Category: Uncategorized

Last week there was yet another court case where, if only the artist had registered the work before the infringement, the results would have been totally different. In this case (Dash v. Mayweather et al.) in the fourth circuit, the musician (Dash) claimed that Mayweather used his music for his entrance at two WWE events, without permission. The issue facing the court wasn’t whether Mayweather infringed but what the damages should be. The results are a cautionary tale for every artist out there.

Dash registered the work after the infringement so statutory damages were not available. I can’t emphasize how important it is to register your work promptly, preferably before any publication but at least within three calendar months of first publication. Doing so will ensure that your registration is timely and that means that it will permit the award of enhanced remedies including statutory damages and attorneys’ fees and costs. Dash did not do so and he was thus limited to actual damages, including any profits attributable to the use of the work.

Okay, that sounds good… except Dash could not prove any actual damages or any causal connection to any profits. See, you can’t just say “hey, if I were to license this I would charge $10K” but rather (roughly speaking) you have to show that in the past you have licensed your work in a similar manner for $10K. At the very least, you have to show that you have been paid to license your work in the past (at all) and that in the market such a license for the infringing use would have been $X, even if you haven’t ever actually licensed that same use. Dash could not do that here, in spite of his hired expert claiming that similar works by other artists used similarly got thousands of dollars. The court noted that in spite of the law’s general preference to give an artist damages when infringed, the artist has to show (when statutory damages are off the table) that “the thing taken had a fair market value.” The court specifically stated “Dash’s evidence of the fees that the WWE paid to well-known artists at Wrestlemania XXIV was irrelevant and overly speculative because such artists were not similarly situated to Dash.”

Dash was awarded nothing in actual damages. Ouch.

He also got nothing in profits because he didn’t prove that the use of his music in any way generated profits for the infringer. The burden was on Dash to make some sort of showing of the gross revenue earned by Mayweather et al. and any sort causal connection to his work. It’s not a high burden, but it’s still a requirement. Without that, bupkis.

Importantly, if statutory damages had been available, Dash would have been awarded something, even if he could not prove damages. The court notes in its final footnote in the case that statutory damages are both to recompense the loss to the artist and to deter others from infringing and there is case law supporting the conclusion that a statutory damage award doesn’t have to be tied to actual damages (it often is, but doesn’t have to be).

So, what do we learn from this? Simple: register your work and do it as soon as you can. No one wants to spend all that money on experts and attorneys only to get nothing in the end.

 

I was talking with a friend last night who runs a company that does building renovations and rehabs. He shared a story that resonated with me because if you just change the players, it happens in our industry all the time.

He had a project recently where he needed a concrete subcontractor and one of his connections knew somebody who would be potentially good for the job. My friend arranged a meeting with this potential new vendor to get to know the person and to discuss the project.

ConcreteMan (let’s just call him that) and my friend meet and start talking about the project–it has some challenges, but that’s why my friend wanted to hire the right person for it. ConcreteMan begins interrupting my friend as he is giving the overview of the project. This happens repeatedly. Worse yet, he’s not asking informational questions–it’s not like the sort of interruption where you may ask for clarification or something–no, this guy is interrupting to say how difficult the project will be. Boy is this going to be tough. Boy is this going to be expensive. 

At no point does ConcreteMan offer a solution to any of the problems, he just keeps harping on the complexity and difficulties.

Needless to say, my friend did not hire this guy nor will he ever ask ConcreteMan to bid on a project. Ever.

When a potential client calls you to discuss a potential project, one of the worst things you can do is be negative about the project. An Art Buyer is thinking of hiring you because s/he expects you to provide solutions to the problems, not whine about them. If you don’t offer some hope to the AB that you can make it happen, that you have ideas that will make the project work, you have no chance whatsoever to get that project. Worse yet, you are very likely to put that potentially lucrative client off you forever. Why should s/he ever call you again after that sort of interaction?

It’s okay to talk about the complexities of a project, just make sure you offer solutions. For example, you could say “That second shot is going to be a challenge… I think if we hire a cherry-picker and a great baby wrangler, we can definitely do this…” That shows the AB that you are at least thinking about solutions and that gives her(him) confidence. Your chances of getting the project just went up significantly. This is why treatments are so important today.

