Author: Leslie Burns

Damn…people are going off half-coked and, unfortunately, APA is leading the sky-is-falling brigade. I hate that. APA is a great group, really, but they are mistaking being unreasonable for being advocates for photographers. I think the email they sent today was incredibly irresponsible. I don’t think anyone there looked objectively at the reality of the Usher v. Corbis ruling before they released that email.

As I mentioned in my previous post, it sucks for the photographer. However, and note these two things: 1) the court found it impossible to value the images otherwise because of the lousy record keeping by the photographer IN THIS CASE; and, 2) the ruling clearly states that it is a summary order and is NOT precedential, so other cases do NOT have to follow the ruling and so not all images will be valued at this low level.

Sotomayor has made rulings creators like and a couple they don’t, but overall she has a strong understanding of intellectual property law. She has a background in vehemently fighting copyright pirates before she became a judge. In fact, she has been called a supporter of creators’ rights. It has even be noted that while she ruled against the creators in Tasini, she did so with sympathy for the creators (see previous link–she had to follow the law as best as she understood it–not rule as she wanted).

So let’s calm down people. She’s not the devil. She’s a judge and she is bound by the law when she rules. She doesn’t get to just do what she wants, she has to follow precedent, etc. So her past rulings are both ones creatives like and dislike. Not pro- or anti-.

I find it interesting that advocates of “free” are clamoring that she is totally going to crack down and ruin the internet for everyone who wants free.

Spin is out of control. Don’t buy into it… on either side.

On PDN there is a post about a ruling Judge (Justice nominee) Sotomayor was a part of (she was one of 3 on the panel). People are trying to use this ruling to show she is anti-photographer somehow.

I’d like to point out what I think is the important part of the ruling as quoted, rather than go on about how this ruling is anti-photographer–because I don’t think it does prove any bias against photographers. It looks like the panel was applying the facts and following the law.

The quote from the ruling:

Usher asserts that the district court erred by failing to incorporate the uniqueness of his images into the calculation of damages. But, under Grace, a district court is not required to specifically address uniqueness when, due to inadequate record-keeping, it is impractical or impossible to evaluate.

I added the bold to point out what I think is a crucial take-away from this: if there had been better records to prove the value of the images, the results would have been different. A court is required to take uniqueness into account, according to the above, except in situations where it is “impractical or impossible to evaluate” because there are not sufficient records to do so.

Now, before everyone gets their panties in a twist, let me say that I don’t like the ruling any more than any other supporter of photographers. It’s a kick in the teeth. I feel for the photographer–it’s a heartbreaking loss, I’m sure.

But, the members of the industry must accept responsibility for their own actions and not only lay blame. In an ideal world a photographer would not have to prove the value and/or uniqueness of his(her) work, at least not to the degree that is now required. But this isn’t a perfect world–it’s the real world and while we work for change, we are bound by the rules as they are now. The rules require good records to prove uniqueness and value.

Photographers, like many other creatives, have a tendency to be lousy at keeping good records. It’s a pain in the ass to do, sure, but it’s an important part of your business. You need to be able to track YOURSELF what image has earned what, to show that, for example, a particular stock image has brought in $100,000 in licensing over the years and now, after it being ripped off, is bringing in almost nothing. The courts just do not care if you think your image is worth $100,000 (or whatever), you have to be able to prove it. Otherwise, fair or not, they’re going to fall back on the default methodology for determining value and that’s minimal.

Relying on the stock house (note: NOT agency anymore…they aren’t looking out for your best interests!) to keep the records is essentially asking the wolf to tell you how many chicken are in the henhouse.

Getting back to this actual case, I have NOT read all the docs and I don’t know if there were a bunch of records or other proof that the courts ignored or discounted. It doesn’t seem likely, but anything is possible, of course. Regardless, to use a ruling like this to leap to the conclusion that Sotomayor is anti-photographer is too big of a leap. I’m not saying she’s fabulous, I’m just saying let’s not rush into a judgment about that yet.

