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I am a Prince fan. I’ve enjoyed his music since its first releases and his death last week hit me with the same kind of force I’m sure previous generations felt when, say, Elvis Presley died. But whether you are a fan or not, his death matters to you. Why? Copyrights.

Prince’s death should be a big reminder to all of you who create that your copyrights will outlive you and they are descendable. “Descendable” is legalese for it will pass to your heirs when you die and you can name who gets it. While no one likes to think about death, you should be thinking about who will get your copyrights when you die.

Just today, the New York Times and other media are reporting that Prince may have died without a will. The implication is that no one knows what will happen with his music. Now, the reality is not quite so dire. There are mechanisms in the law for when someone dies without a will (intestate, is the legalese) so it’s not like the work will suddenly go into the public domain or anything. The short answer is that, assuming there is no will, Prince’s estate will be split according to Minnesota law equally amongst his surviving full-sibling and half-siblings (they are treated equally in Minnesota), that is, his heirs. His copyrights are a part of his estate. Very likely, each copyright will now be jointly owned in equal measure by all the surviving heirs.

Will there be infighting amongst the heirs? Sadly, that is likely. People act like crazy folk when it comes to estates, whether they be small or, as in Prince’s case, very large. When there is no will, courts are left to impose the law without any guidance from the dead person as to what (s)he wanted, but heirs and potential heirs try to convince the court otherwise (“Grandfather promised me the classic car in his garage!”). Hopefully a will will be produced and it will be clear and well drafted, expressing the actual wishes of Prince and meting out all his property, both tangible and not, and thus making litigation down the line a little less likely (or at least less onerous for the court to sort out).

Each state has its own laws about who gets what when someone dies intestate. Generally speaking, usually property (including intellectual property like copyrights) will go to kids (usually called, in the law, issue, which makes the 12-year-old in me crack up), if there are any, or to parents or siblings if not. If you live in a community property state, then your spouse may automatically get your property, or at least the property created while you were spouses. It can get pretty complex (especially here in California where, for any copyrights you create while married, your spouse already owns a half interest and has since the moment of the work’s creation!). But you have control of what you own–just get a proper will.

I read an article recently that said Robert Mapplethorpe gave his brother his cameras in his will. That is called a specific gift (anything you leave to someone in a will is called a gift)and you can do that with things (like your equipment) or any/all of your copyrights. You can get into meticulous detail about who gets what, if you choose, or you can make it much more general like “Bob Smith gets my entire estate.”

But you have to do it. That is, you have to have a will. You have to take the time to name who gets what.

This is important. Your copyrights have value and you should seriously consider who will get them (or parts of them) when you die. Maybe you shoot fetish work but your family are mostly highly religious–do you want them to own and control your art when you are gone?! They could, completely legally, destroy it all. Or your bother with the gambling problem could sell his share to Jimmy the Loanshark. Or your spouse, from whom you have been separated but just haven’t bothered to actually divorce, gets it all. If you don’t take the time to draft a will now, your wishes for your art will die with you.

That may have happened with Prince. Don’t let it happen to you.

Do you sell your work? When you talk about your work, do you say, “I sold this photo for $2500 to Client X, for use on its website” or similar? Even more importantly, does your paperwork clearly state, for every transaction, that specific rights to use the work are licensed to your client or do you just say “Creative Fee = $2500” and list “usage” someplace? Or, worse of all, do you ever say an invoice is for a “buyout” of the work?

Well, stop that. I mean, stop selling your work.

If you aren’t making it clear that you are licensing your rights rather than selling your photography, I think a smart copyright defense lawyer could argue that an affirmative defense called the first sale doctrine applies if your client later resells or otherwise distributes your work beyond the scope of the license you thought you granted. That defense could gut your case.

This morning, I was reading up on recent cases in copyright when I came across this article. On first glance, it doesn’t seem like it really has anything to do with how you run your business and copyright law, but I think it may. The short version of the case discussed in the article is that Adobe sued someone who bought copies of Photoshop which it later resold (against Adobe’s usual terms); that would have been a clear case of infringement, except that Adobe hadn’t clearly stated that the defendant originally licensed the software from Adobe (even though Adobe always licenses rather than sells its software) so the purported infringer was protected by the first sale defense when he resold the software.

