Unprotected

GAH! I just had to tell a massively talented and creative photographer that the second-rate knockoff guy who is totally copying his style is not infringing. Style is not protected or protectable. There is nothing you can do to keep the copying bastards from trying to make work just like yours, unless they actually copy your individual image(s).

This totally sucks.

It sucks for the photographer who gets the creative inspiration and manifests it and puts it out into the world. But I also think it must suck for the copier. I mean, why be a photographer if all you do is someone else’s work?

I don’t know how any of you sleep if you are not doing your own work. It’s a hard damn business and if you aren’t at least getting the creative rush from making the work that comes from inside you, what is the point? You must really hate yourselves, you copiers.

If you think you are going to get rich by making work like that other guy, you are completely wrong. You won’t. The buyers with the big budgets will (gasp!) hire the guy with the original vision–not Mr. (or Ms.) Knockoff. You might get some low-end work, maybe, or maybe you might get a few RF stock sales, but the good work is going to go to the real creative photographer.

You will always be the wannabe, the copier, the guy (woman) who didn’t have the stones to make his/her own work. Sure, occasionally you’ll get a few sales from a few desperate buyers. But those buyers will be just like the people who buy clothes at Walmart when they have no money: they’ll never brag about how great those clothes are and, when they have the cash, they’ll go to the higher-end stores to get the real names–and tell everyone how they’re wearing a designer now.

 

Stop being suckers

I just read a tweet from another photo consultant who used the word freeconomy. She wrote something about “in our online freeconomy” and I was struck but the linguistic fallacy of the word.

What freeconomy? Seriously… what is free in our economy except the content that creatives are giving away because they are buying into the mythology of free somehow generating revenue? Free can’t get you anything in the real world or even online, legally.

Except creative content, and that’s because artists keep giving it away.

Can you pay your rent or mortgage with attributions, likes, or +1s? Buy groceries? Gas? Pay your bills? Feed your kids/pets/self?
No.

Will your doctor, dentist, mechanic, plumber, hair stylist, or any other service provider perform her/his service in exchange for you liking him/her?
No.

Can you buy stock in Google for free, for +1ing it?
No.

How about products on Amazon or iTunes? Can likes gets you a novel or a song?
No.

So just what is this freeconomy?
It’s the illusion that is being sold to creatives that in order to have the world value their work they themselves have to devalue it completely by letting others use it for free. An illusion created by those who exploit the work made by creatives, so that those users can make more money by decreasing their costs. If they don’t have to pay you for your work they use, they get higher profit margins for the stuff they sell. For real money. Like real businesses have and will do. Forever.

Stop being suckers! There is no freeconomy–the world works on money and unless you are making it by selling your work (selling licenses, whatever), your business will fail.

You Sure Got a Purdy Building There

There is a lot of confusion about the need for (or lack of need for) property releases to shoot buildings. This likely started when the embodiment of architectural structures became protected by copyright in 1990 with the passage of the Architectural Works Copyright Protection Act. Before then, the drawings were protected by copyright, but not the built structure. Today, that 3-dimensional building is indeed protected by copyright.

And yet, you do not need a release to shoot (and publish) photographs of any building (or parts of a building) visible publicly. Why not? Because the law makes a specific exception for that:

17 USC 120 . Scope of exclusive rights in architectural works

(a)Pictorial Representations Permitted. The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

Now, you can get into trouble for shooting that building, still, if you do not have permission to be wherever you are to make the photograph. For example, if you are set up in Betty’s yard across the street from Bob’s house, shooting Bob’s house, Betty has a claim against you if you didn’t get permission to be there–for trespassing. Bob, on the other hand, can’t complain about you shooting the exterior of his place.

So, as my colleague Carolyn Wright has pointed out before (like here), I can’t find a case where the photographer was successfully sued for not having a property release for a photo of a building’s exterior, even when used in ads, as long as the photo was shot respecting the “publicly visible” rule above.

Of course, it won’t hurt you to get a release signed, but don’t let over-zealous security guards and homeowners bully you out of making your image. Politely explain the law for them (you could even point out the exact provision now, as quoted above) and go about your business.

 

[One big exception, however, and this has nothing to do with copyright: places relating to national security are a whole other thing. This post isn’t going to go into those issues, except to say that in a post 9/11 world, you may have a big fight on your hands if you want to shoot something “sensitive.”]

 

New book (not mine)

Chris Ruen used to be an infringer. He believed in the cult of free… until he saw how incredibly talented musicians were not able to make livings creating. Starting from that realization, he has written a book about how the cult of free is killing creativity. It’s available for pre-order now and I encourage all of you to buy it.

Now, I haven’t read any of it and maybe I’ll disagree with some of his proposals, but I suspect it will be a thoughtful work worthy of the read anyway.

Bad Leslie

I have been violating one of my own rules: not keeping up with my blog. I apologize.

I find that not only does my work-work (especially the legal stuff) get in the way, the ease of posting quick blurbs on Facebook or Twitter make me much less likely to “bother” to post something longer here.

I’m bothered by that.

I’ve noticed that it is also much more difficult lately to read longer form text, too. For me, that is a real tragedy. I’ve always been a reader. Even before law school, I read books voraciously. Now, I read a lot, but most of it is shorter form.

I’m bothered by that, too.

I think this is reflective of our culture but I also think that it is something that, particularly as creatives, must be fought. Creation takes time. Exploring and appreciating the creative work of others should also take time. What did Miracle Max say in The Princess Bride? When you rush a miracle man, you get rotten miracles.
And really, all artists are miracle (wo)men.

Do you find yourself more mentally fragmented than you used to be? Forget about whether or not you may be AD(H)D–is it harder for you on your own scale to focus for significant periods of time in order to read, watch a movie, look at work, make work, whatever? I’m not saying 20 minutes… I’m saying can you sit and focus for, say, 2 minutes? Time yourself. You’ll see just how long that feels and I bet you’ll find it’s harder than it used to be.

You can’t make your best work that way. We need to take longer to make our work, to process all the information that zips through our grey cells to produce the creative spark that becomes our best work, and to execute it to the best of our abilities. We need to learn to slow down, to disconnect from distractions, to (sorry for the bad photo allusion) focus.

I encourage everyone to start practicing mindfulness in some form so as to (re)learn to focus. It doesn’t have to be traditional meditation or some sort of hippy-dippy stuff–maybe just disconnecting from the electronic “masters” and taking a walk, riding a bike, going to a museum… something slow and deliberate.

I suspect that if we all start making the effort to be more mindful, to slow down, our work will improve. For me, that will (hopefully) mean writing more here and less of the quick hits on the other tools.