Archive for October, 2012

Details Matter

Thursday, October 25th, 2012

Just a quick note to ask you to look at your copyright notices on your website. Do you have one on each page? You need to.

Just having a separate page about your copyrights will not legally help you if your work gets infringed–that is, it won’t help you make additional claims under the DMCA as the courts are saying that CMI (copyright management information) needs to be on the same page as the work, at the very least. Actually, it’s better to have the notice tucked right up next to the image. Each image.

While a watermark of a proper copyright notice on the image provides even more protection, at least having a proper copyright notice next to your work, online, can be a great way to prove infringement, willfulness, and you can also make a claim for a violation of the DMCA if your photo gets used without it. DMCA violations don’t require timely registration, by the way, so this is like insurance for those of you who still aren’t actually registering your work as often as you should.

But here is the devil in the details: make sure your copyright notice matches your copyright registration certificate if you have registered the work (and you really, really should). If you register your work as Betty Martin, do not post your notice as © 2010 Betty Martin Photography. Or, if your work is not registered, no fibbing on the notice: it needs to be proper and that means the © + the year of first publication + the name of the author (for example: © 2012 Leslie Burns). A smart defendant will use any mistake in the notice or difference from the certificate to kick out the DMCA claim.

Worst of all, do not think that using your website url as notice will cut it–the courts have been unsure on just what CMI is and especially if your URL is something odd, like mine, it may not be considered CMI (the law states that CMI contains info that identifies the author).

So, check your site and make sure you are protecting yourself. You owe it to your work and your business.

Bad Behance

Monday, October 22nd, 2012

I used to love Behance. They made putting together an online portfolio easy and they had an effective network for spreading creative information. They looked like (mostly) good guys.

Until today. Today they announced that they are “partnering” with to provide “transparency” in the copyright enforcement process.

This makes absolutely no sense to me. A company that is entirely beholden to those who create is partnering with a group that is expressly anti-copyright in its mission? outs those who submit DMCA takedown notices or who send cease and desist letters. It does this under the guise of “providing transparency” but the result of these posts (the outings) is just as their title proposes: a chilling effect on artists protecting and defending their rights.

I’ve received threats that would make your blood run cold because I have been outed as a “copyright troll” by sites like They are more than happy to post your full contact information (often they will even look up stuff you might not have included in your C&D–like my home address has been published by these people) and those who think everything should be free also think that they are free to call for whatever evil acts they dream up against anyone who dares stand up for the rights of artists and other creators. It’s terrifying.

[UPDATE: ChillingEffects itself does not post the personal info, however they post enough data that the Freehadists can dig up the rest and post it on other sites, and they do.]

Anyone remember the Red Scare? The House Unamerican Activities Committee? Sites like are the modern day version of the same career-ending spiteful crap. They don’t care if you are defending your rights–they only care that you dared think that you should stop someone from exploiting your work without paying you for it. For that you are labeled and outed, like a criminal. Worse than a criminal. At least a criminal gets a trial.

And yet for some unfathomable reason, Behance thinks that working with these people is a good idea. Well, maybe it is for them, but it surely is not for the artists who use Behance’s services while also wanting to make a living from their creative works.

So, if you’ve been using Behance, quit now, and let them know exactly why. You are not a criminal for trying to make a living from your work. Your private data should not be exposed just because you are trying to stop someone from doing something illegal with your work! You deserve to be respected for respecting your rights, not “exposed” for it.

Shame on you, Behance. Have you no decency?

[UPDATE: The Freehadists are getting riled and trying to post anonymous comments. As I have stated before, I will NOT approve anonymous comments and I do check people I don’t know.]

Opt Out!

Monday, October 22nd, 2012

In case you have ignored the recent notices being sent by Paypal, I want to urge you to pay attention! Paypal is changing its policies and in order to opt out of those changes, you have to jump through some hoops. And you want to opt out, a lot.

Here is the notice Paypal has been sending:

PayPal recently posted a new Policy Update which includes changes to the PayPal User Agreement. The update to the User Agreement is effective November 1, 2012 and contains several changes, including changes that affect how claims you and PayPal have against each other are resolved. You will, with limited exception, be required to submit claims you have against PayPal to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (Section 14.3) by December 1, 2012. Unless you opt out: (1) you will only be permitted to pursue claims against PayPal on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

There is just all sorts of bad there. You are giving up two very important rights: the right to a trial (you are agreeing to arbitration which is not even close to the same thing!) and the right to participate in a class action suit.

Don’t give up your rights!

Okay, so you want to opt out, how do you do that? Well, after digging through the information in the notice on the Paypal site, I finally found out what you have to do. Here is the scoop:

You must mail the Opt-Out Notice to PayPal, Inc., Attn: Litigation Department, 2211 North First Street, San Jose, CA 95131.

The Opt-Out Notice must state that you do not agree to this Agreement to Arbitrate and must include your name, address, phone number, and the email address(es) used to log in to the PayPal account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the User Agreement, including all other provisions of Section 14 (Disputes with PayPal), will continue to apply.  Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.

I love how they bury this and how they require that you do this via snailmail. What bullshit, but hey, don’t let ’em win. Take the time to print out a letter with all the required information, make it clear that you reject the entire Section 14.3 Agreement to Arbitrate, and mail it to the address provided above.

And share this info with everyone you know who uses Paypal. This is a big deal. Don’t give up your rights.

