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.

Google Images Does a Right Thing (Finally)

I’m no fan of Google. Like the other big internet companies (and many small ones) they have played dumb about the harm they have caused to creators all over the world. One of their big falsehoods has been that they have acted like it was virtually impossible for them to help prevent infringements by making copyright notices and other ownership data more evident.

So, this morning, I was thrilled to see that they are finally doing something about that. According to that article, Google will now be displaying authorship more clearly and, importantly, some of the metadata in the photos in a Google Image search. Huzzah!

This does mean that you, as photographers and other creators, need to be better about managing your metadata. Take the time to add not only your name and contact info into the metadata in your work, but also a proper copyright notice.

I think this may make a significant difference in future infringement claims and may even result in fewer infringements, but the trick is to make sure your work is clearly attributed to you. Ask your clients to maintain the metadata and clean up your own files, too.

Now if we can only get companies like Facebook/Instagram, Twitter, etc., to do the same.

I Bake Bread…Really Good Bread

The photo is of the sourdough boules I made last week. They are from scratch, from a starter I started months ago, and comprising nothing more than flour, water, and salt, including the starter.

I bake almost every week, never less than every-other week, and it has been a couple of months since we’ve purchased bread of any kind, except for hamburger buns once when we had a last-minute guest to dinner and I didn’t have time. It takes me all day to make the dough and shape the boules, which then have a final proof overnight and get baked the following day. It is a discipline and, for me, an exercise in mindfulness, presence, and perseverance.

I grew up cooking. I literally cannot remember a time when I didn’t cook. My mother was a gender traditionalist and, being the only daughter, it didn’t matter that I was substantially younger than my brothers–I had to cook for them, first with her then on my own, later. From my very beginning of my own consciousness, I remember being in the kitchen or the grocery. I actually have (and often use) the cast-iron flat small oval pan I remember trying to make pancakes on, by myself for the first time, when I could not have been more than five [1].

Mom was a very good cook and so am I, and I (like her) cook intuitively rather than by following recipes (see “there is fat in the batter” thinking in FN1… ha!). When my brother took cooking lessons as an adult he asked for my recipes and I could not give him more than a rough “some of this, a bit of that” kind of litany. Honestly, I don’t know how I make a lot of what I make–I just make it.

I’m one of those people who can look in a fridge and cupboards and, no matter how bare, will be able to come up with a couple of tasty “peasant food” meals. I learned this ability from Mom, and our poverty. It was a great tool for surviving college, grad school, and law school.

Anyway, Mom, for all her cooking, didn’t bake much and so neither did I. Basic cakes, yes, and the occasional cookie, but those are pretty forgiving if you stray from the recipes. Breads, though, require a certain scientific discipline she never could (or, perhaps, would choose to) grasp. I think some of it was because her mother was such a good baker that, just to be difficult, Mom chose not to follow Grandma’s baking tradition. My very Polish grandmother would rarely appear from the east (Wheeling, WV–we lived in Columbus, OH) but, when she did, it was always with paper grocery bags filled with enriched, yeasty, often raisin-filled, tasty baked goods. I can still remember the smell of her and it’s the smell of the goods in those bags. Sadly, we never baked together and thus bread making was fairly foreign to me. I wanted to learn so I did, later in life.

Cooking is like shooting photography–you can play a lot with and stray a lot from the recipe and still get good (sometimes great) results. Baking however, especially bread, is like traditional photo printing in the darkroom–you have to mix hard science with the art and if you stray too far from the science, you get crap results. In other words, you need to understand and respect the science of bread-making (yeast, heat, gluten formation, proteins, etc.) in order to make decent bread and to learn the science to the point of mastery to make really good bread.

