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.

Prints, please

July 15th, 2015

Here is another horror story reason to print your best work: a Canadian photographer lost his life’s work when thieves stole his hard drives.

Yes, you can keep work on the cloud and you should, at the very least, have a backup off-site, but really I think you should always make and keep archival prints of your best work. Sure, they can burn or get lost in a flood (so can drives), but they will be around decades after the drives are inaccessible.

Besides, there is something so much more satisfying about having a tangible work in your hot little hands.




How To Work With Your Lawyer: Mutual Respect

July 13th, 2015

Your case is the most important legal thing in your life. At times it can feel like the most important thing in your life, full stop, but really it’s probably not (the people we love are more important in my book, just for starters). Still, your case is really damn important and it should be.

Your lawyer knows that. Even when you don’t hear from your lawyer for a few days, that doesn’t mean s/he isn’t thinking about or working on your case. You and your case matter to your lawyer. Thing is, your lawyer has a bucketful of cases s/he is handling at any one time so you have to remember that yours is not the only case in your lawyer’s head.

Your lawyer should update you regularly as to the status of your case; maybe that is weekly, maybe that is every-other week, but regularly. If that isn’t happening, then it’s reasonable for you to ask for updates–both immediate and regular. If you want a status report on your case, sending a polite, “Any updates on the Bob’s Widgets matter?” kind of email to your lawyer when you haven’t heard anything in a week or so is fine, especially if you have established a sort of schedule that your lawyer missed.

However, emailing (or calling) your lawyer every/every-other day to ask what is happening is only going to add stress to your lawyer’s life and won’t make you feel any better. Your lawyer can’t control the opposition so if, for example, you’re waiting on a response to a demand letter, you bugging your lawyer isn’t going to make that happen any sooner. All it will do is take time from the lawyer’s busy day for him/her to draft a response to you or take your call.

That might not seem like much, but there is ample science pointing to how interruptions are much more stressful than we ever thought. Having to stop, say, working on a draft complaint for another client to respond to you isn’t nothing–it means having to put attention on a completely different thing. Stopping one line of thinking and starting another and then switching back.

In short, you need to respect your lawyer’s time and brain. Your lawyer needs to respect your emotions and need for information. Mutual respect.

The best way to demonstrate that respect is by clear and open communications, on both sides. Don’t lie to your attorney, or hold back details. If, for example, your lawyer asks “where did you post the work yourself” don’t say “Facebook” when, in fact, it was Facebook and Pinterest and your own blog and… Your lawyer, on the other hand, shouldn’t hold back in sharing information about your case. If s/he is getting any info from the other side, you have a right to that info.

Sometimes, I’ll get a client who will email (usually this is an email thing) something like “Oh, that image was not the one on the facebook page but it was on that other website–did you ask them about that?” That’s it. Um, what image, which case, which facebook page… huh? No context means I have to dig out all that client’s files and see if I can make sense of the email or ask the client to fill in the blanks, which can make the client upset that I don’t know immediately the context of the email. It’s as if I’m supposed to be able to magically recall every detail of every case of every client and when I don’t the client thinks I don’t care. Nothing can be further from the truth–I do care; I’m just not a machine.

By the way, there’s an easy (at least partial) fix for this: make the email subject line relevant. For example, don’t say “infringement matter” (I get loads of these!) but rather “Bob’s Widgets infringement matter.” That lets me know which case (assuming Bob’s Widgets is the infringer) and I’m much more likely to then be able to recall the rest.

Anyway, you and your lawyer both need to have reasonable expectations of each other as well. Just as you (client) can’t expect your lawyer to instantly remember every detail of your case when you call out of the blue, your lawyer can’t expect you to know all that s/he is doing for you and what may be needed from you without telling you, or for you to understand the law fully (that’s not your job). For example, I can’t expect my clients to understand the niggling details of the Section 512 safe harbor so I need to take the time to explain it to them, in their own language, when it’s an issue in their cases and how I then must check all the different parts of that to see if the defendant might be covered by the safe harbor.

Your relationship with your lawyer is exactly that: a relationship. The foundation for any great relationship is good communication and, of course, mutual respect.

