Author: Leslie Burns

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A Few Don’ts

I have posted often (especially on the old BAP Super Premium blog) about things you should do, like registering your copyrights. Today, though, I think it’s time for some don’ts. Most of these are things that people seem to think are really good ideas but, when the rubber hits the road, they aren’t. Some of them can be downright dangerous. Some of these are legal-related, and some are just general business advice. So, here’s my list of 10.

Please, don’t:

  1. Before you actually hire an attorney, and I mean have a written agreement covering that particular matter (and paying a retainer, if required), cc the lawyer-you-think-may-be-your-lawyer on your email to some potential opposition. This sucks for the attorney on multiple levels, including being blindsided (never good) and pissing off the attorney’s malpractice insurance provider. Most of all, and I’m sure you don’t realize it, but you are using that lawyer’s professional reputation without her/his permission or payment! You know how you don’t like having your work ripped off? Same for us. You have, in a way, forced the attorney to represent you without that person’s permission. It’s just all kinds of bad.
  2. In any email–whether you cc’ed the attorney (who is not yet actually your attorney on that matter) or not–tell the potential bad guy “My lawyer will make you pay $X” or “My lawyer says you will owe me $150,000!” or even “If you don’t pay me $X now, you will regret it! My lawyer will rip you a new one” and the like. Ugh, even typing that gives me the willies. Don’t put words into a lawyer’s mouth; you are pretty much sure to get the law wrong and more often than not, when I’ve had potential clients do that, they didn’t even have a good case (register your copyrights, already). The threats end up hurting you. Later, when you do hire a lawyer, you will have dug a bigger hole for her/him to work out of and, it’s possible, that you could have traipsed into the realm of extortion. So very not good.
  3. Make unreasonable demands and then get pissy when they aren’t met. If you contact someone who has potentially breached a contract or infringed (or whatever), giving them an arbitrary 24 hours (ish) to fix it/pay up just makes you into the jerk. Real life sometimes takes time. Give people time to do the right thing. Sometimes they have to get their heads out of their butts first and that doesn’t always happen overnight. Same goes for money demands–don’t ask for $20,000 when a photo is used (without a license) on a personal blog–you won’t get it and now you just look like a bully.
  4. Generally, act like an ass.You get more flies with honey is a good old saying for a reason: it works. Sure, it’s not 100% effective, but I think it works much better than being a jerk. If you make it easy for someone who’s done you a wrong to make it right, without humiliating him/her or beating him/her up (verbally, I mean, please tell me you don’t hit anyone), you are much more likely to achieve your goal. When someone gets caught doing something wrong, it can be embarrassing and humans often react defensively (read: like idiots) when embarrassed. Don’t rub the person’s nose in it–rise above the nasty gut-reaction s/he may initially respond withand talk instead about how “we” can “make it right.” Look for solutions, don’t make more problems.
  5. Be greedy. Let’s say you want to get $5000 from a potential infringer (and, yes, you should always have a number in mind that you would be perfectly satisfied with from the get-go; not a pie-in-the-sky number but one that you would happily take). You’re going to ask for more than that as an opening offer–that is expected. Whenever the other side agrees to pay $5000 (or if it offers more), take the deal–you got what you wanted. You don’t have to push for even more. It isn’t about getting all you can, it’s about getting enough. Satisfaction doesn’t mean “all you can squeeze out of the bastard.” This is also true for project estimates and all negotiations in your business.
  6. Beat up Betty for what Bob did. By that I mean, it’s important to take each matter on its own merits and each potential person on hers/his. Don’t be a chump, but if Bob said he was poor and couldn’t pay a dime and it turns out he owns a mansion and a yacht, don’t expect that Betty is lying when she says she’s poor. Give each person a chance to prove her/his side of the case. Sometimes it really is a hacking or someone really is on foodstamps. I’ve found that when someone legitimately has extenuating circumstances, s/he usually is more than willing to provide some proof.
  7. Try to sound like a lawyer when someone does you wrong. You’re not one and mostly you end up sounding like you’re trying too hard and being unnecessarily nasty. You can be appropriately assertive (and be assertive, not aggressive) in your own voice and without using $20 words. See #4 above, too.
  8. Refuse to have a plan. There are a bunch of plans you should have as a businessperson. You need to have a business plan, a marketing plan, and an estate plan, just to name three. None of these need to be complex, but you do need to have an idea of where you are (A) and where you want to be (B) to be able to get from A to B. When you have a work project–be that a photoshoot or a series of illustrations for the New York Times Magazine–you plan out what you need to do to accomplish that project. Do the same for your business as a whole. As for the estate plan, well, don’t be Prince.
  9. Expect to learn the law from a creative professional (or, worse, the interwebs). Okay, I know this is going to ruffle some feathers, but creative professionals, even those who have been in lawsuits often or who have registered a gazillion copyrights*, are not lawyers and do not know the law the way a lawyer does. I swear I’m not tooting my own horn here–I can’t do what a great photographer can do even though I’ve worked with them since the 1990s. It’s just not the same as devoting yourself to the intensive study and practice for years and years. Anyway, you wouldn’t go to a graphic designer for medical advice, right? Why then do you spend good money to have one teach you about business law or copyrights? There is a reason we lawyers have to be licensed, just like doctors–when we get things wrong, it can really be life or death in some cases (there is a reason I don’t do criminal law) or at least economic life or death in others.
  10. Get angry and take things personally. This one is huge. In business (and law) the ego gets in the way too often. When people do things that negatively affect you–be that infringe on your work or try to get you to agree to work for half your normal rate, whatever–it really isn’t about you, it’s about them. Maybe the art buyer is getting yelled at and squeezed by an impossible client or the infringer is oblivious to copyright, who knows what is going on in their heads. I can tell you that almost always what is not going on is “I want to screw over this artist.” Even when the other side is acting like total jerks, it’s still about them. For example, I’ve had cases where infringers have called me horrible names; what the infringers were really trying to do was make the problem go away– each knew it was caught and was embarrassed so it lashed out in anger. Taking that anger personally would have been wasted energy. Instead, I think it’s better to approach it more dispassionately like “I understand you’re upset; there is a problem here and now we need to find a way to fix it” and then start trying to think of solutions. Your goal is to find a solution that works for you so keep your focus there.