For me, baking bread well is also like being a good lawyer: the more you learn about your particular field of law, the better you create. You have to respect the traditions, statutes, rules, and the processes, but you’ll make better lawyering when you have internalized how the law works so, for example, you can know the feel of that right spot in any of your drafting. Just as a Tartine sourdough loaf is to Wonderbread, so is a beautifully crafted document to a boilerplate one. When you know the specific law in real depth, you can find the hidden issues in a case and the winning legal points. It’s like learning how bread dough feels when it’s been worked enough or proofed right.

So why am I sharing all this? Because I think there is a lot of Wonderbread in my profession, especially in copyright law these days. I want you to know that is not what you’ll get with me. There are large firms who have a gazillion associates and paralegals who will take your case and treat it like it’s debt collection. They don’t know any more than the minimum about the law; they are competent, not obsessed. I’ve read the complaints and other papers they file and I don’t know how some of them can look at themselves in the mirror and call themselves “good lawyers.” I can tell you there has been more than one where I feared the client would get stuck with paying the other side’s attorney’s fees because the case should never have been filed.

Moreover, these massive firms won’t care why this particular image means more to you than another or look at the case in any depth, they’ll just do the minimum to get something and often not even remember your name. Worse, there are companies not owned or run by lawyers and so they care first and foremost about making their own bank, not you or your case.  But they’ll be happy to take about half, if not more, of your settlement for their efforts.

That ain’t me. I know and care deeply about the law and how it works. I’m a dweeb, a nerd; I read case law and journals not because I have to but because I love it. I’m a passionate lawyer and obsessively so about copyright law. I agonize over my drafting, the rules, and making sure the law I cite is the best for the issue. I file only a few cases at any one time because litigation is time-intensive and I refuse to take on more and maybe do any less well.

Also, I build relationships with my clients and I take pride in that. I know about their families and they know about me and those close to me. I know the history of the works they ask me to protect, whether that is a work made for a client or personal work, and why it matters. While I get paid (usually much less than the infringement mill companies, by the way), I also sometimes get gifts from my clients–usually their own art–and that is something that has brought me to tears more than once.

If you want Wonderbread, I suppose you may be satisfied with the big firms or infringement “enforcement” companies. You wouldn’t be a good client for me, then. But if you want a relationship with a lawyer–something more than just a form and a rotating list of associates for your cases–shoot me an email and let’s get to know each other.

You might even a bread recipe out of it.
Really good bread.

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[1] Sadly, they were a bit of a fail as couldn’t remember if you needed to grease the pan and I errantly decided that, since there was fat in the batter, I didn’t need to. Mom came in as I was trying to scrape off the first batch.

Reminders

I’ve had a couple of cases (or, I should say, cases I had to say “no” to) recently that make me think creatives could use a few reminders.

First, on the bad idea of trying to make your infringement matter into a breach of contract; second, some Don’ts to remember.

 

In other news and speaking of reminders, yes, I’ve been terrible about posting lately. Mea culpa. I have had some cases in litigation that are time-sucks on top of my usual case load, plus I just experienced my first summer as a parental-ish figure (to my BF’s lovely home-from-college-for-the-summer daughter), but, really, I owe you all a better frequency of posts. I’ll try to do better. 🙂

Finally, my office partner Ruth Bader Catzburg just celebrated her second birthday. She is as small and feisty as her namesake.

Be an Artist

Someone asked me recently why I don’t blog about every copyright case opinion that hits Pacer (Pacer is where all federal cases are listed, fyi). I’ll tell you why: because I need to know all the details about those cases, you don’t. My job is to know the law, yours is to make art. Let’s not confuse these things.

I try to write this blog for artists, especially those who are or may be my clients, but for all creatives generally. That doesn’t mean I’m talking down to my readers, but it does mean I don’t write on the same topics or in the same depth or in the same language as I would if I was writing for my colleagues. Like all professions or trades, lawyers have their own jargon and we have interest in weird (and often weirdly important) things that our clients really should just not bother to think about.

