value – Burns the Attorney, Inc.

May 30, 2024

Update Your Contracts

A client informed me yesterday that Vox Media had announced a partnership with OpenAI that permitted that leech-of-a-tool to use Vox Media content to train. This is bad and very likely goes beyond agreements it has with many writers and photographers, but it’s going to do it anyway because tech companies have no decency and too many media companies have no spines.

So, first, if you have work that you have licensed to Vox Media, check the language in your agreements and, assuming you didn’t sign away too much already, contact Vox to remind them that your work cannot be used for AI-training purposes. Period. Don’t let them try to talk you into some piddly bump in fees–what they are doing is enabling tech to put you entirely out of your work so just say “No.” You need to think long term here–an extra few bucks here isn’t worth torpedoing your particular creative industry.

Second, look at your own contracts, which you should be using anyway but, yeah, I know, you probably don’t because the bigger companies are bullies about that. Anyway, you should add something to your own contracts that makes it absolutely clear that any use that may result in the training of AI is not permitted under your license. You need this for contracts you use with individuals (like for event/wedding photography) as well as for companies for their marketing or advertising use.

Remember, when you permit your clients to use your work on certain platforms, you are permitting those platforms to use your work to train AI. That is bad. Spectacularly bad. So don’t do it. Make it absolutely unambiguous–if they do that you will sue them for infringement.

Finally, if you aren’t already, start registering your copyrights. Now. It’s the best tool you have to fight these sharks. Don’t think “I can still use the CCB if my work isn’t registered” because (a) you still have to register your work to sue using the CCB; and (b) you won’t get very much from the CCB, especially if your work is not timely registered (no more than $7500, and probably MUCH less).

July 20, 2023

Say Yes to No

I’m a firm believer in saying yes and generally being positive about things; have done for years. For example, if a client has a technically gnarly project, saying “Oh, that looks super hard” and then explaining how much work it is going to be or, worse, even hinting that you might fail, is not a good idea for your business. Instead, saying “Oh, that looks super hard…I love a challenge! I’m sure my team and I will find a solution!” will engender confidence in your client. Later, when you hand them a big estimate, they’ll remember you as the creative who said they could do it, increasing your chances of winning the project even with big numbers. So saying yes is a great thing for your business… except when it isn’t.

How often have you heard a (potential) client send you a contract and say “Everyone agrees to this” or “Oh, sure, the doc says you are assigning us your copyrights and that you can’t use the work, but we’ll let you use it” or “It’s industry standard to have a 90-day payment period,” or “You have to indemnify us against any claim that arises when you’re shooting for us, not just those related to your work or employees–no one ever makes an issue of that” etc. ? A bunch, I’ll bet and I bet you’ve often accepted those terms, trusting your client. Then, later…well, as Marlon Brando in Guys and Dolls says,“Daddy, I got cider in my ear!”

The sad truth is that, whenever someone in a financial transaction with you says one thing but the paperwork says another, they have an ulterior motive and it ain’t good for you. Hearing anything like “oh, don’t worry…” or “You’re the only person who has ever asked…” is your signal that you absolutely must go with what the papers say. Always. Your clients, no matter how nice, are not on your side. They can’t be—they are negotiating for their best deal, not yours. You can like them, but don’t ever trust their word over what is on the page.

The terms they are insisting on are good…good for them, that is, and so they do use them. If they didn’t, the terms would not be there. Always. So, if they are saying “oh, we never do this thing the contract says we can do” and they won’t take it out, then you know they want to do exactly what they claim they never do, and will do exactly that if they can.

Relatedly, if your client/buyer tells you “my way or the highway,” waste no time in politely taking the second option. As the current writers’ and actors’ strikes confirm, bullying and fear-mongering is pervasive in the creative industries. All of them. Threats about not getting work are just manipulative bullshit. You didn’t have the gig but then lose it by saying “no”; nope, they just wanted to scare you into accepting a bad deal. Walk away. Use the time to get a better client.

