Category: News

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Undercharging

Ever since I first got into the photo biz as a studio manager (back in the last century), lowballing has been a problem. Usually, this is not done intentionally but rather out of fear and not knowing the actual value of the work.

Here’s a little data point that might help you understand value better: a general rule of thumb that companies use when budgeting their marketing and advertising projects is 10% creative costs; 90% placement/media.

You read that right 10% of the budget goes to creative costs, 90% to buying the placement/media.

Now “creative costs” are inclusive of things like talent; but I suspect that, even with that, many of you are undercharging. Some of you are way undercharging.

What are companies marketing/advertising budgets? Well, the consensus is that companies should budget at least 5% of their gross revenue (that is their sales–what they bring in before any costs or deductions), but some say it should be more like 7-10% for a small business. I read one article recently that said 15%! Here is a good breakdown of actual numbers from Small Business Trends. When you look at those numbers, and those are for small businesses, are you charging enough for your work?

Look, your clients are almost never going to tell you the truth about what their budgets are and how much others charge. The latter, especially. When I was a rep, I had some poor fool tell me that Photographer X estimated 10% of what my guy was asking…not knowing that I also repped Photographer X who wasn’t even asked to estimate on the project. Whoops! So I counsel doing your own homework.

If you take the time to learn what your clients are actually spending (and learn the language for all the various marketing channels, etc., so you sound like you know what you are talking about, too), you will be able to increase your rates with more confidence.

Finally, never be concerned about what you hear others are charging–it’s likely untrue and, if it is true, matching those numbers is a sure way to fail. Next time you do an estimate, do your research and present a higher rate. If the client balks, don’t over-explain–just say that you are confident that your total numbers are well under the 10% of the budget rule-of-thumb number they have for that marketing project.

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Real, Human Lawyering

I have been reading more and more articles about lawyers using AI to do their jobs. This, in my mind, is malpractice. The whole point of lawyering is to think; offloading that to some LLM makes no sense at all.

AI/LLMs aren’t even good at it, actually. There are more cases every day where a lawyer gets sanctioned for submitting a brief with fake citations. These are irritatingly called “AI hallucinations,” something that implies sentience and which the machines do not actually have. Whatever, these errors happen often. The tools produce answers their creators think we want–what will make us pleased. Need a citation to say what your client did was okay but there really isn’t a case that says that? No problem, one will be invented. Ugh!

Why use a tool when it can’t even do what it is supposed to with any accuracy and without legitimacy?

I won’t. In fact, I feel confident in saying I will NEVER use AI in my practice. I got rid of my Microsoft 365 subscription when it forced Copilot into its tools. I turned off Apple Intelligence. I am now running my practice using tools that reside on my devices, not the “cloud” and which do not access any LLM/AI-tool that I am aware of. My bookkeeping, trust accounting, case management…all of it is done offline. Research is necessarily online, but even there I try to use non-AI or the least AI-assisted tools available (this is getting harder but is something lawyers really should be fighting).

And it all works, in my opinion, better.

What you get when you hire me, then, is someone who writes all her own emails, letters, briefs, filings, and even blog posts. My work product is made by me, period. It is my brain that researches the law, the facts, and puts the pieces together to tell your story, argues your case, negotiates and persuades. If I cite a case it is because I have read the actual case and think it applies, not because some LLM has spit out a summary of it to give me what, in its digital mind, is a pleasing answer.

AI/LLMs promise speed and increased work volume–a lawyer can handle more cases with these tools, we are sold. But, in my book, I would rather be a better, more human lawyer than one with a gazillion cases. I am rather like an artisanal worker, like the guys who made and installed some windows in my 100-year-old house: the windows were custom made and fitted with extreme care. Your matters matter to me, and I will always do my best to give each matter the full attention it deserves, not offload my work to some digital tool that, frankly, is incapable of caring.

I care. It is why I became a lawyer in the first place.

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This Isn’t a Humblebrag; It’s a Buttkick

I was reminded by a client recently that what I do actually has changed (at least some of) my clients’ lives for the better. That was very meaningful for me. While of course I need to make a living, I do what I do to try to help creatives be successful (at least financially). When I hear that I have succeeded in helping, that makes me feel great.

For example, I helped fully-fund one client’s retirement accounts; for another, some serious and unexpected home repairs were much less a problem. I’ve had other clients, over the years, tell me I helped pay for vacations or their kids’ college funds. All sorts of things that simply made their lives a bit (or a lot) better.

