Author: Leslie Burns

Tomorrow is Monday and I will be posting a new Creative Lube podcast in the afternoon sometime (PT). If you are already a subscriber, you can get it as usual. But if you are not yet a subscriber, you need to sign up before I post to get this episode on your subscription. See, the way the system works is that the subscription is for 12 months– you don’t get previous episodes, only those released during your 12 month subscription.

You can always purchase the episodes you missed before you subscribed, individually. But I wanted to let you know about the upcoming release in case you’ve been meaning to subscribe, but haven’t gotten off your duff yet and done so. 😉

Subscribing saves you money, which is another reason I wanted to give you a heads-up.

This episode will be on how to change your luck. Real, scientific info that can help you change your luck. No flaky BS, I promise.

How marketing is like dating…

…you can use lots of online tools, but eventually, you have to meet in person.

There are all sort of dating sites out there. Chemistry.com, match.com eharmony.com, and many others (and about a billion “foreign bride” sites that we won’t even address here). Why are there so many? Because people have diverse interests and are attracted to different sites for different reasons (like a friend’s recommendation or the site’s own marketing).

There are even sites like meetup.com or common interest group sites that, while not technically dating sites, provide listings that enable people to connect.

All of these sources are potential places to meet Mr. or Ms. Right. People connect via these tools all the time, and then they exchange emails and maybe IMs. Eventually, there may be a phonecall, but that is fairly rare as most of the communication is done electronically.

Sound familiar? Photographers and photo buyers have lots of online sources now. Just like dating sites, some are more reputable than others (like altpick.com rather than portfolios.com), but even of the reputable ones, there are lots of choices. There are also all sorts of other social networking tools like Twitter and Facebook (FB). Photographers put themselves out there and, although there is NOT the reciprocity exactly like a dating site, buyers are also out there via their own posts on FB or blogs and, of course, they are listed on services like Agency Access.

Both sides want to put their best selves out there. Sometimes, unfortunately, they go too far in the fact spinning… especially on the photographer side. Sure, PhotoBob shot for Microsoft and lists it as a client, but it was a little test piece that ran in Pocatello only. Not a complete lie, but, well, it was in 1994 too.

Same thing happens in dating. We want to put our best “face” out there. Betty Single meets Bob Alone and though emails, etc., she learns that he is a successful businessman and, from his picture, he’s not bad! Bob is intrigued as well when he learns that Betty is a successful banker who describes herself as “active” and “young for her age”– her photo is pretty hot too!

At this point, everything seems to be going well–there is interest on both sides. For photographers, maybe you have exchanged tweets or you know that a certain buyer has clicked through on your e-promos. Great! But eventually you and the buyer, just like Betty and Bob, have to meet. Not just on the phone… in person. Just like them, you aren’t going to get anywhere unless you make a personal connection. Electronics will only take you so far. You can’t get to first base if you don’t get off the bench!

This can be great. You will get more work from people you have met personally than you will from those you have not. Like personal relationships, photographers and buyers have got to build a trust relationship to be successful and that is best done in the real world, face-to-face.

Unfortunately, this can be a nightmare if you’ve over-spun your abilities, work, etc.

Let’s say Betty really is a hot lady and her photo was not altered. Bob, however, has posted an image from about 10 years ago, when he still had a job and before he had the bad comb-over and when could still see his feet just by looking down. When her friend calls Betty’s cell 5 minutes into the date (yes, we do this), Betty will be “suddenly called away by an emergency.” Ahem.

If you have spun too much professionally, if you and your work (and your presentation!) do not match what you have put out there via all those electronic methods, you are going to walk into your buyer meeting and the buyer is going to get a call 5 minutes into the meeting where she will be “suddenly called away by an emergency.” Ahem.

Don’t let this happen to you. Emphasize the positive in your marketing and use those electronic tools, but don’t lie. Put yourself out there on sites where you feel like you are a good fit, not just some place where you think you are supposed to be; send e-promos to targets you think might like your work; build communities on sites like Facebook; share on your blog; but follow it all up by setting up meetings as often as you possibly can. These buyer “dates” will give you your best shot at connecting on the level you need to in order to get work. But you have to be real in all of this to get anywhere.