Don’t bother trying to fix them or teach them the errors of their ways. You can’t control what your clients/buyers do and you’ll drive yourself mad if you try. But, you can control what you do.

The first thing is to know where your boundaries are. You can negotiate lots of things, but you should always know what lines you will not cross and respect those limits. No one will respect them if you don’t. You can and I think MUST set your own limits; and you should do it before any negotiations so that you know what they are. Write them out like a list if that helps: will never sell copyrights; will only indemnify for my own actions; will not lower my price without getting something (besides just getting the gig) in return; etc.

Once you have your limits defined, then you can respond rationally to whatever demands are made. So, for example, if a client insists on owning your copyrights created for the project, you can say “No” if your line is ownership, or, if you’re willing to sell at the right price, say “Not at this price—if you want full ownership, that will cost $X.” Don’t explain, don’t rationalize, and don’t be suckered in by them. Stick to your own boundaries. For example, “I hear you, but I won’t sell my copyrights for this price–you need to either pay more or get a license instead.” If they ask “Why?” you can simply say that this is how you run your business. Period.

You can use your boundary list for contract negotiations of all kinds: time to pay, deposits, usage license terms, indemnification clauses, you name it. When you do that, you are taking good care of your business: You set your limits. You have control.

Saying “no” to bad terms and bad deals does not make you a jerk, it makes you a smart businessperson. And, although standing up for your rights and doing what is best for you and your business is not always easy, it is vital. The other side is surely going to stand up for theirs.

July 7, 2023

Drop Your Ego and Raise Your Usage Fees

I have written before about the importance of separating your fees and costs/expenses on your invoices (actually, on all your paperwork) so I’m not going to go into that again, but I will once again nag you to make your license fees the largest number of your fees, if at all possible. Why? Because there is a new (tentative) ruling in the CCB that shows how low license fees can hurt you.

In this case, a photographer made the work as a part of a large shoot for a client. His original bill was well into the six figures, yay! However, as the Board notes:

During the shoot, Hursey shot approximately forty-two scenes, with a scene consisting of multiple versions of the same setting and activity with minor differences. Hearing Tr. at 39:00 – 39: 57. In the present case, the scene consisted of a family at a picnic with a pastoral background. Evidence Doc B (Dkt. 17). Hursey was paid $185,524.45 in total for the shoot, but most of that amount was reimbursement for costs and payment for his time, while $17,500 was for an unlimited license to use all of the photographs taken over the course of the shoot.
Proposed Default Determination, at p.3 (bold added)

An unlimited license should definitely be the largest number on your paperwork–it is HUGE usage! Let’s conservatively estimate that in this project, the photographer provided finals of 3 variations of 42 scenes, or a total of 126 images (it was likely much more, of course), $17500 divided by 126 is a whopping $138.89 per photo licensed. That’s insane.

Photographers and other creatives have got to stop billing their Creative Fee as if it is the most important thing. That is just your ego talking–a bigger Creative Fee means YOU are somehow worth more…. **HURL**! It’s short-sighted, at best.

Worse, using time as the basis of your Creative Fee makes you into the equivalent of a wage slave and insults your professionalism. It doesn’t matter if it takes you 30 minutes or 3 days to create your work–it is your TALENT and ABILITIES that count. If you have 30 years of experience and can make the difficult shot in an hour where a newer photographer would take all day, why should you be penalized for that?! So, stop billing as if time and your ego matter. Instead, think long term: you can re-license for more if you bill more for usage from the start! And it will help you if you ever get ripped off. Bill a reasonable Creative Fee, not time-based, and bill a large (but reasonable) Usage License Fee.

On the good side in the case cited above, the photographer has an online calculator for his stock licenses and that provided a number of $1000.70 for the same use as the infringer made of the photograph (still too low, in my opinion, but better). The Board relied on that number and awarded $3000 for the infringement here. Id. at 9. Whew. I mean, I think that is still way too low an award but it’s a hell of a lot better than 3 times $138.89. If the photographer here did not have published rates as he did, the court would very likely have awarded him $750, the minimum statutory damages available.