To be sure, none of these were huge cases. I do not have any million-dollar awards or settlements…. not even close, to be honest. There have been some that have been larger, relatively speaking, but mostly my practice consists of handling what many people would see as “small” cases.

What do I mean by small? I did some math to figure that out. Most single-infringement, pre-litigation settlements in my practice lately (2024-2025) land between $7,500 to $12,0001. In the legal world, those are not big numbers. But for the artists I represent, they are not insignificant. Those numbers mean roughly $4,750 to $7,700 in the client’s pocket2. Per case. Most of my clients find multiple infringements that they ask me to pursue so, it is not at all unusual for a client to net (that is, after paying me), over a year, more than $30K or $40K. Sometimes, much more.

In other words, these cases, although what many people would call small, add up.

The key to these cases, almost always, is that the client has a timely registration. I’ve nagged about that for years, but look at the return! You can register multiple works (photos, 2-D art, blog posts, etc.) with one application and one fee (usually $55-$85, depending on the kind of works). If the work infringed is registered before the infringement at issue started3, then the minimum statutory damages (if the case is litigated) are $750 (up to $30K for non-willful). You also may be awarded attorney’s fees. That statutory (that is, written into the law) reality and the case law supporting the amounts make it possible for me to negotiate settlements like mentioned above, in many cases4.

And yet, I still have difficulty convincing some creators to register their copyrights and go after infringers. Like having that additional revenue isn’t worth the effort. That makes no sense to me. Artists of all stripes work hard to make their work (even when they feel it is easy themselves); why let someone rip it off? It isn’t a compliment to have some business use your work–it is a way to exploit your talent and efforts for its own benefit. As long as we live in a capitalistic society, you will need to make money and your work is valuable. The companies that use your work know that–they chose your work to make money… for themselves. By pursuing infringers you are not begging but rather standing up for yourself, your work, your talent, your own business.

So yeah, it feels great to know that I help people. But it is frustrating to know that I could be doing more for more of you. So please, whether you ever work with me or someone else, get off your butts, register your work, and stand up to the infringers.

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  1. REMEMBER! Previous results are not predictive of future results and each case is its own thing; just because someone got $10,000 for a case, for example, doesn’t mean you or anyone else will for a similar case. ↩︎
  2. The contingency fees (a percentage of the gross settlement or award) I charge are negotiated with each client prior to us working together. ↩︎
  3. Or if the registration is within 3 calendar months of first publication of the work. ↩︎
  4. Certainly not all cases, though. Some infringers will not negotiate, for example, meaning the case must be litigated or dropped by the client. ↩︎
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Adobe (and others) Avoidance

As Adobe has turned into a hellscape of subscription and AI making, I have just learned of this open source alternative: DarkTable. Some people I respect (and know from Mastodon) use it so I’m passing the info on to you. I have no relationship to the makers and have no personal knowledge about the tool, but anything that enables artists to get away from Adobe (and any of the other online & subscription tools) can’t be all bad.

Many of these same artists are using PixelFed instead of Instagram, for example, or have gone back to having their own websites and showing their work there. I think that is great because using platforms like Instagram (or, heaven forbid, X) feed the fascists. Literally.

Does it take more work? Sure, at first especially, but it is worth it.

I have been taking my own business off of subscription-based products as well. It took a bit of doing, but I’m just about there. The most difficult tool to replace was the bookkeeping application. Lawyers have some strict reporting requirements and we have things like trust accounts to keep track of. I also do cash basis accounting, which often is not supported. I’m now using Manager for my business books and it has so far been solid (I have not cancelled my Xero subscription yet, just in case, but I think I’m going to quite soon). It had a learning curve, but not terrible.

For social media, I only do Mastodon now. When I have to go on sites like Facebook (to document infringements, for example), I’m shocked at how awful they are. And, like I said, it puts money in the fascists’ coffers.

Long story short: you can take control back from the corporate masters. I sincerely encourage you to do so.

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Update Your Contracts

A client informed me yesterday that Vox Media had announced a partnership with OpenAI that permitted that leech-of-a-tool to use Vox Media content to train. This is bad and very likely goes beyond agreements it has with many writers and photographers, but it’s going to do it anyway because tech companies have no decency and too many media companies have no spines.

So, first, if you have work that you have licensed to Vox Media, check the language in your agreements and, assuming you didn’t sign away too much already, contact Vox to remind them that your work cannot be used for AI-training purposes. Period. Don’t let them try to talk you into some piddly bump in fees–what they are doing is enabling tech to put you entirely out of your work so just say “No.” You need to think long term here–an extra few bucks here isn’t worth torpedoing your particular creative industry.

