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.

    1. 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. 
    2. 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. 
    3. 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. 
    4. 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. 
    5. 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. 
    6. 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. 
    7. 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. 
    8. 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. 
    9. 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. 
    10. 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)

    CCB Cases Update

    For those of you who have been following along, you know that I have filed a couple of Copyright Claims Board cases for my clients. That number is now 4. Of those, one settled shortly after filing and one was just filed in late December and hasn’t even been approved for service yet. That leaves two.

    One of those had the respondents opt out just before it was too late for them to do so. Bummer and, frankly, dumb of them I think. My client can still file in federal district court and, if that happens, that is going to be much more expensive for the former-respondents-now-likely-defendants. This was a small use infringement and the CCB would have seemed perfect for the matter–well, settling before any of that would have been perfect, but outside of settlement a low-cost litigation alternative made sense for all the parties. Oh well, they had the right to opt out. Anyway, there is still a possibility that the matter could settle; but, if the other side doesn’t make a serious effort very soon, I think there will be a new case filed with the appropriate district court.

    That leaves the last of my four cases. It’s actually the first case I filed with the CCB and it has now moved past the opt-out stage, meaning that my client has paid the second part of the filing fee (remember, the filing fee is paid in part at the time of filing then, if the case proceeds past the opt-out window, the rest is then due) and everyone has agreed to litigate in the CCB. We just recently received our scheduling order, laying out how the case will proceed. The next step is that the respondents must file their response to the claim, and that isn’t due for about 2 months. After that, we’ll have a pre-discovery conference (online) and then discovery opens.

    People ask me what I think about the CCB and my first response now is always “It is slooooow.” The case that is moving forward was filed in late July. It is now January and the equivalent of an answer hasn’t been filed and isn’t due until early March. Discovery should close at the end of June, then written testimony will be due about 60 days after that. Then, if needed, there will be a hearing. In short, there will not be a decision in this case (assuming it doesn’t settle meanwhile) until well more than a year after filing.

    Now, that isn’t long for traditional litigation, but I think everyone was expecting this process to be much faster. To be fair, it may speed up some as they work out the bugs but, for now, you must manage your speed expectations.

    I’m hoping that in the end we’ll decide that the system worked within the “fast, good, cheap” paradigm: that is, we know it’s slow and cheap so, hopefully, it will be good.

    Ho Ho Holy Crap, Where Did the Year Go?!?

    Blue heeler unhappily wearing fabric antlers with a bell dangling off the right one.
    Mongo no like antlers

    The other day, on NPR, they ran a story about people who are studying how we (humans) experience time and one of the commonalities is that the pandemic affected that. For most people, it was a slowing of time–a day felt like many more than 24 hours, a week more like a month, et cetera. But as things have opened up, for many people time has started to fly.

    I am definitely one of those people. In short, while 2020 and 2021 slogged, 2022 has flown by. I can’t believe the end-of-the-year holidays are upon us already.

    My usual plans for the end of the year got bumped when my partner got Covid just days before Thanksgiving. Then, despite mask wearing and his isolation, he still gave it to me, forcing me to isolate for the week after Thanksgiving. Luckily, we both came through with only mild (me) to moderate (him) symptoms (thanks to the vaccines), but it has forced a change in our usual holiday activities.

    Anyway, here we are. This year, I incorporated my law practice, got some new clients (thank you!), got threatened with a lawsuit for daring to send a demand letter to someone (ugh), started writing for the Architectural Photography Almanac, quit Twitter and moved to Mastodon, and handled many matters for my clients. It was, overall, a good year.

    In thanks to all of you who permit me to do what I am passionate about and, as is my custom, I have made donations to a couple of charities rather than sending you tchotchkes as thank-you gifts. This year, I made a single donation to the NPPA’s fund and committed to a monthly contribution to the Souther Poverty Law Center. Both organizations do much good in a difficult world.

