Why Not?

I recently noticed that I have a lot of non-US clients. Canadians, Germans, Scots, Australia… they’re from all over, really. Percentage-wise, it’s a very surprisingly large chunk of my business. While I’m thrilled for the work and that these people are protecting their rights here in the USA, it does make me wonder why I don’t have more American clients. 

All of these non-American clients have registered their copyrights properly here in the USA (some with English not being their first language) and pursue infringers with the assistance of their own personal attorney. They track their own work online and send me cases they find. Despite being overseas (or at least in Canada), I have filed suit for some of them, even. Those clients couldn’t do that without the understanding that at some point in the process they would have to make the trip here to the USA, on their own dime, er, pence/Euro (whatever), to appear in court. For some of these clients, that would be a big hit financially, but they believe in their rights strongly enough to do it and, of course, it has paid off for them.

So, the question I find myself asking is why don’t American artists take the simple steps to register their works regularly and do the same? What is it about the process that compels Americans either to not bother registering at all (and far too many of you fall into that category) or to choose to use a “service” that compels the artists to use the company’s “infringement protection” process where the company will collect a far greater percentage of any settlement than an actual, personal attorney. Oh, and the settlements are often for far less than an attorney will negotiate, for bonus points.  

I know of some very well respected artists who make beautiful work that is ripped off all the time, but who tell me they can’t be bothered with registering much less going after the bastards. At the same time, they complain about how often they find their work being used… all over, by companies large and small. I tell them “Register it now and future infringements will have statutory damages available!”

They nod, say they know they ought to, but then do nothing.

The logic escapes me. 

We Bought A Vehicle. You Get A Blog Post.

The boyfriend and I bought a new vehicle over the weekend and it made me think about how creatives really need better legal help—and probably don’t even know when they need it. Yes, my mind does that—thinks about my clients while I’m doing something like car shopping. Whatever, the result is you get this blog post and hopefully are awakened to some legal issues you might be unaware of.

So, our story. This vehicle is the first major purchase between us as a couple. We’re not married but we do live together and are as committed as two people could be; still, as unmarrieds, the purchase would not be community property as it would here in California, by default, if we were married. That is, if you are in a community property state, like California, and you acquire an asset when you are married, that asset will be (usually—there are exceptions) community property of the spouses. Roughly speaking, each spouse owns the whole asset with the other spouse, equally. But, as unmarrieds, we didn’t have that option so we had to ask ourselves, “How should we title the new vehicle?” We could have held title jointly (i.e., both of our names on the title, as co-owners), which would mean we both would have to sign anything related to the vehicle (like upon selling it) and if we broke up, we’d have to negotiate the ownership; on the good side, if one of us died the other would automatically own the whole thing without going through probate (much like community property). Another option: one of us or the other could hold the title individually; but then if the owner dies, who gets it? The answer is it depends on whether there is a will but, whatever, it means probating the vehicle and that takes time and money. In California (and some other states), another option is naming a “transfer on death” (TOD) beneficiary. There, a vehicle can be titled in one party’s name with “TOD Beneficiary [name of person]” on the actual title, which means that, kind of like with joint ownership, on the death of the titled owner, the vehicle is automatically the property of the TOD beneficiary named. The risk? The titled owner could change the TOD beneficiary at any time without the consent of her/his/their partner (that could be an ugly surprise, later). 

I’ll bet money most of you didn’t know these options, especially the last one. In fact, the dealership (a major one) we worked with didn’t even know about the TOD option. Anyway, with the exception of “community property” anyone—married or not—can choose any of those options, it just takes the right paperwork to make it legit. However, each option has advantages and disadvantages, so you need someone who has only your best interests in mind to facilitate. Speaking with an attorney can help you make the best choice for you.

Oh, and yes, we made the best choice for us. 

