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. 

Control

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. 

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?

Things to do During Stay-at-Home

If your state or city hasn’t issued an official stay-at-home order because of COVID-19, it’s likely only a matter of time before it does (or it is being run by a terrible leader, and you should stay in anyway). If your work is usually not at home or even if you are someone who usually works at home, you can make good use of this time “off.” I have some suggestions…

  1. Review your standard paperwork. Estimate forms, invoices, contracts, releases, licenses… if it’s paperwork that you use in business, now is a good time to review it and make updates and changes. Maybe you’ll need legal help for this, maybe it’s just a case of fixing the format so it reads more clearly; whatever, this is a great time to get your paperwork in better shape.
  2. Consider updating your business insurance. One thing lots of people have already learned in this crisis: not having business liability insurance or disability insurance (etc.) is unwise.
  3. Related to #2, inventory your gear and update (if needed) your insurance coverage. Whatever your gear is, take photos, update serial numbers, make sure you have enough coverage for your critical tools and gear, including computers and software. At worst, doing the inventory will give you a clean list you can have for later claims (keep a copy off-site!).
  4. Register a bunch of your work with the USCO. Now is a great time to play catch-up with your copyright registrations.
  5. Work on a (new) marketing plan. Eventually things will start to work again and you want to be top-of-mind with your targets when that happens. Now is a good time to look at what will get you there.
  6. Check in with clients. Don’t contact them to solicit work but rather call or email your contacts, personally, and wish them well. Simple, generous, kind human interaction now will be remembered later.
  7. Check in with your vendors/crew. Like clients, your vendors and crewpeople will appreciate the kindness, even if you can’t hire them or buy from them right now. If, though, you can buy something from them now, consider doing so to make sure they are around later.
  8. Give yourself a personal project to work on. I mean a creative project, whether that is in your usual medium or not. Some photographers and other creatives are using their art to document their experiences, which is fine, but I suggest something that is non-virus-related for this. You can do both, of course, but something creative that isn’t about the crisis would probably be good for your stress levels, too.
  9. Give yourself permission to do less. Lots of people are trying to work full-time from home and do all the other stuff that they now have to (like taking care of kids, for example) and are getting burned out fast. Give yourself a break and be flexible.
  10. Related to #8, give yourself permission to be imperfect. Too many people are trying to be perfect in this crisis–stop it. You’re going to have days where you won’t get any “work” done or that your kids won’t have formal lessons or the dishes don’t get washed… if you hold yourself up to your usual standards of perfection (like you do in your creative work), you will burn out faster. Embrace the suck, as a good friend says.
  11. (because of course it goes to 11) Do something specifically for your mental health. Meditate. Take long walks/runs (alone). Do yoga or other exercise. Watch a comedy film. Sing to the radio. Dance in your living room. Play with your dog/cat/kid/lover. Write a journal. Bake cookies. Eat cookies. Simply find something that brings you peace and equanimity, and do it. Yes, this is good for your business as well.

There are difficult times, sure, but they will not last forever. The suggestions above can help you feel more in control even when we seem to have little of that.

Wishing all of you well, safe, and happy.

COVID-19 and Your Taxes

You may have already heard that your federal tax return is not due on April 15, as it usually is. The deadline is now July 15, 2020. You can file now, and probably should if you are due money back, but you don’t have to.

Relatedly, and maybe even more important for we self-employed folks, the first quarter federal estimated tax payments are also being deferred to the same July 15, 2020 date. Huzzah! Note, however, that (so far) it is only your first quarter estimated tax payment that gets deferred, even though the deadline is after the second quarter’s due date (June 15, 2020).

For more info, see here: https://www.irs.gov/newsroom/payment-deadline-extended-to-july-15-2020

Coronavirus: What To Do

No one teaches us what to do when there is a crisis like now. I’m not going to lie to you: it is very likely that your business is going to take a hit from the coronavirus. No one can effectively predict how big or how bad it will be, but there will be an effect. The worst part for many of us is feeling the lack of control we have over any of it, especially because creatives, like lawyers, are notoriously control freaks. 

I don’t have good legal-y advice to give you here. This is very much uncharted water for everyone. You can’t contract your way out of this (so to speak) so, as a lawyer, there isn’t a lot I can do to help you through it beyond my usual service offerings. But I do think there are things we can do now that will make this difficult time a bit better, both individually and for us all, so I’d like to suggest them here.