In the case itself (yes, I read the opinion), the court notes, “In digital copyright cases, the distinction between a “sale” and a “license” has become central.” (p. 11) and later explains:

To determine whether there is a legitimate license, we examine whether “the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.”

(p. 13, internal citation omitted). Finally, the court emphasizes that “the precise terms of any agreement matter as to whether it is an agreement to license or to sell; the title of the agreement is not dispositive.” (p. 18, italics added).

This isn’t a slam-dunk defense against copyright infringement of a visual art like photography. There are differences in the cases (software isn’t photography, for example), but the analogy is worrisome. If you just substitute the word “photograph” where it reads “software,” you can see that the rest fits.

I think this case should, for your business, serve to remind you of the importance of making it clear that you are licensing rights, not selling photography (or any visual art). In other words, in your paperwork to your clients, make sure to avoid words like selling, sold, buying, or buyout and make sure to use terms like licensing the rights to reproduce, non-exclusive license to display, or non-transferrable unlimited license to copy and display. I’d make it clear on all documents, especially your estimates and invoices, that the usage rights granted under this license are limited to (fill in the usage here).

Drafting a license isn’t hard, but you do need to make it clear that you are only selling the limited license, and not your work. Later on, a clear license can help prevent an infringer from even trying to raise the first sale defense, saving you and your attorney (and the court) headaches, time, and money.

 

I vet many of the cases that come to our firm (photoattorney.com); that means I get to see what people think are lucrative infringements. That also means I have to tell them, sometimes, that we can’t take the case.

This is not the favorite part of my job, as you can imagine.

I don’t like having to tell an artist we can’t help, but we can’t take every case just because we really want to help. We have rents to pay, too. So, we have to do a cost-benefit kind of analysis to try to hedge our own “bets” on any case we’re considering for a contingency fee representation. Sometimes, the numbers just don’t work. Sometimes we have to say “no.”

More often than not, we can’t take a case because of something registration-related. There are three main categories for that: either a work isn’t registered at all (and the artist has no proof of licensing value); or it isn’t timely registered (i.e., before the infringement); or there is a serious error with the registration, usually relating to the publication status at the time of registration (i.e., registering as unpublished when it was published).

For contracts or release matters, too often there is no signed doc in the photographers files. Often any doc that may have existed has been lost as digital media that is now lurking on some dead Zip Drive rather than printed out and kept with a job folder.

All of those errors are related to details and, well, artists generally hate dealing with details except in their art. The Law (cap-L), however, is all about details. And there lies the devil for our clients and potential clients.

One example may help illustrate how details are everything in the Law: any filing in Federal Court. Besides doing all the legal research and the drafting, we have strict procedures we have to follow. We have the Federal Rules of Civil Procedure (FRCP), which are the procedure rules for all civil matters in all federal courts all over the USA. Each district within the federal court system has it own Local Rules that supplement the FRCP. Each district judge has her/his own Chamber Rules and each judge magistrate (who is usually in charge of the discovery part of a case) has her/his own Chamber Rules. So, before filing any document, a lawyer needs to check the FRCP, the Local Rules, and the Chamber Rules for whichever judge is in charge of that part of the case, and sometimes both the judge and judge magistrate. That is just for the procedure, not the law about the issues. Screw up something in the procedure and your whole filing can get bounced. Not good.

Anyway, this is a long way of saying that when it comes to the legal part of your business, you have to keep in mind that the Law is nit-picky as hell. You can’t play fast-and-loose with your registrations or your record keeping or your contracts (etc.) and expect the court to understand what you meant rather than what you did and, most of all, what you can prove.

This is why you’ll hear your attorney sigh and reach for the nearest martini when you say that you didn’t get a release signed because she was your girlfriend when she said it was okay that you make that image of her in a naughty nurse uniform, carrying a ginormous bong and flipping the bird to the camera whilst dancing on a burning US flag, and you don’t understand why she’s suing you now for licensing it to that punk record label, even though she now works for a conservative think tank and is engaged to a Mormon political candidate. You may know (and her too) that there was a verbal release, but can you prove it?

