Are You The Problem?

Okay, I usually try not to get political here; but I believe that, as a good American, I must stand up and speak some hard truth to you, the creative community. It’s going to look political but, really, it is so very much more than that.

Here is that hard truth: if you want to help keep the orange monster in the White House and people like him in power, losing any social benefits or chance at upward mobility and ruining the future for the next generations, please, continue using Facebook and Instagram (for ease, I’m going to call them collectively “FB” because you know, or should, they are both owned by Zuckerberg*). If you don’t want that and are using those platforms, wake up: you are the problem.

FB not only enables the worst of the worst—anti-Semites, racists, homophobes, sexists, revenge-porn incels, the whole host of uglies—it actively encourages them. Do a search of “facebook incels” if you don’t believe me. FB makes a lot of money from these twisted people and their hate groups. Zuck hides behind the idea that blocking these groups would be against the first amendment, but that is bullshit: the first amendment does not apply here. Free speech is about the government silencing or compelling speech, not a private entity doing so. So, the first amendment argument is a total fake. It is FB (etc., see Google, EFF…) using a powerful symbol of our fundamental rights (the phrase “first amendment”) as a manipulative tool to make us think it is doing the right thing, while it’s actually taking that right (and others) from us, the regular folk. 

Rather, FB/Zuck have an interest in promoting one rule of law for the rich, white, and powerful, and another for all the rest of us. Zuck loves money and power. He has made it clear, over and over, that he is lacking anything resembling actual compassion—he wants what he wants and will run over anyone or anything that gets in his way. Trump and his similars are his (and others like him—see, e.g., Ek, Musk, Thiel, et al.) ticket to this new America; they will never de-platform him or those who use terror and cruelty to support his “reign.”

By using the FB platforms you make it financially possible for FB’s continued promotion and support of Trump and his followers. In short, every time you use FB, you are helping keep Trump in the White House and people like him in power. That is not an exaggeration. You are trading your freedom and the opportunity for yourself and your children to live in safety and freedom, for the convenience of the platforms’ reach. That’s it. 

It’s bad enough if you use FB just to stay in contact with friends and family, but if you are using those platforms as a part of your business marketing, you are very much literally providing the content (I hate that word) that drives the whole machine. You are providing the fuel for this cross-and-book-burning-deep-state-conspiracy-make-the-rich-richer-dumpster-fire. You are enabling and enriching those who do not want you to succeed; in fact, they don’t give a shit about you except for how you can make them more money and be used to help them make America a whiter, christian, hetero-only, male-centric safe place for their greed. They want to put a sexist, homophobic, racist, (pseudo)theocratic oligarchy yoke on you and your descendants. And you are helping them.

So just stop.
Please.

If FB lost the photographers, illustrators, filmmakers, musicians, etc., it would not be able to get the advertising dollars it does. I believe that losing the creative class as users would mean FB would eventually fail, and probably sooner rather than later. The quality of content would drop dramatically. Fewer people would be interested in visiting. Remember MySpace? Same thing can, and should, happen. Besides, at the very least, by quitting, you could go to sleep at night knowing you were not contributing to the problem. 

We need to stop thinking about what is easy and begin not just thinking about but doing what is right. By writing this, posting it, and posting links to it, I am risking backlash to my business; but I cannot ignore this basic-yet-hard truth and raising attention to it is the right thing to do. If I lose some clients, I can live with that. Staying silent? Not so much.

Rather than getting pissed at me for pointing out this hard truth and maybe making you uncomfortable, I hope that you’ll recognize that what it means is that you have incredible power. Each of you, when working together, absolutely can change this. Voting, yes, of course, but economically, when we work together, we are a huge force! In 2017, the arts added almost 900 BILLION DOLLARS to the US economy and independent artists made up over 50 billion of that (see https://nasaa-arts.org/nasaa_research/facts-figures-on-the-creative-economy/ for lots of arts-and-money stats). Those numbers don’t include the money your work generated for the tech companies/platforms—numbers we’ll probably never get, since the platforms never want you to know the truth of your power.

Speaking of your power, the other side of this truth is that those now in power, those like Zuck and Trump, are terrified of us. They know we can wake up to our ability to get our shit together and stop their exploitation of us. They know that, when we do, many of them are going to see their money lost or seized and, better yet, the inside of a jail cell. We can do this, it just takes the internal fortitude to make the choice (and a little more effort in your marketing)

So I call on each of you to reclaim your power and stop using the platforms. Also, I call on the professional organizations who represent each of the creative industries to (1) stop using the exploitative platforms themselves; (2) encourage their members to stop using the platforms; and (3) put more efforts into providing members alternative tools to use for their marketing.

