SCOTUS Says No to the Jumpman Case

The Supreme Court has decided not to review the Rentmeester v. Nike (aka “Jumpman”) case. I’m not surprised. Before I get into why, please let me say that I feel for the photographer here and I think Nike acted poorly (to say the least). It was a tough loss. However, the question of whether Nike actually infringed wasn’t a good one for SCOTUS review, I think. 

We need to remember that copyright protects the expression of an idea, not the idea itself. So, when a case is about similar images, courts have to look at the facts and do their best at interpreting facts surrounding their creation. First, they have to try and determine if the original expression is protectable, then (rather crucially here) what parts are or are not, and then whether the creator of a similar image had access to the original, and then whether that similar image is substantially similar enoughto the protectable parts to walk past the infringement line. In other words, when you don’t have straight-up copying of the photograph—I mean in the copy-paste sense—it becomes a much more complex case from the get-go. SCOTUS doesn’t generally like to review cases that turn on the facts rather than the law.

In my opinion (and yes, there are plenty of folk who will disagree with me here), the Jumpman case was decided on the facts specific to it rather than a misapplication or misunderstanding of the law, so it just wasn’t the kind that SCOTUS would generally touch. I don’t think this is the kind of case, then, that the photo community should be too up-in-arms about. Because it was so fact-specific, it’s not as likely to be duplicated in lower courts, that is, compared to a case that is decided on a wrong application or interpretation of the law (like the Brammer v. Violent Hues case pending in the 4th–where the lower court completely blew the standards for Fair Use).

So yes, this case did not turn out well for the photographer, but there are bigger issue cases out there we need to pay closer attention to, because those cases will have greater effects on the industry.

UPDATE: I forgot to mention that this case was about a motion to dismiss, not an adjudication on the merits of the whole case; in other words, the lower courts had to look at the issues above to see if dismissal was appropriate and courts dismiss cases like this only when the plaintiff hasn’t alleged enough to support a violation of the law. Here, the pose itself was not a protectable expression so that pretty much put the kybosh on the case. Photographers may not like that idea, but if we get into poses being protected (rather than how those poses are captured in an image), I think it would be impossible to make any photos of anything ever posed again.

SCOTUS Clarifies Two Big Issues

This morning, the US Supreme Court issued two opinions on copyright issues. Shockingly, both were unanimous decisions, too.

First, in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, et al., the court ruled that in order to file suit, the owner of a U.S.-created work must have actually registered the copyright, not just applied for registration. This clarified the rule for everyone since there had been a circuit-split on it before, meaning in some places you could file suit with only an application to register, but not others. So now, if you file suit without an actual registration in hand, not just a case number, your case will be dismissed.

To be accurate, the court also said that a copyright owner whose application to register was refused may also file suit, but there are additional steps in that situation and, frankly, I don’t want to get into that side of things in this post. What is important to know is that, once again, the court has made it clear that the importance of registration can’t be over-emphasized.

The other case was Rimini Street, Inc., et al. v Oracle USA, Inc. et al. At issue in that case was what qualify as costs under the rule that says that “full costs” can be awarded to a prevailing party. Costs are different from “attorneys’ fees” first of all, and those fees weren’t the issue here. Rather, here, it was what specific litigation costs are included under Section 505.

Oracle had been awarded millions of dollars in costs like expert witnesses and e-discovery, and jury consultants. However, those categories of costs aren’t included under a different statute that lists categories of costs recoverable generally (not just for copyright cases). Oracle tried to argue that those costs were legitimately awarded under Section 505, but the court held that the only costs that can be awarded in copyright cases are those in the categories listed in that other statute–basically saying that 505 was limited by that other statute.

This means that when you are considering filing suit, you shouldn’t expect to recover all your costs in litigating that case, no matter how much of a winner your case is. You can recover things like filing fees and costs for copying transcripts, but many of the common costs in litigation today are simply not recoverable under the current statutes. Hopefully congress with make a change to that statute to reflect the realities of litigating in the 21st century, but until that happens, litigating parties will expend more money out of their own pockets.

For both of these cases, the importance of registration still reigns supreme: you can’t get any costs unless your registration is timely and you can’t even get into court unless you have a registration. Since getting a registration takes time (months!), you need to register well before the three year statute of limitations runs out (see FN1 here). Why not register asap after creation to make sure neither issue bites you in the butt?