Second, look at your own contracts, which you should be using anyway but, yeah, I know, you probably don’t because the bigger companies are bullies about that. Anyway, you should add something to your own contracts that makes it absolutely clear that any use that may result in the training of AI is not permitted under your license. You need this for contracts you use with individuals (like for event/wedding photography) as well as for companies for their marketing or advertising use.

Remember, when you permit your clients to use your work on certain platforms, you are permitting those platforms to use your work to train AI. That is bad. Spectacularly bad. So don’t do it. Make it absolutely unambiguous–if they do that you will sue them for infringement.

Finally, if you aren’t already, start registering your copyrights. Now. It’s the best tool you have to fight these sharks. Don’t think “I can still use the CCB if my work isn’t registered” because (a) you still have to register your work to sue using the CCB; and (b) you won’t get very much from the CCB, especially if your work is not timely registered (no more than $7500, and probably MUCH less).

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A Win for Artists at SCOTUS

Last Thursday, I participated as a panel member in a ABA Copyright group online meeting. The majority of the meeting was discussing the Copyright Claims Board–how it’s been working (or not) and its results thus far. But, we also looked at a recent SCOTUS ruling that affects copyright cases in a big way: Warner Chappell Music v Nealy (No. 22-1078, 144 S. Ct. 1135 (U.S. May. 9, 2024) for you legal geeks out there). That’s what I want to talk about here.

That case looked at the interplay between the discovery rule and damages. Lots of people were hoping the court would address the discovery rule generally, but instead the court rules only on the question of damages and whether they were limited to a three-year lookback. Not to bury the lede: nope, damages are not so limited. 

Since the Petrella (aka Raging Bull) case, some courts (especially the 2nd Circuit–that’s NY and environs, for you regular folk) have said that while the discovery rule applies as to when a claim arises  and starts the statute of limitations clock (that is, when a plaintiff discovered or reasonably should have discovered the infringement), it also limits the time period for damages such that the plaintiff can only get three years of (for example) lost license fees.  Scotus said, in essence, no–the statute of limitations three year period is ONLY for the bringing of the case, not the damages. 

This is important. Imagine finding that a company used one of your works on a t-shirt for sale starting in 2015 but you just now found that infringement. Now, assuming you are in a circuit that applies the discovery rule (and most, but not all do), you can file suit and ask for damages all the way back to the start of the use in 2015. Since your actual damages include the profits directly attributable to the infringement, you can now get all the profits from all the t-shirt sales, not just those from 2021 until now. Since courts often look at actual damages as one factor in setting statutory damages, now they have to look at that much larger number, too. 

While this case doesn’t settle the injury-versus-discovery rule split (see more about that here) and those folks in the injury rule circuits are still screwed (IMO), it does mean most people now have the possibility of being made whole, not just partially so. Good news for the artists. 

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The BOI Filing (how to)

I mentioned in a previous post about the new federal requirement to file a statement of information regarding the “beneficial owners” of an entity–that is, a corporation, partnership, LLC or, in some cases, even a sole proprietorship. Since my firm is a corporation (note the “Inc.” at the end of the name), I had to file one of these, too. 

The good news is that is it pretty simple, especially for businesses that were in existence before January 1, 2024. It’s done online and is pretty straight forward. It’s also free. You just need to have some info ready ahead of time. 

The bad news is that determining who you need to name on the form can be a little confusing.

If you want all the details, this guide (pdf)  is helpful, but I explain the process for most creative businesses, below.  

First, determine who needs to be included on the form. To do that, you need to ask yourself:
1. Who owns 25% or more of the company (be that stock/equity, profit interest/membership, whatever)?
2. Who has substantial control over the running of the company (all the major officers, for example)?

Anyone who fits either of those categories, or both, needs to be included. 

Once you have the list of people to include, you need to get the following info for each person:

  • Full Name
  • Full Address
  • Date of Birth
  • Number, issuer, and expiration date for proof of identity (a US driver’s license or passport is best)–also, you need a scan of the document, saved (pdf, jpg, png) without spaces or weird characters in its name (I did “BurnsID.pdf” for mine, for example) and less than 4MB in size.

Now, you need to have the following information for the business entity itself:

  • Legal Name (that includes its designation like Inc. or LLC–for mine it was “Burns the Attorney, Inc.” for example).
  • Address
  • State of Formation (where did you form your entity–likely your home state; but it may be DE for some of you, or NV, or anywhere, really)
  • Tax ID (EIN or TIN) number.