While this is a political issue in the sense that it is manifested in Trump, and perhaps an organization doesn’t want to play politics, at its foundation, this is much greater than that and organizations should recognize that.

I would go so far as to say that we can and must save these United States; we must stand together to do it. True republicans don’t want this corrupt, greedy reality any more than true democrats (or socialists, or greens, etc.). Once we get past the current crisis and restore the actual checks and balances both in our governmental system and our economic one, we can move back into our politely apolitical postures.

So, in closing, I say: cut off Facebook and Instagram from their content-fuel! De-platform the platforms! Take your power and wield it for the greater good. 
Please.

___________________

[* Yes, there are shareholders, but he has the only real power because of how the shareholder voting rights are structured.]

Things to do During Stay-at-Home

If your state or city hasn’t issued an official stay-at-home order because of COVID-19, it’s likely only a matter of time before it does (or it is being run by a terrible leader, and you should stay in anyway). If your work is usually not at home or even if you are someone who usually works at home, you can make good use of this time “off.” I have some suggestions…

  1. Review your standard paperwork. Estimate forms, invoices, contracts, releases, licenses… if it’s paperwork that you use in business, now is a good time to review it and make updates and changes. Maybe you’ll need legal help for this, maybe it’s just a case of fixing the format so it reads more clearly; whatever, this is a great time to get your paperwork in better shape.
  2. Consider updating your business insurance. One thing lots of people have already learned in this crisis: not having business liability insurance or disability insurance (etc.) is unwise.
  3. Related to #2, inventory your gear and update (if needed) your insurance coverage. Whatever your gear is, take photos, update serial numbers, make sure you have enough coverage for your critical tools and gear, including computers and software. At worst, doing the inventory will give you a clean list you can have for later claims (keep a copy off-site!).
  4. Register a bunch of your work with the USCO. Now is a great time to play catch-up with your copyright registrations.
  5. Work on a (new) marketing plan. Eventually things will start to work again and you want to be top-of-mind with your targets when that happens. Now is a good time to look at what will get you there.
  6. Check in with clients. Don’t contact them to solicit work but rather call or email your contacts, personally, and wish them well. Simple, generous, kind human interaction now will be remembered later.
  7. Check in with your vendors/crew. Like clients, your vendors and crewpeople will appreciate the kindness, even if you can’t hire them or buy from them right now. If, though, you can buy something from them now, consider doing so to make sure they are around later.
  8. Give yourself a personal project to work on. I mean a creative project, whether that is in your usual medium or not. Some photographers and other creatives are using their art to document their experiences, which is fine, but I suggest something that is non-virus-related for this. You can do both, of course, but something creative that isn’t about the crisis would probably be good for your stress levels, too.
  9. Give yourself permission to do less. Lots of people are trying to work full-time from home and do all the other stuff that they now have to (like taking care of kids, for example) and are getting burned out fast. Give yourself a break and be flexible.
  10. Related to #8, give yourself permission to be imperfect. Too many people are trying to be perfect in this crisis–stop it. You’re going to have days where you won’t get any “work” done or that your kids won’t have formal lessons or the dishes don’t get washed… if you hold yourself up to your usual standards of perfection (like you do in your creative work), you will burn out faster. Embrace the suck, as a good friend says.
  11. (because of course it goes to 11) Do something specifically for your mental health. Meditate. Take long walks/runs (alone). Do yoga or other exercise. Watch a comedy film. Sing to the radio. Dance in your living room. Play with your dog/cat/kid/lover. Write a journal. Bake cookies. Eat cookies. Simply find something that brings you peace and equanimity, and do it. Yes, this is good for your business as well.

There are difficult times, sure, but they will not last forever. The suggestions above can help you feel more in control even when we seem to have little of that.

Wishing all of you well, safe, and happy.

Coronavirus: What To Do

No one teaches us what to do when there is a crisis like now. I’m not going to lie to you: it is very likely that your business is going to take a hit from the coronavirus. No one can effectively predict how big or how bad it will be, but there will be an effect. The worst part for many of us is feeling the lack of control we have over any of it, especially because creatives, like lawyers, are notoriously control freaks. 