It’s one thing for an artist to stay informed generally on the law as regards her/his/their business, but it’s a whole ‘nother thing to read law blogs and case opinions or to rely on non-lawyers for opinions on legal things. I encourage non-lawyers do the first but highly discourage the others. In fact, I’d go so far as to tell artists to let go of trying to understand business-related law (including copyright) at any level beyond the same way they understand traffic laws. I mean, an artist should know the law enough to know to do this, not that, and basically leave the rest to the lawyers (and to ask the lawyers, privately, for those answers).

Some of you may get your hackles up at that, but I’m not being demeaning here. Rather, just as I should not act as if I know as much as a professional artist about art, although I can do some creative things, artists shouldn’t try to be their own legal advisors (much less lawyers[1]). Humans simply do not know everything and we are (without great study) incapable of knowing multiple professions in equal, or even sufficient, depth.

The internet has done a great disservice to us in this. It’s turned us into believing we can and do know and understand much more than we really do. In reality, it’s shallow information overload. We get exposed to things we never would have before this beast[2]— but the knowledge we actually acquire is at best at a thin depth.

By “sharing” all sorts of data, much of which is highly suspect (but let’s not even go there now), average folk suddenly think they know as much as anyone about almost everything. This can seem to work for us in the short term or on occasion, but it is a dangerous seductress.

For example, my retired-graphic-designer brother recently fixed my father’s air conditioner, thanks to a tutorial on YouTube. Great, except my brother doesn’t really know anything in sufficient depth about how wiring and electricity, not to mention an air conditioner, actually work; so maybe his fix will work in the long run or maybe he’s created a fire hazard. The sad part is he (like all of us) can’t look for what he doesn’t know, and he doesn’t know a lot since he is not a trained air conditioning repairman. But he has a very strong illusion of knowing, the illusion of full competence, at least insofar as this one repair[3].

When I had my last physical, I asked my doc about whether the internet is making his job harder. He said it definitely had. He gets more people coming in thinking they not only know what is wrong, but what the best cure would be, and basically get frustrated that he wants to examine them and instead ask him just to fill out the prescription. Or, they have ignored symptoms until something has become critical because they read online that if they just do a “cleanse” or something, it will pass.

I told him I felt his pain. I get potential clients who tell me what they think the law is, all the time. It sucks to have to say “no” or “you’re wrong” to these people, when what I want to do is help.

Worse yet, too often I read industry online publications that get the law completely wrong and it is clear that they have read something legal that they simply didn’t grok. Perfect example: a major professional photographer’s organization (or perhaps 2) published that photographers could register a copyright anytime, just as long as it was within one month of finding an infringement they’d be able to get statutory damages for that infringement. That is totally NOT the law–it is a mis-reading of the statute and has to do with an inapplicable “pre-registration” provision of the Copyright Act. Still, the bad information is out there and being promoted by what are supposed to be reputable sources.

Now, I get that one of the reasons that people look to the internet to get answers is because usually that information is free. In the case of the law, people think it’s going to cost them a bucket of greenbacks to get answers from an actual lawyer (and for BigLaw lawyers, that is usually the case). Usually, it won’t be that expensive and, more importantly you’ll get the right answer for your particular situation. Even if you spent, say, $350 for an hour of an attorney’s time and expertise, it is very likely you would, in the long run, save much more than that with the personalized and precise advice you would get.

So, here’s my general advice: if you’re an artist, be an artist and let go of trying to do everything. Honor your profession by honoring others, including not trying to get it all for free. Instead of taking a couple of hours to look something up on the internet, and vetting it on several sources, hire a pro and use your freed-up time to make better/more of your art. You’ll end up making more money and your over-stimulated brain will thank you.

As for me, I’ll keep writing about the law and your art and your business, but you’re not going to get in-depth legal analyses (usually) from me here. I don’t want you to get bogged down in the details, like specific code sections and treatises–I want you to know, rather and for example, that you should register your copyrights as soon as possible or not sign a Work For Hire unless you want to give away your copyright.

