Learn From This

November 17th, 2014

In this PDN interview, now-former rep Julian Richards lays it all out there. It is a painful read, but an important one.

Mr. Richards says at one point, “The photographer’s role as sorcerer and custodian of the vision was diminished.” I could not concur more. This is something I have been railing against for some time and something I think you can change, but it will be a fight. For a photographer to be seen as the minor miracle worker s/he is, s/he must control the process more. The mystery of the art must be recaptured.

I have been hearing about a few photographers who, if not shooting film (and yes, there are still film shooters out there), will not permit the clients to look at a monitor… at least not until the photographer reveals. That is a very big thing. It is also only one part of the shift.

Overall, you have to say “no” more often, especially when saying “yes” compromises your vision in any way. You have to make it unquestionably clear that while you will work with the art director and other creatives, you will not do what they want just because they want it. Most importantly, you should align with the ADs (who really do want this although they have their own fears, as have always been there) to tell the clients that they need to trust you to provide the best creative because that is what you do.  Yes, that is politely telling end-clients to shut the eff up.

As Mr. Richards says, “By abdicating those responsibilities to the guy who’s paying, you’re undergoing a sort of self-inflicted castration.”

Ouch, but accurate.

Think about how much you have sold out. How does that make you feel as an artist? What you can do to change? As much as I agree with Mr. Julian’s comments, his choice to leave the business was based on more personal reasons than just his frustrations with the state of the photo business world. You don’t have to give up as he has. Change is possible, although it won’t be easy. I don’t think any of you should give up or give in, but rather let’s stop the slide to mediocrity.

This is what happens

November 13th, 2014

It has been far too long since I’ve posted. This is what happens far too often when one stops being religious about scheduling the things one should be doing and instead does all the stuff one feels one must be doing….now now now.

Now now now is rarely good. Even for creatives. There is a difference between being in the moment–being mindful and aware–and now now now. The latter is reacting, often on the verge of panic, to the outside. You can’t make your best work when you are reacting to the outside. Good creative has to come from the inside. You have to make the mental space available to do that.

You also need to do some things that aren’t as creative, in order to keep the business humming. When you get work and get in that now now now mindset, I’ll bet the first thing that gets pushed off your agenda is your marketing. You’re suddenly too busy to send emails or research new clients. Must plan the shoot! Can’t take time to work on your portfolio.

You’ll regret that when the brief work flurry is over.

Make sure that, even when you get swamped with work, you make the time to at least touch in with your marketing (and other biz stuff like invoicing, bill paying, etc.). That way not only will your work be more regular, you won’t be faced with the overwhelming mountain of crap you don’t enjoy doing when you get back to it.

I hate stories like this

September 24th, 2014

So this photographer had an image ripped off by National Geographic. While that is of course totally wrong on National Geo., the photographer has a lot wrong in his post about how the law works and how the magazine reacted. I’m NOT saying National Geo got it all right or are the good guys here, but they aren’t as wrong or bad as he seems to think.

First off, the photographer claims that “If the infringement is ‘willful infringement’, the settlement range is typically $150,000.” Oh child… if only that were so. No, the maximum statutory damages available for a willful infringement are $150,000. Maximum. Most settlements are far, far, far below that. So are most awards by the court.

Second, the photographer ignores the registration requirements for statutory damages to be available. That is, I assume he has since he doesn’t mention if he had timely registered his work. Registration timing is a very big deal. If your work is not registered with the copyright office before the infringement takes place (or within the three calendar month safe harbor immediately after first publication by you), then you cannot even get statutory damages. Oh, and National Geo gets that part wrong too, by the way. The registration has to be before the infringement; it doesn’t have to be “within ninety (90) days of first publication” as National Geo stated but rather anytime before the infringement (also the safe harbor is three calendar months after first publication, not 90 days).

If the work isn’t registered, then all one can recover is what are called actual damages which, here, would likely be his lost license fee. He’d have to prove up that fee and if he doesn’t have a record of similar licenses then he’d have to prove a reasonable market license fee. Since there are a lot of free or almost free images available anymore, that number can be very low.

Also, this photographer offered the work under a Creative Commons license for free. The terms of that license state “non-commercial” use and often editorial use falls into non-commerical. I personally disagree with that labeling, but there it is. The cover use by a magazine, however, is usually considered commercial (this is one reason why editorial use is complex legally) at least within the industry. Nonetheless, that would be a difficult legal battle. I have railed against Creative Commons licensing since they were created and here is another example of why they suck. That “free use” could also impact his ability to prove the value of his license for the purposes of actual damages.

I feel for this photographer. It was completely wrong for National Geographic to use the work without a proper license. But all creatives have to take the right steps to protect their work, like registering the copyrights. I tell photographers to think of it like insurance–you buy it and may never use it, but when you do need it you are surely glad you took that responsible step.

Quarterly reminder

September 10th, 2014

Don’t forget that, for many of us US folk, the quarterly tax payment(s) are due on Monday, September 15.

Oh, and if you have to pay up, be happy that you’ve earned money rather than upset that you have to pay taxes. It just makes life better to keep that in your head.


