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Timeliness

I recently had a client bring me a lovely case with multiple images infringed. Nice and clean with registered copyrights and everything. An almost perfect case…

…until I looked at the Effective Date of the registration and the source code of the online use. Sadly, the use started mere days before the Effective Date and so the registration was not timely. While the client could still get actual damages (and infringer’s profits if any), that would be a low number based on the client’s provable license fee rate; so it made the case not something I could take on a contingency-fee basis. Bummer!

Registration is wonderful for protecting your work and adding to your recovery for an infringement, but its timeliness is a big, hard line to those benefits. Sadly, lots of people misunderstand timeliness. I hope this post helps clear up some of the misconceptions.

When you register a copyright (or a group), the registration will be issued with an Effective Date[1]. That date is the magic number—the key. For any infringement that actually starts after that date, you can get statutory damages and (maybe) attorney’s fees. These are called “enhanced remedies,” by the way. Statutory damages go from $750 to $30,000 for non-willful infringement, and up to $150,000 for willful. That’s a lot of room to negotiate a decent pre-suit settlement or, if you have to litigate, to get a valuable award. 

But that date is, like I said, a hard line. There is no wiggle room, outside of one exception I’ll explain in a second. So, if your Effective Date is July 1, 2024 and the infringement actually started on July 2, 2024, cool! But if the infringement actually started on June 30, 2024, the registration is not timely and you can’t get those enhanced remedies. 

Why do I keep saying actually, in italics? Because the date at issue is not when you find the infringement but rather the date the infringer began violating your rights—copying, displaying, etc., whether you knew it or not yet. If your Effective Date is July 1, 2024 and you found the infringement on December 1, 2024, that doesn’t make the registration timely; you need to find out when the infringement started to know if your registration is timely.

Now, about that one exception I mentioned earlier, this is something people screw up often so, pay attention. If you register your copyright in a work within three calendar months from the date of that work’s first publication, the law works some magic and you can get enhanced remedies for any infringement that started after that first publication date. Congress did this to try to fix the hole where a work is made and quickly published and quickly ripped off, before you get it registered. It’s a solid fix, IF you register your work in time. 

First publication is a technical, legal thing, for added crazy here. Publication has a nebulous definition in copyright law—it doesn’t always match with what any normal human would think of as publication. If you offer the work for sale or licensing, it is published on the date you do that, even if the work doesn’t get seen by anyone until later! So, for example, if you shoot for a client, the date of first publication will be the date your deliver the work to the client (digitally, hard copies, whatever) even if they don’t run the work until later. If you shoot for yourself, then a month later post the work on your website and offer it for stock licensing, the date you post it will be its first publication. BUT, if you make a work and post it on, say, your blog without explicitly offering it for licensing, then it is (likely) NOT published. 

I know, crazy, right? The easy fix is to always include a line about your work being available for licensing, even on your blog or Instagram or whatever. Then, boom, it’s published and you have a date for that. 

To best protect your work, do a group published[2] photographs registration every year on March 31 (for works first published from Jan 1–Mar 31), June 30 (Apr 1 – June 30), September 30 (Jul 1 – Sept 30), December 31 (Oct 1–Dec 31) of each year. That way, ALL your published photos for the year will be timely registered, no matter what. Any infringement of those photos will be eligible for enhanced remedies. Yay!

Then, when you contact any copyright lawyer (like me) with a potential infringement matter, we will be much more likely to be able to help you on a contingency fee (meaning you pay no fees unless we recover something for you).

[1] This date is usually the date you submit the application online, by the way. Even if you don’t get the certificate until much later, the Effective Date will almost always be the application date.

[2] Group Published Photographs registrations require that the works be first published within the same calendar year—this schedule takes that into consideration. See https://copyright.gov/circs/circ42.pdf.

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Holding Our Breaths

A lot of businesses are finding things slow lately. This isn’t surprising, considering the political situation. When you have a democracy crumbling with a cognitively challenged tyrant at its reins, it’s pretty understandable that business would slow.

We humans generally crave stability and security…or at least the illusion of them. When we don’t feel those conditions, many of us hold our breaths hoping to force them into being. It’s as if somehow controlling our breath will help us to control our surroundings. 

Emotionally, I get it, but it’s not very logical. Think about it: when you hold your breath, literally, what can you do? Not much and not for very long. So, when we hold our breaths, either literally or metaphorically, we don’t do anything else—including buying things or marketing our businesses or creating, etc.

When things feel overwhelming, as they do these days, many people hold their breaths and, essentially, shut down. It’s super normal. 

