On FB/Insta’s Image Manager Tool

Recently, news broke that Facebook, owner of Instagram, is rolling out a new tool to “protect” photos across both platforms. See https://techcrunch.com/2020/09/21/facebooks-new-rights-manager-tool-lets-creators-protect-their-photos-including-those-embedded-elsewhere/ and https://about.fb.com/news/2020/09/helping-creators-and-publishers-manage-their-intellectual-property/. Call me a skeptic, but I’m not jumping for joy at this. While it looks better than nothing, I don’t trust Facebook to do anything that isn’t in its own best interest. More importantly, photographers need to be aware of what they may be losing and what risks they are taking if they use the tool.

My main concern about this new tool is that photographers will use the takedown part of the process too quickly and potentially hurt their ability to get the money they deserve from these infringements. At the very least, before issuing any takedown, photographers should make sure to capture as much evidence about the infringement, including screenshots and metadata, so that if they decide to go after the infringer, they have the proof they need.

Let me back up a bit because I suspect some readers may really understand the purpose of takedown notices and what they mean. That is, many people are not aware that when you send a takedown notice and the work is removed, you can still sue the poster/user for the infringement; you just can’t sue the ISP/platform (probably…there are other requirements the ISP must follow for this safe harbor from liability). Again, after a takedown notice, you can still go after the actual infringer—the person or entity that posted your photo to the platform.

However, to pursue an infringement, you need proof. If you send a takedown notice too quickly, you’ll lose your evidence. So, before doing anything like submitting a takedown notice, make sure to capture all the evidence you can—like screenshots of the use and any metadata you can gather. See my article on evidence gathering for more info. Better yet, talk to an attorney to see what your options are beyond a takedown, before pulling that trigger.

By the way, registering your copyrights before you release your work into the wild is always a good idea. However, you may still have a case even if you haven’t registered the copyright at issue yet. For example, maybe the infringer removed your watermark—that would be a violation of a different part of copyright law that doesn’t require registration for you to be eligible for statutory damages and maybe even attorney’s fees and costs (more on that here).

Worse, however, than losing the evidence needed to pursue the infringement is that if you send a takedown notice too quickly, you may not do the research necessary to make sure that the use is actually an infringement and not excused by fair use or some other defense. If you send a takedown notice without doing that research, you can be sued by the user of your photo for submitting a bad faith takedown notice! If that happens and you lose that suit, you could end up paying the other side’s legal fees. Ouch!

So, if you are still using Facebook or Instagram (and I heartily encourage you not to for many reasons, including the facilitation of the downfall of democracies worldwide), you might consider using this new tool. If you do, take care to use it right.

Copyright Registration Suggestion

I’ve written a lot on the importance of registering your copyrights and, no, this won’t be another nag on that topic. Instead, I want to talk about something you aren’t required to do when you register, but which would be potentially very helpful down the line: make copies of your deposit copy uploads.

Often, an infringement defendant will demand proof that the work was submitted to the USCO as a deposit copy in the registration cited. Now, it’s not the plaintiff’s responsibility to provide that proof[1], particularly if the registration is before or within 5 years of the first publication of the work, but it does help shut up a defendant if you can whip out screenshots of your upload pages along with the works so that they can see, yup, that work was indeed included in the deposit copies submitted to the USCO.

Keeping a folder of everything you submit to the USCO for a registration is a great idea, and if you aren’t doing that yet, start. I suggest you keep copies of the titles list (for group registrations), the actual files submitted, any correspondence you get from the USCO (or send in reply), etc. When you get your certificate, make a scan of it and include the whole thing in that folder, too. Making screenshots of things like the upload page(s) and confirmation(s) takes little time but completes that folder[2]. Then, when the infringer tried its “prove the work is in there” you can not only show the list of title names on the certificate, you can show the work as it was submitted. That’ll shut ’em up… at least on that point.