That was just for a vehicle; if you are considering buying (or even refinancing) real estate, married or not, the options and ramifications are even more complex. Your realtor or mortgage person isn’t going to be able to explain your choices to you while specifically looking out for your best interests first (like lawyers are required to, by law). They’re going to have their own agendas to pursue. That can cost you or your partner lots of money—maybe not now, but eventually.

For example, here in California, there are property tax ramifications for transfers to non-spouses that might be eliminated with proper planning and paperwork. That is, you can add someone to your title (in certain ways) without a re-assessment, but if the original owner dies, then generally there will be a reassessment for property tax purposes. Same if you don’t add your partner to the title and then die, leaving the property to him/her/them. Imagine thinking you’ve taken care of your beloved by naming him as the inheritor of your house, only to have him hit with a massive and unaffordable increase in property tax when he does inherit! 

Look, Adulting can be a pain in the ass. Lawyers can actually make it much easier. When you are considering combining homes, buying assets, or other big life choices like getting married, talk with a lawyer first to make sure you do it the best way possible.  

Workers are Employees, Usually

Here in California, the legislature just passed a bill the governor is expected to sign, and it may affect you. Note, this may affect you if you are a California business (including sole props) OR if you ever do business in California, like, say, a photo shoot here, even if you are a Kentucky business.

This new law (assuming it is signed) codifies a California Supreme Court decision and, basically, says that most workers are employees, not independent contractors. That means that all the labor laws apply to those workers, including minimum wage, workers compensation insurance, payment schedules, and so much more. See my post on paying your people ON TIME for one important part. 

The new law specifically carves our exceptions for many creative professions, including graphic designers, fine artists, photographers (with some conditions, more below), and writers/editors/cartoonists (also with similar conditions). But don’t try to shoehorn your crew into these exceptions—it just won’t fly. 

As for the exceptions’ conditions mentioned above, the main one is if you make more than 35 “submissions” to a single hiring entity per year, then you are an employee of that entity. “Submissions” means, for photographers, essentially an entire shoot—not singular images. So, if you shoot for Company X for 5 days, that would be a single submission for the 35 count. For writers (etc.), submission is pretty poorly defined but, roughly, it seems to be that submissions on a singular topic or issue, like a series on women in prison made up of 5 articles, would be one submission for the 35 count. 

Short answer: California law in this area is very complex and if you aren’t sure what’s what, please talk to an attorney. You don’t want to face the consequences if you are a hiring entity that mis-characterizes your workers, even temporary ones—those costs will be much higher than paying an attorney for advice up-front. 

Finally, although I’m writing about California law in this post, I have to say that even if your state does not have laws requiring paying your crew as employees, you really ought to. Is it a pain in the ass? Does it cost your business more money? Yes, to both (you do get tax write-offs, though), but it is the right thing ethically, in my opinion.

It Adds Up

One of the big arguments forwarded for the CASE Act (aka “small claims”) is that it will permit copyright owners to pursue small infringements. I’m here to tell you that anyone can do that already, even without that possible new law. Also, those small claims add up. Here’s just one example…

But first, the big disclaimer: past results are not predictive of future outcomes. I mean, each case is its own thing and just because I got $X for a client doesn’t mean I will get the same for you. There are no guarantees. Thank you for playing.

Anyhoo….I have a client I’ll call “Q” because I don’t want any future infringers to use the following against this person. This client doesn’t bring me a ton of cases but there has been a fairly steady stream: 20-something of them since 2017 and all were online uses of Q’s photos. Also, like with any client, not all of Q’s cases settle although many do. To this point, I have not litigated any of Q’s claims. In part, this is because Q is understandably litigation-averse, and that is fine by me. I will never be the kind of lawyer who says “FILE! File everything and often!” As I’ve said before, filing should be a last resort, not an opening move, and sometimes filing isn’t the right choice for all sorts of reasons; so, I’m perfectly okay with Q’s choice not to file every time a settlement isn’t reached.

