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.

Holiday Gift

To my dear clients, today as my holiday gift to you all, I sent a donation on your behalf to the Committee to Protect Journalists.

Today, we need to do all we can not only to protect our livelihoods, but also to protect our democracies.  A strong free press, both in verbal and visual media, is our greatest tool to keep America, and other countries, free. When combined with an independent judiciary, the greater good always wins.

The CJP is not just about the American press, of course. Journalists are under threat all over. Still, I suspect that many of my non-US clients would like us to get our ship righted so that we can once again be the beacon of liberty, backed by our strength of purpose and resolve. I am happy that I have the resources to make this donation to help this cause.

I would not be able to do this if it were not for you, my clients. Your continued trust in me is deeply appreciated. I am proud of the work I do for each of you and honored that you choose me to help you protect your rights and run your creative businesses.

Here is to a better 2019 for us all.

And thank you, every one of you.

-Leslie

Mojave and New Tools

I just switched to the newest Mac OS, Mojave, and although I’m not a techie, I want to encourage creatives to make the switch when they can[1], because it offers some good tools for evidence gathering.

First, the OS displays more metadata, and does so without having to get into Photoshop or the like. It’s all (well, lots) right there in the finder. This will be helpful in checking metadata in discovery-produced materials.

Sadly, some people will try to fake evidence[2]and the metadata can help prove it when that happens. It’s also a great way for you to prove up your ownership, creation dates, modifications, and copyright management information, too, especially if combined with the second goodie: video screenshots.

Shift-Command-5 enables you to record your screen while you, say, scroll down on the page of a website or click to get CMI info from a photograph. This is a great tool and one which will be really helpful in negotiating settlements. Imagine having an infringer claiming that the work never appeared on their site. Now, you can click to that site from somewhere else and do it while recording your screen so, boom, there it is!

I highly encourage anyone who is gathering evidence to use this video tool to make short videos showing the work in its infringing uses, live. Still screenshots are still needed (sorry, bad joke), of course, but the videos will be very persuasive.

_____________________

[1] I hear some creative apps aren’t Mojave-friendly yet.

[2] I had this happen a couple of years ago when a defendant asserted a doc had been made years before it actually had; I busted him with the metadata that showed the original doc was first created the night before it was produced. The case settled shortly after that.

Google Images Does a Right Thing (Finally)

I’m no fan of Google. Like the other big internet companies (and many small ones) they have played dumb about the harm they have caused to creators all over the world. One of their big falsehoods has been that they have acted like it was virtually impossible for them to help prevent infringements by making copyright notices and other ownership data more evident.

So, this morning, I was thrilled to see that they are finally doing something about that. According to that article, Google will now be displaying authorship more clearly and, importantly, some of the metadata in the photos in a Google Image search. Huzzah!

This does mean that you, as photographers and other creators, need to be better about managing your metadata. Take the time to add not only your name and contact info into the metadata in your work, but also a proper copyright notice.

I think this may make a significant difference in future infringement claims and may even result in fewer infringements, but the trick is to make sure your work is clearly attributed to you. Ask your clients to maintain the metadata and clean up your own files, too.

Now if we can only get companies like Facebook/Instagram, Twitter, etc., to do the same.

I Bake Bread…Really Good Bread

The photo is of the sourdough boules I made last week. They are from scratch, from a starter I started months ago, and comprising nothing more than flour, water, and salt, including the starter.

I bake almost every week, never less than every-other week, and it has been a couple of months since we’ve purchased bread of any kind, except for hamburger buns once when we had a last-minute guest to dinner and I didn’t have time. It takes me all day to make the dough and shape the boules, which then have a final proof overnight and get baked the following day. It is a discipline and, for me, an exercise in mindfulness, presence, and perseverance.

I grew up cooking. I literally cannot remember a time when I didn’t cook. My mother was a gender traditionalist and, being the only daughter, it didn’t matter that I was substantially younger than my brothers–I had to cook for them, first with her then on my own, later. From my very beginning of my own consciousness, I remember being in the kitchen or the grocery. I actually have (and often use) the cast-iron flat small oval pan I remember trying to make pancakes on, by myself for the first time, when I could not have been more than five [1].

Mom was a very good cook and so am I, and I (like her) cook intuitively rather than by following recipes (see “there is fat in the batter” thinking in FN1… ha!). When my brother took cooking lessons as an adult he asked for my recipes and I could not give him more than a rough “some of this, a bit of that” kind of litany. Honestly, I don’t know how I make a lot of what I make–I just make it.

I’m one of those people who can look in a fridge and cupboards and, no matter how bare, will be able to come up with a couple of tasty “peasant food” meals. I learned this ability from Mom, and our poverty. It was a great tool for surviving college, grad school, and law school.

Anyway, Mom, for all her cooking, didn’t bake much and so neither did I. Basic cakes, yes, and the occasional cookie, but those are pretty forgiving if you stray from the recipes. Breads, though, require a certain scientific discipline she never could (or, perhaps, would choose to) grasp. I think some of it was because her mother was such a good baker that, just to be difficult, Mom chose not to follow Grandma’s baking tradition. My very Polish grandmother would rarely appear from the east (Wheeling, WV–we lived in Columbus, OH) but, when she did, it was always with paper grocery bags filled with enriched, yeasty, often raisin-filled, tasty baked goods. I can still remember the smell of her and it’s the smell of the goods in those bags. Sadly, we never baked together and thus bread making was fairly foreign to me. I wanted to learn so I did, later in life.

