Hope on the Metadata Front

March 5th, 2014

In a recent ruling, the court said that CafePress, a defendant in an infringement case, wasn’t clearly able to claim the Safe Harbor of the DMCA and noted:

Here, the Court finds that, at a minimum, Plaintiff has offered sufficient evidence to create a dispute of material fact as to whether CafePress’s deletion of metadata when a photo is uploaded constitutes the failure to accommodate and/or interference with “standard technical measures.” From a logical perspective, metadata appears to be an easy and economical way to attach copyright information to an image. Thus, a sub-issue is whether this use of metadata has been “developed pursuant to a broad consensus of copyright owners and service providers.” Accordingly, the Court cannot conclude, as a matter of law, that CafePress has satisfied the prerequisites of § 512(i).

In plain English, the court is saying that stripping metadata may result in a service provider’s loss of the free pass of the takedown notice system. It’s not a done-deal yet, but it is a positive sign.

Don’t do this.

February 24th, 2014

I just got the following email (name redacted because I don’t want to embarrass anyone):


Dear Leslie;
My name is XXX XXXX and I’m a commercial photographer who wants to photograph for you.  I’d be honored if you visited my “New” website at:

xxxxxxx.com or better yet,  we could meet in person.

     Thanks, XXX XXXX

This is exactly the kind of email you should never, ever send. This photographer has unfortunately dug a hole with this bad marketing. Why is it bad? Several reasons…

First, why ever would a photographer think I was ever going to buy photography? If you have my email address (this was sent to my info@burnsautoparts.com address) you can easily figure that my website must be burnsautoparts.com and go take a peek. One look should tell anyone that I’m not an appropriate target. As you all have heard me say a gazillion times, the first step is always to select the appropriate targets for your marketing.

Second, the email is totally generic. It doesn’t say anything about what the photographer does (“commercial photographer” is not helpful–do you shoot food or environmental portraits or what?). It doesn’t say why the photographer wants to shoot for me–is it because you shoot the kind of work you see on my site? If so, say so. Make the connection. It’s your job to entice the target and you can’t do that  without providing some information. Show a little leg, as I’ve been known to say. Show your genuine interest. Don’t be generic.

Third, what is up with the word new being capitalized, in bold, and (worst of all) in quotes? That is grammatically all sorts of wrong. Grammar counts. Spelling counts. So does layout and design, even when it comes to email.

Fourth, why not include an image in the email? Give me an idea of your work. A screenshot of your website since you want me to go see your new one would be a good idea. Whatever, show something. You are a visual artist… be visual. Your buyers are visual people too–images work (unless they suck, of course).

Finally, you need to follow the legal rules about email solicitations. I never signed up for this person’s list so really, I never should have been emailed. If you are going to ignore that part of the law (bad, but if), then at least follow the part about making it clear how the receiver can opt-out. The rules are fairly simple, but they are rules (and by rules I mean law–the CAN SPAM Act).

Bad marketing is worse than no marketing in many targets’ eyes, so take the time to get it right.

Looking back at not doing

February 4th, 2014

I was reminded today of a post I wrote while in law school. It still holds up today. Actually, I can attest that I was right–at least in that my choosing to not do some things and thereby focusing on what I needed to worked out for me.

So, take a minute and look again at that post, particularly the list of ten reasons to not do. Maybe it’s about time for you to not do some things again.

Tangible Matters

January 9th, 2014


Yesterday, I went into my garage on the search for some missing kitchen linens which I thought may have been lurking in a still-unpacked storage box from my last move, a couple of years ago. I had to dig through a few boxes and one of the boxes I opened contained photographs.

At that moment, I completely forgot about finding the linens. I was sucked into that box of photos.

Now, when I say I found a box of photos, I mean snapshots. These are (with a few exceptions) photos I made or someone else made with my camera (because I am in some of them) that are certainly not works of art. They are mostly of friends and family, at various events like parties or Christmas or on trips. Some are shots out the window of my old, amazing loft apartment near downtown Columbus, Ohio. Many are of my dog and cats. There are exes and old friends and places I’d almost forgotten I’d visited.

As soon as I’d picked up the first one, I was compelled to go through them. In the doing, I noticed some things.

The act of picking up a print and looking at it invoked memories in a different manner entirely from seeing images on a screen. There is a sort of physical reaction. It is a deeper connection, somehow. I think that the lack of metadata to date them precisely or to know the exact GPS co-ordinates of their making forced me to think about and engage with the photos more deeply. And there is the added sense of touch used in the process–the physical act of touching the object.

Here is what I finally decided (and I suspect I am not original in this thought): a photographic print (or transparency) is an actual, tangible moment of time that also captures the sublime beauty of impreciseness.