New Series of Posts: How to Work With Your Lawyer

July 6th, 2015

After far too long of an absence (mea culpa), I’m back with the first of a series of posts I’m calling: How to Work With Your Lawyer

Today’s Post: How To Work With Your Lawyer: Trust

Creative professionals are often very smart people. Whether formally educated or not, your brains tend to fire pretty well. This is generally a good thing and can definitely make for better art, no matter what your medium. However, it can become a negative when you think you know more than you really do, especially about a very technically precise field like the law.

When I was in law school, I wrote a post about how, before law school, I thought I knew copyright law pretty well and how I learned that while I knew more than the average person, what I knew was actually very, very little. There is so much more to copyright law (and law in general) than I ever could have imagined without having gone through all of law school. The interplay between the statutory scheme and constitutional issues and how the courts interpret all of it, you just can’t possibly grasp it unless you, like I did, immerse yourself for three years in intensive, undistracted study. Even then, you aren’t fully informed and won’t be until you’re actually in the trenches, so to speak. Plus, I spend a ridiculous amount of time reading cases and highly technical academic articles to learn more, every day.

But I was one of you before law school–one of those who even debated my now-colleague Carolyn Wright on legal questions that appeared in places like the APA Forums. I look back on those debates with more than a little embarrassment. I thought I knew the law well enough to challenge her opinions when, really, I knew just enough to probably frustrate the hell out of her when she was trying to help by teaching the community the (actual) best practices*.

Now, I know what it feels like to be challenged by people who think they know more than they do. I have the headdesk-induced scars to prove it.

I’ve been practicing law for four years now and the most frustrating thing that happens isn’t when the opposition pulls some chicanery or the like. Nope, the worst is when a client or potential client comes to me with a question which I answer based on my expertise in the law (and often additional research to make sure my info on that particular issue is current), and then s/he doesn’t like the answer and tells me, “Well, I feel that you’re wrong.”

First, you don’t feel that I’m wrong, you think I am (language matters!); and second, if you aren’t going to trust my opinion, then you shouldn’t ask for it. That’s not me being petty, that’s me knowing that I can’t do the best for you unless you trust me when it comes to legal issues. My job is to fight for you and to have your back but I can’t do any of that if you don’t trust that what I am telling you is the best, most accurate answer and advice based in the law that I can give you. I’m happy to talk to you and explain what I can, but in the end, you just have to trust me. Besides there being rules of ethics that say we have to do what is best for you, lawyers actively want to do what is best for our clients.

Look, none of us lawyers likes having to tell a (potential) client bad news. We know it’s unfair that a screwed up copyright registration can scuttle an otherwise beautiful case and that the Copyright Office makes it damn easy to screw up (especially the published/unpublished thing). It sucks that if we can’t document the value of the license is $30K we can’t get $30K for you; that while any normal human can see your work has been knocked off stylistically, proving it’s actually infringing would cost god’s own wallet to litigate and we could still lose so we can’t take the case on a contingency fee basis; or, that you can’t not do X now (without repercussions) because you agreed in your contract to do X.

We want to be able to help, that’s why we do what we do (especially in our firm but, honestly, I think all good lawyers still hold that as their first principle). We look for ways to say yes to whatever it is that you want, to enable you to achieve your goal, to fix the wrongs, promote the good, and to defend your rights, but sometimes we have to say no or not like that you can’t or well, you can try it but here’s what you’re risking, or it just isn’t worth that much, or even, it sucks, but just write the check and move on.

I (and others) describe law school like military bootcamp for the brain: a law student is stripped of her old way of thinking and taught a new way in her first year, then trained to use that new way to an impressive level of competence in the next two years. Then, we go out and apply it all in the real world, honing as we go. Maybe the Vulcan Science Academy is a better analogy, because we learn to process data with dispassionate logic. But the best of us also reintroduce humanity to the practice and become weird hybrids of logic and compassion.

The result of this training is that lawyers think strategically as well as tactically about each of your issues and formulate a plan to achieve the objectives. There is balance and judgment involved. It’s tough work that requires more time and energy than you know, just as your work is much more complicated and subtle than any outsider ever understands. You know how to do what you do. So do we.

So, to have an effective relationship with your lawyer, you don’t have to like what we have to tell you, but you do have to trust us when we give you that advice. It’s the only way we can help you.

*To be sure, I really appreciate not only Carolyn’s patience then, but her recognition that I had a good brain that, once trained in the law, would be a good asset to the legal part of the photo world.