Now, maybe you don’t have the skills necessary for the project. Maybe you have some of them but know where you can hire out the others–tell the AB that. Say “Hey, I’m not the right person for this project. You need a photographer who is really great with kids and that’s not me, but you should call Betty Martin. I know Betty and her work and she could definitely give you what you need here. She’s great. I can do the other shots if you are willing to split up the project…” Say something like that–tell the AB how she can get exactly what she needs to do the project as best as possible–and you will be that AB’s go-to person for the next project that is right for you.

It’s not about making fake promises or blowing smoke. Be honest, focused on solutions, and positive and you’ll find you’ll get more and better work.

(This post is a re-working and updating of one I did a few years ago. I think it needs saying again)

Marketing your creative business today is very much like dating–from the traditionally (hetero) female position. Since most photographers are still male, and mostly heterosexual males, this means they have no idea what it’s like from this position! It also explains why so often my female clients “get it” faster. We’ve been there! This is our “natural” state of being in the social world and now that marketing is so incredibly enmeshed with social (hello, there’s a reason they call it social media, people), we girls get how it works even faster. Guys, especially, need to catch up a bit (but women can use this advice too).

So, here are a few basic “rules” to get you guys started:

1. You have to put yourself out there. The world will not beat a path to your door no matter how fabulous you are, you have to go out there and let the world know you’re available. Go to events where your targets go, send promos, have a great website, be active in the creative world (both virtual and real), etc.
2. Put yourself out there, but don’t put out. Doing the first one for free or a discount is like having sex on the first date, before even getting dinner. I don’t care how hot your target is, you just can’t. You may really, really want it, but you have to respect yourself. No one will respect you if you don’t respect yourself first. So, just say “no” when asked (or even begged) to do it for free (or cheap).
3. Dress for the date. If you are going out in public with any chance of being seen by potential clients (like going to lunch or for drinks with friends to a trendy place), dress up more. If you are going for a client meeting, really pay attention to the details of grooming and tailoring. Details count. I don’t care if your “date” is dressed like a slob, you’d better look fabulous.
4. Debbie Downer and Donna Desperate are never sexy. If you have been sending promos and are making calls to get a meeting, don’t sound whiny or desperate. You have no idea how often this happens (ask ABs). If you get a “No, I’m too busy,” say “Thanks anyway. Mind if I call you again in a month or two?” If you do get a meeting, at that meeting do not ever ask “Do you have a job for me?” That sounds desperate and pushy as hell. Not attractive.
   Be upbeat and respect yourself. You’re a successful photographer–even if business has sucked lately, you have something to offer that no one else does–the way you think and see. Head up, smile, and never beg for attention or work. There are other fish in the sea.
5. Stalking never works. You know how you hate it when someone who is interested in you comments on every post you make on Facebook, or shows up where you go “accidentally,” or calls (or texts), like, every day, even though you never answer? Buyers hate it too. It’s not cute, it’s scary. Don’t be a stalker. Instead, have a schedule for your marketing efforts and stick to it.
   Gather data by following targets on Facebook, etc., but use that behind the scenes, so to speak. For example, if you know that a target’s birthday is coming up (thank you Facebook) you can send them a print with a happy birthday note. Do not, however, show up at the family party uninvited. (eek!)
6. Be interesting, sure, but more importantly, be interested. Okay, I may be violating girl-code here by telling y’all this, but it’s always better to encourage the person you are flirting with to talk about himself than to talk about yourself too much. Asking questions, listening, smiling & nodding, asking good follow-ups… all important. Don’t be a fawning lump (no one likes someone who has no opinions or stories to tell!)–but do encourage your target to open up and share. Relatedly, don’t say “no” if you can avoid it in the discussion–try to be positive. There is an improv game where you have to say “Yes” to every line given you (usually “Yes, and…”)–great way to learn to be positive.
7. Don’t sit by the phone. Okay, our phones are on us all the time but we don’t have to answer them 24/7–not for dates and not for business. I’ve said for years the best way to get a gig is to go on a vacation, and that is true. Being a little less available makes you look desirable and not desperate. Don’t answer the phone for business calls on weekends or off hours… it can go to voicemail and you can listen to it and choose for yourself whether it is a real emergency or something that can wait until Monday morning. If you are too available, you look desperate (see #4).
8. Let your date pay. I’m going to get my butt kicked for this and yes, it is totally sexist, but in this you need to think like a dating woman and, if the guy asks you out, he should be paying for the date. In marketing, this is much like #2 above. In this case, I mean don’t offer a discount in the attempt to get a project. It also makes you look desperate (see #4). If you get asked to estimate on a project, don’t think about how cheaply you can do it–think about the value you bring to the project and price accordingly. Stand out for your specialness, not the money, and don’t cheapen yourself.
9. Show a little leg, but don’t dress like a ho-bag. Like #1, you have to put yourself out there and you should do that in your marketing by showing your best work. But keep a little hidden! Don’t put it all out there (on your website or whatever). If you keep some goodies in your print book only (or at least in a private electronic format like a pdf or something) then you have something special to “put out” to those who make the effort to respond to your flirtations. Oh, and your best work is often your personal work so don’t be afraid to reveal some of that “leg.” Targets love to see the real you in your work–that is going to show in your personal work most of all.
10. Don’t lie. If you lie, you break trust and you will never build a relationship. Again, remember you want (eek!) a relationship, not just a bunch of notches in your bedpost. Lie once and you have quite probably no shot at ever “getting in bed” with this target. Ever. Be honest about who you are, what you want to do creatively, what your capabilities are, what you bring to the relationship, why you are attracted to your target… everything. You can spin the facts to make them look as positive as you can (kind of like wearing makeup or dressing up), but do not lie.
    For example, if you haven’t had a paying project in six months and your target asks how things have been, you can answer “Good. Busy.” Why? Because you have been busy trying to get work and that’s good! But if the client follows up with “Who have you shot for in the past six months, you should say “I’ve been working on personal projects” rather than lie and say you shot for Bob’s House o’ Widgets or whatever. The truth will out, as they say. It’s not worth it.

