Month: September 2013

Last week there was yet another court case where, if only the artist had registered the work before the infringement, the results would have been totally different. In this case (Dash v. Mayweather et al.) in the fourth circuit, the musician (Dash) claimed that Mayweather used his music for his entrance at two WWE events, without permission. The issue facing the court wasn’t whether Mayweather infringed but what the damages should be. The results are a cautionary tale for every artist out there.

Dash registered the work after the infringement so statutory damages were not available. I can’t emphasize how important it is to register your work promptly, preferably before any publication but at least within three calendar months of first publication. Doing so will ensure that your registration is timely and that means that it will permit the award of enhanced remedies including statutory damages and attorneys’ fees and costs. Dash did not do so and he was thus limited to actual damages, including any profits attributable to the use of the work.

Okay, that sounds good… except Dash could not prove any actual damages or any causal connection to any profits. See, you can’t just say “hey, if I were to license this I would charge $10K” but rather (roughly speaking) you have to show that in the past you have licensed your work in a similar manner for $10K. At the very least, you have to show that you have been paid to license your work in the past (at all) and that in the market such a license for the infringing use would have been $X, even if you haven’t ever actually licensed that same use. Dash could not do that here, in spite of his hired expert claiming that similar works by other artists used similarly got thousands of dollars. The court noted that in spite of the law’s general preference to give an artist damages when infringed, the artist has to show (when statutory damages are off the table) that “the thing taken had a fair market value.” The court specifically stated “Dash’s evidence of the fees that the WWE paid to well-known artists at Wrestlemania XXIV was irrelevant and overly speculative because such artists were not similarly situated to Dash.”

Dash was awarded nothing in actual damages. Ouch.

He also got nothing in profits because he didn’t prove that the use of his music in any way generated profits for the infringer. The burden was on Dash to make some sort of showing of the gross revenue earned by Mayweather et al. and any sort causal connection to his work. It’s not a high burden, but it’s still a requirement. Without that, bupkis.

Importantly, if statutory damages had been available, Dash would have been awarded something, even if he could not prove damages. The court notes in its final footnote in the case that statutory damages are both to recompense the loss to the artist and to deter others from infringing and there is case law supporting the conclusion that a statutory damage award doesn’t have to be tied to actual damages (it often is, but doesn’t have to be).

So, what do we learn from this? Simple: register your work and do it as soon as you can. No one wants to spend all that money on experts and attorneys only to get nothing in the end.

 

I was talking with a friend last night who runs a company that does building renovations and rehabs. He shared a story that resonated with me because if you just change the players, it happens in our industry all the time.

He had a project recently where he needed a concrete subcontractor and one of his connections knew somebody who would be potentially good for the job. My friend arranged a meeting with this potential new vendor to get to know the person and to discuss the project.

ConcreteMan (let’s just call him that) and my friend meet and start talking about the project–it has some challenges, but that’s why my friend wanted to hire the right person for it. ConcreteMan begins interrupting my friend as he is giving the overview of the project. This happens repeatedly. Worse yet, he’s not asking informational questions–it’s not like the sort of interruption where you may ask for clarification or something–no, this guy is interrupting to say how difficult the project will be. Boy is this going to be tough. Boy is this going to be expensive. 

At no point does ConcreteMan offer a solution to any of the problems, he just keeps harping on the complexity and difficulties.

Needless to say, my friend did not hire this guy nor will he ever ask ConcreteMan to bid on a project. Ever.

When a potential client calls you to discuss a potential project, one of the worst things you can do is be negative about the project. An Art Buyer is thinking of hiring you because s/he expects you to provide solutions to the problems, not whine about them. If you don’t offer some hope to the AB that you can make it happen, that you have ideas that will make the project work, you have no chance whatsoever to get that project. Worse yet, you are very likely to put that potentially lucrative client off you forever. Why should s/he ever call you again after that sort of interaction?

It’s okay to talk about the complexities of a project, just make sure you offer solutions. For example, you could say “That second shot is going to be a challenge… I think if we hire a cherry-picker and a great baby wrangler, we can definitely do this…” That shows the AB that you are at least thinking about solutions and that gives her(him) confidence. Your chances of getting the project just went up significantly. This is why treatments are so important today.