Really, attorneys hate to say no to clients. Help us to be able to say yes to you when you need legal help, by paying attention to all the devilish details. Getting it right could end up making you lots of money, in the end.

Since long before I became a lawyer, I advocated for two things when it came to photographers’ fees: raise them (particularly the license fee) and separate the creative fee from the license fee. Since becoming a lawyer, I’ve found that was good advice on both fronts.

I bring this up because I’ve seen it repeatedly in my practice and have been hit with it a bunch lately. That is, where a photographer comes to us with a possible infringement and, not having timely registered the copyright in the work (grrr!), leaves us no option but to see if there are sufficient actual damages in the form of lost licensing fees to make the case worth our efforts. When asked what her/his usual and customary license rate is for a use the photographer will respond with something like, “I would have asked $2000.” When we ask the necessary follow-up question, “Do you have invoices to back up this rate” the response is either, (1) “No, but that is what I would have charged,” or (2) I am presented with an invoice for the creation of the work that also included a license and the combined fee cited is $2000, or, (3) worse of all, I get the invoice for the creation and licensing of the work where the photographer only charged $500 on some sort of mega-discount.

None of these are good answers.

In the first case, no history of licenses, I can at least argue for the “fair market value” of a license and then, using common metrics like Fotoquote and online calculators for stock license rates, get a number. Sadly, as we all know, those numbers are likely to be low, particularly since there are more and more cheap stock sites out there. But still, at least I’ve got nothing against me.

In the last case, you’ve just set the price for all time. You are never going to get anyone to believe that a license similar to the original one is worth anything more than a few dollars because you have told the word that you’ll make and license it for so little. If you are going to offer a super-mega-discount, make sure that you spell it out on the invoice like:

Creative fee: $2500
One-time Discount: -$2300
License Fee: $4500
One-time Discount: -$4200
Total Fees: $500

That way you are saying “my usual price for this license is $4500” and that can be used as evidence later of your actual fees. That is great! But if you just list the discounted price, you’ve only got your word that you normally would have charged more. That won’t hold up.

In case #2 above, all bets are off. The other side can argue that $500 was the license fee and $1500 was the creative fee, or worse. It is almost impossible to argue successfully that the majority of a combined fee is for the license not the creation of the work unless it is spelled out in the paperwork. I’m good, but I can’t make butter with a toothpick and there are plenty of good attorneys on the other side who can present evidence that the Fair Market Value of the license is only $200. If you’ve got nothing in your records to show otherwise, then it is quite possible that all you can get for actual damages will be that $200. At the very least, in court, it would cost a hell of a lot more in expert testimony to try and prove up your damages, and the other side knows it, so they can stonewall in pre-suit negotiations. You got no bat, as they say.

The best business practice now and to protect your values in the future is to separate out your fees on your paperwork and to make your license fee the higher portion of those fees. Later on, you can use those numbers to support getting higher actual damages. Also, if you do timely register your work, the courts will often look to the actual damages in setting statutory ones (like doing a multiple of actual damages). If you can prove up substantial actual damages, you are more likely to get higher statutory ones. Proof of higher numbers will make it easier for your attorney to argue for higher pre-suit settlements as well.

As for the argument that your clients want combined fees, you have to run your business your way, not how they want it. Besides, as in the example above, you can give a final number that is combined, just make sure that the line items are separate. If they argue for a higher creative fee and lower licensing one, know they are thinking of the future when they want to re-license; so should you (higher license fee now means higher re-license fee later). Run your business like a business–think about future value and long term effects.

It’s not hard, it just takes some guts. You can do this.

Mr. Frank’s work is amazing and his advice is perfect. Every time you get wrapped up in gadgets and technology, just go back to what he has demonstrated with this show and his words to the students.

My colleague Carolyn has written a good blog post about the cost of hiring an attorney and how our firm works. Many sources make it sound like an attorney won’t touch a case that isn’t worth something well into the 5 figures or more, but that simply isn’t our way.