Okay, now you’re ready to file your report. Here is a simplified step-by-step through the questions*:
(*I highly encourage you talking to an attorney or CPA for best advice before doing this–these steps are probably right for your creative business, but they may not be depending on some things–actual professional advice is best)

1. check “Initial report”

2. date (auto filled)

3. If you want to get issued a FinCEN ID number (especially, if you have employees or will some day): check “yes”

4. (skip)

5. Your entity’s full legal name

6. An alternate or dba name(s) you use, if any

7. What kind of Tax ID are you going to report (SSN, EIN?)

8. Your entity’s tax ID number–WITHOUT its hyphen(s)

9. (skip, unless you have a foreign company)

10. The place (usually the state) where you first formed your entity

11-15. Current US address for the entity

16. If your entity was in existence BEFORE Jan 1, 2024, check yes.

17. (skip)

18-34. Skip if your entity was in existence before January 1, 2024.

35. Skip unless you are reporting a minor child owner.

36. Skip (Unless you already have a FinCenID but I doubt you do)

37. Skip (you’re not exempt)

38. Beneficial Owner #1’s Last Name

39. Their First Name

40. Their Middle name (if they have one)

41. Their name’s suffix, if they have one (like “Jr.”)

42. Their Date of Birth: MM/DD/YYYY format

43-47. Their address.

48. The kind of document they are using to prove ID

49. The number from that doc (for example, DL number)

50. ID doc jurisdiction (country for passport, state for DL)

51. Attach the scan of the document you are using for ID.

That’s it, if you are the only owner! If not, you can add another owner in exactly the same way. 

When you are done, make sure to download a copy of the submission (there’s a button saying “download transcript” for that. Your CPA and/or attorney will likely want copies for their files, but you for sure should hold onto a copy in a safe place with all your other super important business records. 

Now, if you don’t ever move or add or remove owners from your business, you won’t have to file again. If you do, you will have to file an update within 30 calendar days of that change. 

Assuming your business was in existence before 2024, you have until the end of the year to do this but, unless you are planning big changes in 2024, there is no reason to wait. You can do it sooner and get it off your list. Good luck!

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Taxes and More!

It’s getting near the end of January and, if you’re a US-based business, that means you’re likely facing a couple of tax-related deadlines.

  1. If you hire freelance contractors of any sort, you need to get their 1099s to them by the end of the month.
  2. If you have employees, they need to receive their W2s by the end of the month.

You should also check with your CPA about any state or local reporting requirements.

Also, for all US-based businesses, there is a new reporting requirement that has nothing to do with your taxes: the Beneficial Ownership Information report. I wrote about it on the Architectural Photography Almanac; but, the short version is that if you are any sort of entity (LLC, corp, partnership) or if you have a fictitious business name (probably filed with your county authorities), then you will need to file one of these reports. Who needs to be named is more complicated than it first looks, but your attorney or CPA can help you out with that.

Oh, and that last thing? If your business was formed before Jan 1, 2024, you have all year to file that report; so don’t rush it but don’t wait until the last minute, either.

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Drop Your Ego and Raise Your Usage Fees

I have written before about the importance of separating your fees and costs/expenses on your invoices (actually, on all your paperwork) so I’m not going to go into that again, but I will once again nag you to make your license fees the largest number of your fees, if at all possible. Why? Because there is a new (tentative) ruling in the CCB that shows how low license fees can hurt you.

In this case, a photographer made the work as a part of a large shoot for a client. His original bill was well into the six figures, yay! However, as the Board notes:

During the shoot, Hursey shot approximately forty-two scenes, with a scene consisting of multiple versions of the same setting and activity with minor differences. Hearing Tr. at 39:00 – 39: 57. In the present case, the scene consisted of a family at a picnic with a pastoral background. Evidence Doc B (Dkt. 17). Hursey was paid $185,524.45 in total for the shoot, but most of that amount was reimbursement for costs and payment for his time, while $17,500 was for an unlimited license to use all of the photographs taken over the course of the shoot. 

Proposed Default Determination, at p.3 (bold added)

An unlimited license should definitely be the largest number on your paperwork–it is HUGE usage! Let’s conservatively estimate that in this project, the photographer provided finals of 3 variations of 42 scenes, or a total of 126 images (it was likely much more, of course), $17500 divided by 126 is a whopping $138.89 per photo licensed. That’s insane.

Photographers and other creatives have got to stop billing their Creative Fee as if it is the most important thing. That is just your ego talking–a bigger Creative Fee means YOU are somehow worth more…. **HURL**! It’s short-sighted, at best.

