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Thank you

As is my custom, rather than giving gifts to my clients at the end of the year to thank them for their business, I try to do something to help less fortunate folks, in the name of my clients. This year, I had planned on doing the same thing I did last year (make kits for the local homeless) but, as bad as they have it, there are people suffering even more: the Puerto Ricans.

Our government has turned its back on these Americans after their island was devastated. It’s heartbreaking that, months after, the death toll is still unknown, more than half the island is still without power and close to 10% don’t have running water. The American people, however, have not forgotten (we’re still a pretty good bunch, despite the current leadership) and people, regular folk, are working to rebuild Puerto Rico.

There are several good charities, but I decided to go with the one recommended by the mayor of San Juan: Somebody Help Us/Alguien Ayúdenos. I figure that the locals know best what they need and who can best benefit. Plus, the organization posts all its paperwork (articles of incorporation, etc.) so there is transparency. This morning, I made a (relatively substantial) donation to the organization in the name of all of my clients.

I can only do this because of you. The trust my clients have placed in me, that you allow me to help you, and that I can help artists continue to make a living doing what they love and are gifted to do, it all means so very much to me. Yes, the money doesn’t suck (especially for someone who grew up literally counting pennies with my mom to make it through each month) but, that I get to use my knowledge to help artists and make a difference, well, let’s just say I feel lucky every single day.

Thank you.

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Framing is infringement…

…at least in the Northern District of Texas. There, in a recent opinion (November 22, 2017), the court held that framing (aka inline linking or hotlinking) a work is copyright infringement[1].

This is a big deal for creatives and legal geeks like me.

See, particularly nefarious infringers have managed to get away with infringing by inline linking to a work and then claiming that they didn’t copy the work, so no infringement. Their defense is that they just provided the work on their site live/embedded/hotlinked/whatever, but the work was still hosted on the original (owner’s) site so, boom, no infringement.

This has always ticked me off as it sure seems like a clear violation of the exclusive right to display a work, provided for in copyright law[2]. Unfortunately, the courts haven’t been on our side about it. Scholars, yes (mostly), but the courts, not so much.

The big case defendants usually rely on was from here in the 9th Circuit back in 2007: Perfect 10, Inc. v. Amazon.com, Inc[3]. There, the court noted that someone has to make and possess a copy for an infringement to occur. For a website, that means a copy of the file must be on the defendant’s server, not still on the plaintiff’s but displayed on the defendant’s. Since then, however, courts have begun to take issue with that idea.
‘Bout time, I say.

In this new opinion, the court notes a copyright owner’s exclusive right to display a work and that “[t]he text of the Copyright Act does not make actual possession of a copy of a work a prerequisite for infringement. To display a work, someone need only show a copy of the work; a person need not actually possess a copy to display a work.[4]” It distinguished this case from Perfect 10 on the facts,  but also said that the court in Perfect 10, on this point, got it wrong.
Huzzah.

While this case doesn’t mean that every case with framing/inline linking will now be a winner for the copyright owner, it does open the door a little more.

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[1] The Leader’s Institute, LLC, et al. v Jackson, et al., Case 3:14-cv-03572-B (TXND 11/22/17) Doc. 195 at 21.

[2] 17 USC §106(5).

[3] 508 F.3d 1146 (9th Cir. 2007)

[4] The Leader’s Institute, Doc. 195 at 23, citing Flava Works, Inc. v. Gunter, No. 10-C-6517, 2011 WL 3876910, at *4 (N.D. Ill. Sept. 1, 2011).

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Sometimes you have to begin again

Welcome to my new site!
Getting a new website was, um, not a planned event.

Sometimes things happen that push us to make changes we weren’t anticipating. In my case, it was a serious technical failure by my (now previous) hosting company that sucked my old site into the dark recesses of the interwebs and forced me to, well, to begin again.