Being real doesn’t mean being a slob if you really are a slob. Just like dating, dress up for your meeting. Be your best you. Show up prepared and looking great–that includes having a high-quality book and leave-behinds. Consider bringing a small “gift”–like bringing flowers to a date (note, just like a dozen roses are too much on a first date, you can go too far on the gift–think simple, small, maybe a little print). But do work hard to get these meetings. Your payoff for your efforts will be worth it.

Several years ago, the photographer who got me into this biz (Stephen Webster) was having a birthday and his wife bought him the newly (re)released original Planet of the Apes movies, which he desperately wanted. She wanted to surprise him with it at a dinner they were going to have, with another couple, in a nice restaurant. The surprise? Someone in a gorilla suit would deliver it during the meal. But the person she had lined up bailed.

I volunteered. She happily accepted my offer.

I put on that gorilla suit (and blacked out around my eyes to make sure he wouldn’t recognize me), on a Saturday early evening, in mid-July Columbus, Ohio heat, and walked down the sidewalk (gorilla-style, of course), making ape noises at people. I was carrying the gift in a bag. I “gorilla-ed” into the restaurant, right past the maitre d’, and found the foursome. Then the fun really started. I abused the poor victim (and the others some), pulled hair, sniffed bits, put my fingers into food, made lots of ape-ish noises, and even threw bread. Then I presented the gift, made very excited ape noises, beat my chest, and left, still gorilla-ing all the way, unrevealed.

The people in the place laughed and stared and everyone had a great time. And the next Monday, at the studio, Steve told me the story of what had happened, saying how amazing the ape had been, how the person really pulled it off, and that he couldn’t figure out who it was! He was stunned when he found out it had been me.

Why am I sharing this story? Because I was completely liberated by that suit. I could never imagine doing half what I did in my regular clothes, but wearing the costume, I could be the ape. You can do the same in your business. One day when you have a client meeting– a new potential client– dress they way you think a really top-of-the-line photographer would dress. Spend the money on a really great outfit, and when you go to the meeting, play the role of the fabulous photographer. Just go with it. Do this especially if you are normally shy and self-deprecating. Pretend you are everything you want to be, everything you imaging a “real” photographer would be. Just have fun with it.

As others have said, fake it until you make it. In this case, don’t fake the creative but do fake the personal image. Wear a costume and play the role. At worst, you’ll have fun and not get the project. At best, you’ll get the project and be one big step closer to making real the imaginary person you were portraying.

Q: How much has Condé Nast lost?

Newsweek answers the question. Ouch.

My next question, however, is whether new technology will get there in time to resurrect the industry. Kindle and the new rumored Apple tablet/reader and other companies joining in, plus the already popular iPhone, well, we have to ask if this is just a huge evolutionary leap. Maybe this is a $1Billion growing pain?

Recently, I was asked by Heather Morton about treatments and copyright for a piece she wrote on her fabulous blog about how photographers are getting their work, not their images as such but rather their treatments, ripped off. She wondered what the copyright implications were. I gave her my take on it, as a non-lawyer and just generally interested human being, of course (because nothing I write should be taken as legal advice, right? Right.), which was, essentially, that copyright doesn’t cover style or ideas and much of the treatment stuff is verbal or stylistic. Treatments are often developed in meetings and may result in something tangible, but often is more just the words describing how the photographer would approach the problem. Uncopyrightable stuff.

I kept thinking that there must be a solution. And I think I’ve found one. As I was siting in Licensing class, at about the same time, the professor lectured on how to start the negotiating process for a licensing agreement. First thing she pointed out was that a non-disclosure is essential because there will be trade secrets and other confidential stuff discussed.

A-ha!

I emailed my Licensing prof about this and she agrees with me that NDAs are a good solution to the photographers-are-getting-ideas-ripped-off-after-submitting-treatments issue.  However, as she pointed out, the trick would be getting the agencies to sign.

Here is a link to a generic NDA pdf from SCORE.

It is important to note that photographers really need to have one written up by their own attorney. It’s important to get exactly what is confidential accurately described (the trade secrets of the photographer–that is her/his ideas about the project) to be properly protected. Each photographer has his/her own interests to protect.

