Category: News

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Put on a Gorilla Suit, Redux

[I’ve written about this before; these days, I think many of us can use the reminder, though]

Decades ago, I offered to help the (then) wife of my dear friend and then-employer (Stephen Webster) with a birthday surprise for him. I agreed to deliver a box set of re-released original Planet of the Apes films to him while they were having a meal at a nice restaurant, with friends.
Oh, and I would be wearing a gorilla suit.

I thought it was a great idea and she seemed stuck since the original “Ape” bailed so I literally volunteered to do this. After I hung up with her, though, my brain said to me “Oh hell, what have I just agreed to do?! I’m going to look an idiot…”

I thought some more and the old saying “in for a penny, in for a pound” popped in my head. I had originally been a theatre major so not only could I do this, I decided I would be a gorilla; in fact, I would be the best gorilla I could be.

On the appointed day, I parked my car, put on that gorilla suit (I had already blacked out around my eyes to make sure he wouldn’t recognize me) grabbed the gift bag, and headed out. My then new boyfriend, who had not met my friends yet, agreed to follow me and take some photos.

(Yes, that really is me)

On a Saturday evening, in mid-July Columbus, Ohio heat and humidity, I gorilla’ed down a crowded neighborhood sidewalk, making ape noises at random people. I gorilla’ed into the restaurant, right past the maître d’ (at whom I gorilla-hooted), and found the foursome.

Then the fun really started. I abused the poor victim and his wife and the other couple dining with them… but especially him. I pulled his hair, sniffed bits, put my fingers into his food, made lots of ape-ish noises, and even threw bread. Then, as magnificently as I could, I chucked the gift at the honoree, made very excited ape noises while beating my chest, and left, still gorilla-ing all the way back to my car, unrevealed.

The people in the place had laughed and stared and everyone had (I think) a great time. This was before ubiquitous cell phones so there are few photos and no videos, but the crowd seemed entertained.

The next Monday, at the studio, Steve excitedly told me the story of what had happened. He said how amazing the ape had been, how the person really pulled it off, and most of all that he couldn’t figure out who it was! I totally played along for hours. Days, actually.

He was stunned when, eventually, he found out it had been me. If I remember correctly, I had to make ape noises before he got it. It was wonderful.

So, why am I sharing this story? Because I was completely liberated by that suit. I could never imagine doing half what I did in my regular clothes, but wearing the costume, I could be the ape. I could do anything!

In fact, to this day, every time I have to do something I haven’t done before, or that scares me for some other reason, I remember putting on the gorilla suit. I do this when faced with some things I have to do as a lawyer. Still. It gives me courage. Remember, courage isn’t not being scared; it’s being scared and doing whatever anyway.

These days we need to be courageous. Extra courageous. We all need to put on our virtual gorilla suits.

For the creatives reading this, I encourage you to do this particularly in your business. Play the role of the fabulous artist. Dress how you would if you were a famous artist. Just go with it. Pretend you have confidence. Do this especially if you are normally shy and self-deprecating. Pretend you are everything you want to be. Just have fun with it.

Remember that if someone laughs at you, in a mean way, that is about them, not you. If you’ll pardon my language: fuck ’em. If they feel uncomfortable, that is the story they are telling themselves. Not your circus, not your monkeys. You can tell yourself your own story: this is fun; this is exhilarating; this is silly… whatever you want to tell yourself.

As others have said, fake it until you make it. Fake the personal image and the confidence. Wear a “costume” and play the role. At worst, you’ll have fun. Over time, though, you will realize that you really are that courageous person–and none of it was every really fake.

I am still that gorilla. Decades later.

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AI and Copyright

Yesterday, I was the speaker for a webinar presented by The Grove. It was ostensibly about valuing copyright infringements but it was open to questions and someone asked one that evolved into a doozy. The question was about preventing clients from using your work in AI-creations but, as we talked about it it dawned on me that we have a serious issue to face: AI embedded in the tools creatives are using may affect the copyrightability of the work produced.

See, courts and the US Copyright Office have said, so far, that work created by AI is not copyrightable. It lacks the human creation element necessary1. However, historically, using tools like Photoshop have not challenged copyrightability. It’s not been an issue at all.

Now, Photoshop and other tools are using AI–incorporating it in ways we never anticipated; so what does that mean legally? What about the work created now?
The answer is: we don’t know, yet.

It *may* be enough if you create a work without the AI tools then create a derivative work using the tools. The underlying work would be copyrightable and a copyright extends to derivative works of the original, with only the new (copyrightable) elements not being protected. So, in theory, that may mean that a derivative work created using AI-infused tools will be covered by the original copyright and stay protected.

But that’s just theory.

We won’t know for sure until the issue gets raised in and decided by a court…preferably more than one. So what to do meanwhile?

