Show a little leg

November 6th, 2015

I’m going to propose something shocking: stop putting your work online.

I know, that sounds crazy now, doesn’t it? But I’m not kidding. I think that your best work should not be published anywhere online, at least not full frame or for long.
Allow me to explain.

Scarcity increases value. That is a simple truth. If everyone can get something, it simply is not worth as much as something that is truly exclusive.

Years ago, as a little girl, I used to dream about getting something Chanel–a suit, a pair of shoes, something. Then Chanel, like many other (at the time) exclusive, high-end brands, started putting out a ton of products. Suddenly, the value of Chanel wasn’t what it was. Almost anyone could get a Chanel-branded something. The whole aura was destroyed… poof.

Recently, Pierre Bergé expressed similar thoughts in a New York Times interview where he said that Haute Couture was dead. When everyone can get it, it isn’t anything special. He’s right.

On the same day, the New York Times also published an article on the collectability of fashion photography.  These are mostly, but not only, older works, but currently active photographers have work that is also quite valuable. The thing is, this work is in the form of prints, gorgeous hand-made prints. They are limited in number, crafted in their execution, and simply aren’t available to all. They are rare–the more rare, the more valuable.

Add on top of that the simple but often ignored fact that making prints is a great way to archive your best work. Keeping your best work in a tangible medium is a way to ensure that it will be around long after the drive you have it on now becomes unreadable.

So, putting that all together, I thought about how photographers, the truly gutsy of you, can turn the tide of falling value for your work: make great work, make great prints of it, and make it very, very exclusive.

Why put all your work everywhere where anyone can share it and reproduce it willy-nilly? Where is the perceived value in that? It disappears…poof.

I’m not talking about your commercial work, the things you do for clients, but rather the photographs you make for you. Make your own art and make it rare and exclusive. Don’t show it all. Don’t share it or let others do so. Keep it something elusive, desired, rare. Like the great burlesque queens of the past, show a little leg but keep the goods hidden, enticing. Leave folks wanting.

If you are going to show work to get people to buy it, do so only for a brief period, and tease the sale. Tease your targets, your potential buyers. Want to use it to get the attention of commercial clients? Maybe give one to a creative director you’d love to work with and let her/him know that, if anyone asks, you’re going to have a flash sale of similars.

Which of you will be the artists you really are and create your own amazing work, memorialize it in gorgeous prints, then offer only in a limited number, and priced accordingly?

Personalize… oh, and FILM!

October 28th, 2015

In this resume of an editorial buyers’ panel, you’ll get plenty of important bits of information. My two favorites are, not surprisingly, personalize your promos to the buyer and (so joyful to say this) shoot film.

Fascinating, Scary, and Important

October 21st, 2015

First, let me apologize for yet another long gap in posts. What can I say except being an attorney takes up a hell of a lot of my time and energy. Anyway…

I just read this article on Medium: Innovation Won’t Save the Creative Department, by Samuel Tait. In it, Mr. Tait argues that the traditional creative department in advertising, in fact, the advertising agency itself, will be dead by next year. The very idea sounded Chicken Little-esque, until I read the piece.

He makes a compelling argument.

I’m not going to go into the details here (you can and should read it yourself) but rather I point it out to you for your marketing. If he is at all correct, even if the agencies don’t actually die out (very unlikely in his timeframe, at least), you should be looking to the future for your marketing targets.

Instead of spending your money and time trying to get work from the agencies, perhaps a shift to the innovation companies themselves, the (former?) end-clients is a better way to go. As he points out, start-ups are stealing creative talent from the agencies; shouldn’t you follow where that creative talent goes?

In many ways, this will make your marketing more effective. If you send promos to a mega-agency where you may only be a fit for one or two of their accounts you will have a difficult time standing out among the gazillion photographers (and illustrators, etc.) who do the same. I suggest, instead, you go after that individual start-up client itself, directly, where you will be one of many fewer trying to get their attention. If they like your work, you may even make them an advocate for you to their own agency! (Just don’t let them convince you to work for nothing or too little, but that is another discussion for another time.)

It’s entirely possible that, in the near future, there may be more in-house photography jobs with these start-ups as well. Many of these companies want to own all of the intellectual property created for them and the easiest way for them to accomplish that is to hire photographers as actual employees (the copyright in work made by an employee as a part of her/his employment is owned by the employer). Yes, you’d be trading your copyrights for employment (real employment, with benefits), but in many ways, that may be a good trade-off. You may even be able to negotiate equity as these other creatives are (again, see the Tait article).

