Lift and Separate

February 8th, 2016

Since long before I became a lawyer, I advocated for two things when it came to photographers’ fees: raise them (particularly the license fee) and separate the creative fee from the license fee. Since becoming a lawyer, I’ve found that was good advice on both fronts.

I bring this up because I’ve seen it repeatedly in my practice and have been hit with it a bunch lately. That is, where a photographer comes to us with a possible infringement and, not having timely registered the copyright in the work (grrr!), leaves us no option but to see if there are sufficient actual damages in the form of lost licensing fees to make the case worth our efforts. When asked what her/his usual and customary license rate is for a use the photographer will respond with something like, “I would have asked $2000.” When we ask the necessary follow-up question, “Do you have invoices to back up this rate” the response is either, (1) “No, but that is what I would have charged,” or (2) I am presented with an invoice for the creation of the work that also included a license and the combined fee cited is $2000, or, (3) worse of all, I get the invoice for the creation and licensing of the work where the photographer only charged $500 on some sort of mega-discount.

None of these are good answers.

In the first case, no history of licenses, I can at least argue for the “fair market value” of a license and then, using common metrics like Fotoquote and online calculators for stock license rates, get a number. Sadly, as we all know, those numbers are likely to be low, particularly since there are more and more cheap stock sites out there. But still, at least I’ve got nothing against me.

In the last case, you’ve just set the price for all time. You are never going to get anyone to believe that a license similar to the original one is worth anything more than a few dollars because you have told the word that you’ll make and license it for so little. If you are going to offer a super-mega-discount, make sure that you spell it out on the invoice like:

Creative fee: $2500
One-time Discount: -$2300
License Fee: $4500
One-time Discount: -$4200
Total Fees: $500

That way you are saying “my usual price for this license is $4500” and that can be used as evidence later of your actual fees. That is great! But if you just list the discounted price, you’ve only got your word that you normally would have charged more. That won’t hold up.

In case #2 above, all bets are off. The other side can argue that $500 was the license fee and $1500 was the creative fee, or worse. It is almost impossible to argue successfully that the majority of a combined fee is for the license not the creation of the work unless it is spelled out in the paperwork. I’m good, but I can’t make butter with a toothpick and there are plenty of good attorneys on the other side who can present evidence that the Fair Market Value of the license is only $200. If you’ve got nothing in your records to show otherwise, then it is quite possible that all you can get for actual damages will be that $200. At the very least, in court, it would cost a hell of a lot more in expert testimony to try and prove up your damages, and the other side knows it, so they can stonewall in pre-suit negotiations. You got no bat, as they say.

The best business practice now and to protect your values in the future is to separate out your fees on your paperwork and to make your license fee the higher portion of those fees. Later on, you can use those numbers to support getting higher actual damages. Also, if you do timely register your work, the courts will often look to the actual damages in setting statutory ones (like doing a multiple of actual damages). If you can prove up substantial actual damages, you are more likely to get higher statutory ones. Proof of higher numbers will make it easier for your attorney to argue for higher pre-suit settlements as well.

As for the argument that your clients want combined fees, you have to run your business your way, not how they want it. Besides, as in the example above, you can give a final number that is combined, just make sure that the line items are separate. If they argue for a higher creative fee and lower licensing one, know they are thinking of the future when they want to re-license; so should you (higher license fee now means higher re-license fee later). Run your business like a business–think about future value and long term effects.

It’s not hard, it just takes some guts. You can do this.

Best Advice for Photographers

February 5th, 2016

Mr. Frank’s work is amazing and his advice is perfect. Every time you get wrapped up in gadgets and technology, just go back to what he has demonstrated with this show and his words to the students.

The Cost of Hiring Us

February 2nd, 2016

My colleague Carolyn has written a good blog post about the cost of hiring an attorney and how our firm works. Many sources make it sound like an attorney won’t touch a case that isn’t worth something well into the 5 figures or more, but that simply isn’t our way.

Don’t get me wrong: we’re happy to take cases that are worth more. Um, duh! But a big part of the reason Carolyn created the firm in the first place was to serve the underserved photographers out there who don’t have huge cases but do have legitimate claims. As a virtual firm, our overhead is significantly lower than many more traditional firms so we don’t have to say “no” to many of the smaller claims.

We can’t take all cases–some just are never going to be cost-effective (this is too often the situation if you have not registered your copyrights in advance, see my last post)–but it doesn’t hurt to ask and you may be pleasantly surprised.

Song, Dance, Seltzer in the Pants?

January 29th, 2016

What do I have to do to get you people to register your copyrights?!?! Look, I love you creative types, but I’m getting a dent in my head from the repeated headdesking caused by cases that would be as close to perfect as you can get, except that the work was not timely registered and thus are essentially worth nothing.

We want to be able to help you and our firm (photoattorney.com) will take smaller cases than many other firms, but we can’t take cases on a contingency fee basis where actual damages are the only option and those are the lost license fee for social media which you’ve licensed for $200 to other clients. If the work is timely registered then we have a much larger stick to wield on your behalf: statutory damages of between $750 and $30,000 (for non-willful infringement) plus a good shot at attorneys’ fees if the matter is litigated.