So, with those ten starter tips in mind, go out there and flirt… er, market!

Every professional photographer knows that when you shoot a person, you should get a release signed. That release is consent from the model for the photographer to use her/his likeness. A typical release does not contain anything about copyrights beyond, and even this is fairly rare, something like “Model affirms that s/he does not have any rights in the photographs made, including copyrights…”

That’s all fine and dandy because the courts have made it clear that, in fact, a model or subject in a still photograph does not have any claim to co-authorship of the photograph because, in order to be a co-author, the contribution by the “other person” has to be something that is in itself copyrightable… a “work of authorship” as defined by the Copyright Act. Specifically:

A person’s name or likeness is not a work of authorship within the meaning of 17 U.S.C. §102. This is true notwithstanding the fact that [those] names and likenesses are embodied in a copyrightable photograph.
Downing v. Abercrombie & Fitch, 265 F.3d 994, 1004 (9th Cir. 2001).

So, when it comes to still images, a photographer is the sole author. A release is needed to permit the use of the subject’s likeness under state laws concerning rights of publicity and/or privacy, but that’s it. The independent businessperson photographer owns the copyright(s) in the photo(s) created (assuming, of course, it is not a Work For Hire).

 

Still photographers are becoming motion photographers. In droves. If you are a still photographer who is now shooting motion, are you using the same releases for your motion work?
Well, then you may be toast.

Here’s the thing: a performance of a subject in a motion work, like the work of an actor in a movie, is in and of itself potentially a work of authorship within the meaning of 17 U.S.C. §102. If it is a work of authorship, then it can be argued that the copyright in the video/motion piece is a work of co-authorship and, you see where this is going, the photographer/director is no longer the sole owner of the copyright in that work.

No, I am not kidding.

Now, this isn’t a slam-dunk argument. For a work to be considered a joint work (co-authorship), there is an intent requirement–that is that the parties intended the work to be a joint work. But who want to prove or, worse, disprove intent? That’s a toughy if you don’t have solid evidence that the work was not intended to be a joint work. And even if in the end you’ll win because the law isn’t for-sure on this, why not protect yourself from a potential lawsuit beforehand?