What do you value?

My boyfriend used to be a senior financial analyst. He made six figures, dressed in office-type clothes, had great benefits, and worked at his computer in a climate-controlled space–an office to himself, with an actual door.
He hated it.

Now he is an apprentice electrician who works mostly outside, in all temperatures, toting a bunch of tools (and his lunch and water) from his vehicle to the site, wearing a hardhat, workboots, long workpants, and an orange safety vest. He comes home often covered in dirt and sweat, makes a fraction of his previous salary, and has almost no benefits.
He loves it.

Why am I sharing this story? Because how we value ourselves and our work matters. My boyfriend is not insane–he simply has a different set of values than many people today. What he values is creating something more lasting than a spreadsheet, working with his hands and his mind, and not working for a corporation fixated on making bank rather than making something real. Changing careers was his choice; and, although an apprentice, he is not working for free.

I, like him, have also chosen a different path. I could work in a firm and make more money (likely, a lot more money), but then I wouldn’t get to choose the cases I would take or the clients I represent. I am driven by an idealism that artists should be able to make livings making their art and that those who steal their work should be made to make up for it (and hopefully learn their lessons!).

The New York Times published an article recently discussing how how creatives are devalued and culturally expected to like it. That is something quite different from choosing to make less money in exchange for something else of personal value. It’s certainly quite different to have your work, the results of your mind and your hand, taken and used by someone who didn’t even have the decency to ask. Or to be told that you should feel lucky to have your work seen (talk about adding insult to injury!)

In my opinion, and this is one of the reasons I choose to do what I do and for whom I do it: the truth is that others should feel lucky to see and use your work. So please value yourself and your work. What you do is more than “creating content”–it is making art.

I’ll step off my soapbox, now.



Showing 2018 the Door

As we show 2018 the door, and just like we did last year, now is the time to take a look at the year that was and think about the year yet to be.

In 2018, many of us were still reasonably pre-occupied by the lunacy in Washington, DC. It’s been a tough year for anyone who respects the law and has any sense of human decency. Still, while we can’t give any of that bad stuff a pass, we also need to focus on our own lives and, crass as it may sound, our businesses.

With that in mind, here is a list of some things to do, to stop doing, and at the very least to consider as you gear up for 2019.

  • Register your copyrights. Please. I beg you. If you are a creative professional, stop making excuses and start doing this. As I mentioned last year, while there are services for this, I do not recommend using any of them because they might not be anything more than maybe adequate and quite possibly deficient. A well done registration can make a potential defendant in an infringement matter settle fast and for more money. A wonky one may be challenged by a wily defendant or will at least give one pause. Registration  is not that hard anyway, particularly for visual artists and even more so for still photographers.
    • Relatedly, stop thinking about the cost of registration as a reason not to register–first, it is a legitimate business cost and so you can write it off and, second, it is like insurance that you pay for once but off which you can make many claims (and for much more than the original cost). You will (almost assuredly) make more money in your business if you register your copyrights.
  • Pursue infringements. Not every case has to be worth 5-figures or more to get legal help. Some attorneys, like me, will take on small cases because they simply do add up. Let’s say you have small value infringements but a bunch of those– worth $2500 average settlement, just for sake of argument. 10 of those over the year is $25K. Now, let’s say your attorney gets 35% of that: you’re still pocketing over $16K.  How about 20 cases and more than $32K in your bank? Why not see of they are worth getting a lawyer to pursue (I review cases for free)?
    • Relatedly, consider using this tool instead of some much more costly “service” to find those infringements.
  • Make the time to make art for yourself. Whatever your medium/media, make making your own work, for you, a priority. Yes, you can probably use it later in your portfolio (because work made for yourself usually is your best work, if you let yourself really be free with it) but mostly, you need to give yourself total permission to explore, play, make utter crap, screw up, take risks, and re-find the joy in your work.
    • Relatedly, (re)learn how to fail. It is through failure that we achieve the abilities to be successful.
  • Get off social media, even for (most of) your marketing. The Terms of Use on pretty much all those services really do suck for creative pros, and all they do is make promises they can’t deliver.  And they are a huge time suck. And many of the companies have actively participated in bringing us the political hell we are now in. So stop facilitating their shitty behavior and quit using them. Besides, when it comes to your marketing, it’s virtually impossible to get seen by the right people by using social media, particularly if you are relying on trying to trend/go viral. Instead, do better targeting (make lists of the clients you want to work with!) and get back to the basics in your marketing plan. Back off the electronic crap and consider investing in really good print mailers. Also, try to interact in real life with potential clients. Make calls, go to industry events, volunteer with professional organizations of your potential clients–get out there in three dimensions!
    • Importantly, instead of posting everything on Facebook, Instagram, etc., keep your work on your own server/site and post links on social media, if you insist on using social media.
  • Use a watermark on visual art. Preferably, it should be in the form of a proper copyright notice (that is © year of first publication Name, for example: ©2018 Leslie Burns) but if not that then the copyright owner’s name (not your URL). For non-visual art, include the notice somehow like in the audio file for a podcast or both on the doc and in its metadata). I’ve already written about the wizbangery that is the CMI-related part of the DMCA–don’t ignore those protections!
    • Also, if you don’t know what metadata is or how to edit it for the digital forms of your works, learn now. Everything digital has metadata and that metadata can be crucial evidence in a lawsuit (it may also be CMI).
  • Make plans, including for death. Life changes, including the ultimate one, will affect your business and assets. That is basic reality. I lost my own father this year and you can trust me, having things properly organized and documented before the fact is a huge help in the grieving process. Take the time to look at where you are and what might happen, and plan accordingly (see my previous article on this, and this one on marriage, too).
  • Most of all, make time to be with those you love. Be fully present, and not just during the holidays. Also give to those who are worse off. Time and caring are things we can’t bank or buy; being present with those whom we love and who love us, and giving to others who are struggling somehow (and there are plenty of those these days) will do more for you than having another thing to own.

