Author: Leslie Burns

I rather love this brief interview with Michael Bierut. The whole series is interesting but his really seems to nail so many of the points I hear from all sorts of successful creative pros: take time off, read, use a notebook…

Oooh! This looks like something every photographer should add to her/his book collection. Not just to take up space on the shelf, but a book to read actively, to engage with. If the examples in the article are at all typical of this book’s contents, then you need to go buy this book now.

So many fascinating issues in this NYTimes article about the work left behind after a photographer’s death. In the digital age this will still occur, but not on the same level.

Although I doubt I agree with his evaluation of his friend’s work, I do rather love this quote from John Szarkowski:

To expose film is not quite to photograph.

I take that in a different way than he meant, though. He was talking about the process after exposure–editing, printing, etc. I think that we need to look at the process before exposure as well. It is the thought involved (conscious or not) that compels the photographer to “click” at that moment that, to me, is in first position when one looks for the artist in the photographer.

Still, I’m not ignoring the later steps. I love prints, especially ones from the darkroom. The choices made and the artistry in crafting those… breathtaking. But as one of my favorite sayings goes, you can’t make butter with a toothpick. Here, that means you have to start with something substantial first–the underlying image–and the more thoughtful that is the more one can do with it later.
Or not.
Depending on what the artist chooses.

One of the arguments I often hear made for weaker copyrights and lower licensing fees is that new industry will be stifled if the artist gets paid a fair (to the artist) rate. This line of reasoning has been bugging me more and more. The innovation-based companies have investment money that is to be spent developing the product and licensing is just one part of those costs.

Moreover, there is a certain hypocrisy to the whole “innovation needs artists to bend over financially because they are innovating and that will improve the economy” line of thought. They improve the economy by producing something of value. Okay, I get that, but so do artists and, I’d argue, with a better payoff on average.

Besides, new tech innovates anyway and those innovators would do that work even if they weren’t getting paid, right? I mean, innovators gotta innovate! Just like artists gotta create! That is what we humans do–we make stuff and do stuff we love; and then we try to find some way to pay the bills.

But what those innovators do get that artists don’t is venture capital by the truckloads, so they are paid to innovate. Paid to do what they love.

I don’t begrudge them that, but let’s look at the reality of the hypocrisy here…

• Innovators are driven to innovate because it is just something they are compelled to do. They love writing code, figuring out new things, and challenging the status quo.
• Artists (including musicians, writers, etc.) are driven to create because it is just something they are compelled to do. They love writing music/drawing/painting/making art, figuring out new things and new techniques, and challenging the status quo.
• Innovators would invent new tech even if they didn’t get paid. In fact, many of them create stuff all the time on their own then try to figure out how to monetize it.
• Artists would invent new art even if they didn’t get paid. In fact, many of them create stuff all the time on their own then try to figure out how to monetize it.
• Innovators need money to live.
• Artists need money to live.
• Innovators will work crap jobs while they innovate on their own time.
• Artists will work crap jobs while they create art on their own time.
• Innovator-based companies often do not show a profit for years, if ever.
• Artist-based companies often do not show a profit for years, if ever.
• Rarely, an innovator’s company can get valued at millions of dollars, even though it isn’t “worth” anything.
• Rarely, a work of art can get valued at millions of dollars, even though it isn’t “worth” anything.

See, they are identical… except that venture capitalists throw huge sums of money to the innovators on the bet that they might get that rare hit company that pops out a massively successful IPO and makes a ton of money, regardless of the company’s actual “worth.”

You know what I’d like to see happen? Venture capitalists should start giving huge sums of money to artists (of all kinds) on the bet that they might get that rare hit. Imagine having backed Lady Gaga or Ai Weiwei or Annie Leibovitz before anyone knew who they were. Sure, we’re not talking Google IPO numbers but we are talking a greater investment-payoff ratio.

I’d argue that on average the art created by a $500,000 grant (or hell, even only $250,000) to an artist will have a greater market value than the same amount given to an innovator. By that I mean if 100 artists got that grant each and 100 innovators did, I bet the value in the marketplace for the resulting art would be greater on average than that of the innovator. Also, the VC-types create the market value when they buy the art on the secondary market. Look at how much a Warhol gets today!