Hopefully I’ll be able to recover some of the lost materials soon and get the info posted here for all to access. I have some backups but, like too many of us, I wasn’t as diligent with the backing-up of my website as I ought to have been.

Learn from my error and back up your website.
I suggest doing that now.

As for me, I have things running again. There will be tweaks and improvements down the line, and a lot more helpful information on legal issues that may affect you and your creative business. As they say, stay tuned…

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We Are All Afraid

First, an apology for not posting anything for a bit. In my defense, I have been extraordinarily busy: on top of my practice, Im prepping for a move next week (packing is such a time-sucking chore) and have been hosting my niece for a couple of weeks while she does an externship in emergency veterinary medicine.

Im very proud of my niece. I have no right to be as Ive had nothing to do with her upbringing beyond sending presents and good thoughts across the country (shes from Atlanta and goes to the University of Georgia School of Veterinary Medicine in Athens, GA), but Ill claim the privilege of relation. Contrary to the stereotype millennial, she has worked hard to get where she is. In case you werent aware, getting into vet school is harder than human medical school–there are many fewer schools and the competition is fierce. She will be awarded her doctorate next spring.

My niece reminds me of the value of work and a good attitude. She could have been daunted by the odds, by the amount of work, by the cost of school, by a whole host of things that could go wrong, but she did it anyway. I’m sure she was afraid, more than a bit, of failing at many points along the way. But she did it and shows every sign of becoming a very good and successful vet–maybe even specializing in surgery. Wow!

She, and my upcoming move, remind me of how facing our fears and doing (whatever) anyway is the best route to success. Speaking of which, I wrote the following in 2006 and it holds true today…

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Ive written about fear in one of my Manuals[1], but there is something about fear and business that I may not have been clear about: we all have it. Every single businessperson has fearsuccessful people do, just as less successful ones do. The difference is in how one deals with the fear.

If you are afraid and own up to it, face it, and challenge the fear, you are more likely to be successful. Some call that courage, and if that word works for you, then use it. What it is, whatever you call it, is taking risks and being open to living with the results.

We do that every day. Every day we take a risk driving (accidents), playing a sport (hurting yourself) or even just eating (food poisoning). Theres a risk in taking a shower (you could slip) or taking some medication (side effects) and there are big risks in falling in love (a broken heart). And yet we do these things regularly. Why? Because the payoffs are worth it and we know that we can live with the results, even if they are painful.

Can you imagine never being in love? Sure, youd never run the risk of getting hurt. You could protect your heart and rationalize it by saying that over 50% of relationships break up, etc. Thatsoundsreasonable. But, youd never know the joy of an intimate relationship, or passion, or the sublimely absolute trust that someone is totally there for you even in your lowest moment.

So it is in business. You can play it safe, not take risks, and be like most everyone else who is trying to do the same thing, or you can try something new and risky, but whichmightpay off in a big way.

Did you become a creative to do what others have already done, or did you do it because you see things differently and/or you want to express something more in your work?

Take the riskbe your whole self and show your true vision. Be passionate. Put yourself out there. Yes, you may fall on your face, but youll be truly alive in the process and, more importantly, you can only be great if you try.

——–

[1] For those of you who dont know, when I was a rep and consultant (as Burns Auto Parts), I use to post and send to clients articles I called Manuals.

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P.S. These days we have a lot of external fears–things over which we feel we have almost no control. For many of us our country (USA) is headed in not only the wrong direction, but a truly dangerous one. We can’t let those fears stop us either. Facing these fears may mean standing up to the racist/homophobe/misogynist screaming at you without turning to violence, or running for office, or protesting, or protecting DACA kids and immigrant families of all kinds. I encourage everyone to do the right things, to stand up for the truly American way and not this hateful MAGA hypocrisy, and to know that we can and shall overcome.