Recently, Q let me know that we had topped $100,000 in settlements and that it had made a difference in Q’s financial life. I was thrilled! This is exactly why I do what I do–to get artists the money they are, in my opinion, owed.

Now, any of you doing the math at home can ballpark-estimate the average settlement amount, even though you’ll have to guess at precisely how many cases settled. Individually, in fact, most of the settlements were in the mid-ish 4-figures. There were a couple of 5-figure ones here and there, but those were rarer. Together, though, they make a healthy total, even after paying my contingency-based fees. I’m happy to have helped protect Q’s rights and increase Q’s bottom line.

Q’s total was made possible because Q registers the copyrights in Q’s photos. Those timely registrations mean that Q can get statutory damages in court (and possibly attorneys fees) when those copyrights are infringed; infringers know this or learn it from me and, when they accept that reality, they often choose to settle. Since most of these cases were small business website use, the value of each infringement is not huge (no, you almost assuredly will not get $30K, much less $150K, in court for a single small website use of a photo–yes possible but let’s be real…), so the individual settlement numbers are not large, but each is valuable enough for me to do what I can for Q. Moreover, as the title of this post says, they do add up.

Now, for anyone who says this is some sort of tainted money, you’re wrong. Getting paid by someone who has stolen your art, disregarding your right to consent (or not) to its use, is not wrong or dirty. Wrongdoers need to make amends for their actions and, until we outlaw having to pay for things, money is the best way to do that. Guilting the artist who gets money from infringers is like guilting any victim–don’t go there. This is about correcting the wrongs of the infringers–infringers who have seriously damaged so many creative businesses. I have clients who have told me that the money they make from pursuing infringers has made up for all their lost license sales, and more. This is a good thing.

Anyway, like I said in the disclaimer, there are no guarantees; however, copyright registration does open the serious possibility of additional income to any creative professional, without expensive litigation. I know I’m not the only attorney who takes these “small matters” on contingency, particularly as long as the work is timely registered. You can find a good attorney who, like me, cares about her/his/their clients and who wants to help. Don’t wait for the CASE Act to pass when you can register your work now and infringements that start after the effective date will have the possibility of statutory damages; do that and your business will thank you.

Put on a Gorilla Suit

(I first wrote about this many, many years ago, but today feels like a good day to share this story again)

Several years ago, the wife of the photographer who got me into the photo biz (the fabulous Stephen Webster) bought him the at-the-time newly (re)released original Planet of the Apes movies, which he desperately wanted, for a birthday present. She wanted to surprise him with it at a dinner they were going to have, with another couple, in a nice restaurant. The surprise wasn’t just the gift– it was that someone in a gorilla suit would deliver it during the meal. Sadly, she told me on the phone as we gabbed about the impending birthday, waiting for her husband to get out of the darkroom, the person she had lined up had bailed.

I immediately volunteered! I thought it was a great idea and she seemed stuck so, I thought, why not. It wasn’t until after I hung up that I thought, “Oh hell, what have I just agreed to do?! I’m going to look an idiot…”

Then, I thought some more and the old saying “in for a penny, in for a pound” popped in my head. I decided I would be the best gorilla I could be.

On the appointed day, I parked my car, put on that gorilla suit (I had already blacked out around my eyes to make sure he wouldn’t recognize me) grabbed the gift bag, and headed out.

(Yes, that really is me)

On a Saturday evening, in mid-July Columbus, Ohio heat and humidity, I gorilla’ed down a crowded neighborhood sidewalk, making ape noises at random people. I gorilla’ed into the restaurant, right past the maitre d’ (at whom I gorilla-hooted), and found the foursome.

Then the fun really started. I abused the poor victim and his wife and the other couple… but especially him. I pulled his hair, sniffed bits, put my fingers into his food, made lots of ape-ish noises, and even threw bread. Then, as magnificently as I could, I chucked the gift at the honoree, made very excited ape noises while beating my chest, and left, still gorilla-ing all the way back to my car, unrevealed.