Pema Chodron, the brilliant Buddhist nun, has written extensively on leaning into uncomfortable feelings, of sitting with them, and of the illusion of control. Control, particularly of outside things, is an illusion. We actually do better by letting go of trying to control things over which we have no control; especially things like other people, or the political situation[1].

Part of letting go is feeling the scary feelings—of letting yourself know it’s okay to feel scared, or worried, or unsure. But, and here’s trick number 1, try to do that with a little separation: instead of saying “I’m scared” say “There is some fear arising in me.” Change “I’m angry” to “Anger is arising.” Using the passive voice may piss off English teachers and legal writing professors, but it’s a great way to be less overwhelmed by whatever is going on inside you at any moment. 

It also encourages curiosity about whatever is going on. “Pain is arising” can lead to “Is it sharp or dull? Where does it seem to be originating? Is it constant or does it kind of come and go?” The more we ask questions about whatever is sucking in the moment, the less of an onerous bugaboo it is. 

Most of us who have been in business for a bit will likely recognize that things have been slow before. It happens. Sometimes we can do everything right, and it’s slow. Sometimes a pandemic hits, or an Orange Monster gets power, and it’s like everything work-wise stops. Scary? Infuriating? Frustrating? Sure! But also impermanent. Whatever is going on with your business will change, even if you do nothing.

We can, in all of that, let go of trying to control the uncontrollable and, instead, simply do our work. Make art. Market your business. Make connections with other humans. Rinse. Repeat. In doing the mundane work, and especially by breathing through it all, we become more fearless. And, before you know it, without holding our breath, things will change. 

[1] Okay, before you get all in my grill about that last bit, we can only control what we do in regards to the political situation. We can’t make fascists stop being fascists, for example, but we can refuse to enable them by not shopping at stores that support the fascists and by voting.

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US Copyright Office Webinars

The US Copyright Office is offering free webinars to creatives. The first one is for photographers and other visual artists and is on February 19. You can register at the link above and get more info there as well.

If you have not been registering your work, this webinar will give you the tips you need to get off your hands and start. It will cover copyright basics and the registration process. Sign up today and participate!

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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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Taxes and More!

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

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

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

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

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

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Buddh-ish: Business Planning and Change

2023 has simply flown by for me. It has been a particularly eventful year for me: I had a couple of medical things that were scary, including some gnarly surgery, all of which turned out well (luckily); we did a lot of old house maintenance stuff; I got my motorcycling license and put a deposit down on a new bike; I got engaged1; and I’m currently holding down the fort while the fiancé is off on a two-week solo motorcycle trip for some much needed renewal2.

With the exception of the old house stuff, because there is always old house stuff, none of this was anticipated when the year started. 

I’m a big planner. I’ve got great natural organizational skills which were first honed by my years of repping and producing photoshoots and then rather perfected by attending law school after age 40 while also going through a divorce3. Planning is great; it can really help you be more successful in whatever you are doing. I’m a huge believer that one should make a business plan every year at least for their business. I do and I follow it as much as possible. But planning has its limits: you have to be willing to roll with what life actually throws at you. 

That last part is tough for many people, especially people who like to control. It requires letting go and just riding through whatever the changes are. It means potentially shifting plans and priorities. It requires bending with the wind. Control freaks like me have to learn those skills: the skill of letting go; of being able to sit in uncomfortableness4; of letting things be as they are.

Most creatives, oddly like most lawyers, are control freaks. I think this comes from many of both groups having experienced traumas in our lives, especially as children, but I’ll leave assigning the causation to the mental health professionals to sort out. Point is, creatives (and lawyers) like to control things in their lives and often do not feel well when they feel out of control.

I have a secret to tell you: we are always out of control. 
I have another secret: we always get through it.

What do I mean? Just that humans like to feel in control but really, we can’t control anything other than our own behavior. We can’t even control our own thoughts, often! In Buddhism, they talk about thoughts arising—as if they were their own beings. We can’t control them from arising5, only notice them. But behavior? Yup, that we can control. We can choose to respond thoughtfully rather than react thoughtlessly, for example. Or to be kind. Or to be generous. Or to be compassionate. So, when the world goes on being the world, you do have the ability to choose what you do in it. And, no matter what you choose, impermanence6 dictates that whatever it is that is making us feel out of control will pass even if we do absolutely nothing about it.

Yeah, control freaks hate this…at first. We want to fix, or stop the bad feelings, or hold onto the good feelings… but really, we can’t do anything but ride the waves and choose how to behave well. Once we accept that reality, the bumps in life become much less troublesome, even the big scary ones. 