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Sit On Your Hands and Breathe

In some ways, law school is like learning to be Vulcan–you have to learn to think logically and keep your emotions out of it. It isn’t that we lawyers don’t feel (boy howdy, no!), but we have learned to be ledby logic rather than our emotions, at least when it comes to our cases. We learned to think rather than react. That difference can be rather crucial in legal matters.

My studies in Buddhism have helped me with this. I have learned to sit with thoughts and feelings, to observe them without judgement, and to make better choices from that. It takes a hell of a lot more to make me lose my temper than it used to. I still feel, and profoundly, but I can identify that as “feeling” and not let it interfere with my rational processing.

Creative clients are especially emotional sometimes. I think it is part of what makes you all artists–you make your livings by expressing emotions in some manner. For some of you, this can manifest as reacting before thinking. While that may be great for making your art, it can be very bad when faced with a legal issue.

Let’s take an infringement, for example. If you find your work being used without your permission, you’re going to be angry and hurt and you’re going to want to yell at someone, but that would be a poor choice. You could accidentally limit your recovery (or at least make it damn hard to negotiate a good settlement). You may throw a client under the bus because it accidentally shared your work (maybe if you knew that you’d forgive the client’s idiocy to keep that client). You might say something that isn’t true–my favorite is “The penalty for infringement is $150,000 per infringement!” (sigh…if only!). You may also be mistaken and the user does have a license you forgot about or it’s a legitimate fair use. If you go off half-cocked, you’re not going to catch any of that and, well, that would be bad.

So, when you find an infringement, here is what I think you should do:

  1. Immediately preserve evidence of the infringement (make screenshots, for example). Find every use you can and capture every URL, buy products that bear your work, take photos of your work being used, etc.
  2. Look up the company/person who controls the infringement, likethe website (try a Whois search, perhaps), or the manufacturer of the product. Save that info.
  3. After that, sit on your hands (i.e., do nothing) and breathe.

Do not call or email the infringer/bad actor. Do not call or email the entity you think may have “shared” your work. In fact, don’t even call or email yourattorney (yet). Nothing is going to get fixed immediately and no more harm is going to happen (in most cases)–you have time. You have three years to bring a suit for infringement in the US, so doing nothing for a couple of days after finding the infringement isn’t going to hurt your case. If your work isn’t registered and it is more than 3 months since you first published it, registering it now isn’t going to change anything for the better, even. So just sit and breathe.

After you have calmed down, maybe days later if you are really upset, look at the evidence you gathered. Search for any license you may have granted that might cover the use. Find your registration materials (assuming the work is registered). Basically, get everything together to make your case file. Then re-evaluate your case and set your goals to make you whole. Then you can plan on how to achieve thosegoals. And then you can begin to act.

This is true for many matters–that is, nothing bad is going to happen if you don’t act right that very second but you can do harm by reacting without thinking. Instead, record the evidence; sit on your hands and breathe; think/re-evaluate; set goals; act.

Now, “act” may very well be “call/email my attorney” but, by taking the time to let the emotions cool off, you haven’t hurt your case and you have thought about what really matters to you in it. The slap-in-the-face you felt will have calmed so that you can think more rationally about what you want. And you have all the materials together to help your attorney evaluate your case.

You don’t have to become Vulcan-like, but if yousave most ofyour emotions for your art, you’ll likely get better results in both your art and the law.

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Ah…. Technology!

One of the things I am trying to do in my new, soon to launch, legal practice is to make the process of asking for help a little easier. I’ve spent a lot of time looking at tools to help that process. Like any business these days, there are a ton of tools available, so I’ve been doing lots of research to find ones that work, and then building systems, using those tools. Technology is pretty amazeballz these days for this stuff.

One of my favorites is a combination of Typeform and Zapier and my practice management app, Clio. This combo permits data to be transformed from the forms to Clio, where it then automatically generates tasks, etc., for me there. For example, someone fills out a Typeform form and, via this system, Clio checks to see if it is a new or existing client, creates a new contact if needed, and generates tasks and calendars them (like “Follow up with Bob Photo tomorrow”).

