., 795 F. 3d 997 (9th Cir. 2015); Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 890 (9th Cir. 2005); etc.

[7] Forbes’ rights in the article may be an entirely different story–I’m only discussing the illustration here.

[8] Minden, 795 F. 3d.

[9] Broad. Music, Inc. v. Hirsch, 104 F.3d 1163, 1166 (9th Cir. 1997).

 

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Showing 2017 The Door

As we show 2017 the door, now is the time many of us take a look at the year that was and think about the year yet to be.

In 2017, many of us were at least pre-occupied, if not downright overwhelmed by the events in Washington, DC. Many of us woke each morning with some variation of Dorothy Parker’s “What fresh hell is this?” on our lips as we fired up the news or, worse yet, Twitter. And, while I firmly believe we each must do all we can to preserve, protect, and defend our Constitution (particularly since many in power are not), 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 2018.

  • Register your damn copyrights already. Seriously, if you are a creative professional, stop making excuses and start doing this.
    • While there are services for this, I do not recommend using any of them. Fast or easy ≠ better. I don’t think you can automate registration applications and have them be anything more than maybe adequate (and possibly deficient). A well done registration can make a potential defendant in an infringement matter settle fast and for more money than a bare-bones one (which may even be challenged by a wily defendant). Besides, it’s really not that hard anyway, particularly for visual artists and even more so for still photographers.
    • 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).
  • Pursue infringements for a better bottom line. Not every case has to be worth over $30,000 or whatever to get representation–I don’t know how that idea got started but it is simply not true. Some attorneys, like me, will take on small cases because they simply do add up. Let’s say you have small value infringements, but 10 of those over the year; now imagine you get an average of $2500 (a low settlement amount) per case: that’s $25K. Now, let’s say your attorney gets 35% of that: you’re still pocketing over $16K. I bet you can find a lot more than 10 infringements in a year–why not see of they are worth getting a lawyer to pursue (I review cases for free)?
  • Make the time to make art for yourself. Whatever your medium(s), get back to making your own work for you. 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.
    • I encourage actively scheduling the time now, to occur at intervals throughout the year, and to stick to that schedule unless the dreamiest dream job or a true emergency comes along.
  • Stop relying on social media like Instagram to do your marketing. Besides the fact that the Terms of Use on pretty much all those services really do suck for creative pros, it’s virtually impossible to get seen by the right people, particularly if you are relying on trying to trend/go viral. Instead, do better targeting (remember making lists of desired clients? do that) and get back to the basics in your marketing plan–print mailers are doing better than ever, at least I’m hearing that from several folks.
    • Relatedly, try to interact in human form with potential clients. Make calls, go to industry events, volunteer with professional organizations of your potential clients–get out there in three dimensions!
    • Instead of posting everything on Facebook, Instagram, etc., keep your work on your own server/site and post links on 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, like ©2017 Leslie Burns) but if not that then the copyright owner’s name (and, for non-visual art, then include it 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. 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, not just during the holidays, but all year. Time is something we can’t bank or buy and being present with those whom we love and who love us, that’s the best thing, always.

Here’s hoping 2018 is a happy, healthy, and prosperous year for us all.

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