Basically, the idea is to take away as many of the BS defenses defendants try to assert whenever they’re caught ripping off work. For example, use a proper copyright notice on or adjacent to each work you publish on your website and then no one can claim “innocent infringement” (more on that, here). This “is it in the registration” issue can be a big block with some defendants; removing their ability to claim the work isn’t part of a cited registration can significantly help move negotiations forward.

The more evidence you have to support your claims, the more likely your attorney will be able to negotiate a good settlement for you, so it’s worth the minor effort to make those copies, even if it isn’t your legal responsibility to do so.


[1] This point was again made in the recent Iantosca v Elie Tahari, Ltd. No. 19-CV-04527 (MKV), 2020 WL 5603538 (S.D.N.Y. Sep. 18, 2020) where the court noted “It is the Defendant’s obligation, during discovery, to contact the USCO and request deposit copies to be used to rebut the validity of the copyright registration.”

[2] Remember, when you make the screenshots, the metadata about their creation date, etc., will be in those screenshot files, too. More handy proof in case they try to claim you created the screenshot, nefariously, later (and yes, they might).

Estimated Taxes With a Twist

[UPDATED 9.10.20]

It’s almost that time again… time to make your third quarter estimated tax payment to the IRS (and to your state, if it does that). Despite COVID and everything else, the IRS is still expecting you to make your payment by September 15, as usual. That’s next Tuesday.

This year, though, there have been twists every quarter. First there was a deferral for first quarter 2020 payments and payments for any taxes owed from 2019. Then, you had to pay all those taxes as well as your second quarter estimated taxes in July. Now, the Mango Mussolini has declared that all workers, including the self-employed, can skip paying payroll/self-employment taxes, for now.

For the self-employed, not having to pay 15.3% (self-employment tax is both parts of FICA) sounds fabulous! But, contrary to the spin on this move, this is not a good thing.

What isn’t being made really clear is that this is only a deferral of the payment of those taxes, not that you won’t owe them eventually. Trump claims he wants to make these cuts permanent, but that would gut Social Security and Medicare and be incredibly harmful to people who already rely on those systems as well as those of us who haven’t yet aged into them. It is not likely to ever get approval even by his henchmen in Congress, but if he stays in power, he intends to do just that. See this article for more of the gory details.

Also, it may not actually apply to self-employed people, as this article points out, and it starts September 1, so no one seems to know if that means you still need to pay the whole thing for this 3rd Quarter payment or not (my bet is yes, you do).

For the average creative worker, cashflow is probably a big issue right now; so taking the deferral will be very, very tempting. Although I am not a CPA (at all!), I would counsel against giving in to that temptation, if you can. There is an old saying: money now is cheaper than money later. In this situation, paying your full boatload of taxes now rather than taking the deferral is going to save you heartache, bookkeeping hell, and the need to somehow come up with more money later when you might not have it.

For those of you who are employees, you might consider asking your employer NOT to defer withholding your FICA payments. It’s all going to make for real bookkeeping nightmares down the line but, just like for the self-employed, better to have that money already paid than to have to come up with the tax equivalent of a balloon payment later.

Times are tough for so many of us and it is easy to be seduced into making short-term choices that hurt in the long term. This scheme is just such a seduction. Don’t be fooled. Cut back on other things (like Netflix, etc.) if you need to, but pay your tax bill in full next week, if you possibly can.

One Thing to Save Your Business

If you could do one thing that you know would save your business, would you do it? Of course you would. There is such a thing–an easy one, in fact: back up your computer and project drives.

Taking care of your data and your projects should be your number one priority. If you lose your files, you will have angry clients (at best) and you will lose money because you will have to recreate whatever you lost. Remember, time is money. 

I just went through this. Over the weekend, my computer died. My trusty MacBook, that has served me so well for the better part of a decade, turned into a brick. We’re talking a power issue—possibly a fried motherboard—who knows. It won’t make so much as a peep or ding, much less actually turn on, despite the various tricks tried by me, Apple, and my tech-savvy brother. It is so dead, that recovering anything from its drive is probably going to require an expert and lots of money. 

The MacBook is dead, long live the new MacBook.

