Author: Leslie Burns

Could one of you tell me what magic set of words will get you to register your copyrights in your creative work (photos, illustrations, etc.)? Or do I need to do back-flips? Juggle? Tell me, and if I can do it, I will.

See, I’ve had to tell more than a couple of artists lately that although their work had likely been infringed, it wouldn’t be worth pursuing because they really wouldn’t get much for it because it wasn’t registered before the infringement took place. Sigh. That sucks.

Remember, if you register your copyright before an infringement, you may elect to receive statutory damages instead of actual damages in court. Oh, and you might collect attorneys’ fees too.

But no timely registration means, at best, you’ll get actual damages and you will have to prove those in court. You can’t just say “I would license this for $5000” and get it; no, you’d have to prove that would be a reasonable license fee for that use. That can get costly to prove and, well, poof, by the time you’re done with court your legal fees and expenses will be more than that $5K.

Think of this example: a major company uses your photo on its Facebook page. How much would you expect to get as a license fee for that? Now how much could you collect if you could get statutory damages and attorneys’ fees?

Which position would you like to be in to negotiate a settlement?
I can tell you which position an attorney would prefer.

Register. It’s the best “insurance” you can buy.

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.

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.

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.

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.

Last night I attended an event put on by the Copyright Alliance for the TPP delegates meeting here in San Diego. If you think everyone is against us in the copyright fight, you should have been in that room. These people are working for you.

The room was filled with people who were working to improve trade for their countries and their people, including working to protect IP in the Pacific. They were eager and sincere. They understood the importance of IP in promoting growth and creativity. As more than one person put it, IP protection is spun as somehow corporate and Big Brother-ish, but the reality it is all about the 99%. It’s how the little guy/gal, the artist, the inventor, the creator, can make a living using his/her skills.

We were also entertained by David Lowery (of Cracker, Camper Van Beethoven and, now, UGA and the Trichordist) and other songwriters who briefly talked about the need to protect IP before playing short (fabulous!) sets.

Afterwards, I spent some time talking with Mr. Lowery and Jack Tempchin (he wrote some of the Eagles’ biggest hits) about copyright and business. We spoke with some of the  delegates as well. Overwhelmingly the sentiment was clear that the groups working against the interests of artists are exactly those I have called out against for years here: CC/Lessig (and all his minions like the Berkman Center), Public Knowledge, EFF, and of course Google (who helps fund them all).

It’s still a fight. I think we may be turning the tide of public sentiment about copyright to our point of view, but it’s still a fight. And after talking with these people, I feel even more it is one we can win.

I was honored to have been invited to last night’s event and want to publicly thank the Copyright Alliance for their efforts.

There has been a lot of press about the lawsuit filed against The Oatmeal. Sure, Funnyjunk took Inman’s work without his permission and infringed in a very big way and sure, their attorney seems to be, shall we say, a bit extreme in his reactions, but none of this had to happen.

Don’t get me wrong, I am not excusing either the infringement or the lawyer’s actions; but rather, I believe that you can avoid a lot of legal-related ugliness if you do two things:

Pursue infringements through proper legal means;

and

Don’t react publicly, especially not like he did.

Inman chose not to seek the legal protections he had available when his work was originally infringed (he is not a strong-copyright supporter, so this isn’t too surprising). Instead he published a very public (and arguably funny) rant about being ripped-off. This was like throwing gas on the fire and wasn’t necessary.

If you find your work is infringed, do not try to do what Inman did. You could easily be looking at a defamation suit (whether or not you actually defame the infringer or its attorney) or worse. Words published in haste can come back to bite you in the ass–some you may intend as funny or over-the-top could be interpreted as threats, even. You just do not want to go there.

That also means you shouldn’t discuss your case on social media, at all. That tweet or Facebook post becomes evidence against you. You might even blow attorney/client confidentiality by what you post.

Overall, it’s just not worth trying to out the badguys like that, even with humor. Instead, keep registering your work and call your attorney when you find it’s being infringed.

_____

By the way, this is not legal advice and is offered for educational and informational purposes only. Talk to your own lawyer for real legal advice. And yes, I really do have to say that.

I love summer. I love it so much, I’m offering a goodie for its impending arrival. Get a “Test Drive” review of your website (1 website) for $250. That’s almost half off the usual price ($450), for the month of June only!!

We’re already half-way done with 2012–do you really want to go the entire year thinking “I need to do something…” Stop putting it off and do something! Make a new marketing effort.

This Test Drive would not be legal work at all, let me be clear about that. Instead, it would be a comprehensive review of your website to make sure it is showing you and your work the best it can.

Because I’m doing so much legal work these days, I can’t work with marketing clients often. I’m making a special effort during the month of June to fit in as many of these special Test Drives as possible, but the reality is there is only so much time available and the openings are likely to fill up fast.

Shoot me an email to book one now. When June ends, so does this offer.

Heather Elder, the wonderful rep who offers so much helpful information for photographers on her blog, asked me to guest post. The result reveals 5 common legal myths debunked for photographers.

By the way, if you are not following Heather, you should.
Well, not in a scary stalker kind of way, of course. I mean follow her work.  Your business will thank you.