So, what can you do if you are shooting motion to avoid this problem (or at least reduce the chances of getting sued for co-ownership)? You can get an assignment of copyright signed by the people in your motion work. You could include a work made for hire clause but, in California, that could get you in trouble with the Labor Code, so better to do an assignment of rights clause. You can include it right on the same release form you are already using. Best to get your attorney to draft this clause for you so you can add it into your paperwork with the confidence that your rights and needs are being protected.

Lots of you complain about not being very productive. I have two suggestions for this issue.

First, assuming you already have set actual work hours (and if you haven’t, you need to), try starting much earlier in the day. I know for many of you that will sound impossible, but I swear it is completely possible. I know, I’ve done it.

I used to be a stay-up-late kind of woman. Mornings were, thus, hell. I made the conscious choice to change that. A good way to make that happen is to not only have a set bedtime (which is good for your health, by the way), but to move that bedtime up by 15 minutes every couple of days and your wakeup time as well. Before you know it, and without feeling like you have been through some sort of withdrawal, you’ll be getting up as early as you choose.

I get up usually at around 5:45a now and rarely have to use an alarm to do that. I can get a run in, or other exercise, and still be at my desk working by 7:30, if not even earlier. I get more done before noon every day (and especially before 10a) that I ever do in the afternoon. There are lots of reports and articles (like this one) suggesting that is pretty normal–that is, that one gets more done early in the day.

Yes, even creative pros.

Second suggestion for productivity? Turn off social media and email for most of your day. Those “tools” are big distractions and pull us away from what we need to focus on, including creative work. If you need to, set a timer and work for, say 50 minutes then take a 10 minute break to check FB, etc. If you have to post things for your work, schedule that as well and do only that–make your posts then get off the computer (at least get off the social media). If there are posts or links you want to check on, make them for later… for your break time.

Basically, we’re talking about a sort of discipline to your day. Creatives, especially younger ones, often fight this idea as they think artists aren’t supposed to create on a schedule or something. The reality is, the most successful artists are disciplined and schedule their lives and their work. It’s not selling out to the man to actually treat your job like a job–it’s possibly one of the best things you can do for your business.

This morning I learned about the death, at far too young an age, of a lovely woman, a photographer, one of the thousands of you who never got famous, never got rich, but continued to make her work because she loved it. One of her colleagues called her “the Weegee of weddings” and although that sounds virtually impossible, her ability with black and white warrants such praise.

“A short battle with cancer” says her obituary.

This morning, before I learned this, I ran again for the first time in a while. I was starting (again) an exercise and diet program. Day 1. I had decided over the weekend that it was important to me to lose the few pounds that have been bothering me and to get more exercise. It matters and I needed to stop putting it off.

We put things off, thinking we can do it later, tomorrow, whenever. We always think there will be time to quit smoking, to make and send promos, to shoot that personal project, to take that vacation, to tell someone you love her/him. At the same time, we check email, Facebook, tweet about nothing that really matters, watch every episode of whatever tv show we like back-to-back on Netflix, and surf the ‘net for more. Somehow we make time for the unimportant, but the stuff that matters we put off.

Don’t wait on the important stuff. Maybe it’s hard stuff, but do it now. Maybe it means facing your fear, but do it now. Maybe you’ll be the only person doing it, saying it, being it, but do it now.

Commit to your life.

If it matters, do it now.

Today, the US Court of Appeals for the 4th Circuit issued a ruling that includes the following:

We therefore hold that an electronic agreement may effect a valid transfer of copyright interests under Section 204 of the Copyright Act.

This is a very big deal for any copyright owner… more so than it may at first appear.

As many of you may know, you cannot transfer ownership of your copyright without a signed writing. Until now, most read this to mean that you needed an actual piece of paper with an actual signature. Not according to this court.

Under this ruling, the court says that it is possible now to transfer your ownership by clicking “Yes” or “Agree” on a properly drafted Terms of Use/Service agreement that includes a copyright transfer (there is a footnote, number 13 in fact, that speaks to that “properly drafted” bit, if you want to get picky). This ruling says, in essence, that the E-Sign Act, which permits electronic signatures on most documents, applies to copyright transfers.