    Thank you, all of you, my clients past, present, and future, for permitting me to serve you. I hope I may do so for some time to come.

    Here’s to a wonderful 2023 for us all.

    Flipping the Bird

    In case you hadn’t noticed, I’m no longer on Twitter. I dumped the bird site as soon as Musk closed the deal. I switched to a couple of different platforms, but it looks like I’m settling on Mastodon.

    It’s been interesting over the past week as I build a whole new network of people, but I’m actually enjoying it. I miss some of the folk I was following, but there are a lot of artists and academics and generally really interesting and thoughtful folk on Mastodon. I feel like it’s a higher IQ version of a platform, sort of.

    One of the best things about Mastodon is that not only are there no ads, there are no algorithms. Huzzah! My feed is chronological and I see, depending on my settings, either the people I follow (the home timeline), the people who are also on the same “instance” (think server, in my case, that’s @legal.social)(the local timeline), or people who are people who are followed by those whom I follow, regardless of server (the federated timeline). I’m not fed what some ones and zeros think I should see. I am not fed at all. No one is.

    I also happen to like that there are a lot of non-Americans on Mastodon. Tons of Europeans (especially Germans). This is great because it helps one to see other perspectives on all sorts of issues. I also like it because I’m a linguistics nut and the more languages the better.

    Anyway, the point is that I will be tooting (what posting is called) mostly on Mastodon (see link above to find me), and posting longer format stuff here.

    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.

    Next Steps at the CCB

    As you may remember, back in late July I filed my first CCB case. Since then, I’ve filed two more, each for different clients. Today, I received notice that a claim had passed its initial review and could be served on the respondent–it is for the first case I filed.

    So, what happens is that you get three emails from the CCB informing you that something has been filed in your case. Each email includes a link to an item filed. The first says that a Notice of Compliance and Direction to Serve had been filed; the second that the Service Packet had been, and the third that the Waiver of Service had been. The last two note that they are “restricted”–that is, the public cannot get access to those items. I could, of course, after logging in. When you get those emails, make sure to download copies of everything and add them to your folder for the case.

    The Notice provides you with your instructions. It’s a one-page document explaining that your claim has passed its initial review and that you now have to serve the respondent(s)–that is, the people you are suing. You have 90 days to serve all respondents in your case. It also explains what service is, how to do it, what needs to be served (a notice, the entire claim with its exhibits, and an opt-out form), and also explains that you can ask the respondents to waive service and includes a link to the CCB Handbook where it explains service and waiving service.

    There is a second page with the Notice: the Proof of Service form. That form must be filled out and filed with the CCB within 7 days of the completion of service.

    The Service Packet includes a Notice of Official Government Proceeding, which explains that the respondent is being sued in the CCB and for what reason, and it provides instructions for the respondent. the Packet also includes the claim itself, including all the exhibits (if any). Finally, it includes a Form to Opt Out of Copyright Claims Board Proceeding which, duh, a respondent may use to opt out (or it may opt out online).

    The Waiver of Service is optional, but it makes sense for both sides to waive formal service so download it, too. That filing includes a one-page Request to Waive Service of Notice of an Official Government Proceeding and a one-page Waiver of Service form. The Request must be filled out by you (or your attorney if you’re represented) and signed by you (or your attorney). You then send the completed and signed Request, a copy of the Waiver form, and a copy of the entire Service Packet to each respondent for that matter. You must also provide a self-adressed and stamped envelope for the return of the waiver form. DO NOT INCLUDE ANYTHING ELSE–that is, no nasty letters or even polite settlement offers–just send the forms (and SASE) as described. The CCB makes a big deal out of not including other stuff so follow its instructions–you don’t want to screw up service, even if it’s not formal service.

    By the way, I highly encourage using the USPS Priority Mail system for this, in part because it is trackable and it can be a big pile of pages which you can send for a flat fee.