Respect your work by billing its worth. Your future self will thank you.

March 21, 2023

The CCB Results are in…and Yikes

So, the first photo-related Final Determination is in at the Copyright Claims Board (link to pdf). I wish I could tell you otherwise, but it does not bode well for photographers.

The case was pretty straight-forward: an attorney illicitly used a timely-registered photo on his website, got caught, blamed his daughter for having sourced and posted it as his web “designer” and, despite all the notices that the work was protected, got away with only having to pay $1000.

Why so little? Because the photographer had never licensed that photo and so provided no proof of his license value and, in the board’s determination, there must be a relationship between actual damages and statutory ones.

It was there that, in my opinion, the board screwed the pooch. Courts have said the direct opposite, like in Thomas-Rasset where the 8^th Circuit noted that the Supreme Court stated that there should NOT be any relationship between the actual damages and statutory ones because statutory damages are imposed as a punishment for the violation of a public law. Furthermore, the court noted:

It makes no sense to consider the disparity between “actual harm” and an award of statutory damages when statutory damages are designed precisely for instances where actual harm is difficult or impossible to calculate. See Cass Cnty. Music Co. v. C.H.L.R., Inc., 88 F.3d 635, 643 (8th Cir. 1996). Nor could a reviewing court consider the difference between an award of statutory damages and the “civil penalties authorized,” because statutory damages are the civil penalties authorized.

Capitol Records, Inc. v. Thomas–Rasset, 692 F.3d 899, 907-8 (8th Cir. 2012)(cert. denied).

In that same case, by the way, the court noted:

Congress no doubt was aware of the serious problem posed by online copyright infringement, and the “numberless opportunities for committing the offense,” when it last revisited the Copyright Act in 1999. To provide a deterrent against such infringement, Congress amended § 504(c) to increase the minimum per-work award from $500 to $750, the maximum per-work award from $20,000 to $30,000, and the maximum per-work award for willful infringement from $100,000 to $150,000.

Id. at 908.

In fact the board noted that the 9th, the law of which is controlling over this matter, has held that courts are not reliant on any formula and can award anything between the minimum and maximum, but then it relies on errant lower court rulings that ignore that to justify its low award.

Worst of all for artists here, according to SCOTUS (Woolworth, etc.), statutory damages are supposed to deter the infringer from doing it again and, arguably more importantly, to deter others from doing the same. Who the hell is going to be deterred by $1000? No one, really.

Most of all, this is telling photographers (and probably other artists) that their work isn’t worth protecting unless it has already sold/been licensed for a lot of money. Yikes, for sure.

February 15, 2023

A Rant

Business is hard. To paraphrase a favorite movie, anyone who says otherwise is selling something. Business is work and doing the stuff you don’t want to do. Business is hiring accountants and lawyers and making pitches to potential clients and doing research and paperwork and making trips to Costco.

Oh, and making your art, too. More on that in a bit.

It’s sacrifice and frustration. It’s making tough choices like to take what may be a cashflow hit now (like by saying no to a shitty, lowballing client) for the possibility of a long-term gain. It means having to say “no” to a lot more than you ever imagined, like to buying you or your kids stuff because you need to pay your over-priced health insurance.

It means having to smile to clients who are driving you nuts.

But, don’t forget, you chose this path.
Stop and think just how great that is. You are Here, as the sign says.

No matter how tough it gets, no matter how much you struggle in your business and to make your art, you are here and doing it. No matter how psychotic the client demands, how long the hours, how much you miss your life partner because you’ve been locked in post for the past week, or how frustrating the airlines are being about your gear, it beats the hell out of the Alternative, as my father used to say before the Alternative caught up to him at 92.

Take a moment to remember those who have inspired you and then honor them by recognizing that we’re all here temporarily and need to embrace the fantastic opportunity that presents. Play your music a little louder, do the drudge work with a better attitude, and push your art more.