So now, when you click “yes” or “agree” on a Terms of Use/Service and uploading a photograph, you could be giving away your ownership of that photo.

Yes, this is only one circuit, but other circuits can follow that ruling so, as they used to say on Hill Street Blues, be careful out there.

I recently had one of those moments when one suddenly realizes how important it is to explain things you think are really obvious to your client. That is, as we become more expert in what we do, we forget that our clients don’t know what we know and that can lead to unnecessary stress, and sometimes worse.

In my case, it was a legal client I’ve been working hard for. It’s a complex matter and I’ve spent a lot of time and effort for my client, so I was more than a little surprised to hear some of the complaints. As I listened to my client, however, it became clear that I was not doing my best job in informing my client of all the details. Oh sure, I’d given regular updates, but I was missing information that (in retrospect) I should have been sharing. Stuff that seemed spectacularly obvious to me was, to the client, completely unknown and unknowable. Without that data, it was perfectly reasonable to complain!

So I (and my colleague) explained that what the client was feeling was totally understandable, then went on to explain the bits that the client didn’t know. Some of it seemed like stuff the client didn’t really need to know–technical stuff, for example–but better to give too much information than too little, particularly if there was any chance in helping the client understand and, by extension, feel more in control. And yes, as soon as we shared that information, you could hear the difference in our client’s voice. In a very brief time what had been some pretty serious anxiety and frustration melted away and the end of the call was a very different tone from the start.

We’ve all been in that client’s shoes. Who hasn’t been frustrated by (for example) some doctor who doesn’t tell the whole story? If the doc is smart, s/he will politely fill in the blanks and then even not-great news is better tolerated. But if the doc is a jerk, s/he acts like the patient is an idiot for not knowing something that to her/him seems obvious and the patient gets angry and frustrated.

Same thing can happen in your field. When a client gets pissy, take a second to really listen to the problem and see if maybe you are “assuming facts not in evidence,” so to speak. Maybe it’s not that your client is being a jerk at all, but rather that you aren’t being fair to your client by not sharing all the relevant info. What you think is relevant or important isn’t the same as what your client thinks is relevant or important. Listen to him/her. Put yourself in her/his shoes. Your client might not need to know (in your opinion) the steps involved in getting a permit from the city for a shoot, for example, but once you tell him/her about the whole process s/he won’t expect you to have it in 30 minutes.

Listening is, in short, the best way to be able to manage client expectations and restores a sense of control to your client. None of us like that out-of-control feeling, especially when money (or one’s job) is on the line.

When you take the time to think about what it is like to be in your client’s position and really see the situation from her/his perspective, mostly by listening to her/his concerns (and then addressing them rather than judging them), you are much more likely to have a happy (and repeat) client.

Today is the first of July.

The year is half-gone, but rather than look back at what you may not have done that you intended to do in the first half of 2013, be here now and, if anything, look forward.

I know whereof I speak, as they say: my first half of the year has not been what I hoped in some respects. There are some things I meant to get done that I didn’t do, some things I had no control over that impacted the bottom line, some things not started. This is all pretty normal, but in looking back it’s easy to get sucked into the negative of “failure” if you are not careful. Instead, I suggest recognizing the past but, like one does in meditation, see it for what it is (the past) and bring your focus back into the present.

Now is, well, now. It’s a clean slate. Just as you are the sum of your experiences to this moment but can’t go back and change any of them, so it is for your business. Everything from the past has informed the present; but, it all remains in the past–done deal. Over. Right now, you are in control and you get to choose what to do with the next 2 minutes/hours/days/years/decades of your (business) life.

Today is the first day of the month, first day of the work week, first day of the second half of the year. Today you can do whatever you choose to make it the first day of a better second half of 2013. Starting from now, this moment, make a choice to do something that would be positive for your business or choose not to do something negative that you have been doing. Choose to do things like (and the dates/days are only there to show you how to fame these active goals):

• to start doing all your paperwork for the week (invoicing, paying bills, etc.) on Wednesday mornings
• to shoot for yourself every Thursday afternoon
• to call 3 targets a week on Tuesday mornings
• to let go of trying to please those lowball clients you actually hate working for
• to turn OFF your computer at 6pm every day
• to blog every Friday
• to register your copyrights every month on the 15th
• to read a book just for the pleasure of informing your mind (that is not for work)
• to stop hating that guy who gets the fabulous projects even though his work is only meh
• to say no to at least one thing that you know is bad for you every day (like taking that project you will hate)
• to give yourself time off (totally off)…

You get the point.