Cooking is like shooting photography–you can play a lot with and stray a lot from the recipe and still get good (sometimes great) results. Baking however, especially bread, is like traditional photo printing in the darkroom–you have to mix hard science with the art and if you stray too far from the science, you get crap results. In other words, you need to understand and respect the science of bread-making (yeast, heat, gluten formation, proteins, etc.) in order to make decent bread and to learn the science to the point of mastery to make really good bread.

For me, baking bread well is also like being a good lawyer: the more you learn about your particular field of law, the better you create. You have to respect the traditions, statutes, rules, and the processes, but you’ll make better lawyering when you have internalized how the law works so, for example, you can know the feel of that right spot in any of your drafting. Just as a Tartine sourdough loaf is to Wonderbread, so is a beautifully crafted document to a boilerplate one. When you know the specific law in real depth, you can find the hidden issues in a case and the winning legal points. It’s like learning how bread dough feels when it’s been worked enough or proofed right.

So why am I sharing all this? Because I think there is a lot of Wonderbread in my profession, especially in copyright law these days. I want you to know that is not what you’ll get with me. There are large firms who have a gazillion associates and paralegals who will take your case and treat it like it’s debt collection. They don’t know any more than the minimum about the law; they are competent, not obsessed. I’ve read the complaints and other papers they file and I don’t know how some of them can look at themselves in the mirror and call themselves “good lawyers.” I can tell you there has been more than one where I feared the client would get stuck with paying the other side’s attorney’s fees because the case should never have been filed.

Moreover, these massive firms won’t care why this particular image means more to you than another or look at the case in any depth, they’ll just do the minimum to get something and often not even remember your name. Worse, there are companies not owned or run by lawyers and so they care first and foremost about making their own bank, not you or your case.  But they’ll be happy to take about half, if not more, of your settlement for their efforts.

That ain’t me. I know and care deeply about the law and how it works. I’m a dweeb, a nerd; I read case law and journals not because I have to but because I love it. I’m a passionate lawyer and obsessively so about copyright law. I agonize over my drafting, the rules, and making sure the law I cite is the best for the issue. I file only a few cases at any one time because litigation is time-intensive and I refuse to take on more and maybe do any less well.

Also, I build relationships with my clients and I take pride in that. I know about their families and they know about me and those close to me. I know the history of the works they ask me to protect, whether that is a work made for a client or personal work, and why it matters. While I get paid (usually much less than the infringement mill companies, by the way), I also sometimes get gifts from my clients–usually their own art–and that is something that has brought me to tears more than once.

If you want Wonderbread, I suppose you may be satisfied with the big firms or infringement “enforcement” companies. You wouldn’t be a good client for me, then. But if you want a relationship with a lawyer–something more than just a form and a rotating list of associates for your cases–shoot me an email and let’s get to know each other.

You might even a bread recipe out of it.
Really good bread.

___________________________

[1] Sadly, they were a bit of a fail as couldn’t remember if you needed to grease the pan and I errantly decided that, since there was fat in the batter, I didn’t need to. Mom came in as I was trying to scrape off the first batch.

New Tool! (For infringement searching)

I’ve been hearing from clients how they are frustrated that they can’t find a decent service that actively monitors multiple images for possible infringements. That is, one that doesn’t then require them to use the monitoring company’s services to pursue claims, like ImageRights or Pixsy (etc.) do.

Lots of photographers don’t want to have to pay 50% or more of their settlements, often on top of subscription fees, and I don’t think they (or you) should. It’s your money and fees like that, in my opinion, are outrageous. It’s like when stock agencies went from the photographer getting most of the licensing fees to the photographer getting practically nothing–it’s your work and you deserve to keep most of the money collected!

Anyway, like I said, clients were asking for options and I didn’t have a good one to present. So, I started digging.

The usual suspects of Google Image or Bing Image are strong tools but aren’t for monitoring. You can’t upload a bunch of images then get a report about them–you can only do one-off searches. There is a Russian site called Yandex that a client recommended, but I honestly do not trust any Russian site not to then take your images and re-sell them behind your back[1].TinEye has been around for some time, but they’re way pricey, especially for a solo artist.

Finally, after some Reddit hunting, I think I have found the answer: a UK company called Infringement.report.

Infringement.report’s service is a subscription, web-based tool at a ridiculously fair price point. Seriously. How does $25 a month grab you? That level will cover many of you but even if you are the busiest and want to track a ton of images, the most expensive monitoring plan is $150 a month.

They have no contracts, no limitations on who you can work with, and they specifically do not pursue claims. In their own words, “We don’t pursue infringements, leaving you free to choose your own lawyers and keep 100% of settlements.”

Huzzah!

And, most importantly, it works[2]. I did a small test (you can test drive for free with up to 3 images) and was stunned at the results. One of the images I tested is a client-friend’s that I knew had been ripped off before. In an hour it found at least 19 uses of that photo, most of which were unauthorized.

You can get reports emailed to you. You can download the data as a .csv file to put in Excel or your own database. It’s got an API (maybe you have software it can talk to directly?). The results are dead easy to read and understand. And you don’t have to be a geek to figure out how to use the tool. Payment is made via PayPal and the terms of service are not sneaky.

Honestly, I keep looking for a big negative but, so far, I can’t find one.

So go forth and monitor your work[3]. When you find infringements, hire your own, personal copyright attorney (like me) with whom you can build a relationship. And keep most of your own money.

____________________

[1]Go ahead and call me “racist” if you want–I know what I’ve seen in my practice and Russian sites are some of the worst infringers.

[2]Okay, I have to admit (1) there was a little bug that gave me a warning about having uploaded too many images for the free trial, when I hadn’t, but it worked anyway; and, (2) I having been testing it long, yet.

[3]Register the copyrights first, m’kay?