It’s worth considering this new order as described by Mr. Tait. At the very least, it may offer your business more opportunities. As always, though, the first step is making your best work. Do that, then explore the new targets.

The Danger of the Lenz Ruling

September 14th, 2015

This morning the Ninth Circuit entered its opinion in the “Dancing Baby” case, Lenz v Universal Music. Although it could have been worse, the ruling is a major blow to copyright holders, particularly the individual/independent artist ones.

In short and in lay terms,  the court held that before one sends a DMCA Takedown Notice, one must take a good faith look as to whether the potentially infringing use is actually Fair Use. Fair Use, the court reasoned, is (by statute) not an infringement and so it would be improper for a copyright holder to send a Takedown Notice in that case.

The good part about this ruling is that the court said that the standard is subjective–that is that a copyright holder must subjectively believe that he/she looked at the use and honestly didn’t believe that Fair Use applied. The EFF (remember, that org is no friend to creatives) and others wanted the court to make the standard objective, which would be a higher burden for any copyright owner.

Sadly, that about does it for the good parts of the ruling. The bad parts in this ruling are several and they are doozies.

First, the court cited an Eleventh Circuit ruling that said, because of how the statute is written “…it is logical to view Fair Use as a right.” That is a scary shift. Traditionally, Fair Use has been seen as an affirmative defense, which is quite something different than a right. In fact, the court here even cites the Supreme Court in Campbell v Acuff-Rose Music where it said, plainly, “fair use is an affirmative defense…” (see Lenz pages 14-15). For those of us who both practically and academically follow these issues, the Ninth’s logic seems, at best, flawed.

Already the anti-strong copyright people are singing “Fair Use is a Right” like “Ding Dong, The Witch Is Dead!” With the support of enormous pockets like those of Google and the EFF, that idea that it’s a right will be the new reality even if it isn’t accurate in the long run.

Anyway, second, this ruling is bad because of how the DMCA Takedown Notice system works in the first place. Imagine a copyright owner (Bette) finds what she believes to be an infringing use of her work on, say, YouTube. YouTube is a third party ISP–that is, it hosts the work but doesn’t control what is posted to its service (note, I’m writing this post in basic terms rather than getting all lawyer-y so for the legal nerds out there, take a breath). YouTube has a Designated Agent for DMCA claims and has otherwise complied with the statutory requirements for protection under the safe harbor provisions of the DMCA. So, Bette thinks it’s an infringement and sends a proper DMCA Takedown Notice to YouTube, who takes the work down. The poster of the alleged infringement (Bob) thinks the use is Fair Use and submits a counter-notice. YouTube informs Bette of this and now she has to either file suit against Bob or YouTube can restore the material to its site. All that is as it was before this ruling.

Now, however, even before Bette can file suit (or as a counterclaim to her suit if she does), Bob sues Bette for an improper DMCA Takedown Notice because she, in his mind, didn’t consider Fair Use in good faith before submitting her notice. Under today’s ruling, if the court agrees that she didn’t check to see if maybe it was Fair Use, then Bob wins.

Yes, you read that right, even if Bob’s use turns out NOT to be Fair Use, even if it was in fact an infringement, if Bob can prove that Bette didn’t in good faith consider the Fair Use possibility, he wins on his claim that she submitted an improper Takedown Notice (not on the infringement claim, that’s her claim). What can Bob win? Quoting from today’s opinion (page 22):

Section 512(f) provides for the recovery of “any damages, including costs and attorneys[’] fees, incurred by the alleged infringer . . . who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing . . . .” 17 U.S.C. § 512(f). We hold a plaintiff may seek recovery of nominal damages for an injury incurred as a result of a § 512(f) misrepresentation.

In other words the infringer can get damages for lost revenue for the time the work was “improperly” taken down and, worse, attorneys’ fees and costs. Ouch.

So what can copyright holders do to protect themselves? Before sending a DMCA Takedown Notice, make sure to give the infringement an impartial review for the Fair Use potential and to document doing so somehow. This presents not only a proof issue (how do you document your good faith effort to check for Fair Use?) but also how do you actually check for Fair Use when courts themselves can’t even define it clearly? Here is where the good news part of this ruling comes in: you don’t have to be right in your analysis of whether or not it is Fair Use, you just have to make a good faith effort to consider it.