In my case, all the weirdness of this year, could have easily thrown me into a tizzy. I could have panicked about a gazillion times or tried to force an outcome, but it would have done more harm than good. Instead, I observed the unexpected and rode out the discomforts, without trying to control them. I worked my plans, but changed them as needed to accommodate the unexpected. In the end, I have had a very good year, both personally and professionally. In my work, I have helped my clients and received both many kind words and some greenbacks in the process. I am grateful for it all.

Now, I’m getting to work on my 2024 business planning. And life planning. Knowing that both are as flexible as prairie grass in the wind. I encourage you to do the same. 

  1. It was a surprise proposal, for sure. Also, in case you were wondering, no date set nor is one likely to be any time soon—we’re in no rush and are rather more likely to just elope sometime when we feel like it. ↩︎
  2. Something I deeply encourage everyone to do at least once a year—take some time to yourself to get grounded again. ↩︎
  3. Definitely not a combo I recommend to anyone, but it was a great way to prove up my resilience and organizational skills. ↩︎
  4. I highly suggest reading Pema Chödron’s works on this subject. She’s been incredibly helpful in my practice. ↩︎
  5. Well, most of us can’t. There are higher techniques in Buddhism to train the mind to control thoughts more but, for most of us, just knowing that thoughts arise on their own is enough to handle. ↩︎
  6. Everything is impermanent and constantly changing. In short, there is no there there. Good or bad, it will come and go. ↩︎
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Say Yes to No

I’m a firm believer in saying yes and generally being positive about things; have done for years. For example, if a client has a technically gnarly project, saying “Oh, that looks super hard” and then explaining how much work it is going to be or, worse, even hinting that you might fail, is not a good idea for your business. Instead, saying “Oh, that looks super hard…I love a challenge! I’m sure my team and I will find a solution!” will engender confidence in your client. Later, when you hand them a big estimate, they’ll remember you as the creative who said they could do it, increasing your chances of winning the project even with big numbers. So saying yes is a great thing for your business… except when it isn’t.

How often have you heard a (potential) client send you a contract and say “Everyone agrees to this” or “Oh, sure, the doc says you are assigning us your copyrights and that you can’t use the work, but we’ll let you use it” or “It’s industry standard to have a 90-day payment period,” or “You have to indemnify us against any claim that arises when you’re shooting for us, not just those related to your work or employees–no one ever makes an issue of that” etc. ? A bunch, I’ll bet and I bet you’ve often accepted those terms, trusting your client. Then, later…well, as Marlon Brando in Guys and Dolls says,“Daddy, I got cider in my ear!”

The sad truth is that, whenever someone in a financial transaction with you says one thing but the paperwork says another, they have an ulterior motive and it ain’t good for you. Hearing anything like “oh, don’t worry…” or “You’re the only person who has ever asked…” is your signal that you absolutely must go with what the papers say. Always. Your clients, no matter how nice, are not on your side. They can’t be—they are negotiating for their best deal, not yours. You can like them, but don’t ever trust their word over what is on the page.

The terms they are insisting on are good…good for them, that is, and so they do use them. If they didn’t, the terms would not be there. Always. So, if they are saying “oh, we never do this thing the contract says we can do” and they won’t take it out, then you know they want to do exactly what they claim they never do, and will do exactly that if they can. 

Relatedly, if your client/buyer tells you “my way or the highway,” waste no time in politely taking the second option. As the current writers’ and actors’ strikes confirm, bullying and fear-mongering is pervasive in the creative industries. All of them. Threats about not getting work are just manipulative bullshit. You didn’t have the gig but then lose it by saying “no”; nope, they just wanted to scare you into accepting a bad deal. Walk away. Use the time to get a better client. 

Don’t bother trying to fix them or teach them the errors of their ways. You can’t control what your clients/buyers do and you’ll drive yourself mad if you try. But, you can control what you do. 

The first thing is to know where your boundaries are. You can negotiate lots of things, but you should always know what lines you will not cross and respect those limits. No one will respect them if you don’t. You can and I think MUST set your own limits; and you should do it before any negotiations so that you know what they are. Write them out like a list if that helps: will never sell copyrights; will only indemnify for my own actions; will not lower my price without getting something (besides just getting the gig) in return; etc. 