Worse, using time as the basis of your Creative Fee makes you into the equivalent of a wage slave and insults your professionalism. It doesn’t matter if it takes you 30 minutes or 3 days to create your work–it is your TALENT and ABILITIES that count. If you have 30 years of experience and can make the difficult shot in an hour where a newer photographer would take all day, why should you be penalized for that?! So, stop billing as if time and your ego matter. Instead, think long term: you can re-license for more if you bill more for usage from the start! And it will help you if you ever get ripped off. Bill a reasonable Creative Fee, not time-based, and bill a large (but reasonable) Usage License Fee.

On the good side in the case cited above, the photographer has an online calculator for his stock licenses and that provided a number of $1000.70 for the same use as the infringer made of the photograph (still too low, in my opinion, but better). The Board relied on that number and awarded $3000 for the infringement here. Id. at 9. Whew. I mean, I think that is still way too low an award but it’s a hell of a lot better than 3 times $138.89. If the photographer here did not have published rates as he did, the court would very likely have awarded him $750, the minimum statutory damages available.

Respect your work by billing its worth. Your future self will thank you.

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Buddh-ish: Breathing

Every morning I do stretches (some yoga-based, some just basic stretches) while also doing a breathing exercise. The exercise is called Ujjayi and the variation I do is seven seconds of inbreath through the nose then seven seconds of outbreath through the nose. Each breath is into the belly, not the chest and, in some ways, it’s much harder than it sounds. In fact, I started with a shorter interval, and worked up to the 7/7. Now I do 50 of those, mostly while also doing deep stretches. Takes just under 12 minutes. I follow up that practice (usually) with a formal sitting mediation.

I got into the idea of doing formal breathing exercises after reading Breath, by James Nestor. He was on Fresh Air with Terry Gross at the start of the pandemic and also on the 10% Happier podcast; I found his work fascinating. In his book, he discusses just how poorly we humans in modern society breathe, generally, and how that affects our bodies and (importantly) our minds. 

Backing up a bit… I’ve had anxiety issues since, oh, birth practically. Probably all of us, especially those of us with those issues, have experienced someone telling us to slow our breathing when we’re upset or panicky. Generally good advice, but often difficult in the moment. I mean, it’s one thing to be told to slow down and breathe deeply, but how to do that when your brain is set to 11, that’s a trick! 

Nestor, in his book, really gets into the science of breathing and the breath. For a nerd like me, that was incredibly helpful. He experimented on himself with all sorts of techniques so he writes about how doing something might have felt awful (especially at first) but really it was better for the body. The science proved it up, even if it felt like he wasn’t getting enough air.

After reading the book the first time (I’ve read it twice now), I got the app iBreathe to coach me through different breathing techniques. It’s the app I use every day now for my 50 breaths. I also practice the 4-7-8 technique sometimes with that app. 4-7-8 breathing (in for 4, hold for 7, out for 8) helps activate the parasympathetic nervous system which is what helps us relax and calm down. The parasympathetic nervous system is the counter to the sympathetic nervous system, which is the seemingly wrongly named system that rather than calming us is what puts us on alert or in fight-or-flight mode. 

Anyway, I use 4-7-8 to get through things like scary medical appointments and procedures and really think it was a huge part in how I survived my surgery and its pre- and post-op pain with minimal medication. Whenever I get upset or anxious, I do 4-7-8 and it helps very quickly. 

The 7/7 breathing I do is more about training my breathing generally. 7/7 makes me very conscious to breathe into my belly rather than chest-breathe and to breathe through my nose (both ways), both of which are what my body wants to do by default. Breathing through the nose is much better for us and what our bodies are designed to do, and yet we are a bunch of unconscious mouth and into the chest breathers, as Nestor points out. 

Since I’ve started doing the 7/7 training, I find I become breathless when exerting myself much less than before. I’m just starting to run again, after the surgery, and it feels like I am not struggling with the breath the way I have in the past when running. I attribute that to the training.  I also take fewer breaths, overall. In slowing my breathing, the anxiety doesn’t hit the way it used to or at least nowhere near as often. 

In Buddhist meditation, we often use the breath as an anchor of focus. Rather than controlling the breath, we simply notice “inbreath…outbreath” or maybe count them, as they come naturally. So, breath is a regular part of the practice. Training the breath has, for me, been an obvious outgrowth of that simple practice. Along with traditional mediation, learning to breathe longer, slower breaths, through the nose (7/7) and techniques like 4-7-8, increase my being in the present moment and generally made my life better. I hope this information may help you as well. 

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