We have lost that ability to physically re-capture a moment of time as a concept and not a digitally-coded exactitude. Actually, we choose not to have the artifacts which permit this because we no longer have all our images printed (and printed in some sort of archival manner). Thus, we have lost this ability to open a box, or an envelope, and be transported to a personal (and imprecise) moment, as opposed to an atomic-clock-precise time.

Now, I know many of you will argue that looking through images on your computer does the same thing–that is that it evokes memory, but I think there is a difference–and one that is very difficult to articulate.

Without writing a thesis on the subject (although I’d very much like to), I’ll leave you with this example. One of the photos I found was the one above. I made that polaroid using a Fuji 680 on my very first day as a studio manager for Stephen Webster. It was my first day working full-time in the photo world and he thought that teaching me how the Fuji worked, and how strobes and hot lights do, would help me to understand his process and would permit me to assist when necessary (he later also taught me how to load 4×5 holders and to print a bit). That day was the first day of a new life for me. I had been a PhD candidate before taking that first real, grown-up, full-time job with Steve. Anyway, picking up that polaroid was tantamount to stepping out of the Delorian–I was there, again, on that first day. I could feel how scared and excited I was, what the studio looked and even smelled like, the breeze when the inside door was opened by the UPS man (because the big outside sliding door was anything but sealed), the squeak of the light stands and the shhht-thenk of the camera (which I would later learn sounded entirely different from a Hasselblad’s solid thunk, etc.).

I have this thing, this simple object, that can do that with a look and a touch. I don’t get anywhere near as strong a feeling as I look at it on my screen here. Here, it is just an image and, sure, I know about the its origin, but it is simply not the same. I think it is the physical act of picking up the polaroid (like a print) that brings the added force of my own personal time-stamp of memory.

All of this is a long way to go to encourage you to think about this as you make your work now. When we don’t convert the images into physical form, I think we are losing something profound about the experience of the work. It is not only about evoking personal memory, but by making your work physical (prints) you permit others to more fully engage with your work. Even if you only pile those prints into boxes at some point… imagine what it would be like for you, or for others, to find them.

2013 Top Ten List

December 30th, 2013

Last year, as a wrap-up to 2012, I made a list of the 10 things creative professionals should quit for 2013 (and beyond). It was one of my most popular posts so I thought I’d revisit the List o’ Ten Items for the end of this year. This year, instead of things to quit, it is a more general do/don’t kind of list, but hopefully you’ll find it helpful.

So, without further ado, here is my Top Ten Things Creative Professionals Should (or should not) Do in 2014… and beyond:

  1. Register your copyrights. Imagine you find one of your works reproduced on (for example) Forbes.com without your permission. If your copyright is not registered before the infringement (or during the safe harbor time, which, by the way, is for published works only), you can only get the reasonable license fee for that use (“actual damages”) and that will be maybe a couple of hundred bucks. However, if your work is registered before the infringement, you can get statutory damages and your attorneys’ fees–likely thousands of dollars. Which do you want?
  2. Don’t bitch about the difficulties in the © registration process. Yes, the whole published/unpublished thing is a pain and yes there are a bunch of other nitpicky rules you need to get right. Complaining about it won’t change that. Instead, learn the rules and when you don’t know what to do, contact your copyright-proficient lawyer (and no, I’m not shilling for work–there are plenty of competent IP/© lawyers you can contact). Don’t rely on the word of another creative pro because, honestly, there is a shitton of bad info out there, even from some very reputable sources.
  3. Don’t be a hypocrite. You cannot have pirated/torrented music or films or books (whatever) and be a professional creative without being the worst kind of hypocrite. Don’t like reading that? Tough. It’s the hard truth. I said it last year and I’m saying it again because some of you refuse to accept this reality. No, your free music doesn’t only affect the impersonal labels, it hurts “little” people just like you. If you use music to accompany your visual art, you must get permission to do so (i.e., license the music).  Fundamentally, it’s simply wrong to take someone else’s creative work and then expect to get paid for yours. Stop justifying it however you do and instead do the right thing: pay for the creative works you acquire. All of them. Besides, you really don’t want to be getting a C&D letter from someone like me. Trust me on this.
  4. Fire disrespectful clients. Gird ‘em up already… stop permitting your clients to treat you like a $2 whore. Harsh? Maybe, but I am really tired of creative professionals accepting it when clients treat them spectacularly poorly. You are a professional. Your skills are unique. If your clients could do what your do, really, they would not hire you. Full stop. No one will respect you if you do not respect yourself first and telling someone you imagine you need to hit the curb may not be easy at the time, but later you will not regret it. Not at all. It is actually freeing.
  5. Stop using what other people do as an excuse. I have never thrown a punch in my life but I think I’ll start the next time I hear some creative professional say something like “If I don’t take the project for $500, someone else will.” Look, you have no control over what other people do and there are plenty of people who will do really bad stuff, particularly in business. Lowballing or doing other unethical crap will always be done by people who do not respect themselves or their business. Screw ‘em, don’t emulate them!
  6. Shoot film/make analog art. There is nothing wrong with using digital tools, but I can tell you that your work’s quality will improve if you use the pre-digital tools more. When I look at a photographer’s work, I can tell you almost 100% what work was made on film originally. I can also tell which photographers shoot film regularly, even if only for their personal work and even if I don’t see that work, because the digital work is stronger. You learn to make better choices and to be in the moment of creation more when you take out the “instantaneity” of digital tools.
  7. Stop doing it for free/cheap, especially just because you want to be a nice person. Non-profit or charity does not mean you should do it for free, or even for less! If you are losing money doing the work, you aren’t being a nice person, you are trying to become a business failure. It’s not selfish in a bad way to do what you need to and that is to say “no” when people ask for freebies or deals. Saying “no” often results in you being more respected as a professional with those exact people who first asked for the deal. Bonus!
  8. Do your business-y stuff. Stop putting it off, stop saying you hate it… just do it. You won’t have a successful business if you don’t pay your bills on time, don’t get your invoices out asap, fail to chase down late payers, or don’t register your copyrights regularly (see No. 1). Running a business is mostly about doing the not-fun business-y stuff. Get over it.
  9. Do your marketing. Related to No. 8, you have got to get a marketing plan and work it, regularly, consistently, and diligently. Work on your lists, take the time to target well, and go after your best potential clients! Also, I suggest doing this in the real world much more than online. I mean, a face-to-face meeting is hugely more likely to get you work. And yes, people still get meetings. Buy lunch/dinner/cocktails for your targets if that will get you facetime. Do what it takes to get to know these people as people. Building those relationships will get you work. One caveat: if you try to fake your way to getting people to like you, you will go down in flames.
  10. Let social media and SEO die. Social media will not make your business successful. You will not be that one in a gazillion who hits, so stop wasting all your time posting and tweeting and following and using far too many so-called tools to reach out to a huge audience. You will lose the rights to your work and that price is way too high for a minuscule shot at fame. Besides, if you want to be famous, then you need to think about what you are doing with your life. If you want to be a successful artist/creative professional, put your efforts on making and monetizing your art, not making people like you. You can’t pay your rent with a +1 or a like. Instead, spend more time targeting the best targets for your work and reaching out to them directly and, preferably, in person (see No. 9). SEO also really just doesn’t matter–it’s a boondoggle now as the search engines manipulate everything to hell and back and besides, the best clients are still not using search in that way to find the best artists (it is good for local consumer-direct photographers and that is about it).And, one more to grow on…
  11. Recognize that you are an ARTIST. Get over that false modesty stuff already… if you are a creative professional, you are an artist. A professional artist. Stop acting like that chick we all know who wears a size 2 and talks about how fat she is. It’s bullshit and an insult to everyone who is doing the hard work of being an artist. Every time you make it look easy or play down the work behind your work, you are lowering the perceived value of your work and the work of your colleagues. Stop saying “I got lucky” or “It’s not that hard” and the like. Creation is miraculous; so not only do you owe it to yourself and your peers to recognize that, I also encourage you to use that to your business advantage. For example, photographers should not provide monitors for  clients–tell them you will show them when you are ready. They may bitch about it at first, but as long as your work is fabulous, they’ll get over it and, more importantly, you will look more like the miracle-worker you really are.

    UPDATE: I just was pointed to this post about rituals and it confirms my belief that photographers lost something when they took the ritual of the reveal to the client out of the process. Put it back by taking out those client monitors and your clients will love your work even more!

Thurber, Stiller, and the Power of the Image

December 17th, 2013

I’m surprisingly not a huge Ben Stiller fan. Some of his stuff I like, some not so much. He can be a bit bitter for me sometimes.

I’m a big Thurber fan, especially having grown up in Columbus, Ohio (his hometown). Although people accuse him of being misogynistic in his writings, I’ve always loved his sometimes biting humor and don’t particularly like it when people try to modernize it.

I was, thus, not looking forward to the Stiller version of the Thurber classic, The Secret Life of Walter Mitty.
That is, until I learned that the entire reboot-version story is based on photography.

Mitty is a photo editor/archivist for Life magazine, which has been acquired and is being shut down (at least the print version). He is devoted to images and has lived vicariously through the work of others–honoring and protecting that work and admiring the makers of it. I’m not going to get into how much I identify with Mitty, but to say I didn’t get a bit of “oh, that is spooky” would be a lie. Anyway, his rich fantasy life is based on these images by others, as is, of course, his professional life.  For the final print Life, a negative goes missing. That sends him into the world he has only seen and imagined.
That negative gives him life.

