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.

We Bought A Vehicle. You Get A Blog Post.

The boyfriend and I bought a new vehicle over the weekend and it made me think about how creatives really need better legal help—and probably don’t even know when they need it. Yes, my mind does that—thinks about my clients while I’m doing something like car shopping. Whatever, the result is you get this blog post and hopefully are awakened to some legal issues you might be unaware of.

So, our story. This vehicle is the first major purchase between us as a couple. We’re not married but we do live together and are as committed as two people could be; still, as unmarrieds, the purchase would not be community property as it would here in California, by default, if we were married. That is, if you are in a community property state, like California, and you acquire an asset when you are married, that asset will be (usually—there are exceptions) community property of the spouses. Roughly speaking, each spouse owns the whole asset with the other spouse, equally. But, as unmarrieds, we didn’t have that option so we had to ask ourselves, “How should we title the new vehicle?” We could have held title jointly (i.e., both of our names on the title, as co-owners), which would mean we both would have to sign anything related to the vehicle (like upon selling it) and if we broke up, we’d have to negotiate the ownership; on the good side, if one of us died the other would automatically own the whole thing without going through probate (much like community property). Another option: one of us or the other could hold the title individually; but then if the owner dies, who gets it? The answer is it depends on whether there is a will but, whatever, it means probating the vehicle and that takes time and money. In California (and some other states), another option is naming a “transfer on death” (TOD) beneficiary. There, a vehicle can be titled in one party’s name with “TOD Beneficiary [name of person]” on the actual title, which means that, kind of like with joint ownership, on the death of the titled owner, the vehicle is automatically the property of the TOD beneficiary named. The risk? The titled owner could change the TOD beneficiary at any time without the consent of her/his/their partner (that could be an ugly surprise, later). 

I’ll bet money most of you didn’t know these options, especially the last one. In fact, the dealership (a major one) we worked with didn’t even know about the TOD option. Anyway, with the exception of “community property” anyone—married or not—can choose any of those options, it just takes the right paperwork to make it legit. However, each option has advantages and disadvantages, so you need someone who has only your best interests in mind to facilitate. Speaking with an attorney can help you make the best choice for you.

Oh, and yes, we made the best choice for us. 

That was just for a vehicle; if you are considering buying (or even refinancing) real estate, married or not, the options and ramifications are even more complex. Your realtor or mortgage person isn’t going to be able to explain your choices to you while specifically looking out for your best interests first (like lawyers are required to, by law). They’re going to have their own agendas to pursue. That can cost you or your partner lots of money—maybe not now, but eventually.

For example, here in California, there are property tax ramifications for transfers to non-spouses that might be eliminated with proper planning and paperwork. That is, you can add someone to your title (in certain ways) without a re-assessment, but if the original owner dies, then generally there will be a reassessment for property tax purposes. Same if you don’t add your partner to the title and then die, leaving the property to him/her/them. Imagine thinking you’ve taken care of your beloved by naming him as the inheritor of your house, only to have him hit with a massive and unaffordable increase in property tax when he does inherit! 

Look, Adulting can be a pain in the ass. Lawyers can actually make it much easier. When you are considering combining homes, buying assets, or other big life choices like getting married, talk with a lawyer first to make sure you do it the best way possible.  

Workers are Employees, Usually

Here in California, the legislature just passed a bill the governor is expected to sign, and it may affect you. Note, this may affect you if you are a California business (including sole props) OR if you ever do business in California, like, say, a photo shoot here, even if you are a Kentucky business.

This new law (assuming it is signed) codifies a California Supreme Court decision and, basically, says that most workers are employees, not independent contractors. That means that all the labor laws apply to those workers, including minimum wage, workers compensation insurance, payment schedules, and so much more. See my post on paying your people ON TIME for one important part. 

The new law specifically carves our exceptions for many creative professions, including graphic designers, fine artists, photographers (with some conditions, more below), and writers/editors/cartoonists (also with similar conditions). But don’t try to shoehorn your crew into these exceptions—it just won’t fly. 

As for the exceptions’ conditions mentioned above, the main one is if you make more than 35 “submissions” to a single hiring entity per year, then you are an employee of that entity. “Submissions” means, for photographers, essentially an entire shoot—not singular images. So, if you shoot for Company X for 5 days, that would be a single submission for the 35 count. For writers (etc.), submission is pretty poorly defined but, roughly, it seems to be that submissions on a singular topic or issue, like a series on women in prison made up of 5 articles, would be one submission for the 35 count. 

Short answer: California law in this area is very complex and if you aren’t sure what’s what, please talk to an attorney. You don’t want to face the consequences if you are a hiring entity that mis-characterizes your workers, even temporary ones—those costs will be much higher than paying an attorney for advice up-front. 

Finally, although I’m writing about California law in this post, I have to say that even if your state does not have laws requiring paying your crew as employees, you really ought to. Is it a pain in the ass? Does it cost your business more money? Yes, to both (you do get tax write-offs, though), but it is the right thing ethically, in my opinion.

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.

Bar-iversary Thoughts

Tomorrow is my Bar-iversary; that is, it’s the anniversary of my admittance to the California Bar. The day I took my oaths (plural—my school had its own extra one) and simultaneously was admitted to the Southern and Central Federal Districts for the state of California. The day I completed my dream of becoming a lawyer. 

And the day I had to start really being one.
Yikes!

Actually, it hasn’t been anything like I feared. I didn’t have to join some big firm and sell my soul doing god-only-knows-what law to pay my rent, but rather got to practice exactly the law I wanted to right off. I’ll never be able to thank my mentor, Carolyn Wright, enough for that. Even better, I got to represent wonderful creative clients, several of whom are still clients and, now, real friends. 

I like to think that I was a good lawyer right out of the gate, and it’s likely I was, but the reality is that I am a better lawyer now than I was then. No surprise—experience is a great teacher (so is my mentor).

My only regret is that I haven’t had the time to do the scholarly work I would like. Of course, writing papers doesn’t pay and I’m such a research geek that if I get started on that path, I’m going to starve (ha!). Still, I do keep up on the law both on a practical as well as a theoretical level, although more weighted to the first as of late. 

Relatedly, litigation is a time suck. 

Anyway, every year at this time I look back on that moment when I raised my right hand and swore to support the Constitutions of the United States and of the State of California and to be the best lawyer I could be. I think about what a bright-line marker it was in my life and what an achievement it was personally. Moreover, I think about the time since then, being in practice and actually lawyering. As a lawyer, since taking that oath, my achievements have been in the service of my clients, and most happily so. This is what lawyering should be, in my opinion: a service profession. It is definitely how I run my practice and how I intend to lawyer, for as long as I hold the license.

Thank you to each of you who have trusted me with your legal needs over the years. You have given me the career I always wanted and I am honored to serve you. Hopefully I will get to do so for many years to come. 

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.