About that last bit… are you playing it safe? Are you making the work you have been told you ought to make, that clients want to see, that won’t scare off potential clients? Then do us all a favor and quit now.

No one will pay more for your art than the next person’s “content” unless you believe in its value and, most of all, you make something original. If you feel like “anyone could have done this” about your work, you are probably right. Moreover, it’s not worth anything. So why are you wasting your time? Worse, why are you wasting everyone else’s? Why are you making the people who love you suffer more because you don’t have a regular job with normal hours and vacation days? Stop pretending to be a creative professional and whining about the state of the industry while doing what not only hurts you, but what directly causes the industry’s downfall.

Harsh? Maybe. In the words of the fabulous Margo Channing: fasten your seatbelts, it’s going to be a bumpy night.

Look, if you feel like your work could be made by anyone, then you aren’t working hard enough to make your art. I don’t know what you are doing, but it’s not being an artist. A poseur, an influencer, a faker, maybe, but sure as hell not an artist.

If that’s you, quit now, because that “play it safe” attitude is bullshit, especially today. You are only contributing to the illusion that anyone (or, in the case of AI, anyTHING) can be a creator. You are lowering the perceived value of creativity by flooding the market with even more shit work. Those creative pros who are busting their asses making really creative work are having to fight harder than ever to get seen, not to mention dollars for their efforts, because people like you make artists look like lazy, spoiled children who don’t work hard and simply luck out when they actually make something more. Like artistic nepo-babies.

In case you didn’t know, making art is hard damn work. Art requires more. More effort. More bravery. More of you. You need to put yourself out there to make the work. You should be spent, having given a part of you in the making. If it really is totally easy for you, you aren’t trying hard enough.

But, damn, y’all are sure whining about how no one wants to hire you or pay you enough. Funny how you can’t seem to accept that if you are phoning it in, you are a big part of the problem.

Put the pieces together and the equation is simple: you won’t get work playing it safe because safe work is shit and no one wants to hire someone who makes shit, no matter how nice you are; so, you might as well make the stuff you have in your soul, the stuff you hide from everyone, even quite probably yourself, the stuff that lots of people might actively hate or at least not understand, the stuff that is real.

Here’s your new mantra:
You don’t need everyone’s approval.
You don’t need anyone’s approval.
You don’t need to be liked.
You just need to make the work, your work, your real work; and bill its value rather than some lowball rate or, worse, for the “exposure.”

You make your real art? Then no one can touch you.

January 25, 2023

10 Commandments for Commercial Photographers*

The 10 items below are written primarily for photographers but, really, the ideas apply to all commercial artists, whatever your speciality.

Understand and accept that you will make mistakes. You are going to forget a battery or mess up a setting or forget to double-dog confirm that one stylist or something. None of this is terminal, even if it is hard now. You’re a creative problem-solver–you’ll find a way through it.
You are not your images. If you show your work to someone and they don’t like it, don’t take it personally. Art is subjective. Just because your work isn’t right for them doesn’t mean you suck.
No matter how much you know, someone else will always know more. Always be learning and be willing to learn. Take classes. Listen to clients. Be open to other ideas.
Don’t get stuck on the final. You may know exactly what image you want to make, but if you stop there or hyper-focus on making only that image, you may miss out on an even better image. Play.
Treat people who know less than you with respect, kindness, and patience. Your corporate “suit” client, let’s call him “Bob,” may offer up the lamest idea in the universe on a shoot. Be kind to him–he is trying. Be kind to your assistants and crew too while you are at it. You are not a god (read #1 again) but just another human being like those around you, even if you have talent in an area they don’t. Don’t be an egotistical jerk.
The only constant in the world is change. “While we’re here, can we just shoot…” or “I just found out we need the model to be blonde” and the like are opportunities, not difficulties–if you choose to look at them that way. Same for market changes and technology changes. Be open to change.
The only true authority stems from knowledge, not from position. You can’t force a client to respect you, but you can earn that respect by demonstrating your professionalism compassionately and openly at every opportunity.
Advocate for what you believe, but accept defeat graciously. They client may say they want your look, but sometimes the boss of the client’s boss’ boss wants it how they want it and that is just that. Pitch your ideas, advocate for them passionately, then let go when it won’t change a thing. When that happens, just make the best work you can within your client’s parameters and, when it’s done, move on and cash the check in peace.
Reach out. You can’t expect people to know about you and your work just because you have a social media presence. You need to get out there and meet people. The more you put yourself out there to the world, the greater the chance you’ll connect with someone who really wants to work with you.
It’s art–not a tumor. If your work feels like, well, work, I mean like drudgery/work, then you might want to think about another career. You need to love what it is you are doing–making images needs to be a joy, a release, a passion–it needs to be the fun part. The rest of business is generally not fun (bookkeeping, insurance, taxes, etc.); making the work should be joyful. If you don’t absolutely love it, you need to try to re-find that fun/passion/joy. Otherwise, you might as well do something that has a regular paycheck and benefits like health insurance.