_____________________

[1]By the way, this applies to any profession that isn’t your primary one–you are not a doctor, or an accountant, or a farmer, or economist, etc.

[2]Just think about TV–trying to decide what to watch now is an exhausting process because of all the choices. There is just too much to choose from–how do we know what is best?

[3]He’s going to hate me for using this as an example, but it’s kind of a perfect example. My brother is brilliant in many ways; while it is entirely possible this fix is perfect, there is simply no way for any of us to know because we are not a/c pros.

Do You Suffer with CRAP?

(This is a slightly altered repost from many, many years ago. Sometimes, y’all need reminding, though…)

Do you believe you are a creative professional? An artist of some form? That is, a person with a gift, a talent, a set of abilities like no other person? Believing that is an act of faith and, rather surprisingly, it’s damn hard for some creatives to do. Are you one of those creatives who honors that gift, or one of those who acts almost embarrassed or ashamed of it? Do you put down your abilities, malign your gift? Ever catch yourself saying things like “Oh, it wasn’t anything special” or “I just kinda shot it–got lucky with the light?” Do you refer to yourself and your path as “the guy who liked to draw as a kid and ended up in art school” or “the adult version of the kid who liked taking pictures for the yearbook but couldn’t do anything else?” Do you feel, on some level, like apologizing every time you get paid for your creative work? Are you waiting for the day when someone finally tells you you’re a no-talent hack who has only managed to fake it this far?

If you answered “yes” to any of those statements, you’ve got Cognitive Reduction of Artistry Pathology…or CRAP*.

One of the main signs that you’re afflicted with CRAP is that you refuse to use the term “artist” for who and what you are. You may call yourself at best a creative professional, but the word “artist” is never used except, maybe, in the  popular variation “commercial artist.”  That may be used as a work-around because somehow that makes you less of an artist. If it’s commercial, it’s not real art–-that’s what you tell yourself.

If you have CRAP, your art’s value is downgraded in your own head. And yet, you admire people like Annie Leibovitz, Frank Gehry, and Chip Kidd; people who are (commercial) artists. Famous artists in any field, no matter how commercial, are somehow different from you and are (real) artists. But you? No siree! Not in your CRAP-filled head.

CRAP Facts
CRAP afflicts many people in all the creative industries: designers, photographers, writers, architects, illustrators, musicians, actors, etc.
CRAP can bog you down just as sure as walking in a muddy, well-used cow pasture in a pair of high heels. Depression can follow CRAP.
CRAP-sufferers often struggle with business–how can you demand more money or better rights if you’re not really an artist?
CRAP is a self-fulfilling disorder: after all, if you’re not a “real” artist you don’t have to push yourself creatively, right?
CRAP can be insidious; it’s one thing to be modest (a good thing) but one step too far and you CRAP all over yourself.

But you can rid yourself of CRAP. Here are some simple steps you can start today:

  • Call yourself an artist and call what you make art. Do it out loud, every single day.
  • Remind yourself that your work has value– if an ad costs $300K just for its space (placement), the art for that ad is worth a hell of a lot more than $2K.
  • Most people will not like your art, and that’s a good thing, after all, most people like Wal*Mart and lawn ornaments; but the ones that will like it are the only ones that count and they’re the ones to market to.
  • You have every right to get paid and paid well for your abilities, just like a doctor or a plumber or any other pro; your skills are just as rare and valuable.
  • And, most importantly, you deserve to be happy–you are doing what you love, what you should be doing in this life–don’t crap on it.

[* CRAP was, of course, entirely invented by me. That makes it no less real in many ways.]

New Tool! (For infringement searching)

I’ve been hearing from clients how they are frustrated that they can’t find a decent service that actively monitors multiple images for possible infringements. That is, one that doesn’t then require them to use the monitoring company’s services to pursue claims, like ImageRights or Pixsy (etc.) do.