I don’t have good legal-y advice to give you here. This is very much uncharted water for everyone. You can’t contract your way out of this (so to speak) so, as a lawyer, there isn’t a lot I can do to help you through it beyond my usual service offerings. But I do think there are things we can do now that will make this difficult time a bit better, both individually and for us all, so I’d like to suggest them here.

First, breathe. I know, that sounds patronizing but, seriously, take a conscious, mindful breath now and then. If you meditate, keep it up or even add some extra sessions. If you don’t yet meditate, consider starting a practice. Calm breathing and meditation help to reduce stress and does all sorts of good for your body and mind. This is science, not superstition (see, e.g., https://nccih.nih.gov/health/meditation/overview.htm). Exercise works, too.

Second, if business is slow, use your downtime well. Get up, get dressed, go to work, and create. I think one of the best things you can do for your business is create new work and this slow time is an opportunity to play creatively—take advantage of it! Creating new work now will make you more competitive when things start picking up, because you will have fresh work to show your targets. Besides, playing creatively will make you feel better now, when things are tough. It will give you something else to focus on, something you can control more, and keep your head out of the doom and gloom of the news.

Third, read books. Put down the news, the social media, and pick up a book—preferably a novel (at least occasionally). Most people complain that they want to read more—now is your chance. It also will help keep you out of the dark places our current reality inflicts. 

Fourth, and maybe I’m burying the lede here, but this is really important: support others however you can. It may sound counter-intuitive but, helping others will help you more. It’s easy to fall into the fear-based and selfish hoarding behavior, but you can’t buy enough toilet paper (or potatoes or milk…) to make yourself safe. During WWII, people understood that hoarding was one of the worst things you could do while buying war bonds, donating, recycling, growing victory gardens, and generally thinking about the greater good would win the war. They were right. It’s also right now.

You can support other small businesses now by doing things like buying gift cards for later use. The businesses get the revenue now, to support them while their customers can’t or won’t visit. This is particularly needed for small service providers like salons, spas, as well as artists of all sorts. You can buy music (actual vinyl, cds, or downloads—not streaming) and merchandise from musicians, who now can’t even make money touring. Buy books (or gift cards) from indy booksellers, many of whom will ship, to help support writers. Buy a subscription to a decent newspaper, to encourage and support their reporting. 

And if you want to get really massive karma points, buy (some of) these things and gift them to people working in healthcare right now. Those people are risking their lives for us. You could order some pizzas (or whatever, especially anything chocolate) for your local ER staff, just to thank them for being on the front lines. 

Things are going to be tough for many people. You won’t be alone if you struggle. But, if you keep in mind that we are all in this together and that the virus and its effects are not permanent, you’ll get through it. 

You Are the Cause of Your Own Suffering

I heard a dharma teacher speak those title words on a podcast this morning. A related Buddhist phrase is “Pain is inevitable; suffering is a choice.” In my spiritual practice, I think about this idea often. It is, roughly speaking, that bad things happen to us all the time and we can never protect ourselves against all of these bad things (not even most of them); however, how we react to the bad things in our lives is directly related to the suffering we feel.

I also think about this idea often in my other practice, my legal one. What does this have to do with the law and, more importantly, your business? Lots! 

For example, when you find an infringement of your copyrights, like your art on someone else’s website, that is painful. The infringer has violated your rights and it seems perfectly reasonable for you to feel angry and upset. Instead, as an attorney, I counsel quiet acceptance of the way things are. This isn’t flakiness, it’s wise legally. I mean, you can’t control the infringer’s behavior and the infringement has happened already: no matter how angry or hurt you get, you won’t change those facts. But if you get angry and strike out, you’ll definitely feel worse, not better. So, take a breath and, gather your thoughts… and your emotions. 

If you strike out at the infringer in anger (even righteous anger), that will make things worse. You might send an email that amounts to legal threats/extortion, or publicly shame someone and later find out you had the wrong “bad guy,” or lose a client because you embarrassed it. But even if none of that bad stuff happens, attacking like that will not make the infringement go away or get you made whole. Instead, you’ll just suffer more because you’ve behaved badly and you haven’t made the pain go away or changed the reality of the infringement. 

Playing the victim won’t help either. It won’t make the infringement stop, it won’t punish the infringer in any way, and it won’t get you paid (if that’s what you want). You’ll just feel worse. There is your suffering, brought on by your own choices.