First, breathe. I know, that sounds patronizing but, seriously, take a conscious, mindful breath now and then. If you meditate, keep it up or even add some extra sessions. If you don’t yet meditate, consider starting a practice. Calm breathing and meditation help to reduce stress and does all sorts of good for your body and mind. This is science, not superstition (see, e.g., https://nccih.nih.gov/health/meditation/overview.htm). Exercise works, too.

Second, if business is slow, use your downtime well. Get up, get dressed, go to work, and create. I think one of the best things you can do for your business is create new work and this slow time is an opportunity to play creatively—take advantage of it! Creating new work now will make you more competitive when things start picking up, because you will have fresh work to show your targets. Besides, playing creatively will make you feel better now, when things are tough. It will give you something else to focus on, something you can control more, and keep your head out of the doom and gloom of the news.

Third, read books. Put down the news, the social media, and pick up a book—preferably a novel (at least occasionally). Most people complain that they want to read more—now is your chance. It also will help keep you out of the dark places our current reality inflicts. 

Fourth, and maybe I’m burying the lede here, but this is really important: support others however you can. It may sound counter-intuitive but, helping others will help you more. It’s easy to fall into the fear-based and selfish hoarding behavior, but you can’t buy enough toilet paper (or potatoes or milk…) to make yourself safe. During WWII, people understood that hoarding was one of the worst things you could do while buying war bonds, donating, recycling, growing victory gardens, and generally thinking about the greater good would win the war. They were right. It’s also right now.

You can support other small businesses now by doing things like buying gift cards for later use. The businesses get the revenue now, to support them while their customers can’t or won’t visit. This is particularly needed for small service providers like salons, spas, as well as artists of all sorts. You can buy music (actual vinyl, cds, or downloads—not streaming) and merchandise from musicians, who now can’t even make money touring. Buy books (or gift cards) from indy booksellers, many of whom will ship, to help support writers. Buy a subscription to a decent newspaper, to encourage and support their reporting. 

And if you want to get really massive karma points, buy (some of) these things and gift them to people working in healthcare right now. Those people are risking their lives for us. You could order some pizzas (or whatever, especially anything chocolate) for your local ER staff, just to thank them for being on the front lines. 

Things are going to be tough for many people. You won’t be alone if you struggle. But, if you keep in mind that we are all in this together and that the virus and its effects are not permanent, you’ll get through it. 

You Are the Cause of Your Own Suffering

I heard a dharma teacher speak those title words on a podcast this morning. A related Buddhist phrase is “Pain is inevitable; suffering is a choice.” In my spiritual practice, I think about this idea often. It is, roughly speaking, that bad things happen to us all the time and we can never protect ourselves against all of these bad things (not even most of them); however, how we react to the bad things in our lives is directly related to the suffering we feel.

I also think about this idea often in my other practice, my legal one. What does this have to do with the law and, more importantly, your business? Lots! 

For example, when you find an infringement of your copyrights, like your art on someone else’s website, that is painful. The infringer has violated your rights and it seems perfectly reasonable for you to feel angry and upset. Instead, as an attorney, I counsel quiet acceptance of the way things are. This isn’t flakiness, it’s wise legally. I mean, you can’t control the infringer’s behavior and the infringement has happened already: no matter how angry or hurt you get, you won’t change those facts. But if you get angry and strike out, you’ll definitely feel worse, not better. So, take a breath and, gather your thoughts… and your emotions. 

If you strike out at the infringer in anger (even righteous anger), that will make things worse. You might send an email that amounts to legal threats/extortion, or publicly shame someone and later find out you had the wrong “bad guy,” or lose a client because you embarrassed it. But even if none of that bad stuff happens, attacking like that will not make the infringement go away or get you made whole. Instead, you’ll just suffer more because you’ve behaved badly and you haven’t made the pain go away or changed the reality of the infringement. 

Playing the victim won’t help either. It won’t make the infringement stop, it won’t punish the infringer in any way, and it won’t get you paid (if that’s what you want). You’ll just feel worse. There is your suffering, brought on by your own choices.

Now, “quiet acceptance of the way things are” doesn’t mean “do nothing.” Instead, after you take that breath and gather your thoughts, gather evidence. Here’s a post I wrote on that. Even if you decide to do nothing now (one option), you’ll have the evidence if you change your mind (you have three years from when you discovered the infringement, usually, to file suit). After you get the evidence, think about what will make you feel better, feel whole now. Then, take the calm and rational steps to make that happen, like hire a lawyer to get you money, ask the infringer for a credit line and payment yourself, filing a DMCA Takedown, whatever.  

