Archive for February, 2013

Free by Choice v. by Force

Tuesday, February 26th, 2013

Recently, I’ve been reminded of how miserable one can feel when forced into working for free. Whether it’s making art or providing legal services or, I suppose, even driving a taxi or doing anything, when you’ve put your best efforts into something only to get nothing for it, well, it’s enough to set your teeth on edge.

I’m not talking about getting ripped off. That’s a different kind of hell, when a client doesn’t pay or someone steals your work (that’s a different kind of “free by force” that I talk about all the time–but not today).

I mean the kind of free where you’ve committed to helping out, only to get taken advantage of. Perhaps you agree to design a brochure for a local non-profit for an extremely reduced rate and, after you’ve committed, you find out that your lovely, kind contact is actually not in charge but rather her evil twin, the color-blind, disorganized battle axe is. The Axe asks for a matching postcard and email promos and guilts you into adding that work for nothing. She then emails you constantly and criticizes everything you do, even though she hasn’t a clue what good design is. That little 10-hour near-freebie is now taking 100 hours and everything is a crisis, mostly because she failed to tell you when she hired you on Thursday that the deadline for the printer is Monday. Then, when you bend over backwards to still somehow make it work, she gets pissed you can’t get that Ansel Adams guy to shoot the thing…even if he is dead.

Okay, maybe that sounds a bit far-fetched, but I bet you have your own similar story. We all do. It proves the old adage that if you give some people an inch, they’ll take a mile. That kind of free work is somehow worse, to me at least, than getting ripped off. After all, you agreed to help but then you let them take advantage. It’s a slow grind into hell.

I think the cheap clients are the worst–they over-manage and generally make things worse. They also prove the other adage that there is a relationship between the amount of money you get paid and the pain-in-the-ass factor of the client–that relationship being, of course, inverse.

On the other hand, when you knowingly and openly offer and agree to work for free, negotiating the deal with that in mind, somehow it (usually) becomes something not very work-like. I mean, often when you do a free project, by choice, for someone or something you truly want to support, the project turns into something really fulfilling. People are usually grateful for your efforts and gracious in telling you so. You are not micro-managed. You get the joy of helping without the guilt. Like a miracle, when you look back and find that you spent thrice the time you had planned on the project, it just doesn’t bother you because you made great work and it really helped. Sure, you didn’t get paid for it, but you got satisfaction

Yes, I am saying it’s okay to work for free. Some people think that I’m totally against that–I’m not. I am against working for free for any other reason than you want to give. But once you do, then you should offer to do some work pro bono. That kind of free feeds your soul.

How can you tell the difference? Easy: you get asked (guilted, begged) by others to do free work for them = Force; you offer your free services to others = Choice.

Take Care of Your Gear

Tuesday, February 12th, 2013

A little personal note: today my father turns 87. His body is not what it was, but he still lives alone, takes walks, and he’s still sharp. I’m convinced his long life and mental acuity are the result of plenty of exercise–both mental and physical. I suggest we all would do well to follow his example.

Challenge your body and your mind regularly. I’m now learning Italian (duolingo app is fabulous), do the NYTimes crossword every Sunday, read a ton, and I get regular exercise almost every morning (fast hike Cowles Mtn., do weights, run).

You spend thousands in photo-related gear, but what do you do to keep your most important tool in its best condition?

Usage, Fees, and the Importance of Wording

Monday, February 11th, 2013

My colleague Carolyn Wright sent me this link this morning to an examination of a recent case regarding photography and the law–the Riensdorf v Sketchers case. In this case, the photographer brought an infringement claim against a client who had exceeded the usage granted in the license for the use of the photograph. The client-defendant tried a very interesting and, for photographers, dangerous defense: it claimed that the ad created was of joint authorship and so it was a co-author of the work and, by extension, they could not exceed infringe on their own work.

This is a really smart defense in one way, I have to say. You can read the details in the linked post (or even the actual court opinion linked to in that post), but basically the client-defendant said it did post-production to the photograph and used the photo to create the ad (adding its own creative contribution), so the ad was a work of joint authorship of which the photo was a part and, therefore, the client-defendant could do whatever it wanted with the ad without concern for any license.

As you can read in the article, things were not looking good for the photographer as the court did its analysis. Important factors weighed in favor of the client-defendant! So, what saved the photographer? Separate fees for creation of versus the usage of the photograph, as well as having clear license terms. The court said:

Not only did Reinsdorf charge for his time and effort, but also for “usage” of the photographs. Reinsdorf also attempted to limit Skechers’ use of its ads by including temporally and geographically restrictive language in his invoices to Skechers.

I have argued with my (formerly) fellow consultants for years about the importance of separate fees. They are wrong when they suggest that combined fees are the way to go. Here is yet another example of why it is so important to keep them separate! If this photographer had not made it clear, in his paperwork, that he was charging a Creation/Shoot Fee AND a Usage Licensing Fee, and that the Usage Licensing Fee was for the limited license he was granting, he very likely would have lost this case.