Now, “quiet acceptance of the way things are” doesn’t mean “do nothing.” Instead, after you take that breath and gather your thoughts, gather evidence. Here’s a post I wrote on that. Even if you decide to do nothing now (one option), you’ll have the evidence if you change your mind (you have three years from when you discovered the infringement, usually, to file suit). After you get the evidence, think about what will make you feel better, feel whole now. Then, take the calm and rational steps to make that happen, like hire a lawyer to get you money, ask the infringer for a credit line and payment yourself, filing a DMCA Takedown, whatever.  

As for protection, you can’t stop determined infringers. You can let go of feeling guilty, like it’s your fault they infringed–it’s not– and feeling guilty is choosing to suffer. However, you can make it easier to get satisfaction after they do their bad deeds if you take the right steps like using watermarks (especially in the form of proper copyright notices), registering your copyrights, using good metadata in your files, and getting good evidence.

Things like infringement are going to happen to you. When they do, there is no reason for you to suffer.

On Doing Right.

You make art, right? And I bet you find your work being infringed. You (probably) get upset about someone taking your work and using it without your permission. That’s totally rational. Then you get into your Uber, with its underpaid driver without any benefits or job security and go home where you listen to music on Spottify which hardly pays the artists or, worse, stream or download it from some free service, ripping off other artists just as you have been ripped off.

You’ve just blown your moral high-ground for your infringements. But worse than that, you’re contributing to the cultural acceptance of “the world is a shit place and if you don’t do it someone else will.” Stop. Now.

Here’s the deal: even when other people do spectacularly shitty things to you, that never justifies you doing the same to them or (yikes!) to others. Civilization (particularly its laws) only works when people refrain from doing the wrong things even when it makes things harder for themselves or when others won’t or don’t. If it were easy to always do the right thing, we wouldn’t need to regulate things with laws. But laws only work when we respect them, even when it doesn’t benefit ourselves. 

This rise in ethical failings is one of the great harms of the Trump administration: Trump flouts the law, over and over. He does horrible things, breaks the law, and the senate doesn’t hold him accountable (as it should under its constitutional mandate). He gets away with it. We all get screwed and frustrated. For people who follow the law and act ethically regardless of the law, it seems so unfair. 

Then, we are faced with a much smaller moral choice and it becomes far too easy to think things like “Why should I suffer when he gets away with it?” or “Well, the corporations don’t have to pay taxes so why should I?” or “It costs too much to rent the movie on iTunes—I can watch it for free on this other site.” We choose to do something that is objectively wrong, like buying our kid’s way into an elite college rather than making the kid actually earn that entrance, and justify it as not being as bad as, say, ripping kids from their parents at the borders. “My bad isn’t really that bad; look at what other people do!” we justify.

No matter how horrible the horribles are that are done by others, choosing to cheat or steal or lie (etc.) is still wrong. 

Long story short, every day we get to make choices. Every day we’re faced with problems and often the solutions are not very pleasant, unless we cheat somehow, like so many other people do. Regardless of politics, regardless of income or social class or race or gender or anything at all, there is right and wrong. We all know this—we just have to stop being willfully blind to our own actions that fail the test.  

Moreover, we have the power (if not the moral obligation) to choose to do right. 

A friend of mine (and, full disclosure, a client) recently announced that he is quitting all things Amazon because of how that company is abusing its workers. He noted that it will cost his family more and it will be more inconvenient, but it is the right thing to do. Bravo. Facebook has and is contributing to the rise of white nationalism, anti-LGBTQ groups, and the general thwarting of democracy. We can choose to quit it (I did quite some time ago). We can choose not to use the music “services” that pay the artists virtually nothing—claiming poverty while buying penthouse offices in NYC and partying on mega-yachts in Cannes. The list goes on and on. 

Of course, doing right isn’t always easy or convenient; do it anyway. You want a better society? You want more decency? Then do the right thing as often as you possibly can, regardless of what is done by others or to you. Treat others with more humanity than they treat you. The more of us who do these things (like quitting Amazon), the better the world will be for us and generations to follow.

Ah, Love… in California

If you’re in a non-same-sex relationship, 2020 brought you a new option if you live in California: domestic partnership. Before now, if you were not a same-sex couple, you could get married or stay completely single (even if you co-habitate—there is no common law marriage here). Now, you have the option of being in a civil union, without the marriage part.