Okay, you get it. 

Anyway, I would be so terribly screwed…except that I regularly back up. I’m religious about it and it totally saved me here. Every week, I back up on two separate outside drives plus I have some things backed up to the cloud with every change, too. So, instead of losing a ton of data (like client files…eeek!), I lost very little—like a couple of screenshots, it seems. 

So yeah, I’m still out the cost of a new MacBook and my Sunday was all about trying to fix my old one, then getting a new one (thank heavens Apple delivers via courier here!), then doing the migration from one of the drives. Still, I’m up and running, mostly normally, this Monday. Whew.

More importantly, my clients will be virtually unaffected by the failure. That is both a client management issue, like it would be for anyone in any business, and an ethical one for us lawyers (I have a duty to protect my clients’ files/data). 

If you are not backing up regularly, start today. Best practice is the 3-2-1 system: three back-ups, on at least 2 separate media (2 different drives, 1 drive + cloud, whatever), and 1 copy kept off-site (the cloud can be this). Then, do it every week at minimum. 

A backup plan is just like insurance: we hope we may never need it but, boy howdy, we’re glad it’s there when we do. 

Your Creative Business is (surprise!) a Real Business

Yesterday, I read a tweet about how artists must see themselves like start-ups—they are in business and must treat their business as, well, a business. While the author was referring to musicians, the point is absolutely true for all artists—writers, photographers, designers, et cetera. 

Self-employed does not mean you don’t have a job or that you are not in business. In fact, it’s the opposite. You are more closely tied to your business than regular employees. Being self-employed myself, I know whereof I speak (I’ve not had an actual employer since the 20th century). There is a special intimacy between the worker and the work and the money it brings in that doesn’t, or at least doesn’t usually, occur in employees. 

I think for artists, that intimacy may be even deeper since, generally speaking, you are expressing something inside you in your work. Or at least trying to, when you can, even when you’re making commissioned work. 

Sadly, though, too often that intimacy includes a mingling of Artist and Artist’s Business, especially in the financial sense. This, dear readers, is a really bad thing.

From a legal perspective, it can make for lots of issues. For one example, mixing the personal and the business can affect any corporate veil you may think you have because you have an LLC or incorporated. When the finances are mingled and corporate formalities are not followed, someone suing you has a much better chance at getting to your personal assets (“piercing the corporate veil”). 

More importantly, though, if you don’t treat your business like a business, there will come a day when it will bite you in the butt—like when you are trying to get credit for some major purchase, like a car or, more importantly, real estate.

When you want to buy a house (or even rent one in some places), proving your income and your business’ viability is crucial. Self-employed folk generally have to provide extra documentation to prove they are a good risk.  We have to provide P&Ls, balance sheets, and bank records. Since we all try to get our taxes down through deducting every possible business expense, (self-employment tax is a pain) our tax returns might show we make less than we actually do. If you’ve been claiming some personal expenses as business expenses, this will be even worse (and it’s illegal). 

Now, with COVID, it’s even harder to get a mortgage if you are self-employed. Fannie Mae has imposed extra hurdles to make sure potential borrowers aren’t faking it. I know because I have just been through this.

My partner and I had been pre-approved for a loan larger than what we ended up asking for; but we just learned that we had a real chance of not getting the loan we needed because of those new proof requirements. The requirements are changing often right now and, lucky us, the newest changes happened just as we went into contract. Surprise! On top of the usual pile of documents, I needed to prove that I had more business in the pipe, so to speak, and that my business has income fluctuations throughout the year, and that those trends are fairly consistent over time. Holy cow!

Now, I’m religious about my bookkeeping and records-keeping and keeping my business and personal finances truly separate (not to mention my firm’s trust account separate from it all, too) so, luckily, I could produce the extra reports and statements necessary. Short answer: we got our loan. But I know too many artists who do not take the time to keep things separate or to even do some effective bookkeeping. Yikes! Those artists would be totally screwed. 