(and whenever I talk about anything legal these days, I must remind everyone that I am NOT a lawyer and this is in no way legal advice–just personal opinion.)

I think a lot of photographers might not know Paul Arden, although they should. Er, they should have. Unfortunately, Arden died a year ago (I missed that news until today).

He was a brilliant creative mind, Creative Director, and he affected advertising globally. He thought. He thought a lot. And his thoughts have influenced so many creatives directly, and the world indirectly. Read this other post about him and read every link…especially the notes from his talk. Good stuff in every bit. Just look at the titles of his books. No, actually, go read his books, too.

Here’s just one bit from one of those links–part of an interview–that I particularly like. It’s about the need to specialize…and note how he connects that to quality and desire…
If you decide you are going to be the best of what you want to do, you will be the best of at you want to do. If you decide that you will be the best writer in the world, you will be the best writer in the world–at least pretty close to it. But you can’t be the best painter and the best director and the best writer at the same time. You can’t do all that. If you want to do that you are trying to be famous. You can’t do all these things. You can’t do all those things and be brilliant in all of them. You just want to successful, make money, be rich and famous. And being famous is very nice. I would like to be famous, but not at the expense of not doing something incredibly well. Too many people don’t give a damn about quality, all they want I glamour and riches.

Wise man. Will definitely be missed.

My friend Åsk has also posted this song/video tribute. Even if you don’t know who Arden was, it is moving…thanks Åsk:

I’ve been saying for years that I think photographers should license their own stock now. Agencies don’t serve the purpose they used to so there is no reason to give them the HUGE cuts most demand. You can market your own work and the technology advances has made it easy to process any client licensing transactions. It takes some work to set up (not that much, but some) and you have to market, but it is the way to go, in my opinion.

Rob at aphotoeditor.com has the same attitude. He’s got a good post today about it.

While I am still hearing from many photographers that they are slow, slow, slow, I am now hearing more and more saying that they are getting work again. Most of these photographers had experienced some sort of lull, but the phones are starting to ring again.

Now, of course in this climate when the phone rings that may not mean a great (money) project immediately. Clients are going fishing a bit and if they have the luxury of time, they will likely try to bait you so as to get cheaper rates. You can’t get angry at them for that–it’s good business to ask for a lower rate (good for them, that is). You need to remember that they are going to try, but don’t let them scare or bully you into dropping your rates. You don’t have to go cheap to get work… even today.

This is where it gets hard. Taking a pass on a project because the numbers are not right is really hard at the end of a lull. It’s easy to get excited that the phone is ringing at all and it is even easier to get sucked into “I must make something, anything, now!” mentality. Don’t go there. Don’t let the fear cause you to make bad business decisions.

Things are starting to turn, hang in there and keep your head about you. If you have been marketing to the right targets, those who want you for your vision, they’ll be willing to work with you at your price. Sure, the bottom-feeders will go for the bait, but most bottom-feeders do not make great creative work.

That’s where the difference lies–make great work and you can take a pass on the bait.

So Garcia has moved to intervene in the Fairey v AP case. Good for him and I hope he wins both ways. But this post isn’t about the Fairey part of this, it’s about the AP’s claim that Garcia was an employee. Garcia says he never signed the contract. I half-jokingly said on the BAP Facebook page that if Garcia was an employee, then were are his benes?

The benes issue is not unimportant. If the AP wins its claim that Garcia was an employee (that is, if there is no contract and they still win–which is entirely possible), then they’ll have to pay back taxes, etc. They’ll likely have to pay a lot, and not just for Garcia, but all of its “employees,” including, likely, penalties. The IRS is not to be messed with in situations like this and you know they are paying attention to this, of course.

The IRS has been cracking down on companies that are using people just like employees but calling them “Independent Contractors” so as to avoid the tax liabilities and other costs associated with employees.