Also, the example above is a unilateral NDA and mutual one would be more likely to get signed, I would think. A mutual non-disclosure would protect the agency from having its ideas get out (which is a very big concern for them!) and the photographer’s ideas from being appropriated. If the agency used the photographer’s ideas, techniques, etc., after signing a non-disclosure, the photog could sue–and the agency could sue if the photog, for example, tweeted about the new campaign idea. Everybody’s asses, as it were, are covered.

Most companies (outside of our industry) won’t even begin to discuss a possible collaboration for any project involving ideas and (possibly) trade secrets and/or other IP without first executing an NDA. So why should photography and advertising be any different? It protects everyone. But, if agencies are reluctant to sign, then photographers would need to stick together on this issue until the tide turned.

My Business Organization Law prof started his class (last sumer) by saying that all successful businesspeople are optimists. They have to be. What they are attempting is fraught with danger and the odds are invariably against success, and yet they believe they will be the exception who makes it.

I think I have found the problem with many photographers and their businesses: attitude.

I’m not throwing that out there lightly or flippantly. Photographers, for all their amazing problem-solving and creative thinking abilities, are far too often closed-minded and, well, not optimistic when it comes to their businesses. Rather than seek positive solutions for problems, there is much wallowing in how much work there is and how things aren’t fair, etc. When something good happens, too often photographers will look for the bad in it. It’s like I told a dear photographer friend the other day: you sure can find the fuzzy end of the lollipop!

Here’s a real-world example: on APAnet this past week a call to action was posted, by APA itself, to sign a letter intended for the President (and Veep) expressing the importance of the arts and IP protection. It was written by people involved in the copyright protection struggle (the Copyright Alliance), in consultation with creative groups like ASMP and APA and many others. Many people signed enthusiastically (yea!), but others complained about the wording of the letter — saying it was poorly written, too flowery, whatever. That is finding the fuzzy end of the lollipop. The letter is a good thing, but all these natterers could focus on was what they found wrong with the letter (even though they did sign it) and implied that it would fail because of its defects.

Look, if you want to be successful you have to find the good, the hopeful. Look for solutions, not problems. Rather than say “that’s not the way it has worked” say “let’s try and see if this will work” and when someone offers help, don’t put it down, no matter how imperfect you may think it is. Give others the respect that they deserve. Assume that someone knows what s/he is doing rather than the opposite. Have faith that other people might know more than you.

In the case of that letter, I’ll bet dollars to donuts that the person who wrote it had more training in writing than anyone who complained about its wording.

I think photographers are amazing in their skills. I am constantly in awe of what I see you people do creatively. But you do not know everything about everything. You’re not experts in the health crisis or the workings of Congress or the law or medicine or even fields like design and writing. You are experts in photography, and that is mighty impressive in and of itself.

So stop trying to control everything. Let go and have some faith that things will work out. Trust in others. Try things that might look less than for-sure but which might, just might, help. Act like successful businesspeople in other fields who lean on wind of their optimism, their hope, rather than grasping at the possibilities of failure and the risks in every step.

Here’s a secret: you can do everything “safe” and “right,” find every risk and mitigate it, “fix” every imperfect thing in your path, and you may still fail. In fact, I’d wager that you would be more likely to fail. Why? Because you must take risks to succeed. Being an optimist, particularly in business, is your only chance at success. It is saying, at every new challenge (and preferably with a big-ass grin), “I know it’s risky, I know it’s not perfect, but it might just work so what the hell, let’s give it a try.” It’s trying the new and untried. It’s collaborating openly and with hope. And it’s having something not work and saying “Well, I gave it my best but it didn’t work. Oh well. What can I try next?”

So the next time you are tempted to complain or pick at an offering or suggestion given in good faith, the next time you are tempted to be negative about an idea, rein it in. Look for the good in whatever it is. Try to build on the positive. Take risks that things might work out well. And give others the respect of their professions as you would have them respect you in yours.

I’ve just posted the newest Creative Lube podcast–this one is on pricing. This is a very important issue we need to be working together to develop. We can’t sit back and complain about what hasn’t worked in the past or force our interests over our clients. We need to find an objective-based, equitable system.

Let’s start the dialogue.

If you’d like to purchase access to the individual podcast ($8) or subscribe for a year, just go here.