Lots of photographers don’t want to have to pay 50% or more of their settlements, often on top of subscription fees, and I don’t think they (or you) should. It’s your money and fees like that, in my opinion, are outrageous. It’s like when stock agencies went from the photographer getting most of the licensing fees to the photographer getting practically nothing–it’s your work and you deserve to keep most of the money collected!

Anyway, like I said, clients were asking for options and I didn’t have a good one to present. So, I started digging.

The usual suspects of Google Image or Bing Image are strong tools but aren’t for monitoring. You can’t upload a bunch of images then get a report about them–you can only do one-off searches. There is a Russian site called Yandex that a client recommended, but I honestly do not trust any Russian site not to then take your images and re-sell them behind your back[1].TinEye has been around for some time, but they’re way pricey, especially for a solo artist.

Finally, after some Reddit hunting, I think I have found the answer: a UK company called Infringement.report.

Infringement.report’s service is a subscription, web-based tool at a ridiculously fair price point. Seriously. How does $25 a month grab you? That level will cover many of you but even if you are the busiest and want to track a ton of images, the most expensive monitoring plan is $150 a month.

They have no contracts, no limitations on who you can work with, and they specifically do not pursue claims. In their own words, “We don’t pursue infringements, leaving you free to choose your own lawyers and keep 100% of settlements.”

Huzzah!

And, most importantly, it works[2]. I did a small test (you can test drive for free with up to 3 images) and was stunned at the results. One of the images I tested is a client-friend’s that I knew had been ripped off before. In an hour it found at least 19 uses of that photo, most of which were unauthorized.

You can get reports emailed to you. You can download the data as a .csv file to put in Excel or your own database. It’s got an API (maybe you have software it can talk to directly?). The results are dead easy to read and understand. And you don’t have to be a geek to figure out how to use the tool. Payment is made via PayPal and the terms of service are not sneaky.

Honestly, I keep looking for a big negative but, so far, I can’t find one.

So go forth and monitor your work[3]. When you find infringements, hire your own, personal copyright attorney (like me) with whom you can build a relationship. And keep most of your own money.

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[1]Go ahead and call me “racist” if you want–I know what I’ve seen in my practice and Russian sites are some of the worst infringers.

[2]Okay, I have to admit (1) there was a little bug that gave me a warning about having uploaded too many images for the free trial, when I hadn’t, but it worked anyway; and, (2) I having been testing it long, yet.

[3]Register the copyrights first, m’kay?

What to Do (Collecting Evidence)

When one finds one’s work being used by someone without permission, much less payment, there are some things to be done besides just swearing about it. Before doing anything regarding the infringer, especially before contacting it, do the most important thing: collect all the evidence.

If your work is appearing in print someplace, or in 3 dimensions (depending on your art), take copious photographs of it. Try to get close-ups and photos of the context (in a bank, on a billboard, etc.).

If, say, the work appears on a product, note the store where it is being sold and ask the manager for the name and contact information of the supplier, if it’s not a company you recognize. You can also buy example products (or publications) bearing your work, if that is an option.

Online? Make screenshots. Get the whole page if possible (try an app like Paparazzi) and also try to get a screenshot showing as much of the URL as possible while also capturing the infringing use. When you do that, however, make sure to hide your favorites and close all other tabs–you want a clean example of the infringement[1].

Got the shots of the work on the public-facing pages of the site? Great, now find it on their servers. In Safari, go under Develop>Show Web Inspector and you’ll see a folder called Images. Here, I have a screenshot looking at this site that way where I’ve ID’ed a photo of the La Jolla post office I made (selected in the screenshot below):

Double-click that highlighted icon and it will open the link to the work as it appears on the infringer’s server (here, on my server). Get screenshots of that as well and note the URL(s).

Okay, now do you use metadata in your images? Please say you do. If so, then check the metadata on the infringing photograph–see what has/has not been deleted or altered. Preserve that evidence as well (make pdfs of the results, for example).