For opposite-sex couples, this option was available before only when at least one person was 62 or older. For the general opposite-sex population, it was marriage or singlehood, period. 

Forming and living in a domestic partnership is very much like a marriage, legally-speaking. You have to be 18 or older, file a short document (pdf) just like you do a marriage certificate and pay a small fee ($33 for the non-aged), but you don’t have to have any sort of ceremony so no officiant is needed. Of course, if you want to do something to celebrate the union, you can. 

You can change your name(s), but you can’t pay taxes jointly (must do “married filing separately”). You also get the rights and privileges of marriage. In California, that means community property rules apply, although I wonder if the weird California treatment of copyrights will apply (see previous link). You also get to avoid real estate revaluation (for property tax purposes) if one of you dies, and you’re officially next-of-kin in emergency/medical situations. 

Ending a domestic partnership within five years can be much easier than getting a divorce, but only if neither party owns real estate or has too much money or has a lease that won’t expire for more than a year. Once you have any of those things, you have to go through the same process as any dissolution of marriage. But without those things and within the 5-year window, you can end the partnership by filing a document and waiting six months for the split to be final. 

Last thing: once in a domestic partnership, you can still get married to your partner, if you choose to at some later point. However, just like with marriage, you can’t marry someone else without legally dissolving the partnership first. 

You can learn more on the California state government website, here.

Regret

I started running in March, 2010. I was in law school and dealing with a painful divorce and I come from Polish folk who, over-40, rapidly turn into, well, very large people. I needed to do something to prevent or at least postpone the babushkafication of my body and to keep depression at bay. In short, drastic changes needed to be made to keep my sanity and my health. So, I bit the bullet and started running.

To be clear, I am no runner’s runner (even today, I am slow as hell) but, back then, I had never run at all before. Still, I went from never having run more than a block to doing a 10k without stopping, in just a few months. Later, I even did an accidental half-marathon one Saturday morning at Torrey Pines State Park (although there was walking involved, as well as lots of hills). I even inspired one of my law school classmates to become a runner. It was a bit of a miracle.

I loved the discipline of doing it regularly and the meditation of actually doing it. No music, just the sound of my breathing and the prompts from the running app “Run… walk.” Even though I sucked hard at it and I never got the runner’s high from it, I loved it. It was, for sure, work, but I never regretting running, even when I fell hard once and looked like I’d been in a bar fight.

And then I got an injury, and had to stop for a while. But I went back to it. And then I had GI issues, and had to stop for a longer while. In fact, I had to stop for almost a year, last time, and it sucked. A lot. I did yoga and weights, but it wasn’t the same. I missed my pre-dawn discipline, and its effects.

On my last visit to the doc (October) the scale revealed that I was at my highest weight ever. This I already suspected, but hadn’t wanted to admit. After all, my clothes didn’t fit right any more and, despite the boyfriend assuring me I looked great and the flexibility I had from the yoga, I didn’t like how I looked or felt. That large number just sealed the deal.

The next morning, before the sun was up, I put on my Nikes and my running shorts (that were much tighter on my thighs than I’d recalled) and hit the road. Restarting the practice, again. Despite the very short (and slow!) running intervals and the short total time of running/walking, I was panting like a kick-boxer by the time I was done, soaked in sweat. I was a mess. But I was happy. No regrets about how much work I had to do to get back in shape. No regrets about a slow, sweaty run. Just happy that I did it. And then 2 days later, I did it again.

Two months later, I’ve lost inches off my body (I should note I’ve changed my diet too) and, with each run, I do a little better. Every run day, no matter how much my brain says it doesn’t want to go out in the cold (it was 44º this morning) and the dark, or that I’m old (over 50) and parts ache, I throw on the togs and go. I never regret it by the time I’m rounding that last turn for home, if not sooner.

So why am I sharing this story and what does it have to do with your creative business? What I hope you get from this is not that you can lose body fat if you run (although you can) but rather that we have the power to change our lives, every day. It’s never too late. It’s not the drastic, big change things but rather the every day small choices we make that reflect our power to do more, be better. Even after distractions that take us off our path, even with aging, worries, busy-ness, responsibilities, and world news that could make a saint drink vodka at 9am, we can choose to do one thing we know works for us. Then choose to do it again. Then, rather than live in the regrets of not doing, rather than each morning complaining about how hard it is out there and dragging yourself to work, you can recognize that you choose do what you do, what you love, what you know, and you can develop the discipline to push yourself to be just a little better at it. A little better at life. A little better at your work. Today.