This all happens through the miracle of  Zapier (I’m sure it’s pronounced “zappier” but the single p means that a should be long…drives the linguist in me nuts) which, if you don’t know it, you should. Typeform too. These tools permit integration and automation of a lot of the tasks you need to do, especially for your marketing, without effort (after setting them up, that is).

Anyway, I thought I was being all clever in having online forms right there on my website, for people to fill out and submit (user-friendly). And I was and it would have been great, except…
…the trolls found me.

Since my practice doesn’t launch until July 1, every time a form has been submitted to date (except by me or friends testing it), it has been from some troll and filled with hateful vileness. I’ve been called a psychopath, no better than a “street mugger” (I’ve never mugged a street in my life, I swear!), a delusional piece of shit, and have been told I should die several forms of horrible death, just to name a few of the goodies. Sigh.

First thing I thought was “no good deed goes unpunished,” then I got to work looking for solutions.

I’ve fixed the system now, but unfortunately it means legitimate people in need of my help will have an extra step (email) to get the links to the forms. That is frustrating for me, since I really wanted it as simple and hoop-jumping-free as possible, but it seems that wherever there is new tech, there is a troll waiting to exploit it. I trust my (potential) clients will understand.

For the rest of you, I really encourage you to explore Zapier and Textform. I think they could be great for creative pros to use to automate some of the work you have to do but hate to do.

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What’s With the “Compassionate Lawyering” Stuff?

You may have noticed the practice’s tag line, compassionate lawyering for creative professionals, and wondered “What the heck does compassion have to do with lawyering?” Well, I’ll tell you.

First, I refer to myself, semi-jokingly, as a “bad Buddhist.” I meditate, I read a lot by people like the Dalai Lama, Pema Chodron, and Thich Nhat Hanh, I believe in the Four Noble Truthsand try to follow the Eightfold Path. I also still drink alcohol, eat meat, and far too often suck at my practice.

See, bad Buddhist.

Anyway, a big part of Buddhism is being compassionate–understanding that all beings suffer, even the bad guys. My clients suffer too, of course, and I want to help them suffer less. So, voil, compassion.

How does this affect how I practice the law? I think it makes me a better lawyer. I take the time to see the whole case before proceeding and I am very present in the process. To use a sadly overused term today, I practice mindful lawyering.

Instead of coming into any interaction with the other sidewith overt aggression, swinging right off, I try to point out the issues and then give the bad actor the understanding and space to correct its bad behaviour. I listen, I try to see things from the opposition’s perspective (to understand, not to agree). I don’t humiliate or threaten, and I hold the line with, I hope, a certain graceful strength. Importantly,I don’t react to the hateful stuff that can be dished out (remember, when we feel attacked, even if we aren’t actually being attacked, we humans tend to lash out). When I get called names or otherwise get personally attacked (and that happens, a lot), I don’t retaliate. I don’t permit the other side to distract me from my purpose of protecting my client, her/his rights, and getting her/him satisfaction (besides, it’s never about me anyway–it’s about the case). That is being present and mindful; it is not being passive or weak.

These techniques have worked much more often than you might at first expect. I’m proud of my success rate. I think thatthe bad actor feels heard (is, in fact, heard), isn’t attacked (no retaliation, remember), and eventually has no place to go with all its aggressive energy so it becomes able to get my client’s position; that opens the doorto working together toa solution. Boom,an honorable win with no loss of face for the other side.

If, however, those techniques don’t work, I use what I’ve learned in that process to, um, let’s say lead the bad actorto a change of mind. Subtle pressure applied in the right manner, so to speak–in this case, using logic applied to the facts, including the additional data learned in the previous process, and arguing effectively until the other side has no choice but to recognizethat it’s got a loser case on its hands*. A colleaguereferred to what I do as legal jujitsu, and I think that’s pretty accurate since that practice is all about using the opponent’s energy against him/her. Eventually, the opponent will tap out*.