Keeping accurate business records and keeping them and your accounts separate from your personal ones, is vital. If you treat your business like a business, your records will be there when you need them. Don’t beat yourself up if you haven’t been doing this—just start now. 


I know… I suck… I haven’t been keeping up with posting here. In my defense, my boyfriend and I are in the middle of selling his condo and buying a house. In San Diego. In the middle of a pandemic. Which brings me to the theme of today’s post: you can’t control others but you have control over what you do.

Real estate transactions are one of the most stressful things in life. Several articles like this one point out that home buying ranks above planning a wedding, becoming a parent, or even losing a job, for being stressful. In San Diego, like other very expensive places, I think it is even more so. For example, we looked at a 1300 sq. ft. house the other day that was priced at $825K (like most properties here, it will likely sell for more, but not from us); its ceilings were practically falling in and its floors were warped from water damage, amongst other problems. Almost a million dollars for a fixer-upper. INSANE!

We did find a house we loved and submitted an offer. The owner countered in a totally greedy, irrational, and frankly insulting manner. First, we got pissed; then we remembered that we can’t do anything about how a seller acts. In this situation, we let go of the hurt feelings and walked away. Let someone else over-overpay. Now, we’ve found another and just submitted an offer. It’s likely we won’t get the house because the owners are flippers and will only care about making bank, but we submitted a generous offer with terms that both make it more attractive and yet still protect us in the process. Still, I suspect someone will out bid us and do so without an appraisal contingency and maybe even “as-is” and even without an inspection contingency. We can’t control the other offerors nor the sellers, so we’re not going to worry about it. Either we get this house, or not. 

Leaving off contingencies makes an offer stronger in the seller’s eyes. However, what it does for the buyer is put them in an unreasonably risky situation. For example, the appraisal contingency protects you in case the house is overpriced. An appraisal is necessary so that the loan provider knows it can make money if you default on your loan by making sure it will hold enough equity in the house to make money on a foreclosure. See, if the house is sold at $800K but appraises at $750K, without an appraisal contingency the loan company will only fund up to $750K and you’ll have to make up the difference somehow… like in cash. If you make a large downpayment, a loan company may forego the appraisal and tell you it’s okay to waive the contingency, but that’s because it knows that it’s going to make money selling your house if you default because its loan to you was only $400K (50% down), not $640K (20% down) or more. But you are still overpaying for the house.

If our offer is countered with contingency removal demands, we’ll just say “no” and walk again. We may end up renting for a while, but we will not pay a huge sum for a house without protections in the process. It would not be good for us and we can only control what we do. 

I bring all this up because what I’m hearing from sellers is just like what creatives hear all the time, and what creatives must learn to say “no” to. That is, you’re told “everyone does this” or “sure, the doc says you are assigning us your copyrights but we’ll let you use the work” or “it’s industry standard to have a 90 day pay window,” or “you have to get releases from everyone you shoot at this event or indemnify us against claims if you don’t,” etc. Whenever someone in a financial transaction with you says one thing but the paperwork says another, go with what the papers say. Always. Your clients, no matter how nice, are not on your side. They can’t be—they are negotiating for their best deal, not yours. You can like them, but don’t ever trust their word over what is on the page.

Moreover, the terms they are insisting on are good for them and they do use them, or the terms would not be there. Always. So when they are saying “oh, we never do this thing the contract says we can do” and they won’t take it out, then you know they want to do what they claim they never do, and will if they can.

If your client/buyer tells you “my way or the highway,” take the second option, for sure. Bullying and fear-mongering is pervasive in the creative industries. Threats about not getting work are just manipulative bullshit. You didn’t have the gig and lose it by saying “no,” they just wanted to scare you into accepting a bad deal. Walk away. Use the time to get a better client.

But don’t bother trying to fix them or teach them the errors of their ways. Like the real estate situations mentioned above, you can’t control what your clients/buyers do and you’ll drive yourself mad if you try. But, you can control what you do. 