So, any VC investors want to take me up on that? I know plenty of artists who I bet would be willing to sell some equity ownership for the right investor.

Of course, that art will only be of value if the innovators don’t force licensing rates of less than a penny per play or $50 a photo, etc. And if that happens, the only artists we’ll have left are Justin Biebers and your half-cousin who “knows Photoshop.”

People are still wasting their efforts trying to get this Amazon patent “reversed.” We have serious issues facing our industry, but still this is the crise du jour. It’s not worth any of this attention.

Some reports/articles I’ve read note that somewhere around 80% of patents are held invalid in court. As my very knowledgeable friend noted in my previous post on this topic, this is one that would like be so held. And note that language “held invalid in court”–the way this (and any) patent will get tested is in court. You can’t go to the USPTO and make them take back a patent (not to my knowledge and teeny bit of research I’ve done–but I’m not a patent lawyer). Petitions are useless. It is up to the courts to resolve whether or not the patent is valid.

For a court to hold a patent invalid, first there must be a suit and, usually, the patent holder will sue, which is very unlikely here. It is possible for someone to bring a declaratory action in a patent case. That is where someone tries to get the court to say, for example, “this patent is invalid and Amazon cannot sue for infringement.” This is not as easy as it sounds and would cost a ton to do. In order for someone to bring a declaratory action, though, a plaintiff (photographer) would have to show a real “case or controversy”–not just that s/he might be harmed by the patent but that it was imminent/happening. Pretty much, the photographer would have to show that Amazon was, in fact, about to sue her/him. Again, that would mean Amazon would have to make the first move and that is very unlikely to happen.

So please, stop. Just let this go.

If you are a photographer, you have no doubt seen that Amazon has apparently obtained a patent for a specific methodology for shooting on a white background. Everyone has been up in arms about it but, in spite of my lame patent knowledge, I thought there had to be more going on here. Or, actually, less.  I thought that even if Amazon had the patent, it had to be somehow not enforceable. At the very least, it seemed to me that it would be essentially overwhelming for Amazon to even attempt to litigate against each individual (mostly broke) photographer who uses the same set-up and it wouldn’t be cost-effective unless they only went after large photo-factories, but there really aren’t so many of them anymore so that seemed unlikely too.

Even so, photographers are a worrying lot so I thought I’d try to find out the skinny on the patent. Luckily, I have a friend who is a brilliant patent lawyer so I asked her for her general impression. Here is what she told me (of course, none of this is actual legal advice–just her impression):

If this technology is as old as the article indicates, then the patent is likely invalid. Invalidity and non-infringement are the two primary defenses in almost every patent case. Amazon cannot receive a patent to an old technology. They have to establish something is novel about their invention. They have to conceive the invention. But you can argue it existed in the prior art or was obvious from prior art and thus the patent is invalid.

So, it seems that in the patent world, the first defense is similar to the copyright world: invalidate. And here, even though my friend is not from the photo world, even she can tell that the technology likely pre-existed the patent and so, boom, the patent would likely be found invalid.

In other words, Amazon may hold a patent, but that piece of paper is essentially worthless. Might as well use it to wrap a book for shipping.

Whatever the reality, I’m not going to get in a lather about any of it until or unless Amazon not only attempts to enforce its patent, but succeeds in doing so. We have bigger, much more threatening fish to fry.

As a creative professional, you’re probably married to the details of your work. I’ve seen photographers obsess over a farkle on a thingamabob that no one will notice, except the photographer. That’s good. You should want to make your best work. I only wish you could take some of that energy and apply it to the business side of your business.

Specifically, that attention to detail is very much necessary when it comes to your copyright registrations. Being sloppy in your registrations can really bite you in the ass later… trust me, I’ve seen it. And it’s heartbreaking. One of the first things a defendant or potential defendant in an infringement case will do, if s/he’s got an attorney with half a brain, is try to find an error in the registration. If the registration is broken, boom, case is dead.