    Now, for my matter, I also emailed everything to opposing counsel. That step is not required but since I knew the respondent was represented I did that out of courtesy. The email simply stated that the case had been filed and the documents were attached and were being sent via the USPS as well.

    Respondents have 30 days to waive service if they choose. If you don’t hear from them by the end of that period, you should move forward with formal service. There are companies that will do that for you, if you need to do that. If the respondent here doesn’t waive service, I’ll explain about that when it happens. If it does waive service, then I will file that completed Waiver form with the CCB and then the Respondent will have 60 days to opt out if it chooses. If it does not opt out, then we’ll get a Scheduling Order from the CCB which will include the date the respondent’s answer to the claim is due.

    But first things first… let’s see if the respondent waives service. It might also choose to re-open settlement negotiations in earnest, and it is possible the matter could settle before going much further. We’ll see!

    The Best Laid Plans

    Robert Burns, the poet and not my father, wrote about how the best laid plans often go awry. So it is with my intention to write here more often. Obviously, that has not happened in the past month…ish. Apologies.

    It also seems a fitting maxim for the CCB since I have now filed three cases there, the first being in late July, and none has been reviewed yet. This seems to be an issue. I was contacted by someone asking about my experiences and I mentioned that I hadn’t had any except for the filing of cases yet and he said he’s hearing that from others, too. So, I checked to see what’s happening with others’ cases. The results are both odd and frustrating.

    First, some cases do seem to be proceeding. However, I’ve found cases from early July that haven’t been reviewed yet but others that were filed much later which have been reviewed. As I looked for what differentiated a reviewed one from a non-reviewed, the best I can figure is that if the case looks obviously flawed, it gets reviewed faster than one that looks proper on first glance. For example, there is a case against a federal governmental entity (you can’t sue the US in the CCB) and it got reviewed in less than a month and the CCB filed a notice that the claim had to be amended for it to proceed. Another was filed on July 7 then the claimant asked to amend the claim which was approved on August 3 and then that claim was found non-compliant on September 6. There are more than one that are just crazy with filings, so much so that the CCB issues an order to stop filing docs (like this one) but even then those cases got reviewed faster.

    In short, there just doesn’t seem to be a clear system for what gets reviewed when, which is frustrating for the people waiting. It’s been 40 days since I filed the first one and if it gets reviewed and passes today, then I have to serve the respondent and then they have a good long time to opt out before anything else happens, like their answer. If I had filed in federal district court instead, my client would likely be close to if not actually starting discovery by now. If it was here in the Southern District of California, we’d likely have the ENE scheduled, even (an ENE is like a free mediation done by the court–lots of cases settle at or shortly after an ENE).

    It would, in my opinion, be helpful if the CCB would make it clear how they decide what cases are reviewed when. I didn’t see anything in the handbook on this issue so I assumed it would be simple chronology; but it is clear that something else is afoot.

    Filing at the CCB

    I filed my first case in the CCB last week and thought I’d share a bit about the initial process. 

    TL:dr It’s designed to be non-lawyer friendly but I’d still encourage using one anyway. 

    First, don’t do anything without reading the handbook beforehand. It will make a huge difference in understanding how the forms work as well as the process as a whole. It will also give you the chance to see what things you might not understand fully, so that you can ask questions (preferably of a lawyer, not some rando on social media). For example, when you enter your certificate number, there is a very specific way to do that and it’s not “VA2-222-2222” like you would expect. Many of those little questions will be answered by the handbook.

    Second, you may be tempted to look at several of the other cases to see how others are approaching the process. I did that and this can be very helpful to attorneys, but I’m afraid it may only make things worse for non-lawyers, as there is some crazy out there already. If you don’t know how filings work or what the elements are to your claim, that is, what you’ll need to plead and prove, this is where you can get into trouble. For example, there is one case where the claimant (plaintiff, in regular federal court) is essentially trying to sue the US Copyright Office. That’s not what the CCB is for and those filings will send you into a rabbit hole of bad examples. So, for most of you, I’d say skip this unless you want to run something by your attorney to see if it’s a good example to follow or maybe you have litigated in the past and know how the process usually works. 