(* I originally wrote the first version of this in 2008–I’ve updated it here but the original has held up very well, almost 15 years later)

October 20, 2022

Answering Questions

I’ve just started writing for the Architectural Photography Almanac, to answer general legal questions and discuss issues that their readers face. Many of these issues and answers will be applicable to all photographers and all creatives, generally. The posts should be monthly, and comments are welcome!

Check out my first post, here.

May 11, 2022

On Being Reasonable

Whenever I take an infringement matter on contingency, I ask my client to think about what settlement amount would make them content, that is, what amount they could live with, not the amount they really would love to get. This is the bottom-line number. More is good, but every client should have an idea of their floor for settlement.

This number should be reasonable, of course, not greedy. For example, saying “I won’t take less than $20K!” for a photo used in a tweet by a regular ol’ individual is not reasonable. Nor, however, should it be a too small number (unless, for some reason, the circumstances really warrant that). Nope, the lowest reasonable settlement amount number should be something that, if you ended up with that amount, you’d say to yourself something like “I can live with this, without seething.” Besides, the other side isn’t going to get that number–it’s an internal one so we all know what we are working to achieve, at a minimum.

Once we have that number, the first offer will be significantly more–to give us room to negotiate. I won’t, however, suggest that we start at $30K or $150K, the maximum statutory damages amounts (speaking of an infringement only, here). Why? Because it’s not a sign of willingness to compromise if you start by asking for the maximum available. Yes, the law says you are entitled to something between $750 and $30K/$150K (assuming a timely registration), but the maximum damages are not often awarded and you’ll just appear greedy if you start there.

Starting off appearing greedy is not conducive to working with the other side to a settlement. If the starting number is irrationally high, it won’t increase the end number but it likely will impede settlement negotiations. Instead, starting off with a high-ish but rational number will let the other side know we’re serious and yet also willing to compromise. It opens the door to working together to a settlement.

If, despite this, the negotiations don’t work out and litigation is required, being reasonable pre-litigation will also help you in litigation. Courts do not like plaintiffs who simply demand the maximum damages, particularly when the facts don’t reasonably support that kind of award. In fact, in a recent case, the court refused to award attorneys’ fees to a winning plaintiff for that reason (pdf of the opinion, here).

While infringements are a pain and take up far too much of an artist’s time and effort, one shouldn’t look at them as a windfall. A court will suss that motivation out and it will not end well. But, if you are reasonable about your demands and your expectations, and rational in your negotiations, you can end up with enough money to make up for all the hassle.

May 3, 2022

Time

In copyright law, time matters in several ways. Each is important.