The people in the place had laughed and stared and everyone had a great time. This was before ubiquitous cell phones so there are few photos and no videos, but the crowd seemed entertained.

The next Monday, at the studio, Steve excitedly told me the story of what had happened. He said how amazing the ape had been, how the person really pulled it off, and most of all that he couldn’t figure out who it was! I totally played along for hours.

He was stunned when, eventually, he found out it had been me. If I remember correctly, I had to make ape noises before he got it.

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. Every time I have to do something I haven’t done before, as a lawyer, I remember putting on the gorilla suit.

I encourage you to do the same in your business. Play the role of the fabulous artist. Next time you have a one-on-one new client meeting or event where you might meet potential clients, wear fabulous clothes you wouldn’t normally wear, but that you imagine your professional hero would wear. Just go with it. Pretend you have confidence. Do this especially if you are normally shy and self-deprecating. Pretend you are everything you want to be. Just have fun with it.

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

On Abundance, redux

I wrote this originally back in 2012, but it is even more needed today so I decided to update it.

Everyone talks about how there is an abundance of content creators today. How there is more creative work than ever. How everyone is a photographer, a writer, a curator (don’t get me started on how that word is misused), a musician… we’re all making stuff. And, the argument goes, because there is an abundance of stuff, none of the individual work is really worth much if anything now.

Here’s what these arguments about abundance in creativity and the pricing model get spectacularly wrong: the reality is there is no abundance of good creative work. Sure, there is an abundance of photography and music and writing and art, but most of it is, frankly, shit.

There is abundance in the creative industries in the same way there is abundance in drivers–there are billions of car drivers globally and just about anyone can do it–but how many people do it well? I don’t just mean those who drive better than Mr. I-go-55-in-the-fast-lane-man and his crappy driving brethren out there. No, I mean, how many professional race car drivers are there? Not very many. Ergo, they are highly valued.

Real creative professionals (in whatever discipline) are like pro race car drivers. They can do things very few others can. Their skills are extremely specialized and what they do is, simply put, not of the same quality as what regular people do.

The media and, worse, the tech companies that control the discourse on this subject within the media, have tried to convince us that your creative work is the same as anyone who tries to make something of the same media. Further, because it is the same (in their argument), that work is of the same value and, final coffin nail, because there is so much of that work available now, that value is near zero. In their world, for example, any pro photographer’s photography is the same as mine (for the record, I am not a photographer) and hardly worth anything since there are so many “photographers” out there. That’s like me saying I’m just like, and of the same value as, Mario Andretti or Michael Schumacher because I know how to drive a stick-shift and don’t completely suck at it.

Bullshit.

Every time you let them call you a “content provider” rather than by your proper title you let them define you as less than you are. You are a Photographer or an Illustrator or an Artist or a Writer (etc.). You CREATE. There are damn few people on this planet who actually create and create well. How dare you accept their belittling bullshit about who you are and the “abundance” of what you do. Worse yet, how dare you call yourself anything other than by your proper title!

You, creative professional, are scarce and your creations are of high value. You are a professional race car driver. Don’t let anyone bully you into thinking otherwise.

Creator? Get a Lawyer

Most of my clients are photographers. That’s no surprise since I started working with commercial photographers in the last millennium (yes, I’m old), and long before I became an attorney. Photographers know me; they’ve come to my lectures, bought my books, read my blogs, and know that I have their backs. However, I serve all kinds of creators, artists, and writers (I generally call all of you artists, by the way).

Regardless of what kind of artist you are,  frankly, I’m shocked at how many of you don’t have lawyers.

The logic of having one is pretty simple:

  • All professional artists have businesses–if you make money from your art, you are in business.
  • All professional artists have contracts in their businesses–yours, your clients’, etc.
  • All professional artists create copyrights (and should register them).
  • All professional artists get infringed (if you haven’t yet, it’s only because you haven’t found it).
  • All professional artists may get married, will die (sorry, but let’s be real), and have assets to protect.