The first thing is to know where your boundaries are. You can negotiate lots of things, but you should always know what lines you will not cross and respect those limits. You set your own limits; and you should do it before any negotiations so that you know what they are. Write them out like a list if that helps: will never sell copyrights; will only indemnify for my own actions; will not lower my price without getting something in return (besides the gig); etc. Once you have your limits defined, then you can respond rationally to whatever demands are made. So, for example, if a client insists on owning your copyrights created for the project, you can say “No” if you’re line is ownership, or “Not at this price—if you want full ownership, that will cost $X” if you’re willing to sell but for the right value. 

You can use your list for contract negotiations of all kinds: time to pay, deposits, usage license terms, indemnification clauses, you name it. You set your limits. You have that control. Stick to them because they are best for your business

Saying “no” to bad terms and bad deals does not make you a jerk, it makes you a smart businessperson. And, although standing up for your rights and what is best for you and your business is not always easy, it is vital. 

Are You The Problem?

Okay, I usually try not to get political here; but I believe that, as a good American, I must stand up and speak some hard truth to you, the creative community. It’s going to look political but, really, it is so very much more than that.

Here is that hard truth: if you want to help keep the orange monster in the White House and people like him in power, losing any social benefits or chance at upward mobility and ruining the future for the next generations, please, continue using Facebook and Instagram (for ease, I’m going to call them collectively “FB” because you know, or should, they are both owned by Zuckerberg*). If you don’t want that and are using those platforms, wake up: you are the problem.

FB not only enables the worst of the worst—anti-Semites, racists, homophobes, sexists, revenge-porn incels, the whole host of uglies—it actively encourages them. Do a search of “facebook incels” if you don’t believe me. FB makes a lot of money from these twisted people and their hate groups. Zuck hides behind the idea that blocking these groups would be against the first amendment, but that is bullshit: the first amendment does not apply here. Free speech is about the government silencing or compelling speech, not a private entity doing so. So, the first amendment argument is a total fake. It is FB (etc., see Google, EFF…) using a powerful symbol of our fundamental rights (the phrase “first amendment”) as a manipulative tool to make us think it is doing the right thing, while it’s actually taking that right (and others) from us, the regular folk. 

Rather, FB/Zuck have an interest in promoting one rule of law for the rich, white, and powerful, and another for all the rest of us. Zuck loves money and power. He has made it clear, over and over, that he is lacking anything resembling actual compassion—he wants what he wants and will run over anyone or anything that gets in his way. Trump and his similars are his (and others like him—see, e.g., Ek, Musk, Thiel, et al.) ticket to this new America; they will never de-platform him or those who use terror and cruelty to support his “reign.”

By using the FB platforms you make it financially possible for FB’s continued promotion and support of Trump and his followers. In short, every time you use FB, you are helping keep Trump in the White House and people like him in power. That is not an exaggeration. You are trading your freedom and the opportunity for yourself and your children to live in safety and freedom, for the convenience of the platforms’ reach. That’s it. 

It’s bad enough if you use FB just to stay in contact with friends and family, but if you are using those platforms as a part of your business marketing, you are very much literally providing the content (I hate that word) that drives the whole machine. You are providing the fuel for this cross-and-book-burning-deep-state-conspiracy-make-the-rich-richer-dumpster-fire. You are enabling and enriching those who do not want you to succeed; in fact, they don’t give a shit about you except for how you can make them more money and be used to help them make America a whiter, christian, hetero-only, male-centric safe place for their greed. They want to put a sexist, homophobic, racist, (pseudo)theocratic oligarchy yoke on you and your descendants. And you are helping them.

So just stop.

If FB lost the photographers, illustrators, filmmakers, musicians, etc., it would not be able to get the advertising dollars it does. I believe that losing the creative class as users would mean FB would eventually fail, and probably sooner rather than later. The quality of content would drop dramatically. Fewer people would be interested in visiting. Remember MySpace? Same thing can, and should, happen. Besides, at the very least, by quitting, you could go to sleep at night knowing you were not contributing to the problem. 