Finally, for web-related infringements, preserve the infringement on the Wayback Machine at archive.org. You do that by checking to see if the page is there already (and do this for the front-facing pages and the server pages); if it’s not, then you’ll see that you can add it. Here is what I got when I put in the URL for the server page holding my post office photo, for example:

Once you’ve done all that you need to find, in your own records, your copyright registration for the work and copies of your deposit copies. If it’s not registered and it is still within three calendar months of your first publication of the work[2], register it immediately[3]! Also note where you have licensed the work to be used and where you have published the work yourself (exact URLs for everything–not just “on my site”). Basically, think of every place that your opposition may have found the work and note the URLs.

Put all of the above into a folder for that infringement, before you do anything like contacting the infringer.

Yes, this all is some work, but evidence is so important that it is totally worth it. I can’t begin to tell you how many times someone has contacted me with what sounds like a great case but, because s/he hasn’t preserved evidence of the infringement, there is noting that I can do for her/him. I may know it is an infringement, but if I can’t prove it, there is nothing I can do for you.

So, once you have all the evidence, then you can decide what to do about the infringement itself. In my next post, I’ll talk about your choices.

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[1] No reason to give anyone any personal data accidentally, like that you also were looking at porn or something (yes, this happens).

[2] Remember that “publication” has a different meaning under copyright law here so if you offered it to a client for its use, even if it wasn’t used, then it is published. Also, posting the work on a site where you say, basically, “you can license this work” is publishing. However, just because you posted it on your portfolio site (no offer to license) does not make it published. If you aren’t sure, ask a copyright lawyer, not your creative buddies, for advice.

[3] If it is too late, then your options are limited for how you approach the infringement, since your remedies are limited, but it still may be worth pursuing.

Are You Getting Played?

Last night, I had the joy of going to a lecture by Dan Winters (thanks APA-SD). Even before I heard his impassioned words about his own work and about others’ art and the importance of what artists (particularly photographers) do, I had been thinking about writing a blog post like this one. It’s not going to be easy to say some of what I have to say and some feelings are going to get hurt but, honestly, everything I’m going to say is said out of love and respect.

Yes, I love creative professionals–it’s why I do what I do. Y’all amaze me with your visions and abilities and you contribute so much to our culture, but y’all need to stop. Just stop. No, not stop making great creative work, but rather y’all have got to stop not running your businesses like real damn businesses, stop looking for “easy” when it comes to doing the non-creative parts of your businesses, and generally you must stop selling yourselves short and stop getting played for it.

Artists[1] are notorious for throwing themselves into their creative work–the stereotype of the compulsive artist working without a break to make her/his art doesn’t exist without reason. Y’all have the drive to perfectionism in your art that makes your work ethic arguably greater than the average person’s; that is, for creating your art. But, when it comes to the non-creative part of your work, far too often it’s like the artist suddenly becomes dumb and lazy. You look for shortcuts and cheap/easy solutions, rather than doing the (hard, shitty, no-fun) work of being a business. It makes me more than a little crazy to witness–mostly because it is simply artists giving into fear and insecurity[2].

The reality is that what you do is amazing and valuable and you must recognize this to move forward. I mean your art is economically valuable (on top of culturally)–very valuable in fact: to the tune of $4.2% of the US economy. That is over $760B![3] Photography alone, added over $10B to the US economy and design, $19.5B[4]. Those are huge numbers and deserving of respect, including working the shitty work.

You contribute to those huge numbers.
Your contribution is worthy of respect.
Your business is worthy of (self-)respect, including the money.

So why then do we have this illusion that to be an artist means you have to hate business and be ashamed of making money? Because it is in other businesses’ best interests to hold you down. It is better for internet companies (and other clients) to call your work “content” like it is some unimportant filler for their products and tell you how they can’t pay you (much, if at all) for it but that your exposure will be worth more than money (which is, of course, bullshit)–because it increases their margins.