Obviously, then, all professional artists (actually, all artists, even amateurs) have legal issues connected to their work and, for the pros, vocation. Why, then, do so few of you have relationships with lawyers? I suspect it’s mostly the cost. Maybe a little bit of “I don’t want anyone to see how I’ve been BSing my way through my business” imposter syndrome, but mostly cost.

I’d like to suggest my Burns Less program. It’s a great option for artists who have occasional quickie questions and want someone available when they crop up, without paying a huge retainer or hefty hourly fees.

Even if you aren’t interested in that alternative fee program, I encourage you to do a simple cost-benefit analysis before you have a legal need to see if it really is as expensive as you think. The answers will likely surprise you.

For example, is it better to spend a couple of hundred now to learn how to register a copyright properly with a lawyer’s help in answering some registration-related questions first; and so that, for every infringement after, you can get at least $750 in statutory damages? Or, do you want to take your chances to maybe screw up your registration and end up getting nothing–or even paying the other side’s attorneys’ fees?

How about a typical contract your clients wants you to sign for, say, a $1000 gig–the contract with a hidden assignment clause, meaning you’d be selling your copyright totally, for that grand? If you missed that how much value and income over time would you lose?

Or maybe you’re thinking about getting married–did you know that can affect your copyrights created in the marriage? A chat with an attorney before wedded bliss could save you a bundle if it all goes south later (sadly, that happens).

If you’re afraid you’ll sound like an uneducated rube if you ask questions of an attorney, that’s your ego talking; attorneys exist to answer legal questions and any attorney who laughs at you for asking questions, well, you should fire her/him. If you think you can go it alone, that’s also your ego talking–you aren’t a lawyer (or an accountant or a doctor) so you should do your thing (make art) and let other pros do their things to enable you to do your thing better.

If you’re an artist, I hope you’ll consider me for any legal help, of course; but, more importantly, I hope you’ll find someone qualified and with whom you can establish a solid working relationship. There are other great attorneys out there who work with artists and understand their needs–I’m definitely not the only horse in this race. Talk to a few of us and find someone you feel comfortable with–who gets you. Then, go on about your business of being an artist, with the security of having a lawyer on your side.

In that process, consider the Burns Less program. It may have a puntastic name, but I’m serious about trying to help artists at a reasonable price.

Consent

When an infringer gets a letter from me, sent on behalf of one of my clients, a very popular response is something like “It’s just a photo—why are you making such a big deal out of it?!?” The short answer is because it really isn’t about the work itself—it is about the invasion of the artist’s personal/professional space and the lack of consent from the artist for that. 

A big part of copyright is the right to say “no.” And yes, there are such things as compulsory licenses for music, but that’s another story (to me, those licenses are not fair to artists). Anyway, that right to say “no” is closely tied to our inherent right to personal, corporeal privacy, as humans.

An example: what is the difference between sex and rape? Consent. That’s all. Otherwise, technically, the acts themselves can be identical. Humans have the inherent right to the privacy in and of their own bodies and can choose to share their bodies with another without losing the right to say “no” to a third party. Just because I choose to have sex with Mr. X doesn’t mean everybody else gets to have sex with me. Sorry if that is too visceral for you, but the analogy is spot-on.

But, you might be thinking, that’s an easy argument: no one is going to say rape is okay. Sure, but consent isn’t only sexual. Moreover, its loss is profound. Indulge me in a true story…

When I was a sophomore in high school, a French exchange student stayed with us for a few weeks. When she arrived, she brought presents for everyone, including a lovely bottle of L’Air du Temps perfume for me. I have no idea how she knew it, but I love that scent. I was thrilled! At the time, I still had some left in a previous bottle, so I put her gift in the closet, still wrapped and sealed in its fancy box, for when I ran out.