This is partially why I am wondering about AP’s motivation in claiming copyright. If Garcia was an employee and they paid taxes, etc., for him at the time, then fine–he loses and learns a tough lesson. But if they have not treated him as an employee by withholding taxes and paying their share of FICA, etc., then they could seriously shoot themselves in the foot by calling him one now.

So why are they saying that he was an employee but no one seems to have produced a signed contract to that effect. Hmmm…

(NOTE: I am not a lawyer! Anything on this blog and in this post is just personal opinion)

Cecilia Marshall is an Art Producer in NYC and her blog is worth a read. There aren’t a lot of business details in it, but you can get a sense of the industry at, perhaps, a different level or point-of-view than your own. It can be eye-opening, I think, for many of you.

Her post today is definitely worth looking at. She toured Stockland Martel, one of the best-known/respected repping firms out there. While she doesn’t share much in words, the images she has posted are revealing. Look at the promos and portfolios. Look at how many there are of each and how organized everything seems to be. Even though the shots don’t show detail, you can just tell that the quality of the materials is high. In other words, there is great investment in the promotion of the photographers (et al).

I point this out, well, to nag a bit. To break through and to build and sustain a successful photography (or other creative) business requires investing in its marketing. I’m not saying you have to hire me or any consultant; rather, the materials you put out to the world, in every way, must be of a certain quality.

Sadly, too often I don’t see that quality. Too often I hear “I can’t afford to ______ .” I don’t want to be harsh, but the reality today is that you can’t cheap your way in. Clients have a ton of photographers to choose from. To get their attention you need, first and foremost, great images; then you need to show them in ways that enhance them. As I wrote in my latest book, you can put a supermodel in WalMart clothes and sure, she’ll look better than the average woman, but put her in Chanel and no one will be able to ignore her.

Not having the cash is a barrier, sure. Are you going to let it block you or are you going to find a way to get past it? Maybe you need to save up and/or work outside jobs, maybe you need to sell something, maybe you need to get a loan or find someone to invest in your business. There are ways around it. You’re a creative, you can find a solution.

The Copyright Alliance has a good post about the Anderson/Gladwell Free debate.

I’m not going to go into the discussion. First off, what am I going to say? I mean, really, is there any chance I’m going to suddenly flip and start saying that I think y’all should give away your work? No. Not going to happen.

Also, I haven’t read the book. I’d actually like to, it’s important to be informed on all sides of an issue, but I don’t have the time with my school reading, etc.

Still, this is an important issue. The fact that this debate is getting so much traction is a sign that we may be approaching the climax of the issue–are artists (authors, etc.) going to be pulled under in the tsunami of free or are enough people going to stand up to it?

If you have some extra time, I suggest perusing the interviews on Communication Arts Insights page(s). These are short interviews with various creatives and even some well respected reps. It’s a great resource to get an idea of repeating themes and concepts shared by these successful people.

There are several helpful things I have found over and over in these interviews (and I haven’t read them all), like:

• the best creatives don’t play it safe
• it’s still all about relationships
• a phone call or a hand written note can do more than you think
• it’s work, but it’s joyful work
• collaboration is still prized
• being grateful is pervasive
• find the right targets for your work
• you need to start with great work
• great work comes from within, not external forces
• if you don’t believe in your work, you can’t get others to

Some things to ponder over the weekend…

Lots of people are completely wigged out these days and most of that wigginess is money-related. Most creatives deal with money issues in one of two ways: 1) tighten spending so much that Lincoln screams; or, 2) ignore because maybe that way it’ll go away. Neither is going to work.

The most recent Creative Lube talks about money, more specifically, financing your business. Then today Livebooks posted a piece by Doug Menuez all about dealing with your cashflow and some basic business planning and ops.

Burying your head isn’t going to do any good and being miserly will hurt your business in the long run. You need to learn how to walk the middle path. Also, you’re in business–time to start running it like a business–that means being responsible and doing the work-work. When you run your business like the real business it is, you have a much better chance of being successful.