In my opinion, the possibility of being sued or countersued for an improper notice will chill copyright holders from submitting legitimate takedown notices. Especially the little gals/guys, who don’t have the resources to defend against these claims, will get spooked. More infringements will go unchallenged because artists will be too scared to risk the penalties of an improper notice action. And who can blame them?

Has it been done before?

September 10th, 2015

I rather love this idea: a camera that won’t let you take a photo where everyone and its mother already has.

Now, some of you may be freaking out about that idea but read the whole piece. The creator means it to be a tool to point out how photography has become so overdone, particularly in some famous places, that maybe you don’t need to make that particular photo. Think about it first. Are you bringing something new to the image?

I tell photographers this often when I’m wearing my consultant hat: don’t be subject-and-too-driven. With photo technology today, anyone can make a good image of a beautiful woman or a magnificent landscape; a pro needs to bring that elusive “something more” to the work.

This is another reason to shoot film at least occasionally–it changes how you approach shooting (even after you go back to digital). Shooting film slows you down and makes you more aware of your process, your vision. If you have a limited number of exposures, you must think before hitting the button. Do you have it? Is it worth exposing the film yet? Has it been done before?

Today, professional photographers who rely on what they are shooting, both the subjects and the technical whizbangery of the tools, are going to struggle. Clients can get anyone to shoot that way. You need to bring something that never fits in your gear bags–a unique vision.

Your answer to Has it been done before? has to be Not like this.

I have an idea…

August 25th, 2015

… shoot film.

Besides the fact that I advocate shooting film, at least occasionally for all photographers (it improves your skills more than you know), reading this article just confirms how digital is photography-like, but not an evolution of photography (despite what the author says). At least in my opinion.

So, to avoid all the what-is-real-what-isn’t (and similar kinds of) debate, just shoot film.

How to Work With Your Lawyer: Professionalism

August 3rd, 2015

I am our firm’s first point of contact–that is, I get the emails from potential new clients who are seeking help for their issues. I like this part of my job and try to make the experience as painless as possible for the potential client. We have some forms that we need filled out to review matters and there are other hoops, but I hope I am professional (but not formal) and courteous and not intimidating.

Did I mention professional? Yeah, about that… you do know that you’re a professional too and that you should act like one, no? In all of your interactions with others in business you should be courteous and respectful. Maybe it’s because we all text now, this isn’t happening as much.

In the case of first contacts, often the emails I get are like this:

Hi Leslie!
I found my work on What can I do?

Bob Photog

“Hi” is not the proper greeting in any correspondence with a stranger. Yes, the interwebs make things less formal, but it is always better to err on the side of politeness than to accidentally insult someone. So, if you don’t know the person, don’t use “hi” use “Dear _____.” Also, it is best not to use the first name of someone you have never met, so it should be (assuming you are emailing me) “Dear Ms. Burns,” (even though I will immediately tell you to call me “Leslie”).

Second, your email should include something more than just a demand for an answer. When you are approaching someone you do not know, for any reason, it is good to say something about how you made the connection. For example, if you are contacting a potential client, maybe say “I saw your  ______ ads–great work! I thought we might be a good fit.” Or, for your (potential) lawyer, “Betty Martin told me about you,” or, “I came across your firm’s site when searching for attorneys who know copyright law.” Adding some bit of information like that personalizes you and makes the human connection.

Timing is also important. You may work late hours or over the weekends, but don’t assume everyone else does. Also, don’t nag. Recently, someone emailed me to ask for possible assistance in a matter. 4 times. On a Saturday. It wasn’t an urgent matter (in fact, it wasn’t a good case overall–remember folks, register your work!) so 4 emails about the same thing only made this person look like he would be a pain-in-the-butt client. You know how you don’t want to work for jerk clients? No one does so don’t make your self look like (or, of course, actually be) one.

Relatedly, being professional means also being gracious when you get bad news. For example, you may think you are bringing your lawyer a million dollar infringement case but if the lawyer tells you that the case doesn’t hold up after her review, don’t take it out on the lawyer. If you disagree, seek a second opinion from someone else, sure, but don’t try to tell the first lawyer how she is wrong about the law and that she is blowing it. A lawyer is going to want your case to be what you think it is–high value and win-able–so having to tell you “no” sucks. It’s not something we do lightly and it isn’t personal. Taking it poorly doesn’t do you any good and it won’t change the lawyer’s opinion of the viability of your case.

