Archive for January, 2016

Song, Dance, Seltzer in the Pants?

Friday, 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and possible use as well as work you offer for license on your own website or elsewhere) either register it as unpublished before doing anything with it or register your work as published within that three-calendar-month window.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know the work is going to be published on a certain date then you really have to register it as published rather than unpublished even if that date hasn’t happened yet).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.

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(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

Wednesday, 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.