Here’s hoping 2019 is a happy, healthy, and prosperous year for us all.

Holiday Gift

To my dear clients, today as my holiday gift to you all, I sent a donation on your behalf to the Committee to Protect Journalists.

Today, we need to do all we can not only to protect our livelihoods, but also to protect our democracies.  A strong free press, both in verbal and visual media, is our greatest tool to keep America, and other countries, free. When combined with an independent judiciary, the greater good always wins.

The CJP is not just about the American press, of course. Journalists are under threat all over. Still, I suspect that many of my non-US clients would like us to get our ship righted so that we can once again be the beacon of liberty, backed by our strength of purpose and resolve. I am happy that I have the resources to make this donation to help this cause.

I would not be able to do this if it were not for you, my clients. Your continued trust in me is deeply appreciated. I am proud of the work I do for each of you and honored that you choose me to help you protect your rights and run your creative businesses.

Here is to a better 2019 for us all.

And thank you, every one of you.

-Leslie

Mojave and New Tools

I just switched to the newest Mac OS, Mojave, and although I’m not a techie, I want to encourage creatives to make the switch when they can[1], because it offers some good tools for evidence gathering.

First, the OS displays more metadata, and does so without having to get into Photoshop or the like. It’s all (well, lots) right there in the finder. This will be helpful in checking metadata in discovery-produced materials.

Sadly, some people will try to fake evidence[2]and the metadata can help prove it when that happens. It’s also a great way for you to prove up your ownership, creation dates, modifications, and copyright management information, too, especially if combined with the second goodie: video screenshots.

Shift-Command-5 enables you to record your screen while you, say, scroll down on the page of a website or click to get CMI info from a photograph. This is a great tool and one which will be really helpful in negotiating settlements. Imagine having an infringer claiming that the work never appeared on their site. Now, you can click to that site from somewhere else and do it while recording your screen so, boom, there it is!

I highly encourage anyone who is gathering evidence to use this video tool to make short videos showing the work in its infringing uses, live. Still screenshots are still needed (sorry, bad joke), of course, but the videos will be very persuasive.

_____________________

[1] I hear some creative apps aren’t Mojave-friendly yet.

[2] I had this happen a couple of years ago when a defendant asserted a doc had been made years before it actually had; I busted him with the metadata that showed the original doc was first created the night before it was produced. The case settled shortly after that.

Exclusive Versus Sole

Earlier this year I wrote about exclusive licenses and how they can make a big difference in your legal rights, when it comes to infringements. Today, I was reminded of a related issue: how to grant a client the rights to use a work only for that client’s materials, and not get caught in an exclusive license trap.