While I’m busy… read this

September 8th, 2014

Sorry for not updating too recently; I’ve been a bit buried in other work. While I’m digging out, you do need to read this post by Heather Elder. In it she gets some great insight from a buyer, including “…how you bid is just as important as how much you bid.”

Copyright Office Comments

August 20th, 2014

If you don’t like that the Copyright Office is including the example of the “monkey selfie” as a non-copyrightable work, you can let them know it should not be included in the final version of the Compendium III. Just go here and politely explain your point.

Seriously, be polite and respectful. A lot of work went into creating the Compendium and this is not the time or place to rant and rave. If you feel they got something wrong, like I do (see previous post), let them know what is wrong (specifically–cite the section) and why and how leaving the wording as it is will hurt photographers.

Monkey See, Monkey Do-do

August 19th, 2014

Well, this does not bode well for any photographer claiming authorship of a monkey selfie when U.S. Law applies. The public draft of the Copyright Office Compendium III has just been released (more info here) and it includes the following (from Section 306: The Human Authorship Requirement):

The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.


• A photograph taken by a monkey.

• A mural painted by an elephant.


The “inspired by divine spirit” line has got to be a reference to the case I mentioned in my last post but I still wonder if the creative participation discussed in that case would not save the photographer’s claim if U.S. law applied to the UK photographer and the Indonesian monkey situation. I mean, might the photographer still be able to claim ownership of the resultant image? After all, there are still questions about how much creative input the photographer had–did he fix the color or otherwise retouch the photo, for example.

I also wonder how the Copyright Office can exclude human authorship of any photo when a human is a necessary part of the process of converting an image (be it film or digital in origin) into something consumable (viewable) by humans. In the case of photography, at least, a photographer can and does edit, correct, clean up, and otherwise work an image as well as still being a part of the actual act of developing or downloading/uploading. In the case of the monkey selfie, that image would have stayed in the camera if it had not been found, recognized as interesting for humans to see, selected, and made possible to be seen by the human photographer (even if he didn’t touch the file to clean it up in any manner). How is any of that not a contributing creative factor?

I think the CO may have it wrong when it includes “a photograph taken by a monkey” in the unregisterable examples.

More Monkey Business

August 8th, 2014

First, let me apologize for the title of this post. I just couldn’t resist.

Last evening I decided to do a smidge of research into the issue of who would own the copyright if the monkey selfie had happened here or to an American photographer. Just a smidge of research, mind you–not comprehensive because, hey, I have to be a real attorney to my real clients and, although I love love love research (as everyone in my firm knows: I am the nerd), I can’t spend all my time looking up stuff for academic pursuits like this.

Anyway, here’s what I found…

First, I downloaded the pdf of the Copyright Act–the whole thing including appendices. Then I searched various terms to see if the statute spoke directly on any of the issue. I looked up non-human, human, animal, and for good measure, machine. Human appears 3 times and non-human not at all; animal appears once (and that was in the text about the Uruguay Agreement about protecting animal life); and, machine appears 28 times (mostly about methods of displaying or performing works). I also looked up Author, which is all over the place, of course, but is never defined as human exclusively in any way at all.

So, in the statute itself, there is no requirement that an author be human. Next step, look at the case law to see what the courts have said about non-humans and copyright ownership. There I found something fascinating: Urantia Foundation v. Maaherra, 114 F. 3d 955 (9th Cir. 1997).

In Urantia, the work at issue was a text that was, according to both parties, “authored by celestial beings and transcribed, compiled and collected by mere mortals.” The court thus looked at the authorship issue in some detail as “[a] threshold issue in this case is whether the work, because it is claimed to embody the words of celestial beings rather than human beings, is copyrightable at all.”

Hello, monkey!

The defendant claimed that the work was not copyrightable at all because of the non-human authorship. The court noted that “The copyright laws, of course, do not expressly require ‘human’ authorship […]” but pointed out that, in reality, the protections of copyright are for the tangible works that involve some human effort. The court then expounded on how even if the original authorship here was by celestial (non-human) beings, humans were involved in getting the work into a tangible form that humans could then access (read). Importantly for our monkey problem, the court noted that Feist put the bar for creativity very low so as long as a human (or humans) did something to contribute to making this work, then the copyright did exist and vested in those humans:

Thus, notwithstanding the Urantia Book’s claimed non-human origin, the Papers in the form in which they were originally organized and compiled by the members of the Contact Commission were at least partially the product of human creativity. The Papers thus did not belong to that “narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.” Feist, 499 U.S. at 359, 111 S.Ct. at 1294 (citation omitted).

Urantia Foundation at 959.

In the case of the monkey selfie, our imaginary American photographer similarly made the work. He took the material from the non-human “provider” and put it into a form for human consumption and appreciation. If it were not for the human, those files would only exist within the camera–never making it out into the world. As far as creativity is concerned, at the very least the photographer tweaked the files (I’m sure) when converting them from RAW and he selected which ones to keep and which to delete.

Therefore, I would argue, that under Urantia, our imaginary American photographer is the copyright owner of the work even though the monkey snapped the photos.