    Third, gather all your evidence and plan your case. You need to know what you need to prove (the elements of infringement claim) and what you have to get you there (evidence). Do you have any holes in your evidence? Now’s the time to try and fill those gaps. For example, you should (at least) have a copy of the original work and copies of the infringing uses and a copy of your registration certificate, if you have one (in the CCB, you have to have at least applied for registration to start a claim, but it’s better to have one in hand already)—all that is your evidence. 

    You should also take the time to research your opponent, if you haven’t already. You’ll need contact information of some kind, at the very least. Gather all this information and organize it into some sort of cohesive story. In regular court, we attorneys do this in the form of the complaint we draft and file; here, there is no need for a formal complaint, but a document with the same information will be helpful. 

    To create the document, write a list of how and when the work was made, when it was first published (published for the purposes of copyright law—not published in the normal English sense), when it was registered, when you discovered the infringement, how you did that, and then what steps you took after your discovery of it.

    And if you haven’t already tried to negotiate a settlement before filing, now might be a good time to consider that first. It will look better if you try to get the matter worked out before filing and, if it works, then you won’t have to file! In the case of the filing I just did, we’ve been trying to get the respondent (defendant) to negotiate reasonably for almost a year before my client decided to take this step.

    Anyway, back to the doc… in some sort of bullet point-like list, tell the story and, in it, point to the evidence you have. Think simple, declarative sentences. For example:

    Claimant created the photograph on June 1, 2020.
    Claimant first published the photograph on June 15, 2020, when she offered it for licensing on her website at https://www.photographer.com/art.jpg.
    Claimant registered her copyright in the photograph, with others, receiving certificate No. VA2-222-2222 with an effective date of July 1, 2020. [Exhibit A: USCO certificate]

    etc.

    After you have all that done, you can start to fill out the claim forms. It will be much easier with the timeline and the evidence in order, but remember that you can always stop and save your progress, then come back to the forms later. You should, at the end of the claim, upload pdfs of the timeline and the evidence you have. Also, make the file names for these things clear, like “EX A: Cert va2-222-222.pdf.” You don’t need to do all that, but it will make reviewing things easier on the CCB attorney assigned to review the claim and hopefully get you to the service process faster. 

    Pay your $40 (the other $60 is due later, if the defendant doesn’t opt-out) and then, like me now, you sit back and wait for the CCB attorney to review the claim to make sure it’s appropriate for the venue and meets the standards. Once that happens, you’ll be instructed about service. 

    When that happens, I’ll let you know what the next steps are like. Stay tuned…

    Look At My Shoes

    Today is July 1 and it is the first day I’m doing business as Burns the Attorney, Inc. The old saying about the cobbler’s kid going unshod? Yeah, that was me. I should have done this a while ago but, still, now is better than later.

    Forming an entity is a state-specific thing. The legal hoops you need to jump through vary from state to state. For example, I incorporated because I had no other choice. In California, you can’t have a solo-member LLC if your business is the law. You can, however, have a solo-member creative business LLC. Or incorporate. Go fig.

    Anyway, there are many reasons to form an entity. The most obvious ones for a solo are to protect your personal assets and for tax benefits. For the second, you should talk to a CPA. A (non-tax) lawyer can give you some general tax advice, maybe, but a CPA will know best. Talk to one before you do anything about formation.

    The other one, asset protection, is where talking to me (or any good business lawyer) makes sense. See, if you don’t form an entity and your business gets sued, well, you are your business legally-speaking as well as metaphorically. That means whatever assets you have in your personal world (like your house and car and retirement accounts) are available to pay a judgment against your business. Lawyers like me know what you need to do to form the wall between your business and your personal assets.

