Give Your Feedback to the Copyright Office!

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 Frankly, I think the CO should dump the whole published/unpublished split but that is unlikely.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

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

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

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

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

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.