As for protection, you can’t stop determined infringers. You can let go of feeling guilty, like it’s your fault they infringed–it’s not– and feeling guilty is choosing to suffer. However, you can make it easier to get satisfaction after they do their bad deeds if you take the right steps like using watermarks (especially in the form of proper copyright notices), registering your copyrights, using good metadata in your files, and getting good evidence.

Things like infringement are going to happen to you. When they do, there is no reason for you to suffer.

Regret

I started running in March, 2010. I was in law school and dealing with a painful divorce and I come from Polish folk who, over-40, rapidly turn into, well, very large people. I needed to do something to prevent or at least postpone the babushkafication of my body and to keep depression at bay. In short, drastic changes needed to be made to keep my sanity and my health. So, I bit the bullet and started running.

To be clear, I am no runner’s runner (even today, I am slow as hell) but, back then, I had never run at all before. Still, I went from never having run more than a block to doing a 10k without stopping, in just a few months. Later, I even did an accidental half-marathon one Saturday morning at Torrey Pines State Park (although there was walking involved, as well as lots of hills). I even inspired one of my law school classmates to become a runner. It was a bit of a miracle.

I loved the discipline of doing it regularly and the meditation of actually doing it. No music, just the sound of my breathing and the prompts from the running app “Run… walk.” Even though I sucked hard at it and I never got the runner’s high from it, I loved it. It was, for sure, work, but I never regretting running, even when I fell hard once and looked like I’d been in a bar fight.

And then I got an injury, and had to stop for a while. But I went back to it. And then I had GI issues, and had to stop for a longer while. In fact, I had to stop for almost a year, last time, and it sucked. A lot. I did yoga and weights, but it wasn’t the same. I missed my pre-dawn discipline, and its effects.

On my last visit to the doc (October) the scale revealed that I was at my highest weight ever. This I already suspected, but hadn’t wanted to admit. After all, my clothes didn’t fit right any more and, despite the boyfriend assuring me I looked great and the flexibility I had from the yoga, I didn’t like how I looked or felt. That large number just sealed the deal.

The next morning, before the sun was up, I put on my Nikes and my running shorts (that were much tighter on my thighs than I’d recalled) and hit the road. Restarting the practice, again. Despite the very short (and slow!) running intervals and the short total time of running/walking, I was panting like a kick-boxer by the time I was done, soaked in sweat. I was a mess. But I was happy. No regrets about how much work I had to do to get back in shape. No regrets about a slow, sweaty run. Just happy that I did it. And then 2 days later, I did it again.

Two months later, I’ve lost inches off my body (I should note I’ve changed my diet too) and, with each run, I do a little better. Every run day, no matter how much my brain says it doesn’t want to go out in the cold (it was 44º this morning) and the dark, or that I’m old (over 50) and parts ache, I throw on the togs and go. I never regret it by the time I’m rounding that last turn for home, if not sooner.

So why am I sharing this story and what does it have to do with your creative business? What I hope you get from this is not that you can lose body fat if you run (although you can) but rather that we have the power to change our lives, every day. It’s never too late. It’s not the drastic, big change things but rather the every day small choices we make that reflect our power to do more, be better. Even after distractions that take us off our path, even with aging, worries, busy-ness, responsibilities, and world news that could make a saint drink vodka at 9am, we can choose to do one thing we know works for us. Then choose to do it again. Then, rather than live in the regrets of not doing, rather than each morning complaining about how hard it is out there and dragging yourself to work, you can recognize that you choose do what you do, what you love, what you know, and you can develop the discipline to push yourself to be just a little better at it. A little better at life. A little better at your work. Today.

Your 2020 To-Do/Please Don’t List

As we wrap up 2019 and start to look ahead, I thought I would give up some of my best thoughts on both business and legal issues, for creative pros, in list form. I think I should to warn you, though, I’m not holding back on the language. I think someone needs to play Carol Kane in Scrooged to the creative industries and, well, I’m just the broad to do it.