I have not seen the film yet, but from the trailers and the “behind-the-scenes” short they are running on HBO, I will as soon as I can. Part of what the behind-the-scenes film explains is that Stiller (who also directed the film) did as much of the work in-camera, that is without CGI, as he could. He and others working on the film talked about how much more real everything is because of that and talked about how it changed the entire approach of making the film. There are many scenes that could have easily been done digitally, but instead they invented rigs and took the time to do it for real. They had to slow down and make choices. They had to be present in the reality of making.

So, here is this film about a negative (analog photography without photoshop) being made using as much non-digital work as possible. And the film is all about life, love, and how all of that is driven by the power of the image–whether that is the image we hold of ourselves, or a photo. It looks like this film is a love letter to photography and its makers. 

What’s not to love?



The Importance of Research

December 5th, 2013

Today, I got this email:

Hey Leslie,

You were suggested as a person I might contact in regards to our crowd sourcing platform for photography. We launched a world-first service last year that has been helping global lifestyle brands bypass cheesy stock shots to access images that have never been seen/used online before.We have already been suppling images for clients such as Visa, Vodafone, EasyJet, Coca-Cola, Royal Caribbean, Expedia, Virgin, Mobil, Coors, Lexus and Johnson & Johnson and almost every major ad agency in New York. By using our site, you can post a brief for specific image content that matches your needs and have thousands of professional photographers submit images from their personal archives that are tailored to your request.

Perhaps this 90 second video explains it best:


ImageBrief saves you hours of searching and taps you into a vast pool of fresh undiscovered images from around the world. The beauty is, if you don’t find an image you love, there is no cost or obligation whatsoever.

Please take a look at our collections to better understand the content we can offer:


I’d love to help with your first ImageBrief request if you have one we can test drive? Happy to answer any questions you may have. Thanks so much. Looking forward to the opportunity!


Besides being completely offended that someone I have never met started her email to me “Hey Leslie” (at least use “Dear Leslie” if not “Dear Ms. Burns”–Hey is not a proper business greeting, yes, even today) I love the bullshit line about having been suggested to her. Really? By whom? Why not write “Bob Smith suggested…” unless (gasp!) no human actually made a suggestion…
Anyway, I replied thusly:


Apparently you have failed to do any research into your targets. A cursory read of my blog or Facebook page would show you that I am vehemently opposed to your exploitative business model and actively encourage all professional photographers not to work with your, or any similar, company.
Leslie Burns

Not surprisingly, Ms. Meek did not reply.

Quick question

November 19th, 2013

I’m doing a completely informal survey. It’s got only one question:

Name three current US photographers or other professional people related to photography whom you respect, not just creatively (although that should be a factor, sure), but also for something about how they run their business. Doesn’t have to be commercial photographers–can be a fine art photographer, a consultant, a curator, a wedding photographer… any of the above. I’m looking for people whose brains you’d love to pick for whatever reason. For example, maybe you’re not thrilled with Chase Jarvis’ images but you respect how he’s marketing his business (and I’m not picking on Chase–I just needed someone to use as an example). Or maybe you like the advice Luke Copping gives on his blog. Or maybe Heather Elder has your attention.

You can share the list as a comment to this post if you don’t mind it being public, or if you’d like to keep it private between you and me, email me.

This is for a potential advocacy project, so I’d really appreciate any input. Thanks!


The Coke Lesson

November 1st, 2013

I think we can all agree that Coca-Cola is one of the most successful companies in the world. It does a lot right and is definitely worth looking to for some guidance when it comes to running a business. I recently learned something about Coca-Cola that makes me respect the company even more.

The company has and makes a gazillion dollars a year and certainly can afford to give away stuff to promote its business, and it does exactly that. Coca-Cola gives away t-shirts, cups, napkins, glasses… you name it, Coca-Cola can usually be convinced to donate products to charities or to give away at promotional events.

Well, that is they give away everything except for one thing: Coke itself.

Coke, the drink, is the company’s product and Coca-Cola never, ever gives it away. Ever. Why? Because it is the company’s product. The company is wise enough to know that if you give away your product, you reduce its value, and that is bad business. There are a ton of drinks out there. Coca-Cola has plenty of competitors in the market–from Pepsi to small local soft drink makers and beyond. And yet it doesn’t undercut itself by giving away its product.

Think about that the next time someone asks you to make your work for free or, more accurately, asks to use your work for free. Your product is your photography/illustrations/writing or, more specifically for most of you, your product is the licenses you grant that permit your clients to use your work. If you give away the use (or if you lower your price without getting something of value in exchange) you have just devalued your product. You can’t expect a buyer to buy your product (especially not at full price) if you are willing to give it away. Ever.

So, the next guru who says you have to give it away needs to be shown the door. You can give stuff away, but it better not be your product. Give away anything else to build relationships with your clients, but not your product.

Register your work asap, already

September 30th, 2013

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.