Safest bet is to avoid using AI-infused tools in your creative process. Just say no. But, if you must, I’d suggest you make sure you start with a “clean” (non-AI) work and register its copyright before you start making derivatives, using the AI tools. And, if you can, document your process in some way (write it up, make a recording, whatever), just in case you need the evidence some time in the future.

Honestly, I’m hearing more and more about younger photographers (and others) going analog(ue). That’s really the best, in my opinion. Plus it encourages creativity. Remember, creativity flourishes in constraint, not in unlimited possibilities. But more on that another day…

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  1. And no, you can’t lie and say that you didn’t use AI in the creation–that will come out if you ever have to litigate and that would be super bad. ↩︎
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AI and Your Business

I recently had a client ask me to update their client services contract to forbid the use of their work, the work created under the contract, in AI. That is, the contract now states that their creative work may not be altered by or submitted to any LLM/AI “tool” or platform. For any reason.

I was happy to make those changes for my client.

More creatives need to do this. I’m concerned you won’t because you are afraid your clients won’t like it. I think that most of your clients secretly will like it because the humans that are working those jobs are just as scared of losing their livelihoods to these systems as you are. But, even if they are still drinking the AI Kool-Aid, your job is to do what is best for your business, not theirs. Feeding the AI/LLM beasts is decidedly not good for your business.

Scary? Maybe. But if you are in business for yourself, you are inherently brave. If you weren’t, you would work some corporate job. You chose not to do that. So, you can do this. I’ve written before on fear (a lot, actually) and, short answer, we all feel it and can work through it. Feeling fear is, oddly, usually a sign that we’re doing the right thing. Playing it safe? Not so much.

From personal boundaries to professional business policies, we need to have and hold limits. Saying “no” to corporations when it is not good for your business is just one example. Besides, the more of us who say “no” to this shit, the better. This is why unions work (and we need more of those, too). One fish saying “no” leaves lots of other yes-fish in the sea. But when each of us decides to say “no” then the corporations must bend to us.

I will never use AI in my work. I wrote about that recently. There are plenty of lawyers who will, but not me. I can’t worry about what they do, I can only control myself and my business. The same is true for you and yours. Stand up for yourself, your art, and stand with other creative professionals who also are saying “no” to AI. There are more of you than you think.

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Update

You should also not use AI/LLM “tools” yourself. You might think it’s easier or helpful or whatever, but you are then feeding the beast. And being a total hypocrite. I just got off my last online business tool (in my case, for bookkeeping) precisely because it was using more and more AI-ish stuff.

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Life Happens, Again

A couple of years ago, I wrote a post called Life Happens. It discussed my then-pending surgery and how I had to take care of some documents before undergoing general anesthesia. You should read it.

Spoiler alert: I came through it all very well.

But, life continues. In my case, not terribly long ago, life happened again: last summer, my then-fiancé decided to end our relationship and move away. It was very sad, of course, but I wish him well and happy.

We’d been together for 10 years. Understandably, our lives had become very entwined. The breakup, of course, meant disentangling our lives, our finances, etc. Bluntly put: it has been a chore, even without having to go through the actual divorce process. That’s life. You can’t avoid bad things happening, no matter how you prep. But, you can prepare for some of those eventualities.

Besides the obvious splitting stuff (like divvying up the housewares) in the case of a breakup, when there is an end of a long relationship, whether by breakup or death of a partner, there is also a lot of paperwork to be done. For example, if you have your (now former) partner as a beneficiary on insurance or as a POD (payable on death) on financial accounts, you’ll need to change that. Was that person your emergency medical contact? You’ll need to get someone else. If you cohabitated, is your homeowner’s or renter’s insurance through you or your ex? What about ownership of the house or car(s)? Get that fixed. You’ll also need to take that person off your listed drivers on your auto insurance.

And then there is the other stuff, like I talked about in the original Life Happens: medical power of attorney, will, trust docs…all of these will need to be updated.

No one wants to think about their relationships ending, but they all do (breakup or death). If you have contingency plans in place, that can be helpful. For some things, you can add secondary beneficiaries or emergency contacts, for example. For others, maybe make a list of all the things you’d need to change should something unexpected happen. If you are married, you can get a post-nup that clearly explains who gets what in the case of a breakup. If you live together, you can get an agreement that does similarly. Sure, not very romantic, but it can make a hard part of life much easier.

Oh, and if you are in business together, you really need to have an agreement on how any split or death will affect that business. Do that now, please. Dealing with a business is an extra level of pain in the butt in a breakup or death.

No matter what, though, dealing with losing someone from your life is a chore. If you need help, there are plenty of pros like me or other lawyers, CPAs, insurance professionals, and therapists to help. Get the help.

I will say that taking care of all the paperwork can be a good distraction from the sadness of an ending, though. Any ending is tough, regardless of the circumstances. Forcing yourself to take care of the practical bits around it can give you a sense of grounding–that you will be okay.

And, no matter how you may feel at the time, you will.

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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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