So, here’s what you should/should not do for your business in 2020:

  1. If anyone talks about ROI or value propositions or anything else that smacks of weasel-in-a-suit when it comes to your marketing, run away. All that shit is dead. Sure, you want to get the best bang for your buck, but the most effective marketing for a creative business is simply not quantifiable. Lest you forget, you are not selling widgets or some service that anyone can do, but rather a very specialized service that has virtually no competitors. Much of that MBA mumbo-jumbo just doesn’t apply to highly specialized service providers, and all artists are (or should be) exactly that. Despite our hyper-image-based social media world, your marketing today needs to be honest, real, and a reflection of who you really are. I sure as hell hope you are not a “suit.” Stay away from buzzwords–don’t use them and be skeptical of those who do.
  2. Forget about old selling tools like “elevator speeches.” Look, when you shill, no one gives a shit who you are or what you do. It’s totally off-putting to get the spiel–be that at a party or (yikes) in an actual elevator. Car salesman-esque. Fake. Ew.
    My “elevator speech” is I’m a lawyer for creative professionals. That’s it, because all I’m doing is answering the question “What do you do?” Why only this? Because I’m not pushing the sale (that is very old and disliked) and I leave space for a dialogue by NOT answering all the implied questions (see #3). I’m letting go of trying to control the interaction and, in so doing, get better results.
  3. When meeting someone new, especially a target, after saying that you are a commercial artist of whatever stripe you are, always follow up with a question (or more than one) about the other person: Do you work on the Widget campaign? What other ones? Who’s your dream to work with? etc. And respond honestly to their responses and use follow-up questions: I love the Widget work–where did you find that actor? You are a hell of a lot more interesting to a potential target when you are interested in her/him, especially (in this context) his/her work (it’s good to do research on your targets ahead of time so you know enough to have questions).
  4. SEO is a waste of your time. People who sell SEO services are the used-car salesmen of the 21st century. The reality is that Google has like 97% of search traffic and it manipulates its results something wicked. Really, chasing that SEO goal is wasted effort. Moreover, good buyers are not using Google to find their creative providers. At best they may do an image search of some kind (mostly for inspiration, not to hire) and then that’s going to be more about effectively using your work’s metadata than “optimizing” your site.
    Yes, we all know of someone who got a great gig from Google: and that person is the exception, not the rule. It’s like what we do often with dating: we hear about the one friend of a friend who ended up getting happily married after the guy/woman didn’t call forever and we think that can happen to us. We could get hit by lightening, too. Probably better odds of that.
    4.a Anything blockchain or AI-related as some sort of saviour tool for creative businesses is also total crap.
  5. Put on your big boy/girl panties and, for the love of Buddha, stop whining that you can’t do X or Y. I’m so tired of hearing “Yeah, great idea, but I can’t do that,” like you’re somehow different. That attitude is bullshit: yes, you can do it, whatever “it” is. It might be hard and it may be risky, but you can do it. I don’t care what it is, almost always you can find a way. Just get a set already. Look at me: I started law school when I was over 40 and had my marriage blow up before my first set of exams; I started my own business first in 1999, then again as a lawyer. Life ain’t always easy, but it’s worth it. Business is often hard and there are no guarantees. You want a guarantee, buy a blender. You want to be a creative pro? Accept that it is tantamount to doing the flying trapeze, without a net. Let go and have fun with that. You chose to be an artist–stop whining about the risks. Be a friggin’ ARTIST, unapologetically.
    5.a. The answer to the question But what if someone doesn’t like my work? is always Fuck ’em. In short, they aren’t your target audience.
  6. The “trick”to business is finding the right people to market to. Actually, this isn’t that hard: when you see work you love and that you wish you could have been a part of, research who made that work and add them to your marketing lists. Like attracts like. See Number 3, above. Don’t be afraid to reach out to those people–it’s not like they’re going to have you killed if they’re not interested in working with you; they’ll just say “no.” More importantly, they might say “yes.”
  7. Make art for yourself, as often as you can. Don’t create for any other reason (like to specifically make something for your portfolio) but rather create for the love of creating and for making the work that excites you. Don’t worry if it’s good or right or what you should be doing, just make some damn art for you (see 5.a. above). That is your job and you have to do it for your business just as much as you have to pay your web hosting bill.
  8. Get out of your office/out from behind your computer and interact with people. Social media is a form of connection but it’s a weak and highly manipulated one. You want to get work, you need to meet people in real life. Yes, that means actual meetings. It means traveling to the places where your targets are and meeting with them there or putting on events to get them to where you are. Go to portfolio shows. Oh, and at the end of any portfolio meeting, do NOT ask for a job on the spot. They hate that. You are not selling, you are marketing–it’s a long game.