Here’s what I suggest: only use the word “exclusive” (or non-) for actual, legal rights–specifically the ones covered by the statute (17 USC §106) and stick with “sole” for other limiting factors in a license, like media or geography.

For example, let’s say IlloBob wants to license an illustration of a squid to SurferSam for use on his surfboards and newsletters. He wants to make sure SurferSam doesn’t use the illustration on t-shirts or to be able to re- or sub-license to third parties for their use. He also wants to be able to license the same illustration to others including for their use in their newsletters. His license might read like this:

Conditioned upon full and timely payment received, IlloBob grants to SurferSam the non-exclusive right to reproduce the Squid Illustration solely on SurferSam surfboards and in SurferSam newsletters for one year, starting January 1, 2019. SurferSam may not license these rights or any other rights to any third party, except as required to produce the surfboards and newsletters permitted by this license.

By using the word exclusive (or non-exclusive) only with the rights (as opposed to the media), a licensor is protected from accidentally granting exclusive rights. To see the difference, look at this variation of the license above:

IlloBob grants to SurferSam the right to reproduce the Squid Illustration exclusively on SurferSam surfboards and in SurferSam newsletters for one year, starting January 1, 2019.

Is that an exclusive license? Can IlloBob license the work to anyone else to use in a newsletter? Can SurferSam use the work on t-shirts but without exclusivity? Maybe yes to all of the above. Well informed lawyers could debate all that and more, just because of how the word “exclusively” is used.

If you don’t fully grasp the differences here, that is what I (like other lawyers) am here for. I can help you draft licenses that will provide your client what it needs while making sure you aren’t accidentally giving away more, and it won’t cost you an arm and a leg. A little professional hand-holding now can save you lots of money and frustration in the future.

In Memoriam: Robert H. Burns

For some reason, my father abbreviated Robert as Rob’t in his signature, but he never omitted the H. I never asked why.
Now I can’t.

Dad died yesterday. Quietly. After what obituary writers might call “a short illness” but really, I’m not sure what to call it. He was at home and fine (relatively speaking–the man was almost 93) less than three weeks before his demise. Then he fell and gashed his hand, ended up in the ER for stitches, got admitted for rehydration as well as IV antibiotics for some old infected wounds, got better, moved to rehab to learn to use his walker better, and two days later was readmitted to hospital, then hospice, then gone.

I’m glad for the speed of it, for his sake. He would not have liked to linger and would have hated living in any sort of facility for anything more than a brief stay. He was fiercely independent. Dad lived on his own, alone, in his townhouse condo (with its stairs!) up until the end. My brothers generally hated that, but I respected his choice. He knew it increased his risks of accidental death at his age, but he was willing to take those risks for his independence. He drove, too, for which I feel a bit compelled to apologize to the people of Atlanta.

I got my love of driving, including stick shifts and cheap(ish) sports cars, from my dad. I got a lot from him, actually. A short list would include:

  • brown eyes that are getting lighter/more hazel-green as I get older
  • a love of the law
  • an ability to see both sides of issues and look for rational solutions
  • honesty, which (unfortunately) can be a bit too harsh for some folks
  • a loathing of yelling, particularly in fights
  • a love of, but not the guts for, acting
  • a strong whistle
  • athleticism
  • respectful competitiveness (I don’t like to lose, but I’ll respect whoever beats me at whatever)
  • enjoying watching football and baseball, but without rabid fanaticism
  • religiously doing the NYTimes Sunday crossword, in ink
  • quiet rationalism that can be perceived as coldness (aka Midwestern stoicism)
  • liking gin martinis, steaks on the grill (although I prefer mine rare), and ice cream.

As a kid, Dad taught me to swim, to ski, to play Hearts, Spades, and Blackjack, to ride a bike, to drive, and that one didn’t actually have to stop for a pee half as much as you’d think on long car trips across the country (while arguably a bit tortuous as a kid, this was great training for college bars). On his post-divorce weekends with me, sometimes we’d go horseback riding or ice skating. We’d go to Snowshoe, WV mid-week for a ski break or to Boyne, MI or take a half-day and go to a local hill. Spring breaks were often long car trips to Vail or Park City or Ft. Lauderdale, with stops in New Orleans or Mt. Rushmore or Joker Joe’s in Benton, TN to buy fireworks. Thanks mostly to Dad, I’ve been in each of the 48 contiguous states.