Don’t get me wrong: we’re happy to take cases that are worth more. Um, duh! But a big part of the reason Carolyn created the firm in the first place was to serve the underserved photographers out there who don’t have huge cases but do have legitimate claims. As a virtual firm, our overhead is significantly lower than many more traditional firms so we don’t have to say “no” to many of the smaller claims.

We can’t take all cases–some just are never going to be cost-effective (this is too often the situation if you have not registered your copyrights in advance, see my last post)–but it doesn’t hurt to ask and you may be pleasantly surprised.

What do I have to do to get you people to register your copyrights?!?! Look, I love you creative types, but I’m getting a dent in my head from the repeated headdesking caused by cases that would be as close to perfect as you can get, except that the work was not timely registered and thus are essentially worth nothing.

We want to be able to help you and our firm (photoattorney.com) will take smaller cases than many other firms, but we can’t take cases on a contingency fee basis where actual damages are the only option and those are the lost license fee for social media which you’ve licensed for $200 to other clients. If the work is timely registered then we have a much larger stick to wield on your behalf: statutory damages of between $750 and $30,000 (for non-willful infringement) plus a good shot at attorneys’ fees if the matter is litigated.

Timely registration isn’t that complicated. A registration is timely only when one of the following is true:

1. the effective date of the registration is before the infringement starts; or
2. the effective date of the registration is within three calendar months of the first publication of the work, and that could very likely be the date you provided the work to your client rather than the date when your client used the work.

That’s it. That’s all. Those are the law’s only options. You’ve got to register your work and the registration has to fit either #1 or #2 for you to be able to have access to awards of statutory damages and the potential for winning attorneys’ fees and costs in litigation.

So how can you make those rules work for you? First, for any new work that is likely going to be published in the sense the Copyright Act uses the term (and how I mean it throughout this post, which includes work you’re going to provide to your client for their consideration and possible use as well as work you offer for license on your own website or elsewhere) either register it as unpublished before doing anything with it or register your work as published within that three-calendar-month window.

I prefer the second option for a bunch of reasons, some of which are very nit-picky technical legal ones that I’m not going to bore you with here (like it may be that if you know the work is going to be published on a certain date then you really have to register it as published rather than unpublished even if that date hasn’t happened yet). Mostly, I prefer the “register as published” option because these days almost everything is published. So, I suggest a photographer should just register everything shot the month before on the last day of that month and that way you don’t have to worry about missing the three-month window*. For best protection be sure to remove any images you know weren’t published and register those separately as unpublished at any time before you publish them. Mixing published and unpublished is like crossing the streams in Ghostbusters, that is, bad.

Anyway, you can do group published photo registrations online for one fee ($55) so for a year that would be 12 x $55 or $660. Group published photo registrations are slightly more complicated to do but after you have done it once, you’ll see it isn’t that bad and, best part for now, is that your first time you will be supervised by the Copyright Office itself as a part of its pilot program, so they’ll help you through it.

Now, before you start whining about that cost, let me point out, again, that the minimum statutory damages award for a single infringement is $750. The math is totally in your favor.

So please, register your work. I beg you. I’ll do anything to get you folks to register your work. Someone get me a seltzer bottle and I’ll prove it.

————–

(The subject line of this post is a reference to Chuckles the Clown‘s philosophy)

*It also helps you avoid another rule that for a group published photo registration the work must be published within the same calendar year so, if you do it on the last day of each month, you won’t screw that up.

I recently had a conversation with a client, who licenses his work for stock, about watermarking. For those of you who have known me since before I became a lawyer, you’ll likely remember that I used to be anti-watermarking. I used to make the argument that it marred the images too much, that buyers preferred the work clean, and so the protections weren’t worth the marketing downside.

In case you haven’t figured it out yet, I am totally pro-watermarking now.

If you are not watermarking images you put online, in any form, then you are making it far too easy for people to rip you off. Not watermarking is like driving a convertible and deliberately leaving your wallet on the seat when you park, top-down.

Watermarking, however, is not the point of this post. No, it was something that this client said that inspired this post. He mentioned that he had concerns that buyers would be put-off if he watermarked and that he was in competition with companies like Getty so he didn’t want to do that.