    Arguably more importantly, we know what you need to keep doing to make sure that wall stays strong. See, if you don’t “maintain the formalities” (as the law likes to say), your wall can become paper thin, making piercing the corporate veil a piece of cake. Once the veil is pierced, your personal assets are back in play. Yikes!

    In the creative world, creating an entity has extra considerations: your copyrights. As a sole proprietor (i.e., not an entity) you are the author of your creative work and the copyrights are owned by you. They will last until 70 years after your death. But, if you form an entity, you become an employee of that entity and the entity becomes the legal author of your work! Suddenly, the term of the copyrights change: 95 years from the year of the work’s first publication or 120 years from the year of its creation, whichever ends first. There are also inheritance issues then. There are legal ways to hold onto your copyrights in this situation–an attorney can help you with understanding which way is best for you and then making that a legal reality.

    As for me, it is a relief to have taken this step. I sleep better at night knowing that my house (that I own with my boyfriend) isn’t endangered by my business. Also, it sure doesn’t hurt to know that I’m saving some money on my taxes, too.

    So, while the way I serve my clients won’t change, starting today I’ll be serving them as the President/CEO of Burns the Attorney, Inc.
    That’s some fine shoes.

    Small Claims and Options

    The Copyright Claims Board, aka the CCB or copyright small claims, launched today. You can now file claims using that system, rather than federal court.

    However, that doesn’t mean you must use that system. I’ve written about my reservations, but that’s not what I’m talking about here. Rather, I mean that just because the CCB is now available as an option doesn’t mean that you should skip the step of trying to work out an infringement matter without filing anywhere first. My legal philosophy is that one should always try first to work things out without litigation, be that in federal court or the CCB.

    In the past, an infringement of an untimely or unregistered work (without a CMI removal claim) was almost assuredly going to be a “can’t take that on contingency” situation for me. Now, however, I’ll be taking a different look at those kinds of matters.

    The existence of the CCB system gives those of you who have not timely registered your work a new tool to use in pre-litigation negotiations. Instead of having to prove up a license rate to an infringer (“actual damages”), now you can say “Hey, if we go through the CCB, I can be awarded up to $7500 in statutory damages for this infringement” which gives you some negotiating leverage. Of course, you shouldn’t ask for the full $7500 to settle–that is rather defeating the purpose of pre-litigation settlement (i.e., to save everyone time, effort, and money), but it lets the other side know what they might be facing if you don’t work it out.

    Also, remember that you will have to register the work before you can get a judgment from the CCB; that is, you need to have applied for registration prior to filing the claim and you need your certificate before the process is completed (there are ways to expedite registration, if needed). If you haven’t applied for a registration of an infringed work yet, you might be able to use that to help convince the other side to settle because you can settle for less money now. I mean, if you have to register and pay the filing fees, etc., you’ll have to get more to settle–that’s basic business math.

    Sadly, however, a well informed opponent will know that they can opt out of any CCB proceeding brought against them, reducing you to actual damages again, but lots of infringers are not going to be so informed. And you don’t need to inform them.

    Note, I am NOT suggesting you lie to any opposing party–you shouldn’t say they’ll “have no option but fight the claim in the CCB” or similar, but you can say, “If I bring this claim in the CCB, I can be awarded up to $7500 in statutory damages.” There is no lie there. What I’m saying is that you don’t have an obligation to tell them how the CCB works for defendants and that they have an out, not until you actually file with the CCB. If you end up filing in the CCB, then you have a duty to inform the opposing party about the claim and their options. Until you file, though, nope.

    Anyway, as I said, if you have an infringement of a non/untimely registered work, now I may be able to help you on contingency or a hybrid fee. You can submit the information for my review using the form, here, and I’ll let you know what your options are, including what fee arrangements are available. As I mentioned in my previous post, I am limited annually to the number of claims I can file for my clients, so I will have to pick and choose a bit if we get to that point. But, we might work together to try to get you a reasonable settlement before taking that CCB filing step.