First, there is the timing of the registration which fits into three categories. Generally speaking, you should register your work as soon as possible after its creation. More specifically, though, a registration that is made before a work’s first publication* will make enhanced remedies (i.e., statutory damages and possible attorney’s fees) available for virtually any infringement of that work. A registration within three calendar months after the first publication* of a work will invoke a bit of legal magic: the law says it is as if you registered the work on the day of its first publication*, again making enhanced remedies available for virtually any infringement. Finally, any infringement that starts after a work’s registration, no matter when the work was registered vis-a-vis its publication* date, has enhanced remedies available.

(*Publication here is that awful, nebulous definition provided by the Copyright Act–it does not necessarily mean what a normal person would think publication means. )

Time also matters as regards the statute of limitations–that is, the amount of time you have to file a suit for infringement. The statute of limitations is a strict clock–so pay attention to it.

In most places in the USA, courts have held that the discovery rule applies, meaning the clock starts when you discover (or reasonably should have discovered) an infringement. From that date, you have 3 years to file suit. 3 years is a lot of time to find, document, and try to work out a non-litigation resolution to an infringement. But it isn’t all the time in the world and you should make a big note in your calendar about 6 months before the 3 years would end, so that you can talk to a lawyer about filing in plenty of time.

In a few places, courts have said that the injury rule applies (mostly the 2nd and the 11th circuits, but even in those circuits there have been some exceptions). The injury rule means that the clock starts when the infringement actually starts, not when you discover it. I happen to think that the Raging Bull case (Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 677-78 (2014)) essentially said that the discovery rule should apply everywhere (sure, in dicta, but still), but you don’t want to rely on that in court. At least not yet.

By the way, if you don’t know what circuit you’re in, you can check out the Court Finder tool on the US Courts website; or, better yet, ask your attorney.

While there are a few situations where the law permits “tolling the statute” (that means suspending it for a period of time, thus giving you more time), those exceptions are complex and rare. You shouldn’t rely on your attorney finding some obscure out to give you more time. Instead, once you find an infringement, act quickly to start the process of resolving the matter–preferably through settlement negotiations if possible.

But all of the negotiations in the world will only get you a little money (usually) if you don’t have a timely registered copyrights in the works at issue in the first place.

December 2, 2019

Your 2020 To-Do/Please Don’t List

As we wrap up 2019 and start to look ahead, I thought I would give up some of my best thoughts on both business and legal issues, for creative pros, in list form. I think I should to warn you, though, I’m not holding back on the language. I think someone needs to play Carol Kane in Scrooged to the creative industries and, well, I’m just the broad to do it.

So, here’s what you should/should not do for your business in 2020:

If anyone talks about ROI or value propositions or anything else that smacks of weasel-in-a-suit when it comes to your marketing, run away. All that shit is dead. Sure, you want to get the best bang for your buck, but the most effective marketing for a creative business is simply not quantifiable. Lest you forget, you are not selling widgets or some service that anyone can do, but rather a very specialized service that has virtually no competitors. Much of that MBA mumbo-jumbo just doesn’t apply to highly specialized service providers, and all artists are (or should be) exactly that. Despite our hyper-image-based social media world, your marketing today needs to be honest, real, and a reflection of who you really are. I sure as hell hope you are not a “suit.” Stay away from buzzwords–don’t use them and be skeptical of those who do.
Forget about old selling tools like “elevator speeches.” Look, when you shill, no one gives a shit who you are or what you do. It’s totally off-putting to get the spiel–be that at a party or (yikes) in an actual elevator. Car salesman-esque. Fake. Ew.
My “elevator speech” is I’m a lawyer for creative professionals. That’s it, because all I’m doing is answering the question “What do you do?” Why only this? Because I’m not pushing the sale (that is very old and disliked) and I leave space for a dialogue by NOT answering all the implied questions (see #3). I’m letting go of trying to control the interaction and, in so doing, get better results.
When meeting someone new, especially a target, after saying that you are a commercial artist of whatever stripe you are, always follow up with a question (or more than one) about the other person: Do you work on the Widget campaign? What other ones? Who’s your dream to work with? etc. And respond honestly to their responses and use follow-up questions: I love the Widget work–where did you find that actor? You are a hell of a lot more interesting to a potential target when you are interested in her/him, especially (in this context) his/her work (it’s good to do research on your targets ahead of time so you know enough to have questions).
SEO is a waste of your time. People who sell SEO services are the used-car salesmen of the 21st century. The reality is that Google has like 97% of search traffic and it manipulates its results something wicked. Really, chasing that SEO goal is wasted effort. Moreover, good buyers are not using Google to find their creative providers. At best they may do an image search of some kind (mostly for inspiration, not to hire) and then that’s going to be more about effectively using your work’s metadata than “optimizing” your site.
Yes, we all know of someone who got a great gig from Google: and that person is the exception, not the rule. It’s like what we do often with dating: we hear about the one friend of a friend who ended up getting happily married after the guy/woman didn’t call forever and we think that can happen to us. We could get hit by lightening, too. Probably better odds of that.
4.a Anything blockchain or AI-related as some sort of saviour tool for creative businesses is also total crap.
Put on your big boy/girl panties and, for the love of Buddha, stop whining that you can’t do X or Y. I’m so tired of hearing “Yeah, great idea, but I can’t do that,” like you’re somehow different. That attitude is bullshit: yes, you can do it, whatever “it” is. It might be hard and it may be risky, but you can do it. I don’t care what it is, almost always you can find a way. Just get a set already. Look at me: I started law school when I was over 40 and had my marriage blow up before my first set of exams; I started my own business first in 1999, then again as a lawyer. Life ain’t always easy, but it’s worth it. Business is often hard and there are no guarantees. You want a guarantee, buy a blender. You want to be a creative pro? Accept that it is tantamount to doing the flying trapeze, without a net. Let go and have fun with that. You chose to be an artist–stop whining about the risks. Be a friggin’ ARTIST, unapologetically.
5.a. The answer to the question But what if someone doesn’t like my work? is always Fuck ’em. In short, they aren’t your target audience.
The “trick”to business is finding the right people to market to. Actually, this isn’t that hard: when you see work you love and that you wish you could have been a part of, research who made that work and add them to your marketing lists. Like attracts like. See Number 3, above. Don’t be afraid to reach out to those people–it’s not like they’re going to have you killed if they’re not interested in working with you; they’ll just say “no.” More importantly, they might say “yes.”
Make art for yourself, as often as you can. Don’t create for any other reason (like to specifically make something for your portfolio) but rather create for the love of creating and for making the work that excites you. Don’t worry if it’s good or right or what you should be doing, just make some damn art for you (see 5.a. above). That is your job and you have to do it for your business just as much as you have to pay your web hosting bill.
Get out of your office/out from behind your computer and interact with people. Social media is a form of connection but it’s a weak and highly manipulated one. You want to get work, you need to meet people in real life. Yes, that means actual meetings. It means traveling to the places where your targets are and meeting with them there or putting on events to get them to where you are. Go to portfolio shows. Oh, and at the end of any portfolio meeting, do NOT ask for a job on the spot. They hate that. You are not selling, you are marketing–it’s a long game.
Getting out also means going to events connected to your targets, like AIGA presentations, Ad Club events, or even lectures by lawyers (look up your closest Lawyers for the Arts chapter). Take people to lunch (or bring it with you), throw studio parties, put yourself out there. And have fun with it!