Relatedly, today there is news that Corbis is restructuring its stock photo businesses and a leader in the photo world asked, on Twitter, what that meant for the licensing model.

What has one to do with the other? That neither of them have anything to do with your business. Neither Corbis nor Getty are any individual photographer’s competition.

Sure, on first glance it seems like they must be; those companies license photos and so do you so you must be in competition with each other. The thing is, your businesses are so wholly different, under the hood, so to speak, that this superficial resemblance is only that–a resemblance. Corbis and Getty have so many channels of revenue that you don’t even appear as a footnote in any of their financial reports. You don’t matter in their world–you are not their competition.

The good news is, neither are they yours.

Your market is (if you’re running your small creative business right) made up of buyers who are looking for something non-generic. Corbis and Getty are safe (yes, even though they have much better work now than ever); your work should be un-safe, unique, reflective of your individual vision. Your work is (I hope) not what you’d find on the huge stock sites but rather something special and different and your targets are those who need and want that kind of work. That work is of a higher value than the depressed prices of big brand (micro)stock. You can’t get it everywhere. Scarcity is gold.

If you are pricing your licenses to compete with Getty or Corbis, you are selling yourself short and committing business suicide. The huge companies can cut volume deals and use other business lines to make up for making parts of a penny on a license. You cannot. Your work thus needs to be better than that and you need to have the guts to price it for its value. If you are pricing to compete with some huge corporation, you are pricing to lose.

If you make work that only you can make, work that is unique in vision, then you simply have no competition.

Today I did my favorite holiday thing: buying and dropping off a carload of toys and games to Toys For Tots. Thanks to all of you who let me work with you and make this possible.

 

I’m going to propose something shocking: stop putting your work online.

I know, that sounds crazy now, doesn’t it? But I’m not kidding. I think that your best work should not be published anywhere online, at least not full frame or for long.
Allow me to explain.

Scarcity increases value. That is a simple truth. If everyone can get something, it simply is not worth as much as something that is truly exclusive.

Years ago, as a little girl, I used to dream about getting something Chanel–a suit, a pair of shoes, something. Then Chanel, like many other (at the time) exclusive, high-end brands, started putting out a ton of products. Suddenly, the value of Chanel wasn’t what it was. Almost anyone could get a Chanel-branded something. The whole aura was destroyed… poof.

Recently, Pierre Bergé expressed similar thoughts in a New York Times interview where he said that Haute Couture was dead. When everyone can get it, it isn’t anything special. He’s right.

On the same day, the New York Times also published an article on the collectability of fashion photography.  These are mostly, but not only, older works, but currently active photographers have work that is also quite valuable. The thing is, this work is in the form of prints, gorgeous hand-made prints. They are limited in number, crafted in their execution, and simply aren’t available to all. They are rare–the more rare, the more valuable.

Add on top of that the simple but often ignored fact that making prints is a great way to archive your best work. Keeping your best work in a tangible medium is a way to ensure that it will be around long after the drive you have it on now becomes unreadable.

So, putting that all together, I thought about how photographers, the truly gutsy of you, can turn the tide of falling value for your work: make great work, make great prints of it, and make it very, very exclusive.

Why put all your work everywhere where anyone can share it and reproduce it willy-nilly? Where is the perceived value in that? It disappears…poof.

I’m not talking about your commercial work, the things you do for clients, but rather the photographs you make for you. Make your own art and make it rare and exclusive. Don’t show it all. Don’t share it or let others do so. Keep it something elusive, desired, rare. Like the great burlesque queens of the past, show a little leg but keep the goods hidden, enticing. Leave folks wanting.

If you are going to show work to get people to buy it, do so only for a brief period, and tease the sale. Tease your targets, your potential buyers. Want to use it to get the attention of commercial clients? Maybe give one to a creative director you’d love to work with and let her/him know that, if anyone asks, you’re going to have a flash sale of similars.

Which of you will be the artists you really are and create your own amazing work, memorialize it in gorgeous prints, then offer only in a limited number, and priced accordingly?