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. 

It Adds Up

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

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

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

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

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

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

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

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

Creator? Get a Lawyer

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

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

The logic of having one is pretty simple:

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

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

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

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

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

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

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

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

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

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

Consent

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

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

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

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

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

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

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

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

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

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

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

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

Catching Up

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

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

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

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

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

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

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

FameFlyNet at 4, (some internal citations removed)

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

SCOTUS Says No to the Jumpman Case

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

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

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

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

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

SCOTUS Clarifies Two Big Issues

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

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

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

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

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

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

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

Showing 2018 the Door

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

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

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

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

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

Exclusive Versus Sole

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

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

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

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

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

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

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

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

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.