My next older brother, around that same time, had recently graduated college and was living with our mom and me in our tiny two bedroom apartment, while he tried to figure out what he was going to do with his BFA and utter lack of a work drive. He was our mother’s favorite so she was happy to have him home. He still had a girlfriend in Cincinnati, where he had gone to school, though.

One day, a few months after the exchange student had left, I came home from high school to find him clutching my gifted perfume. I said that it was mine and he said he needed it to give to his girlfriend for her birthday. I said “no,” that he should buy her something with his own money, and I took the bottle back. He called our mother, who angrily took the bottle from me, handed it to him, and chided me for being so selfish because he needed it. Mom was very sexist and I knew already that I had to serve and clean up after my brother, but this was too much. I balked; she got more angry and I got in more trouble. Meanwhile, my brother smirked and went on his way, with my present now his.

To this day, I feel the powerlessness of that moment, the violation. It wasn’t about the perfume—it was about how someone could just take from me and, on top of that, how I could be told I was wrong to feel as I did about it. My space was violated. My rights were ignored. And I was guilted for knowing and saying it all was wrong.

That is exactly what is happening today with technology and creators. 

Today, companies like Spotify are, from their multi-million dollar offices, calling musical artists “greedy” for trying to get paid something more than teeny fractions of a penny for the use of their works on such platforms. Companies like Pinterest have made billions using images that it didn’t license; hiding behind a safe harbor created by Congress to protect tech companies. Don’t get me started on Google. And little companies are following in the big ones’ footsteps. Businesses large and small rip off my clients and then get pissy when I hold their feet to the flame. Artists are made to feel dirty and somehow wrong for demanding their due.  

This must stop. You are doing NOTHING wrong by demanding money from actual infringers, large and small. You are doing nothing wrong by demanding that your rights be respected, including your right to say “no.” Yes, you create your art to be seen/heard/experienced, but you have the right to decide who gets to see/hear/experience it. Don’t apologize—it is those who take and use, without even asking, who are doing wrong, not you. The infringers are not victims, no matter how much they try to spin it that way.

To that end, that is, to fight the infringers’ whines of victimhood, stand up to them, call them on their bullshit, and help your creative brethren in all fields do the same; in other words, don’t take anyone else’s work and do not use the companies that hurt other artists. Support other artists’ efforts as well as your own. Fight against those who ignore artists’ rights, including their (your) right to consent. But, most of all, be proud of who you are, the work you create, and of defending your rights.

Bar-iversary Thoughts

Tomorrow is my Bar-iversary; that is, it’s the anniversary of my admittance to the California Bar. The day I took my oaths (plural—my school had its own extra one) and simultaneously was admitted to the Southern and Central Federal Districts for the state of California. The day I completed my dream of becoming a lawyer. 

And the day I had to start really being one.
Yikes!

Actually, it hasn’t been anything like I feared. I didn’t have to join some big firm and sell my soul doing god-only-knows-what law to pay my rent, but rather got to practice exactly the law I wanted to right off. I’ll never be able to thank my mentor, Carolyn Wright, enough for that. Even better, I got to represent wonderful creative clients, several of whom are still clients and, now, real friends. 

I like to think that I was a good lawyer right out of the gate, and it’s likely I was, but the reality is that I am a better lawyer now than I was then. No surprise—experience is a great teacher (so is my mentor).

My only regret is that I haven’t had the time to do the scholarly work I would like. Of course, writing papers doesn’t pay and I’m such a research geek that if I get started on that path, I’m going to starve (ha!). Still, I do keep up on the law both on a practical as well as a theoretical level, although more weighted to the first as of late. 

Relatedly, litigation is a time suck. 

Anyway, every year at this time I look back on that moment when I raised my right hand and swore to support the Constitutions of the United States and of the State of California and to be the best lawyer I could be. I think about what a bright-line marker it was in my life and what an achievement it was personally. Moreover, I think about the time since then, being in practice and actually lawyering. As a lawyer, since taking that oath, my achievements have been in the service of my clients, and most happily so. This is what lawyering should be, in my opinion: a service profession. It is definitely how I run my practice and how I intend to lawyer, for as long as I hold the license.