The other day, I posted some thoughts about indemnification clauses. Last night, ASMP-SD had a presentation on copyright by IP attorney Matt Murphey of Gordon & Rees, LLP, so I “took advantage” of Mr. Murphey and, before the event, asked him about what I had posted. He agreed with my points and even took the time at the end of his presentation to note that it is important to negotiate indemnification clauses. He emphasized that you can negotiate limitations on these clauses. Then, he pointed out that if you don’t have an indemnification clause in your contract, there is law that may, by default, grant broad indemnification to your clients!

This morning I did a teeny bit of research on the issue and found that the UCC §2-312 has been interpreted by courts to apply to copyright licenses. That’s probably gobbledy-gook to you and that’s fine, don’t worry about the UCC (it will make your head spin) but do know that it is a set of laws that 49 states have adopted (not LA) and which serve mostly to function as the default rules for contracts. In other words, if you don’t write your contracts to cover a topic in the UCC, the UCC rule will apply by default. For indemnification issues, §2-312 is the default rule of concern and it says essentially that the seller (you) guarantees that your work doesn’t infringe (on someone else’s IP rights) and if a claim saying it does infringe is brought against the buyer (your client), you will pay up.

So, having an indemnification clause in your contract is a good thing FOR YOU. As long as it is written well, of course. You need one to limit your liability. Your clients will likely want a broad one. Negotiate something fair and reasonable and get on with shooting the project.

[Again, and as always now, this is NOT legal advice. I am not a lawyer! It is only my opinion.]

I’m hearing/reading lots of photographers having hissy-fits about indemnification. The timing is perfect since it is something we have been talking about a lot in my Licensing class.

[NOTE: This is just my opinion and NOT legal advice. I’m not a lawyer! Work with your own IP lawyer to get the best answers to your important questions.]

Yes, I said “hissy-fits.” People are getting their knickers in a twist rather than looking at the actual issues involved and trying to find a reasonable solution. Just saying “no” is not reasonable. Panicking about possibly having to pay for anything and everything is not reasonable.

Let me explain…

Indemnification is kind of like insurance or a guarantee. For the issuer (the photog in our situation), it is essentially saying, in very general terms, “I promise that my image doesn’t infringe on anyone’s copyright or trademark (or whatever) and if it does, I will pay up.” It is NOT saying that if the client or agency gets sued for any reason your ass is on the line. It means that if they get sued (for the claims described in the clause, usually © or ® infringement) and the other party wins, you will pay the agency what they had to pay to the winner.

Of course, if the clause doesn’t limit the scope to, for example, infringement claims, that is something you’d need to negotiate and change, but we’ll get there in a sec…

First off, almost every license contract in business has some sort of indemnification clause. It’s logical: if A licenses something from B, A shouldn’t be held legally responsible for the errors B makes. You wouldn’t expect to be held responsible for an accident caused by a car with manufacturing defects, right? The car company should pay for their mistakes. Same basic idea. So there is no reason to flip out about indemnity.

There is even more reason not to flip out: you can negotiate the terms of the indemnification clause. You can say, for example, that you will only indemnify US claims and then only up to the amount of the licensing fee for the image. That way, you would only be on the hook for the fees you got for the license of that image and only for US suits (that can be a big deal, btw). That makes sense– it’s like a money-back guarantee.

And if you do your job well and get the proper permissions, you should not have any issue of infringement anyway, so the clause would not likely ever get invoked–that is, your client will not likely be sued for anything about your image and so there will be nothing to pay up for anyway.

For you, as a businessperson, the issue is one of risk– how much risk is there that you are making infringing images? How much are you willing to bet on that? How much are you willing to put on the line for this one project where the client wants an indemnification?

Then, ask yourself (or better yet, your lawyer) how can you structure the clause so both your interests and your clients interests are satisfied?

And don’t forget that you can (and arguably should) get indemnified by your clients if they insist, for example, you use a certain ® product when you can’t get a release. They should indemnify you if you get sued. See, makes sense when you see it from the other side, doesn’t it? For example, I wouldn’t shoot an ad with a Barbie® in it, without  a release from Mattel, without getting indemnified by the client or agency. Mattel protects her big-time.

Think about being fair and reasonable; think about your client’s issues; and there is usually a reasonable solution. Here, it is to negotiate a fair and reasonable clause and to shoot the gig. 🙂