Register your damn copyrights. Please. I beg you. If you are a creative professional, stop making excuses and start doing this. There are services, but I don’t recommend using any of them because the resulting registrations might not be anything more than maybe adequate and they might possibly be deficient. A well done registration can make a potential defendant in an infringement matter settle fast and for more money. A wonky one may be challenged by a wily defendant or will at least give one pause. Registration is not hard anyway, particularly for visual artists and even more so for still photographers.
9a. Relatedly, stop thinking about the cost of registration as a reason not to register–first, it is a legitimate business cost and so you can write it off and, second, it is like insurance that you pay for once but off which you can make many claims (and for much more than the original cost). You will (almost assuredly) make more money in your business if you register your copyrights, and do number 10.
Pursue Infringers. Not every case has to be worth 5-figures or more to get legal help. Some attorneys, like me, will take on small cases because they believe in fighting for the “little” artist and, besides, small cases simply do add up. Let’s say you have small value infringements, but a bunch of those that are worth $2500 average settlement (that number is just for sake of argument). 10 of those cases over the year is $25K. Now, let’s say your attorney gets 36% of that: you’re still pocketing $16K. How about 20 cases and $32K in your bank? I have clients who make 6-figures annually because they register their work and go after the infringers–some bring in $2500, some bring in much more. Don’t wait for the CASE Act (which may never pass)–you can register work today and for infringements that start after that registration, you can wield the enhanced remedies stick!
I don’t care what any consultant or other artist tells you, separate out your Usage Licensing Fee from your Creative Fee. Better yet, make sure the License Fee is where most of the “cost” lies. As more and more work is getting ripped off you need to be able to prove the value of your license (even if you are going for statutory damages–it helps) and you just can’t do that if you use a combined fee on your estimates and invoices. The other side will have a great argument that most of that number is the Creative/Shoot Fee and you get screwed a second time. Why do you think buyers say they want them combined? Because it benefits their companies, not you. They are protecting their asses–you need to look after your own.
You can do this if you want to make sure not to piss off a buyer: on the cover/summary page of your estimate (and invoice!) you lump your numbers together into two main categories (Fees, Production Charges) so that there is a simple, one-page overview for the buyer to glance at. Inside, however, you break out every Fee and Production Charge, line item by line item, and make sure to line item the License Fee separately.
Speaking of fees, increase your rates in 2020, especially your license fees. Every creative pro who does this is terrified the first time. I have, however, never heard anyone regret it later. You may lose some clients, but really, you needed to kick those cheapskates to the curb already. Ever notice the inverse relationship between budget and pain-in-the-assishness? Why bend over backwards for the clients who nickel and dime? Just stop. Demand more money and you will get more money and you will respect yourself more.
Watermark your visual art. Do this and, for bonus points, make it a proper copyright notice. See here for the details but, the short answer is that if you do that you (a) have a stronger case for willful infringement (more money); (b) eliminate the “innocent infringement” defense; and (c) if it gets removed, then you may have a good case for a lawyer to help with even if you have not registered the copyright and can’t prove your damages!
Get your paperwork in order. Yeah, I know, contracts are not sexy but they are a very necessary evil in business. Get contracts drafted for you by your own lawyer so that your interests are in first position. If the other side insists on using theirs (yeah, big companies can be bullies), get those reviewed by your own lawyer. Have releases and licenses crafted for your needs. Think you can’t afford that? Think more about how signing one bad contract can wipe you out. Besides, not all lawyers demand insane retainers to be there for you. Check out my Burns Less program for a very cost-effective option (by the way, I am not the only lawyer with alternative fee structures!).
This last item is the most important: be yourself and be proud of yourself in everything you do. Honesty, ethical behavior, and real connections are what will make your business successful now. Have convictions and don’t apologize for them. Most of all, be passionate about your work. That’s what I’m demonstrating here. Sure, some people are going to be offended by my language and/or say it’s inappropriate in business, but in creative businesses (including lawyering for creatives), being real beats convention, every time. So here I am: I swear (in multiple languages even), I’m passionate, and I’m unconventional, but most of all I want y’all to succeed and I work hard to make that happen. I love my work, even though there are days when I want to throttle certain infringers and set fire to certain online platforms. I’ll tell a client when I think s/he/they are making a bad choice and I’ll fire a client who isn’t ethical. A few years back I decided to be more real and open with my thoughts and opinions–I’ve never regretted it and most of my clients and readers have appreciated it.

For the others who don’t, well, see number 5.a., above.