Thank you to each of you who have trusted me with your legal needs over the years. You have given me the career I always wanted and I am honored to serve you. Hopefully I will get to do so for many years to come. 

Catching Up

First, yes, I know, I suck… I haven’t been writing often, as I had hoped to do. It’s not that I haven’t been paying attention to the legal world affecting artists. In fact, it’s the opposite as I have been pretty buried actually lawyering for them.

I have a case in litigation now that has reached the summary judgment stage. Summary judgment is sort of like trying the case but with only the judge deciding and deciding (usually) only on the papers everyone files (usually no oral argument, I mean). So, imagine covering everything that would need to be presented in a trial but in paper form… it’s a big pile of work.

I’ve been deep in drafting all the various filings for my client’s motion and those against the opposition’s. In the past few weeks I’ve written and compiled hundreds of pages, actually. That also means I’ve been doing lots of legal research. I almost feel a bit sorry for the lawyers and defendants in my other cases because, right now, I have memorized case law on point for just about every issue they could throw at me; I’m spanking their arguments like a dominatrix on Paul Giamatti’s tender bits (see Billions).

Happily, the opinion in the appeal of Brammer landed in the middle of all this. Brammer v. Violent Hues, LLC, et al is the case that terrified all photographers (and their lawyers) because the district court ruled that the totally commercial and not at all transformative website use of Brammer’s photo was transformative (yikes!) and excused under fair use (groan!). That was a bad, ugly day for photographers, especially. Just about every pro-copyright lawyer (even some who push for more fair use, generally) were slack-jawed at that opinion, though.

So, it was not unexpected (but you’re never sure about anything in the courts) that the Fourth Circuit reversed. Huzzah! Better yet, its opinion is clear and logical, going through each factor and, well, rather spanking the district court for getting it so very wrong on each point. In short, it’s very good for visual artists not only because it reversed a bad ruling, it gave us great language to use in future arguments.

I also found a Northern District of Illinois case that was similar. In late September, 2018, the court in FameFlyNet, Inc. v. Jasmine Enterprises, Inc. issued a concise opinion that also addresses whether fair use excuses copying photos–there on a “blog” portion of a commercial website. Jasmine (a seller of wedding dresses) argued that it was fair use when it ran photos of the Hilton-Rothschild wedding, photos that it didn’t license. Jasmine claimed the blog was “non-profit and educational” and that it didn’t make any money from the photos (etc.). The court wasn’t buying any of it; noting that a “news” blog on an otherwise commercial website functions as a draw for customers and thus is also commercial; that photographs of events are still creative, and that when it comes to market harm, well, allow me to quote:

On this point, it is undisputed that when a photograph is stolen, FFN loses the ability to control that photograph’s exclusivity, and that the value of a photograph is usually diminished when a photo is leaked. While this case involves a mere ” [i]solated instance[ ] of minor infringement[ ],” such instances, “when multiplied many times, become in the aggregate a major inroad on copyright that must be prevented.” Harper & Row, 471 U.S. at 566-67; accord Galvin, 130 F. Supp. 3d at 1196. As FFN notes, allowing any website to copy a photograph after it is first published would mean that a photograph could only be sold once.

FameFlyNet at 4, (some internal citations removed)

Overall, the thing about fair use is that it is so very much “each case is its own thing” so it doesn’t make too much sense getting too tweaked about it. That is, while we can get worried about cases like Cariou (still think the courts got that one very wrong), the reality is (1) each case will be looked at on its own facts; (2) courts get it right more often than wrong; and, (3) most of all, we need to remember that fair use is an exception, not the rule–while virtually every infringer yells “FAIR USE!” when first confronted, rarely is it a winner in an actual proceeding and, when it is, it’s often a close call.