We need to stop thinking about what is easy and begin not just thinking about but doing what is right. By writing this, posting it, and posting links to it, I am risking backlash to my business; but I cannot ignore this basic-yet-hard truth and raising attention to it is the right thing to do. If I lose some clients, I can live with that. Staying silent? Not so much.

Rather than getting pissed at me for pointing out this hard truth and maybe making you uncomfortable, I hope that you’ll recognize that what it means is that you have incredible power. Each of you, when working together, absolutely can change this. Voting, yes, of course, but economically, when we work together, we are a huge force! In 2017, the arts added almost 900 BILLION DOLLARS to the US economy and independent artists made up over 50 billion of that (see https://nasaa-arts.org/nasaa_research/facts-figures-on-the-creative-economy/ for lots of arts-and-money stats). Those numbers don’t include the money your work generated for the tech companies/platforms—numbers we’ll probably never get, since the platforms never want you to know the truth of your power.

Speaking of your power, the other side of this truth is that those now in power, those like Zuck and Trump, are terrified of us. They know we can wake up to our ability to get our shit together and stop their exploitation of us. They know that, when we do, many of them are going to see their money lost or seized and, better yet, the inside of a jail cell. We can do this, it just takes the internal fortitude to make the choice (and a little more effort in your marketing)

So I call on each of you to reclaim your power and stop using the platforms. Also, I call on the professional organizations who represent each of the creative industries to (1) stop using the exploitative platforms themselves; (2) encourage their members to stop using the platforms; and (3) put more efforts into providing members alternative tools to use for their marketing.

While this is a political issue in the sense that it is manifested in Trump, and perhaps an organization doesn’t want to play politics, at its foundation, this is much greater than that and organizations should recognize that.

I would go so far as to say that we can and must save these United States; we must stand together to do it. True republicans don’t want this corrupt, greedy reality any more than true democrats (or socialists, or greens, etc.). Once we get past the current crisis and restore the actual checks and balances both in our governmental system and our economic one, we can move back into our politely apolitical postures.

So, in closing, I say: cut off Facebook and Instagram from their content-fuel! De-platform the platforms! Take your power and wield it for the greater good. 


[* Yes, there are shareholders, but he has the only real power because of how the shareholder voting rights are structured.]

Bad Registration Advice

Recently, I was approached by a photographer about an infringement matter. It was a good-looking case, until I checked the registration. The work had been registered as unpublished, but it was admittedly published before being registered; in other words, it was knowingly registered wrongly. That makes a big “No, can’t take this on contingency” from me.

When I explained this to the photographer, the response was surprise if not full-on skepticism. Seems the photographer had been told, allegedly from several sources including at least one major national photographers’ organization, that one could register a work as unpublished if registered within 90 days of publication. 

Yikes. The amount of wrong there is worrisome.

Let me make this perfectly clear: one must never knowingly register a published work as unpublished. Ever. There is no way around it, short of lying, and lying is a very, very bad idea. Full stop. 

Registering under the wrong publication status is bad; but registering work you know was published as unpublished is a fast route to having the registration voided for that work. Now, if you are litigating and you get busted for the “error,” you will quite possibly (I’d say probably) end up paying the other side’s attorneys’ fees when you lose your case. Ouch.

Look, we pretty much all hate the published/unpublished thing—lawyers, artists, everyone. It’s an administrative hoop that is, in my opinion, arguably outdated and unnecessary. But, it is very much still the law. 

When a work is published, one must provide the US Copyright Office with additional information about that work in its registration application (date and place of first publication). That data is included in the certificate and USCO records. Registering the work as unpublished omits this information. That’s why it’s particularly bad.

So, where did this photographer’s misinformation come from? Hard to tell, but I suspect it was started by someone trying to get around certain limitations in order to register more works for less money. See, before the recent-ish changes in registration procedures, one could register a virtually unlimited number of unpublished photos in one “unpublished collection” registration. The limit was one of upload size, not number of works. However, published photos were limited to 750 per group registration (as well as other limiting factors, like the photos must be published in the same calendar year). In other words, it would cost more to register 1500 published photos than unpublished ones. 