Another example, further down the relationship line: when the opposition presents objective evidence that guts the value of the case, a lawyer will inform her client and give options for what to do, ethically, now that this information is known. This happens sometimes and once when it did the client yelled at me, saying that I obviously wasn’t interested in helping (and worse). None of us likes this kind of situation and, especially if you know about the negative info but don’t share it with your lawyer beforehand, but when it happens, the best thing to do is not to try and convince your lawyer to violate ethical rules (contrary to popular belief, most lawyers won’t do that even for ready money) but rather accept the reality of the situation, take the hit, and move on.

Overall, elevate your tone and your attitude and you’ll find that you’ll get more out of all your interactions. That’s being a professional.

Give Your Feedback to the Copyright Office!

July 29th, 2015

The US Copyright Office has extended the time to give your opinions and information to them regarding copyright in visual works. The comments are now due by October 1, 2015.

Here is the flyer about the inquiry (pdf), but the important bit is that you need to answer these questions:

1. What are the most significant challenges related to monetizing and/or licensing photographs, graphic artworks, and/or illustrations?

2. What are the most significant enforcement challenges for photographers, graphic artists, and/or illustrators?

3. What are the most significant registration challenges for photographers, graphic artists, and/or illustrators?

4. What are the most significant challenges or frustrations for those who wish to make legal use of photographs, graphic art works, and/or illustrations?

5. What other issues or challenges should the Office be aware of regarding photographs, graphic artworks, and/or illustrations under the Copyright Act?

For #3, I’d like to suggest that all artists at least mention the confusion about publication status. Frankly, I think the CO should dump the whole published/unpublished split but that is unlikely. So, as an alternative, suggesting that they make the definition of publication much more clear would be helpful.

This is your chance to make a difference! Participate! For more information, see:

Perceived Value

July 24th, 2015

I’ve said it several times, raising your prices increases your perceived value. I think this piece offers a great method for doing so–the outrageously priced option.

How to Work With Your Lawyer: Honesty

July 20th, 2015

Lawyers have a nasty reputation as liars. Sadly, there are more than a few of us who do indeed lie, but there are also those of us who don’t. Lying, of course, comes in many forms: one can full-out make shit up; one can change minor details; one can lie through omission; and, I’m sure, there are other methods I can’t recall (like claiming ignorance when you do in fact remember).

Regardless of whether your lawyer is or isn’t a liar, you, as a client, should never lie to your lawyer. It is far, far better to share all the gruesome details than to try to appear less bad or to spin your case to your lawyer. Any attempt to manipulate your lawyer will only result in bad things for you.

For example, my firm uses an intake form to evaluate copyright infringement cases and one of the questions on that form asks where the work was posted online legitimately. Usually, potential clients answer that question fully but once in a while we’ll get someone who doesn’t share all the data. Sometimes it’s done accidentally (Oh, I forgot about that Facebook post) and sometimes deliberately (I didn’t tell you about the Facebook post because I don’t think it should matter). The difference between us not knowing that you posted your photo on your Facebook page (to continue the hypothetical) because it wasn’t known and you not sharing that info can make a significant difference in your case. If we take a case not knowing that you posted it on Facebook (when you knew) then the defendant provides the link where it does, we look like dorks and your strong negotiation position just got cut off at the knees.

There is no reason not to disclose fully to your attorney. We need to know the details, even if you think they don’t matter or they are embarrassing. We’re not judging you and, besides, we won’t tell. Remember, your communications with your attorney are protected by privilege (provided you don’t share the info with a third party yourself) so your attorney isn’t going to share the info and no one else can get it without your okay. For example, in answer to my question of “Why are you sure you didn’t turn over the image files on July 2 like they claim you did?” you could say, “I didn’t turn over the files on July 2 because on July 2 I spent the entire day in a drug-addled haze whilst cavorting with prostitutes–in fact, I ended up in the hospital after a monkey bit me during our circus-themed play” and all I’m going to share is “My client did not turn the files over on July 2.” If your lawyer ever shared anything you tell her, without your permission, that would violate the rules of ethics and that, for the attorney, would be very, very bad–we can lose our licenses even.

Another reason to be fully open with your attorney is that if you don’t tell us everything we can’t advise you well and, likely, you’ll end up spending more money than you needed to. You can save money in the long run by being totally open early.

So, while you may have been told “Answer the question asked and only the question asked” when dealing with a lawyer, that is for dealing with the other side’s lawyer, not yours. You and your lawyer should have an open, honest, communicative relationship.