Okay, we all know this about clients. I’m not saying anything new–we all know that it’s in clients’ best interests to get your work for as little money as possible. But, and here is the tough stuff to hear, some of your vendors are also screwing you and, importantly, doing so with your blessing.

Maybe it’s easier for me to see this because I’m a woman and have lived my life getting mansplained and underpaid and told that I should be happy with it or happy that some guy deigned to take me out at all or lucky that someone offered me a job or that it was my fault that someone did whatever nasty shit was done. Women are used to it (I’m guessing people of color get this idea, too) and used to fighting against it. But most pro photographers (if not all kinds of pro artists) are men (mostly white, too, I’d bet) and I suspect y’all don’t like thinking that you may be being played, so you ignore even the possibility. Vendors are relying on you behaving like this because it is in their best interests.

So, out of love and a respect for each of you and what you do, I’m telling you a hard truth: some of you are choosing to work with vendors who are selling you the idea that they are offing you a great service and, because you hate doing the non-creative part of your business, you don’t look at whether it is really in your best interest. You assume that because, for example, the guy who started up company X was a photographer himself, he must have your best interests at heart and you willingly give up far too much of your money for the privilege of letting that company (ahem) “help” you.
Honey, you are being played.

You have got to take control of your own businesses and that includes doing the hard, no-fun, non-creative work. Don’t assume that some company is out to help you or that their “solution” that seems to make your business life easier is actually to your benefit in the long run. Often, they are not.

In my opinion, the worst offenders lately are the companies that offer copyright registration and protection services. These companies are ripping you off and you are thanking them for it, like Kevin Bacon in Animal House.

These companies usually charge a subscription fee for which you may get a certain number of copyright registrations and the company will then find infringements of the images you submit. However, the companies then generally require you to use their settlement services[5] for any of the infringements found and then usually take more than 50% of each of your settlements received (more, if the cases get filed)[6] [7].

Adding insult to injury, much like the stock agencies did in the late 1990s when they figured out they could get away with it, these companies often accept very low amounts in settlements–far less than each infringement is really worth, even in settlement–since the companies make it up in volume (something any individual artist cannot do). As an example, say, you get 45% of the $1000 they get in settlement for each your 10 infringements[8] (total, $4500 to you), and they get 55% of those 10 ($5500). However, they also have 999 other customers and get 55% of $1000 for each of the 10 infringements they settle for each of their other customers… and end up making $5,500,000!

Plus, don’t forget, you don’t clear that $4500–you have to pay your subscription fees, too, plus the registration fees to the USCO and, in the end, you might make $3000. Maybe. The company, meanwhile, gets at least another $300 x 1000 in subscription fees ($300,000) plus likely more fees for more registrations than the subscription includes and, well, you can see who is making the real money here.
Hint: it ain’t you.

Finally, you are relying on non-lawyers (usually) to register your copyrights with the USCO and, if they get something wrong, you are screwed by the faulty registration. A faulty registration, if relied on in court, could result in your case being dismissed and you having to pay the other side’s attorneys’ fees and costs, under 17 USC §505.

Oh, and by the way, these companies are not legally required to have your best interests first and foremost like a lawyer must (by law!)–in fact, the companies have a legal requirement to make money[9].

As if all that wasn’t bad enough, now you have these companies claiming that blockchain will make it all easier and better. It’s bullshit, as I have explained before.

The reality is that the non-creative part of your business is a large part in creating and keeping your money–your wealth. The non-creative part of your business includes registering your copyrights, looking for infringements, and pursing infringers. It is also keeping your books, paying your employees and other crew correctly and on time (including proper withholding and workers comp), and having good insurance. It is also using good paperwork for everything, having written and well-drafted licenses, and having contracts offered to you reviewed when you don’t understand them, not to mention stuff like keeping records and files. It’s not the fun stuff, and it is not easy, but it is as important as the actual art you make. Stop looking for shortcuts.