You are in control of what you do now. You always have choices but sometimes we forget that as we get caught in the panic of what we call our busy lives today. Even when you feel like you are drowning in the list of stuff you should have done already this year, you have total control–because you can choose to be present, to be here now, and to make choices about what to do next.

Today is the first. What shall you make of it?

 

There is a Buddhist tale of an arrogant woman who sought enlightenment but who instead ended up with a demon chasing her with a stick, yelling “Now! Now! Now!” These days, I think social media is that demon.

I was brought to mind of this a few times recently when I noticed that people want “the news” now. Right friggin’ now. Not in 15 minutes and certainly not the next day, but now. And by “the news” they mean the details of some event as it is unfolding, even (and here’s the kicker) if they have no real connection to the event.

This seems to be the new normal. Some event takes place, something that a few years ago we would have been perfectly satisfied to hear about on the next morning’s news show or, a few years before that, to read about in a newspaper the next day. But today, people want to know every minute detail and they want it real-friggin-time and if they don’t get it it’s as if people have lost some fundamental right.

Last night, for example, there was a debate and filibuster in the Texas legislature about a bill that would severely restrict abortion. For people living in Texas, this is an important event. But for someone who isn’t a resident and who has no closer connection than knowing people who do live in Texas, this isn’t urgent news. Actually, even for Texans it wasn’t urgent. I mean, it’s not like a tornado bearing down on a population center or a crazed shooter on the loose. There is nothing that anyone, other than the legislators themselves, could do about the event. Either the filibuster would be successful, or it wouldn’t, and no amount of tweeting about it would change that.

And yet people were tweeting like mad last night, mostly rumors and RTs from citizens on the scene who were not professional reporters, who did not have a grasp on the whole story, and who didn’t fact-check. This drives me crazy as the worst evidence for accuracy is often eye witness testimony. We simply get it wrong. We don’t see the story. But Twitter was packed with this crap.

Thing is, I did find legit news last night. I found Texas publications and local TV news divisions and I checked their tweets. I’m one of those people who was only interested because I am interested in the law and how it affects reproductive rights. The Texas law wouldn’t affect me directly. I was one of those tertiary people for whom it was news, small-n. For me, I knew I’d get the story when I got the story and I knew that if that was now or in 15 minutes or in the morning it wouldn’t make a real difference–I’d still learn what happened.

Anyway, like I said I found legit sources and sure, their tweets were not immediate, but they were only delayed by what I image was the time required to fact-check and confirm from multiple reliable sources. Most importantly, these tweets were accurate.

Today, people I know, non-Texans, were complaining that they couldn’t find real-time news of the goings on and that social media had displaced the legitimate news sources since one could only get information from sources like Twitter. They acted like the news organizations of the world had screwed them but good, because they didn’t get it now, now, now, and legitimate news organizations like the AP had become “useless.”

This is beyond sad. This is why journalists, including photo journalists, are losing work. We have lost our perspective on what news is and when we need to get that information. We have sacrificed accuracy and depth for the demon of now, now, now. Journalists need time to do their work. They are trained and have the experience to see the story and to tell the story, but they need time to make that happen. Even photojournalists who capture events that happen in a split-second often tell a bigger story with more images that give the “money shot” its context. Again, time is required.

We all have heard the old saw Fast, Good, Cheap… pick two. That’s as true for journalism and the media as it is for advertising and any other business.

Think about your own behavior and see if you are contributing to this downfall, this acceptance of crap “citizen journalism” that now replaces legitimate reporting far too often. Do you really need to know something now, or will it not make any difference if you don’t get the information for an hour, or a day? Call out your friends who add to the noise without actually contributing to the understanding of the story.

Almost always, it won’t kill any of us to wait.