Here is a list of some of the common errors you should avoid:

• mixing published and unpublished work
• not providing the date or range of dates of publication for published works
• registering work that has already been registered, because of sloppy record-keeping about what you have/have not registered
• registering work that has already been registered because you made a mistake the first time (in that case contact the Copyright Office and inform them of the error rather than trying to register the work again)
• naming someone (usually a spouse or business partner) as a co-author when s/he did not contribute to the work
• not registering the work as a work made for hire if you shot it as an employee of your own company (and want the registration held by your company)
• for group registrations, not including under the heading Previous or Alternative Titles the words “Group Registration” and the number of photographs, for example Group Registration: Photos; approx. 450 photographs.

Now, for some of those errors, making one won’t likely kill the registration all by itself, but it could and some will. For example, registering published work with unpublished (as “unpublished”) will invalidate the registration for the published work. If you make multiple errors, you could be in big trouble. No one wants to get waist deep in litigation only to have the whole thing blow up because you couldn’t be bothered to pay attention to the details.

In a recent ruling, the court said that CafePress, a defendant in an infringement case, wasn’t clearly able to claim the Safe Harbor of the DMCA and noted:

Here, the Court finds that, at a minimum, Plaintiff has offered sufficient evidence to create a dispute of material fact as to whether CafePress’s deletion of metadata when a photo is uploaded constitutes the failure to accommodate and/or interference with “standard technical measures.” From a logical perspective, metadata appears to be an easy and economical way to attach copyright information to an image. Thus, a sub-issue is whether this use of metadata has been “developed pursuant to a broad consensus of copyright owners and service providers.” Accordingly, the Court cannot conclude, as a matter of law, that CafePress has satisfied the prerequisites of § 512(i).

In plain English, the court is saying that stripping metadata may result in a service provider’s loss of the free pass of the takedown notice system. It’s not a done-deal yet, but it is a positive sign.

I just got the following email (name redacted because I don’t want to embarrass anyone):

xxxxxxx.com or better yet,  we could meet in person.

     Thanks, XXX XXXX

This is exactly the kind of email you should never, ever send. This photographer has unfortunately dug a hole with this bad marketing. Why is it bad? Several reasons…

First, why ever would a photographer think I was ever going to buy photography? If you have my email address (this was sent to my info@burnsautoparts.com address) you can easily figure that my website must be burnsautoparts.com and go take a peek. One look should tell anyone that I’m not an appropriate target. As you all have heard me say a gazillion times, the first step is always to select the appropriate targets for your marketing.

Second, the email is totally generic. It doesn’t say anything about what the photographer does (“commercial photographer” is not helpful–do you shoot food or environmental portraits or what?). It doesn’t say why the photographer wants to shoot for me–is it because you shoot the kind of work you see on my site? If so, say so. Make the connection. It’s your job to entice the target and you can’t do that  without providing some information. Show a little leg, as I’ve been known to say. Show your genuine interest. Don’t be generic.

Third, what is up with the word new being capitalized, in bold, and (worst of all) in quotes? That is grammatically all sorts of wrong. Grammar counts. Spelling counts. So does layout and design, even when it comes to email.

Fourth, why not include an image in the email? Give me an idea of your work. A screenshot of your website since you want me to go see your new one would be a good idea. Whatever, show something. You are a visual artist… be visual. Your buyers are visual people too–images work (unless they suck, of course).

Finally, you need to follow the legal rules about email solicitations. I never signed up for this person’s list so really, I never should have been emailed. If you are going to ignore that part of the law (bad, but if), then at least follow the part about making it clear how the receiver can opt-out. The rules are fairly simple, but they are rules (and by rules I mean law–the CAN SPAM Act).

Bad marketing is worse than no marketing in many targets’ eyes, so take the time to get it right.

I was reminded today of a post I wrote while in law school. It still holds up today. Actually, I can attest that I was right–at least in that my choosing to not do some things and thereby focusing on what I needed to worked out for me.

So, take a minute and look again at that post, particularly the list of ten reasons to not do. Maybe it’s about time for you to not do some things again.