Once you have your limits defined, then you can respond rationally to whatever demands are made. So, for example, if a client insists on owning your copyrights created for the project, you can say “No” if your line is ownership, or, if you’re willing to sell at the right price, say “Not at this price—if you want full ownership, that will cost $X.”  Don’t explain, don’t rationalize, and don’t be suckered in by them. Stick to your own boundaries. For example, “I hear you, but I won’t sell my copyrights for this price–you need to either pay more or get a license instead.” If they ask “Why?” you can simply say that this is how you run your business. Period.

You can use your boundary list for contract negotiations of all kinds: time to pay, deposits, usage license terms, indemnification clauses, you name it. When you do that, you are taking good care of your business: You set your limits. You have control. 

Saying “no” to bad terms and bad deals does not make you a jerk, it makes you a smart businessperson. And, although standing up for your rights and doing what is best for you and your business is not always easy, it is vital. The other side is surely going to stand up for theirs.

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Drop Your Ego and Raise Your Usage Fees

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

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

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

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

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

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

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

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

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

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Buddh-ish: Stress

Today is the first of the new series I mentioned in my last post and the topic is stress. This is a huge problem for lawyers and creatives. These days, pretty much everyone I know has some issues with it, thanks especially to the pandemic and Trump years.

Stress can be a good thing–it helps us do well in athletics, for example, but even there only if it isn’t too great. Chronic stress can be a big negative to our health, both mental and physical.

The folks over at the Greater Good Center have published a quiz to help us evaluate our stress–that quiz is embedded below. After you finish, they offer suggestions for coping.

The really great thing about the Greater Good folks is that they do science-based work. While there are lots of references to things like mindfulness (a very Buddhist-y thing), they don’t offer woo-woo but rather evidence-based ideas. There are concrete things to do which, if you’re anything like me, makes all the difference in the world. I mean, it’s one thing to say “lighten up” but it’s much more effective for me if someone suggests something active like “write in your journal at least 3 good things that happened to you today.”

So, if you’re feeling stressed, I’d like to suggest you take the quiz and try some of the options suggested. Tailor them to your own life and try some things just to see if they help. I know, for me, meditating every morning as well as taking the time to do about 10 minutes of breathing exercises (I do it with deep stretches) make all the difference in my day. I can go back to these tools every time I feel the stress crank up, too.

As always, I hope this helps.

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New Series for Creatives and Lawyers: Buddh-ish

As many of you know or may have noticed from this site, I’m a lawyer and a (bad) Buddhist. Some people think this is contradictory, but really, it’s not. My Buddhist practices enhance my lawyering skills.

Now, I say “(bad) Buddhist” because I’ve never formally “taken refuge” (formally taken vows) and consider myself secular and still struggle greatly with the idea of reincarnation; but I have to say that studying Buddhism and practicing as I do has made my life, including my work as a lawyer, immeasurably better.

For example, in lawyering I have to deal with people who get nasty, who lie, and who generally would have made the 30-year-old me react by verbally ripping them to shreds in very personal attacks. Now, I don’t take their behaviors personally but instead take a more objective view of it all. Those people are experiencing their own suffering and striking out–like a reactive dog. That doesn’t mean I let them walk over me/my clients, not at all, but I do stick to the law and the facts rather than attacking the people themselves. Oddly, this often has the additional result of frustrating the hell out of the opposition as I don’t rise to their bait and works as a sort of intellectual jiu-jitsu making them stumble. More often than not, their further attacks just make me laugh to myself at the absurdity of their actions while I stay on-point and get the job done for my client.

In an example from my personal life, I’m pretty sure I would not have gotten through the medical stuff I just went through (I’m actually not fully healed yet, but well on my way) without a strong meditation practice. It doesn’t make pain magically disappear or anything like that, but it does help to remind me that all things are impermanent, including pain and fear, and learning to focus on the breath helps when relaxation is much needed. I suspect that I got off the heavy meds a lot sooner for it, but that’s just a guess.

Anyway, in an effort to help others, in some posts this year (and maybe longer) I’m going to pay less attention to the law and more to some Buddhist and Buddhist-adjacent topics and tools. I’m calling the series Buddh-ish, because I’m a goofball and like the linguistic shorthand. The point of all this is not to convert anyone (any Buddhist who tries to convert someone to Buddhism is doing it wrong, IMO) but rather to offer up some of the tools/practices I’ve used and have found helpful so that you can try them out for yourself if you choose. None of it requires changing your own religious/spiritual beliefs and all if it is offered with the best of intentions.

The first post will go up in the next few days. Until then, I’ll leave you with what I say at the end of every meditation:

May all beings be happy;
May all beings be healthy;
May all beings live with ease and in safety;
May all beings be free from suffering and the causes of suffering.

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