This irked photographers. I know, I’ve been asked at talks I’ve given about copyright registration, back when those rules applied, “Can’t I just say the work is unpublished so I can do everything in one registration and save money? Who’s gonna know?” Of course, I pointed out the errors of that line of thinking, but I’m sure some may have errantly given it a try. Thing is, the USCO relies on you being honest so if you do misrepresent the work as unpublished, you will still get your certificate. But that doesn’t mean it will hold up in court. Anyhoo, once someone did it and got his* certificate, the info likely got shared and, boom, bad info gets out to the photo world.

Now, the rules are more equal. There is no more “unpublished collection” for photographs but rather Group Registration of Unpublished Photographs (GRUPH). That registration, like for published photos, is limited to 750. Like it or not. So, the incentive to misrepresent a work’s status is much less now. 

The 90 days thing, though, in the photographer’s response above? Well, that is extra rules-bolluxing. Contrary to popular thought, there is no 90-day anything in copyright registration for photographs. There is, however, the 3-calendar-month safe harbor for registering published photographs. It is NOT 90 days, but many people have wrongly said/written it as such. Remember, three months does not equal 90 days (hello, February) and you can get bitten if you get that wrong. Anyway, I think that safe harbor got mixed into the mess and we end up with this strange idea that there is a way around the publication status-related registration rules. 

You can fix bad registrations, but it is a process and it will cost you both USCO and your own attorney’s fees. Oh, and when the error is like what I’ve been talking about here, you’re almost surely going to get a new effective date, too (that can affect statutory damages for some cases). 

This stuff can be complicated. Remember, while your creative friends may think they know the rules, if you have any questions regarding your registrations, your best bet is to hire a copyright attorney for legal advice.

What Are You Waiting For? 2020

[NOTE: This is a re-working of an old post of mine, from 2013–you’ll see it’s fitting today]

When I first wrote this piece, it started off with this:
Yesterday, I saw that a promising reporter was killed in an auto accident in Los Angeles. He was 33. This morning, there was news that a best-selling novelist had died of an aggressive cancer. He was 47. And now, as I sat down to begin writing this piece, the news confirmed that James Gandolfini (star of The Sopranos) had died. He was 51.

Today, we see the same kind of news, plus all those lost from the pandemic. As of today, almost 70,000 Americans have died from COVID-19. Young and old, healthy and not. Gone.

I share this data with you not to depress; but rather to remind you that life is unpredictable and often way the hell too short. We don’t have much time–and yet we spend so much of that in fear and acting our of that fear. That, as the saying goes, is a god-awful shame. In the words of Mame Dennis Burnside (see Auntie Mame): LIVE! Life’s a banquet and most poor suckers are starving to death! So, really, what are you waiting for? Do you expect all the planets to align to suddenly show you a safe path that will lead to happiness? That’s stone stupid. Won’t ever happen. You have to let go of your habitual reaction to living with fear. It’s always going to be there, but what you choose to do about it, well, that’s up to you.

Are you afraid of failing? Why? What is the worst that will happen? You’ll lose your home and end up living under a bridge someplace, and you have kids?
Lame excuse.
You read me right, that is just lame. Guess what! You can do everything right and that dark, bridge-living future can still happen. Have you noticed lately how many people are facing that or worse? One pandemic and, boom, the business is dead. So, it doesn’t do any good to be afraid of failing since not failing won’t save you.

You have one chance at this life (well, one conscious one, if the Hindus and Buddhists, et al., are right) and you have no control over when it will end. So, I ask again, What are you waiting for?

You chose to be an artist and with that came the requirement that you have faith. Not faith in a god (not that you can’t have that) but faith in yourself, in your art, and that somehow you’ll make it all work. That’s fabulous. It’s amazing. It’s actually empowering, if you stop shaking in your boots long enough to remember it.