Look at the successful artists you know and you will find that not only are they often highly creative[10], they are also equally devoted to the business side of their business. They learn about and run their business like a business and they hire people to help them, like (in-house) a studio manager and out-of-house a CPA and an attorney. They respect their creative work enough to treat the non-creative part of their businesses as equally important. They hire licensed professionals who have their best interests as first priority to do the things those pros do best. They work their asses off to make sure they are taking care of the non-creative part of their businesses and act like professional business people, without apology. No excuses, no whining; they get it done.
What is your excuse?

I was talking about all this to my boyfriend, a former CFO and financial analyst, last night. He said (paraphrasing), “The artists are totally getting screwed–they’re not recognizing that they are over-paying for a service they don’t actually need! Why don’t individual artists hire people to help find infringements or do their paperwork?”
“Money,” I said, “they don’t feel like they can afford to hire help.”
He thought for a second and said, “Why don’t they get together with others and jointly hire someone in-house to find the infringements (to hand off to their attorney) and to take care of running the other business stuff (like bookkeeping to hand off to a CPA)? Get a couple of artists together and they could totally afford to hire someone who could do this for them and it would be much more cost-effective.”
I looked at him and said, “That’s brilliant!”

Whatever you choose to do, you simply cannot keep letting others sucker you out of your money, be they clients or vendors. Stop pretending you don’t want to make and keep as much money as you can, making the work you love. Your work is too important. Your skills are too great. You owe it to yourself, to your art, and to your industry to do better. I know you can.

_____________________

[1] I’m going to call you all collectively “artists” but this all holds true for photographers, illustrators, writers, designers, etc.

[2] “Imposter syndrome” is a real thing (https://www.nytimes.com/2015/10/26/your-money/learning-to-deal-with-the-impostor-syndrome.html) and very prevalent among creative professionals. Actually, many pros in many fields (including the law) have that fear that they are not worthy or will be found out as being a big faker.

[3] https://www.arts.gov/news/2018/arts-contribute-more-760-billion-us-economy

[4] https://www.arts.gov/artistic-fields/research-analysis/arts-data-profiles/arts-data-profile-16

[5] By the way, the “agents” for these settlement services are usually not lawyers and may in fact be practicing law without a license and/or illegally sharing fees between lawyers/non-lawyers. I also have questions about whether the companies offering advice about registering copyrights are also practicing without a license. I expect that many of these companies will face Unlicensed Practice of Law suits in the near future.

[6] Most attorneys I know, including myself, have much lower contingency fees–more like 33-40% to the attorney (before filing suit); and we’re required by law to work in your best interests, not our own.

[7] Notice how these companies often word it like “You get to keep 45% of the recovery!” like it’s a present to you. Blerg. It’s your damn money–you are paying them, not the other way around.

[8] Each infringement is likely worth significantly more than that $1000, too (if the copyright is registered, likely many times more)–so you’re already starting in a hole.

[9] Each state has its own laws for corporations, but most say something to the effect that “the purpose of the corporation is to make money for its shareholders.”

[10] Yes, there are exceptions–we all know artists whose work isn’t all that but who seem to make money hand-over-fist with it.

Blockchain is for Blockheads

Remember what I wrote recently? Seems a respected investment hedge fund agrees:

The use of blockchain in operating an image copyright platform accomplishes nothing. KODAKOne intends to utilize smart contracts and a crypto-asset to solve the problem of copyright infringement, but the business idea is flat-out silly. Cryptographically hashing an image into a blockchain doesn’t prove the provenance of intellectual property, a blockchain does not reduce the resources necessary for copyright enforcement […]

It’s definitely worth reading the whole original post on this, from the UK’s Mr. David Gerard, as he shares more on what a total scam blockchain is for photographers overall.

Look, if you want to protect your copyrights, REGISTER your work with the USCO and hire an attorney to go after infringers (it costs much less than you may think).