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*I can tell you from personal experience that more than a few creative pros who think they know how to register their work have done it wrong. So wrong, in fact, that some of their registrations could be broken by defendants.

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Before Means Before

Y’all are probably sick of hearing me nag about registering your work as soon as possible, but here is a great example of why I do that. In a recent opinion the court wrote (emphasis added by me):

Because Compass did not register its copyright until February 17, 2012 one day after the alleged infringement commenced the court finds as a matter of law that Compass is not entitled to an award of statutory damages or attorneys fees.

Ouch. That really sucks.

Remember that yourregistration has to be before the infringement actually began (or, in the case of published work, within 3 calendar months of first publication), not just before you discover the infringement, for you to be able to get statutory damages or attorneys’ fees. Clearly the courts are willing to say “One day too late, tough.”

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Ah…. Technology!

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

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

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

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

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

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

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

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

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What’s With the “Compassionate Lawyering” Stuff?

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

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

See, bad Buddhist.

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

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

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

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

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

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

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

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Big News! (Well, big for me)

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

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

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

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

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

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Timing Matters

Today, I learned about two cases which each serves to highlight errors creatives are prone to make when it comes to their registrations.

The first was a case (opinion here, if you want to bother reading it) from Massachusetts, where the plaintiff was granted summary judgement on its claim of copyright infringement but, because it registered the work after the infringement started, it can’t get statutory damages.

The rule about no statutory damages available unless the work’s copyright is registered before the infringement is one of the few clear ones in copyright law. You can’t skirt it and, besides a very limited “safe harbor” period to register published work within three calendar months of its first publication, there are no exceptions. So, register your work as soon as you can, to make statutory damages (and attorneys’ fees) available as soon as possible.

The second case makes me twitchy because I know some photographers (especially) teach this wrongly. In that case, the plaintiff registered a pile of works as unpublished when it knew that some of them were published. Tonya Gisselberg of Seattle Copyright Watch explains it well on her blog and links to the opinion, but the short version is that a defendant may be able to void your registration for any of the knowingly published work (and remember that published in copyright law isn’t published like most people think).

I have been in workshops where pro photographers have advised “register everything as unpublished because that is cheaper and easier” but, if you aren’t careful to follow the rules, you could not only be wasting your time and money in the registration process, it is conceivable that a defendant who successfully breaks your registration could be awarded its attorneys’ fees. Yikes! You definitely do not want that to happen.

The lesson here is much like Star Trek’s matter/anti-matter, rule: do not mix.

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Launching July 1

I’m excited to announce my new practice! Burns the Attorney will officially launch on July 1, 2016!

I’m also a little wistful about it. See, when I graduated from law school and took the bar, Carolyn Wright (PhotoAttorney.com) called me and offered me paralegal work while I waited for my results. When I found that I’d passed (huzzah!) and, shortly after, took my oath (5 years ago, today!), she offered me part-timework with her firm; not too much later, after proving myself worthwhile, I was brought on full-time. In other words, I’ve worked with her for my entire legal career thus far. Carolyn has been a true mentor in every way and I’m going to miss working with her; but, she’s reducing her practiceso it is time to move on*.

It is my intention to carry on much as she has. She’s been a great role model and it will be my honor to continue what she has taught. That is, I want to serve photographers as I have been, protecting their rights and helping them with their businesses.However, I also want to work more with other creative professionals like designers, illustrators, writers, etc., and I will be offering more legal services like estate planning.

In short, if you make art, I want to help you and your business.

You can find me on Facebook at /burnstheattorney (just click the Facebook icon in the footer, below) where I’ll be posting bits of news of interests to creatives, and on Twitter at BurnstheLawyer (or click the Twitter icon below). Longer format posts will appear on this page.

I’m really looking forward to this new adventure and to serving my clients, new and old, mindfully, with compassion, and as much like a normal human as any lawyer can be. 😉

* Carolyn will be keeping her license; also, PhotoAttorney will be wrapping up its cases over the next few months so I will be finishing up my work there over that time as I help the transition.

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Going Viral ≠ Increased Business

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

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

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

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

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

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

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Published?

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

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

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Why Prince’s Death Matters to You

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.

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