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.

Put on a Gorilla Suit

(I first wrote about this many, many years ago, but today feels like a good day to share this story again)

Several years ago, the wife of the photographer who got me into the photo biz (the fabulous Stephen Webster) bought him the at-the-time newly (re)released original Planet of the Apes movies, which he desperately wanted, for a birthday present. She wanted to surprise him with it at a dinner they were going to have, with another couple, in a nice restaurant. The surprise wasn’t just the gift– it was that someone in a gorilla suit would deliver it during the meal. Sadly, she told me on the phone as we gabbed about the impending birthday, waiting for her husband to get out of the darkroom, the person she had lined up had bailed.

I immediately volunteered! I thought it was a great idea and she seemed stuck so, I thought, why not. It wasn’t until after I hung up that I thought, “Oh hell, what have I just agreed to do?! I’m going to look an idiot…”

Then, I thought some more and the old saying “in for a penny, in for a pound” popped in my head. I decided I would be the best gorilla I could be.

On the appointed day, I parked my car, put on that gorilla suit (I had already blacked out around my eyes to make sure he wouldn’t recognize me) grabbed the gift bag, and headed out.

(Yes, that really is me)

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

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

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

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

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

Why am I sharing this story? Because I was completely liberated by that suit. I could never imagine doing half what I did in my regular clothes, but wearing the costume, I could be the ape. Every time I have to do something I haven’t done before, as a lawyer, I remember putting on the gorilla suit.

I encourage you to do the same in your business. Play the role of the fabulous artist. Next time you have a one-on-one new client meeting or event where you might meet potential clients, wear fabulous clothes you wouldn’t normally wear, but that you imagine your professional hero would wear. Just go with it. Pretend you have confidence. Do this especially if you are normally shy and self-deprecating. Pretend you are everything you want to be. Just have fun with it.

As others have said, fake it until you make it. Don’t fake your creative work, of course, but do fake the personal image and the confidence. Wear a costume and play the role. At worst, you’ll have fun. At best, you’ll get a project and be one big step closer to making real the imaginary person you were portraying.

On Abundance, redux

I wrote this originally back in 2012, but it is even more needed today so I decided to update it.

Everyone talks about how there is an abundance of content creators today. How there is more creative work than ever. How everyone is a photographer, a writer, a curator (don’t get me started on how that word is misused), a musician… we’re all making stuff. And, the argument goes, because there is an abundance of stuff, none of the individual work is really worth much if anything now.

Here’s what these arguments about abundance in creativity and the pricing model get spectacularly wrong: the reality is there is no abundance of good creative work. Sure, there is an abundance of photography and music and writing and art, but most of it is, frankly, shit.

There is abundance in the creative industries in the same way there is abundance in drivers–there are billions of car drivers globally and just about anyone can do it–but how many people do it well? I don’t just mean those who drive better than Mr. I-go-55-in-the-fast-lane-man and his crappy driving brethren out there. No, I mean, how many professional race car drivers are there? Not very many. Ergo, they are highly valued.

Real creative professionals (in whatever discipline) are like pro race car drivers. They can do things very few others can. Their skills are extremely specialized and what they do is, simply put, not of the same quality as what regular people do.

The media and, worse, the tech companies that control the discourse on this subject within the media, have tried to convince us that your creative work is the same as anyone who tries to make something of the same media. Further, because it is the same (in their argument), that work is of the same value and, final coffin nail, because there is so much of that work available now, that value is near zero. In their world, for example, any pro photographer’s photography is the same as mine (for the record, I am not a photographer) and hardly worth anything since there are so many “photographers” out there. That’s like me saying I’m just like, and of the same value as, Mario Andretti or Michael Schumacher because I know how to drive a stick-shift and don’t completely suck at it.

Bullshit.

Every time you let them call you a “content provider” rather than by your proper title you let them define you as less than you are. You are a Photographer or an Illustrator or an Artist or a Writer (etc.). You CREATE. There are damn few people on this planet who actually create and create well. How dare you accept their belittling bullshit about who you are and the “abundance” of what you do. Worse yet, how dare you call yourself anything other than by your proper title!

You, creative professional, are scarce and your creations are of high value. You are a professional race car driver. Don’t let anyone bully you into thinking otherwise.