In recent years, we usually spoke weekly, on the phone. FaceTime or whatever was really beyond him–I mean, he’d still call me to say he’d received an email or, on the rare occasion, to tell me he’d sent me one. Each call, he would ask me about my practice and my cases, even though he didn’t understand copyright law (he had been a general practitioner, doing mostly real estate, divorces, and probate). He’d also ask about the weather, whether I had been swimming in the ocean lately, and how the animals were. He referred to my live-in boyfriend as my “friend,” almost never by his name, although more recently he did say he was really glad I was happy with him. That was unusual–Dad just wasn’t the warm-fuzzy type. For example, I’d always end the calls with “I love you” and he never said it back. It just wasn’t his way. I knew he did, though, of course.

He sucked at expressing his emotions directly. Yes, there is a great irony that he had been an actor before law school, but he couldn’t say “I love you” to his daughter. I blame his mother, who was apparently a piece of work (she died shortly before my birth). Everything made sense to me when, some years ago, he said that they never had black pepper in his house growing up, because she did not approve of it. And she dressed up her cats as a child. Yikes. It’s a small wonder he wasn’t a serial killer or something, after that childhood. Anyway, his inability to be direct about his feelings meant he, for example, would tell one of my brothers how he was proud of me, and me how he was impressed with my brothers. We all eventually heard it, just never straight from him.

Oddly, the last time I spoke to him I said, “I love you and I miss you” instead of my usual closing. I had no idea that would be the last time we spoke, but for some reason I added that second clause.

It’s too true, now.
I love you, Dad, and I miss you. Thank you for everything.

Do Better

I feel like humans have lost something fundamental and I blame the internet, particularly social media, for much of it. What has been lost? Decency; thinking of the greater good; putting others first. Doing right, even if it doesn’t directly benefit ourselves. Trying to be better.

For example, it used to be that we were shocked when a pornographic video of a famous person was discovered. We were embarrassed for the (usually) young person who was thus exploited and often that person would fade from public life. Now, people are making porns just to try to get famous.

People (even politicians!) used to have honor, now far too many will lie without a second thought and will sell their votes to the highest bidder, even if it hurts others.

We have become far too greedy and selfish. A quiet proposal is rare–now it has to be instagrammed and scripted and shown off. A first dance can’t just be a moment between new spouses–it must be a choreographed and recorded event. A simple ring as a gesture of the promise is now rejected because it must be better (read: bigger) than our friends’ rings. How sad is that? We can’t just be happy for the happiness of others without comparing ours to theirs (and making sure we “win”).

Why am I bringing this up here? Because it affects your business, and mine. I was reminded of this today when I saw that Unsplash has a photography contest and that Medium is a part of it. I tweeted that it was a terrible idea for photographers, because Unsplash’s terms generally are terrible and even worse for the contest. I warned photographers to stay away and that it hurt all photographers by devaluing photography. Sadly, of course, someone had to tell me how it was good for him so I should essentially shut up.

Sigh.

There is right and wrong. Sometimes, what we want we could get by doing wrong; however, if we choose to do that, we are very likely doing much more harm than we realize, including (as in the case of Unsplash and similar) hurting ourselves in the long run.

I could make more money (a lot more) if I took any case brought to me, asserted claims that were questionably colorable (meaning maybe or maybe not supported by the facts and the law), or defended infringers. I could also work more slowly when I’m billing hourly. I could do all that and have fewer financial worries and drive my dream classic Porsche rather than my significantly cheaper (but much loved!) Miata, but I couldn’t look myself in the mirror.

Why do I make these choices? Because I became a lawyer to help people and, yes, to do good. Yes, everyone is entitled to a defense, but to me representing infringers would be inherently a conflict with the work I do for my copyright creator/owner clients. So, I say “no.” Also, I will never assert a claim for a client if I do not sincerely believe it is legitimate. And I know how hard people work for their money so wouldn’t it be ethically wrong to try and squeeze more out of any hourly client by working more slowly? Yup.

Would I like to make more money? Sure, of course. But not if it requires lowering my ethics and standards.

We’ve been pulled into the muck of trying to be famous rather than trying to do right. We’re trying to be more interesting on social media, rather than quietly making a positive difference in the world.

As we head into the holiday season, I suggest we all take a moment to think about our choices and consider doing better.