    Getting out also means going to events connected to your targets, like AIGA presentations, Ad Club events, or even lectures by lawyers (look up your closest Lawyers for the Arts chapter). Take people to lunch (or bring it with you), throw studio parties, put yourself out there. And have fun with it!
  9. Register your damn copyrights. Please. I beg you. If you are a creative professional, stop making excuses and start doing this. There are services, but I don’t recommend using any of them because the resulting registrations might not be anything more than maybe adequate and they might possibly be 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 hard anyway, particularly for visual artists and even more so for still photographers.
    9a. 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, and do number 10.
  10. Pursue Infringers. 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 believe in fighting for the “little” artist and, besides, small cases simply do add up. Let’s say you have small value infringements, but a bunch of those that are worth $2500 average settlement (that number is just for sake of argument). 10 of those cases over the year is $25K. Now, let’s say your attorney gets 36% of that: you’re still pocketing $16K.  How about 20 cases and $32K in your bank? I have clients who make 6-figures annually because they register their work and go after the infringers–some bring in $2500, some bring in much more. Don’t wait for the CASE Act (which may never pass)–you can register work today and for infringements that start after that registration, you can wield the enhanced remedies stick!
  11. I don’t care what any consultant or other artist tells you, separate out your Usage Licensing Fee from your Creative Fee. Better yet, make sure the License Fee is where most of the “cost” lies. As more and more work is getting ripped off you need to be able to prove the value of your license (even if you are going for statutory damages–it helps) and you just can’t do that if you use a combined fee on your estimates and invoices. The other side will have a great argument that most of that number is the Creative/Shoot Fee and you get screwed a second time. Why do you think buyers say they want them combined? Because it benefits their companies, not you. They are protecting their asses–you need to look after your own.
    You can do this if you want to make sure not to piss off a buyer: on the cover/summary page of your estimate (and invoice!) you lump your numbers together into two main categories (Fees, Production Charges) so that there is a simple, one-page overview for the buyer to glance at. Inside, however, you break out every Fee and Production Charge, line item by line item, and make sure to line item the License Fee separately.
  12. Speaking of fees, increase your rates in 2020, especially your license fees. Every creative pro who does this is terrified the first time. I have, however, never heard anyone regret it later. You may lose some clients, but really, you needed to kick those cheapskates to the curb already. Ever notice the inverse relationship between budget and pain-in-the-assishness? Why bend over backwards for the clients who nickel and dime? Just stop. Demand more money and you will get more money and you will respect yourself more.
  13. Watermark your visual art. Do this and, for bonus points, make it a proper copyright notice. See here for the details but, the short answer is that if you do that you (a) have a stronger case for willful infringement (more money); (b) eliminate the “innocent infringement” defense; and (c) if it gets removed, then you may have a good case for a lawyer to help with even if you have not registered the copyright and can’t prove your damages!
  14. Get your paperwork in order. Yeah, I know, contracts are not sexy but they are a very necessary evil in business. Get contracts drafted for you by your own lawyer so that your interests are in first position. If the other side insists on using theirs (yeah, big companies can be bullies), get those reviewed by your own lawyer. Have releases and licenses crafted for your needs. Think you can’t afford that? Think more about how signing one bad contract can wipe you out. Besides, not all lawyers demand insane retainers to be there for you. Check out my Burns Less program for a very cost-effective option (by the way, I am not the only lawyer with alternative fee structures!).
  15. This last item is the most important: be yourself and be proud of yourself in everything you do. Honesty, ethical behavior, and real connections are what will make your business successful now. Have convictions and don’t apologize for them. Most of all, be passionate about your work. That’s what I’m demonstrating here. Sure, some people are going to be offended by my language and/or say it’s inappropriate in business, but in creative businesses (including lawyering for creatives), being real beats convention, every time. So here I am: I swear (in multiple languages even), I’m passionate, and I’m unconventional, but most of all I want y’all to succeed and I work hard to make that happen. I love my work, even though there are days when I want to throttle certain infringers and set fire to certain online platforms. I’ll tell a client when I think s/he/they are making a bad choice and I’ll fire a client who isn’t ethical. A few years back I decided to be more real and open with my thoughts and opinions–I’ve never regretted it and most of my clients and readers have appreciated it.

    For the others who don’t, well, see number 5.a., above.

Why Not?

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

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

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

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

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

The logic escapes me.