**UPDATE** Someone anonymously tried to comment asking “is there a link to the opt out form?” As I do not usually approve anonymous comments I’ll not be approving that one, but I did want to reply: there is no form. That’s the point of this post–PayPal is trying to make it as hard as possible for you to opt out so you won’t bother to do it. You will have to do it yourself and PAY ATTENTION to the details! Make sure to include everything they require so they have no reason to reject your notice. I would even put across the top of your letter “OPT OUT NOTICE to the AGREEMENT TO ARBITRATION” to make it clear.

Walking the Walk

Thursday, October 18th, 2012

The other day a friend of mine sent me a link to YouTube to see a part of a performance of Ricky Gervaise. He said it was hilarious and I had to see it.Thing is, I’m 99% sure the video posted was infringing. I wanted to see it, I wanted to share in the laughter, but if I clicked on that video and watched it, I’d be a hypocrite.

But no one would know. I live alone except for my cat and Benito wouldn’t tell. And my friend is ignorant about these matters so he really wouldn’t get it (trust me, I’ve tried to teach him).

Instead of watching the video on YouTube, I fired up HBOGO and, since I am a paying subscriber to HBO, accessed the legitimate video via that service. It was hilarious, he was right.

More importantly, though, I did the right thing. It took more time and effort, but if I’m not willing to take the, what, maybe 3 minutes it took to launch, log in, and find that show, then I shouldn’t be doing what I’m doing.

I do this whenever someone sends me a YouTube link now. If it is not clearly an approved video (posted by the artist or the studio or music company, etc.) I do not watch it. I either find the legitimate source or I simply “miss out.”

It is my way of supporting the IP rights of others.

I suggest that if you make your living off IP, you need to do the same.

You Own Blog is Best

Tuesday, October 16th, 2012

I’ve been saying for a loooong time that the Terms of Service for so many of the so-called services photographers and other creatives are using are pretty bad. Many of these (ahem) services have wicked rights-grabs of some sort and often you essentially lose control of your work once it is posted.

As if you needed another reason NOT to post your work on sites like Facebook, we have this blogger’s post, claiming that Facebook is now making it so that your business page is essentially unseen unless you pay for reach. Now, I don’t know how accurate this post is (and really I don’t have the time to research it today), but suffice it to say that I wouldn’t be surprised if it was totally accurate.

So, what are you getting out of using Facebook now?


Instead of posting to Twitter, Facebook, Pinterest (heavens forbid!), and all these other sites, put your work in one place like your very own blog on your very own server. If you want to post links on all those other services to your blog post, that’s great, but keep your actual work off them.

It’s just not worth it.

On Abundance

Friday, October 5th, 2012

I got this link from the Copyright Alliance today and I totally agree with the post’s author. The video referenced is crap and scary crap at that. But I feel like we keep missing a fundamental part of why it is crap.

Here’s what I don’t get about these arguments of abundance in creativity and the pricing model: there is no abundance of good creative work. Sure, there is an abundance of photography and music and writing and art, but most of it is, frankly, shit.

In my opinion, there is abundance in the creative industries in the same way there is abundance in people who drive–there are billions of car drivers and just about anyone can do it–but how many people do it particularly well? I don’t just mean I drive better than you do, Mr. I-go-55-in-the-fast-lane-man (and there seem to be a lot of his crappy driving bretheren out there). No, I mean, how many professional race car drivers are there? Not very many…and they are highly valued.

Real creative professionals (in whatever discipline) are race car drivers. They can do things very few others can. Their skills are extremely specialized and what they do is, simply put, not of the same quality as what regular people do.

The media, the tech companies which control the discourse on this subject within the media, have convinced us that your creative work is the same as anyone who tries to make something of the same media. Your photography is the same as mine (I am NOT a photographer but I take pictures). That’s like me saying I’m just like Mario Andretti or Michael Schumacher because I know how to drive a stick-shift and don’t completely suck at it.


You let them define you as less than you are every time you let them call you a “content provider” rather than by your proper title. You are a Photographer or an Illustrator or an Artist or a Writer (etc.). You CREATE. There are damn few people on this planet who actually create and create well. How dare you accept their belittling bullshit about who you are and the “abundance” of what you do.

You, creative professional, are scarce and of high value. You are a race car driver. Don’t let them bully you into thinking otherwise.


Wednesday, October 3rd, 2012

Could one of you tell me what magic set of words will get you to register your copyrights in your creative work (photos, illustrations, etc.)? Or do I need to do back-flips? Juggle? Tell me, and if I can do it, I will.

See, I’ve had to tell more than a couple of artists lately that although their work had likely been infringed, it wouldn’t be worth pursuing because they really wouldn’t get much for it because it wasn’t registered before the infringement took place. Sigh. That sucks.

Remember, if you register your copyright before an infringement, you may elect to receive statutory damages instead of actual damages in court. Oh, and you might collect attorneys’ fees too.

But no timely registration means, at best, you’ll get actual damages and you will have to prove those in court. You can’t just say “I would license this for $5000” and get it; no, you’d have to prove that would be a reasonable license fee for that use. That can get costly to prove and, well, poof, by the time you’re done with court your legal fees and expenses will be more than that $5K.

Think of this example: a major company uses your photo on its Facebook page. How much would you expect to get as a license fee for that? Now how much could you collect if you could get statutory damages and attorneys’ fees?

Which position would you like to be in to negotiate a settlement?
I can tell you which position an attorney would prefer.

Register. It’s the best “insurance” you can buy.