On the “Monkey Selfie”

August 7th, 2014

I really didn’t want to get into this discussion but I’m getting asked by a lot of people for my opinion on the “monkey selfie.” If you don’t know what the story is, you can read about it here.

Okay, here goes… I can’t really address the ownership issue because the photo was made by the animal in Indonesia and the photographer whose camera was used by the animal is not American, he’s a UK subject. So, in short, US law does not apply.

No, it doesn’t matter if Wikimedia is US-based. That would go to the infringement part of the equation, but the first issue here is “who originally owns the copyright in the photo” and I can’t figure any way where US law would apply there. How could it? There is nothing US-related to the creation of this photo: UK photographer, Indonesian monkey, in Indonesia. So, original ownership would be either Indonesian law or UK law (probably UK).

I do find it interesting that the Wikimedia person apparently is saying the photographer can’t claim ownership because of the law but she says, according to the article cited above, “What we found is that U.S. copyright law says that works that originate from a non-human source can’t claim copyright.” Like I said before, U.S. copyright law would not apply as to the original ownership here.

Now, as far as any possible infringement by Wikimedia, well, that would be adjudicated in the US if the organization is US-based (and I think it is but I haven’t researched it). That means a US court might look at the ownership issue as a part of a trial regarding the infringement, but if the copyright is (potentially) a UK copyright, then the validity of the copyright ownership would rely on UK law, not US.

Now, putting the law aside, I think Wikimedia is being a bully here: a large organization, rather than respecting a human who may have rights here (I think does have rights, but let’s put it in terms kindest to Wikimedia), steamrolls the human just because it can. There is no harm to Wikimedia to defer to the photographer here, even if the photographer is wrong about his ownership. But it is in Wikimedia’s best interest to eliminate IP rights (and it has come out against the EU’s “right to be forgotten”) so it will push that agenda no matter what harm it may cause to a real, live human.

I think Wikimedia’s behavior is monkey poo.



I was thinking about ownership even Under US law and, not to compare assistants to monkeys, but pro photographers forever have had assistants “hit the button” (and more) but the copyright still vests in the photographer; not just because of WMFH but because the making of the work was entirely effected by the photographer, minus the act of button-pushing. And what about using a timer to make an image? Is there no copyright to vest if the work is made by the use of a timer? Does my iPhone hold the copyright to my timered selfies? I think not…


[also, please remember that I do not approve anonymous comments so don’t even bother trying, haters]


August 6th, 2014

Last evening, I went to an event where Scott Turow was “interviewed” by the General Counsel for Qualcomm, Don Rosenberg. Really, it was a big book promotion event so I wasn’t expecting much out of the talk except for the usual stuff about the writing process, even though the co-sponsors of the event were not only a local independent bookstore but also Qualcomm and the Law Library of San Diego.

Turns out the evening was very much a discussion about intellectual property. I was in my own particular kind of nerd heaven.

For those of you who don’t know, Mr. Turow is the recently-former President of the Authors Guild. Under his four years at the helm, that organization has done a metric ton on steroids to promote strong copyright for the small creative professional. As Mr. Turow put it at one point last night, publisher contracts these days are very favorable to best selling authors so the fight that the Authors Guild has been fighting is for the smaller professional writer who, these days, is finding her/himself no longer able to make a living by writing.

Sound familiar?

I was so happily surprised to hear Mr. Rosenberg speak about the importance of IP as well. He made a convert of me (I was not a Qualcomm fan before this) as he discussed the problems with IP in China and Russia and, along with Mr. Turow, expounded on how if we don’t protect IP then innovation will die off–IP is the foundation. He made a big point of how although much of Qualcomm’s IP is patents, they have a lot of copyrights and a few trademarks too and that protecting all IP is vital.

Together, they discussed how fewer choices will make us more and more like China, where there is little innovation but much imitation. Also, how companies like Google make their money from the ads that appear in all of their products/platforms so they don’t care about whether the content is legal or not or if the cellphones that deliver their ads are pirated/counterfeit; etc. Amazon wants to become the only publisher in the US (world?) so that they can then take a bigger and bigger cut from each author or publisher because there will be no other place to go.

We have to stand up now to these companies. We have to make the hard choices to avoid using their products, to say “no” to their terms and their temptations of free, to seek out other sources for the products/services they offer. We also have to make sure that their voices are not the only ones heard in Washington, DC.

Amazingly, there were lots of heads nodding in agreement as they discussed these issues, especially when the idea of an artist being fairly compensated for her/his work was mentioned. The people really do get it–they just need to be reminded. The younger generation needs to be educated, especially about how it is NOT fair to expect free.

We also, each of us, need to support our creative brethren in all the disciplines. Take some time to think about what you do that contributes to the problem. Are you watching videos on YouTube that you suspect are not posted by the copyright owner(s)? Are you using Amazon because it’s just so convenient? Gmail, anyone? Are you using music you haven’t paid for or did you share that facebook post from BuzzFeed (notorious infringers)?

Now is the time to be more mindful of what we are doing and to do everything we can to support ourselves and our creative culture, before it is too late.