Being an artist requires you actually acting on that faith. You can’t say I choose to be a photographer/designer/writer and then play it safe. You have to do. You have to leap. You have to try and fail (or succeed) and try again and fail (or succeed) and keep doing that over and over again. Success and failure will cycle throughout your business, just like in the rest of your life. So you have to risk and push and do and try and fail and keep the hell at it.

For the rest of your life.

That is the bargain you agreed to when you chose to be a professional artist. You have to make, and do, and (sometimes) make do.

The one thing you cannot do is wait for things to be perfect before taking the next step. I’m sick of hearing artists say I can’t send the promo because the site isn’t perfect or I’m not sure my list/promo/portfolio/edit/studio/haircut is perfect so I can’t____. I can’t. I can’t. I can’t.

If you make some excuse for not doing, even now in the pandemic, then (when you can) get a “normal” job; you don’t deserve to call yourself an artist. You don’t have the guts.

I say that with love (you know that, I hope, by now), but it is true. Besides, I bet dollars to doughnuts you do have the guts. You must have had at some point or you never would have chosen to be an artist. You just need to re-find ’em. Now is the perfect time for that.

Now, in the pandemic, is the perfect time to take a good, long, hard work at your work and your business. Are you making YOUR work, not chasing someone else’s (including the “market’s”) trend? Are you valuing it enough? Ask yourself, What would I do differently if I knew there was no way to play it safe?

Frankly, this is true for any profession. It’s as true for me as it is for you. We have to get out there and do. We can’t be bound up by the fears of getting stuff wrong (which, by the way, has much worse ramifications in my profession than yours) or failing. We have to do and leap and try. Every bloody day. And these dark times give us the downtime to check in on ourselves to make sure we are still honoring the choices we made, like to be an artist.

Not only will doing this give you your best shot at being successful (and it will), it will make you happier in the process. Following your dream, doing what you love, isn’t that worth the risk of trying? Why be an artist if you never make your own art, the stuff that lurks deep in your soul? Do it.

Life is (sadly) short for too many people. We are really learning this truth in this pandemic. We don’t know when our last breath will come. No matter how well we treat our bodies, it is ultimately out of out control when Death will say “Howdy.” So we can’t control that, but we can control what we do while we’re here on this Earth. Each of you deserves to love the life you have, every bit of it but especially your work in it. The only way for that to happen is to try, to do, to make your art, to follow your dream, to risk, to fail, and to do it all again the next day.

So, what are you waiting for?

New Ruling Says Public Instagram Means No Infringement

A federal court (SDNY) has just ruled that a case must be dismissed because the photographer-plaintiff had posted the work on Instagram, with the account “public,” so the photographer granted a license to Instagram that included permitting Instagram to re-license it, including to the defendant (THR article about the ruling, here). So, the defendant (Mashable) had a license to display the photograph at issue via the Instagram API, and thus the case was dead. 

In other words, there was no infringement by the defendant since the photographer posted the work publicly on Instagram. YIKES! 

Now, this ruling does NOT say that it would be okay for a defendant to copy or download a photo it saw on Instagram and use it on its website for any purpose, but the door is open to defendants to try that, even if it might not be a winner. Here, Mashable used Instagram’s API to embed the work into its story; those facts may be the key points, but the terms of service for Instagram are very broad and, frankly, I’m surprised there hasn’t already been this result. Defendants will lock on this ruling and argue it, even in cases where the facts do not include API use.

While this is just one court, the implications are profound and, frankly, something I have predicted for some time. Also, remember that Facebook is as bad.

I know many of you would argue that you won’t be seen unless you use these platforms. I have to tell you that is simply not true and rather are stories told by the platforms and by clients/users, neither of whom have your best interests in mind. While sure, you don’t want to make things hard on your clients, you must balance that with what risks are reasonable (or not) for your business.

In my opinion, best practices for visual artists, especially photographers, is not to use Instagram or Facebook to display work. Keep your work on your own servers or use a reputable tool/host like PhotoShelter. If you have Instagram or FB accounts, I suggest deleting them asap and leaving a post directing your followers to your own website, instead. If they ask why, tell them you value your work and can’t afford to give away your rights.