Timely registration isn’t that complicated. A registration is timely only when one of the following is true:

  1. the effective date of the registration is before the infringement starts; or
  2. the effective date of the registration is within three calendar months of the first publication of the work, and that could very likely be the date you provided the work to your client rather than the date when your client used the work.

That’s it. That’s all. Those are the law’s only options. You’ve got to register your work and the registration has to fit either #1 or #2 for you to be able to have access to awards of statutory damages and the potential for winning attorneys’ fees and costs in litigation.

So how can you make those rules work for you? First, for any new work that is likely going to be published in the sense the Copyright Act uses the term (and how I mean it throughout this post, which includes work you’re going to provide to your client for their consideration and possible use as well as work you offer for license on your own website or elsewhere) either register it as unpublished before doing anything with it or register your work as published within that three-calendar-month window.

I prefer the second option for a bunch of reasons, some of which are very nit-picky technical legal ones that I’m not going to bore you with here (like it may be that if you know the work is going to be published on a certain date then you really have to register it as published rather than unpublished even if that date hasn’t happened yet). Mostly, I prefer the “register as published” option because these days almost everything is published. So, I suggest a photographer should just register everything shot the month before on the last day of that month and that way you don’t have to worry about missing the three-month window*. For best protection be sure to remove any images you know weren’t published and register those separately as unpublished at any time before you publish them. Mixing published and unpublished is like crossing the streams in Ghostbusters, that is, bad.

Anyway, you can do group published photo registrations online for one fee ($55) so for a year that would be 12 x $55 or $660. Group published photo registrations are slightly more complicated to do but after you have done it once, you’ll see it isn’t that bad and, best part for now, is that your first time you will be supervised by the Copyright Office itself as a part of its pilot program, so they’ll help you through it.

Now, before you start whining about that cost, let me point out, again, that the minimum statutory damages award for a single infringement is $750. The math is totally in your favor.

So please, register your work. I beg you. I’ll do anything to get you folks to register your work. Someone get me a seltzer bottle and I’ll prove it.

————–

(The subject line of this post is a reference to Chuckles the Clown‘s philosophy)

*It also helps you avoid another rule that for a group published photo registration the work must be published within the same calendar year so, if you do it on the last day of each month, you won’t screw that up.

Your Competition

January 20th, 2016

I recently had a conversation with a client, who licenses his work for stock, about watermarking. For those of you who have known me since before I became a lawyer, you’ll likely remember that I used to be anti-watermarking. I used to make the argument that it marred the images too much, that buyers preferred the work clean, and so the protections weren’t worth the marketing downside.

In case you haven’t figured it out yet, I am totally pro-watermarking now.

If you are not watermarking images you put online, in any form, then you are making it far too easy for people to rip you off. Not watermarking is like driving a convertible and deliberately leaving your wallet on the seat when you park, top-down.

Watermarking, however, is not the point of this post. No, it was something that this client said that inspired this post. He mentioned that he had concerns that buyers would be put-off if he watermarked and that he was in competition with companies like Getty so he didn’t want to do that.

Relatedly, today there is news that Corbis is restructuring its stock photo businesses and a leader in the photo world asked, on Twitter, what that meant for the licensing model.

What has one to do with the other? That neither of them have anything to do with your business. Neither Corbis nor Getty are any individual photographer’s competition.

Sure, on first glance it seems like they must be; those companies license photos and so do you so you must be in competition with each other. The thing is, your businesses are so wholly different, under the hood, so to speak, that this superficial resemblance is only that–a resemblance. Corbis and Getty have so many channels of revenue that you don’t even appear as a footnote in any of their financial reports. You don’t matter in their world–you are not their competition.

The good news is, neither are they yours.

Your market is (if you’re running your small creative business right) made up of buyers who are looking for something non-generic. Corbis and Getty are safe (yes, even though they have much better work now than ever); your work should be un-safe, unique, reflective of your individual vision. Your work is (I hope) not what you’d find on the huge stock sites but rather something special and different and your targets are those who need and want that kind of work. That work is of a higher value than the depressed prices of big brand (micro)stock. You can’t get it everywhere. Scarcity is gold.

If you are pricing your licenses to compete with Getty or Corbis, you are selling yourself short and committing business suicide. The huge companies can cut volume deals and use other business lines to make up for making parts of a penny on a license. You cannot. Your work thus needs to be better than that and you need to have the guts to price it for its value. If you are pricing to compete with some huge corporation, you are pricing to lose.

If you make work that only you can make, work that is unique in vision, then you simply have no competition.

Thank you.

December 4th, 2015

IMG_3932 IMG_3933

Today I did my favorite holiday thing: buying and dropping off a carload of toys and games to Toys For Tots. Thanks to all of you who let me work with you and make this possible.

 

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?