Sadly, the photographer here did not register his photograph before the infringement took place (or within three months of first publication) which meant he only got his lost license fee for this infringement (actual damages)–no statutory damages or attorneys’ fees. This is a good example of why it is also so important that you register your work when you hand it over to your clients (that is publication, by the way–providing the work for future use/distribution).

Anyway, let’s think about how the courts will figure out what those damages are… if this photographer had not explicitly stated in his paperwork just what he charges for his licenses, he would have a hard time proving how much he should get here. I mean, let’s say a photographer sends an invoice to a client for $10,000 for “Photography” and another photographer sends the same client a bill for the same sort of work and license but for $4000 for Creative Fee and $6000 Usage License Fee. Both get infringed in the same way–say, the client uses the work for 2 years instead of 1 as granted. When they go to court, the first photographer will have a very hard time proving that $6000 of that $10,000 generic “Photography” fee was for the license. The defendant will get out experts and invoices it has paid to other, lowballing photographers as proof it only pays $1000 (or whatever) for that license.

The other photographer will be able to point to the previously paid invoice and say “the original license was for 1 year and cost $6000; the defendant used it for another year, that should be another $6000.” Boom, thank you for playing.

So please, make sure you do the following to protect the value of your work:

  1. register your copyrights asap after creation;
  2. use separate line items on your estimates and invoices: Usage Licensing Fee and Creative/Shoot Fee;
  3. make the Usage Licensing Fee the lion’s share of any total whenever you can justify it; and
  4. write clear licenses that limit the usage appropriately (geography, time, scope, whatever).

Let go

Saturday, February 2nd, 2013

There is a Buddhist maxim we need to keep in mind these days: Let go or get dragged.

There are various interpretations, of course, but for our purposes I think it’s a great reminder that if we don’t let go of some things, they will affect us negatively in some manner. In business, especially a creative business, the things to let go of fall into two main categories: past mistakes and present trying to do it all.

We need to let go of our past mistakes because while you can (and should) learn from them, there is a big difference between doing that and beating yourself up. Worse, arguably, is that if you don’t let go of past mistakes you can get too bound up to do anything now (or in the future).

For example, we’ve all done some sort of marketing that hasn’t worked. Maybe you’ve sent postcards that didn’t bring you any work or your past phonecalls have (almost) never gotten you a meeting. Whatever, something has failed for some reason. Instead of dispassionately looking at the reality of the situation, seeing both the good and the bad, you can get so wrapped up in the “I should have done X” part of the evaluation that you can only focus on how you failed. That sort of thinking often leads to getting too scared to do anything. What if I lose money again? What if the targets don’t like it? What if it fails?

Instead, you need to see if there really was something you could have done differently and make adjustments accordingly, but not let the failure stop you from moving forward. Here’s a secret: you are going to make mistakes, screw up, and fail throughout your professional life (and your personal life too, but let’s just stay on the work stuff, m’kay?). You will never get it all right all of the time. Not even close.

If you stop doing anything, especially because you are afraid whatever you do might be wrong somehow, you might as well just pack it in. You can’t be a creative pro without being a risk-taker. So let go of the fear and just do.

The other thing to let go of is trying to do everything, all of the time. Our monkey-brains are already overloaded and now we are not turning off, ever. This has got to stop. This again is connected to fear (fear of missing a client call, for example, keeps our cellphones glued to our persons) but it is also connected to a weird sense of control that I see in creatives quite often.

Now, I’m no psychologist, but I have a theory that because you have so little sense of control over your businesses (it’s up to the clients whether they hire you, for example) that you creative professionals try to make up for that by being control freaks about everything else. You do your books, you do all the production for your projects, you write everything that you put out to the world (including promo headlines), you try to draft your own contracts and licenses, you design your promos and even logos, et cetera et cetera. Heavens forbid you hire someone else to do it–you can do it “well enough.”

Well, besides the hypocrisy of getting angry when clients shoot their own “good enough” photos, holding on to all of this stuff is just not doing your business any good. Nor you yourself. You are over-stressed and quite simply do not have the time to do all this stuff. You need to devote more time to making your own work, your art, but that is probably low on your list because you have to go to the bank and pay your assistants and file your taxes and review that contract and…

I think it’s particularly interesting that the very talented rep Heather Elder recently wrote:

I must sound like a broken record by now but once again, in the most simplest of terms, the photographers in our group that produced the most amount of new work were the busiest in the group.  I have been repping for over 15 years (notice how I didn’t say almost 20 years? I feel younger this way!) and this has always been the case.

So, what would really be better for your business (and your mental health) would be to let go of doing at least some of that control-freak-in-the-guise-of-saving-money doing it all yourself stuff you’ve been doing. Instead, hire the right people (remember, that’s a deductible business expense too) and free yourself to make more personal work.

You have more control than you know. You can wield some of that by choosing to let go, rather than letting life (and your business) drag you down.