Lawyers are often called “pit bulls,” but that is definitely not me. I know some who are and I respect their process–it just isn’t mine. I think of myself more like the great shepherding breeds who get the sheep to do what they ought, without ever actually attacking them. Think Border Collie–they are damn fine and running circles around the sheep and wearing them out. Maybe that’s why I have a thing for black-and-white (clothes, car, photography…).

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* To be clear, I don’t win every matter and I certainly don’t mean to imply that; also, past results are not predictive of future outcomes.

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Big News! (Well, big for me)

I’m not going to bury the lede: my new legal practice, Burns the Attorney, is launching July 1, 2016.

You can get more of the details by going to my practice’s site: burnstheattorney.com. There, you’ll find information about the kind of work I will be doing (much the same, but not entirely) and there will be longer format blog posts on legal issues there regularly. I’ve also launched a Facebook page and you can follow my tweets, too, for shorter form info, links, and the like.
(oh, and so the state bar is happy: yes, this is attorney advertising)

Anyway, the short answer is that my wonderful mentor, Carolyn E. Wright, is cutting back to spend more time with family. I wish her all the best and can never thank her enough for all she has done for me. She is wrapping up her practice and I am starting my own, so, over the next few months, I will be working two jobs in a way.

This is a ton of work, as I’m sure you all know. Setting up a new business means a thousand details and lots of money out (before hopefully getting money in–ha!), but it is exciting. I know I’m incredibly lucky to get to do what I love for people I want to serve. I have friends who have to drag themselves to their jobs every day–I don’t have that problem. I love what I do, even when it occasionally drives me a bit nuts. I also hope that I can work in more portfolio/website reviews and other non-legal consulting (I miss doing that) under the good ol’ Burns Auto Parts roof, but my focus remains on being the best lawyer I can be, for artists.

Please share my news, especially the links to the Burns the Attorney site/FB/Twitter, with all of your creative friends. I hope to work with artists of all kinds, not just photographers, so that more of you can get the help you need to protect your rights, your art, and to be successful in your creative businesses.

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Going Viral ≠ Increased Business

Every platform, content scraper, blog publisher, and even legitimate (formerly?) respectable publishers (I’m looking at you, National Geographic) out there sells creatives on the idea that if you share (I so loathe that word as it is used by those businesses) your work, the exposure will be great for your business.

The reality is, probably not. Here is one photographer’s story about a viral photo that got a ton of views and likes and shares and even press but, so far, no appreciable new business (note: he did book a couple of weddings, but that isn’t clearly because of the viral photo–maybe he would have booked ’em anyway at the show he mentions).

Now, maybe he could have used the viral exposure better (for example, connected it immediately to a sales promotion), but really, I’m not sure that would have made a major difference. People don’t impulse-buy photography. No one is likely to see the viral photo and say “I need to hire that photographer!” unless, maybe, s/he was already looking for a wedding photographer. Assignment/commissioned photography is still not a commodity, not a product on the shelf, so exposure like that may never pay off.

So, the photographer gets a brief hit of online fame, when his name is included (and it often isn’t), but no real financial benefit. He’s not suddenly booked up and the interest has already faded. In exchange, he has lost the ability to control the work (i.e., license it) and thus generate revenue from it.

However, I’ll bet dollars to doughnuts that the viral photo has generated buckets of cash for the sites that have used it (eyeballs = advertising moolah) and will for as long as people will look.

Moral of the story: don’t give your work away; don’t share it and don’t let your clients share it, unless they pay for the privilege.

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Published?

One of the most popular questions we copyright attorneys get asked is “What does the Copyright Office consider publication?” While each situation is fact-specific, there are a bunch of hypotheticals answered here on the Copyright Alliance website by the USCO’s Director of Registration Policy and Practices, no less!

There are a bunch of other copyright registration-related questions on that page, too. It’s a great resource.

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