Now, maybe you don’t have the skills necessary for the project. Maybe you have some of them but know where you can hire out the others–tell the AB that. Say “Hey, I’m not the right person for this project. You need a photographer who is really great with kids and that’s not me, but you should call Betty Martin. I know Betty and her work and she could definitely give you what you need here. She’s great. I can do the other shots if you are willing to split up the project…” Say something like that–tell the AB how she can get exactly what she needs to do the project as best as possible–and you will be that AB’s go-to person for the next project that is right for you.

It’s not about making fake promises or blowing smoke. Be honest, focused on solutions, and positive and you’ll find you’ll get more and better work.

(This post is a re-working and updating of one I did a few years ago. I think it needs saying again)

Marketing your creative business today is very much like dating–from the traditionally (hetero) female position. Since most photographers are still male, and mostly heterosexual males, this means they have no idea what it’s like from this position! It also explains why so often my female clients “get it” faster. We’ve been there! This is our “natural” state of being in the social world and now that marketing is so incredibly enmeshed with social (hello, there’s a reason they call it social media, people), we girls get how it works even faster. Guys, especially, need to catch up a bit (but women can use this advice too).

So, here are a few basic “rules” to get you guys started:

1. You have to put yourself out there. The world will not beat a path to your door no matter how fabulous you are, you have to go out there and let the world know you’re available. Go to events where your targets go, send promos, have a great website, be active in the creative world (both virtual and real), etc.
2. Put yourself out there, but don’t put out. Doing the first one for free or a discount is like having sex on the first date, before even getting dinner. I don’t care how hot your target is, you just can’t. You may really, really want it, but you have to respect yourself. No one will respect you if you don’t respect yourself first. So, just say “no” when asked (or even begged) to do it for free (or cheap).
3. Dress for the date. If you are going out in public with any chance of being seen by potential clients (like going to lunch or for drinks with friends to a trendy place), dress up more. If you are going for a client meeting, really pay attention to the details of grooming and tailoring. Details count. I don’t care if your “date” is dressed like a slob, you’d better look fabulous.
4. Debbie Downer and Donna Desperate are never sexy. If you have been sending promos and are making calls to get a meeting, don’t sound whiny or desperate. You have no idea how often this happens (ask ABs). If you get a “No, I’m too busy,” say “Thanks anyway. Mind if I call you again in a month or two?” If you do get a meeting, at that meeting do not ever ask “Do you have a job for me?” That sounds desperate and pushy as hell. Not attractive.
   Be upbeat and respect yourself. You’re a successful photographer–even if business has sucked lately, you have something to offer that no one else does–the way you think and see. Head up, smile, and never beg for attention or work. There are other fish in the sea.
5. Stalking never works. You know how you hate it when someone who is interested in you comments on every post you make on Facebook, or shows up where you go “accidentally,” or calls (or texts), like, every day, even though you never answer? Buyers hate it too. It’s not cute, it’s scary. Don’t be a stalker. Instead, have a schedule for your marketing efforts and stick to it.
   Gather data by following targets on Facebook, etc., but use that behind the scenes, so to speak. For example, if you know that a target’s birthday is coming up (thank you Facebook) you can send them a print with a happy birthday note. Do not, however, show up at the family party uninvited. (eek!)
6. Be interesting, sure, but more importantly, be interested. Okay, I may be violating girl-code here by telling y’all this, but it’s always better to encourage the person you are flirting with to talk about himself than to talk about yourself too much. Asking questions, listening, smiling & nodding, asking good follow-ups… all important. Don’t be a fawning lump (no one likes someone who has no opinions or stories to tell!)–but do encourage your target to open up and share. Relatedly, don’t say “no” if you can avoid it in the discussion–try to be positive. There is an improv game where you have to say “Yes” to every line given you (usually “Yes, and…”)–great way to learn to be positive.
7. Don’t sit by the phone. Okay, our phones are on us all the time but we don’t have to answer them 24/7–not for dates and not for business. I’ve said for years the best way to get a gig is to go on a vacation, and that is true. Being a little less available makes you look desirable and not desperate. Don’t answer the phone for business calls on weekends or off hours… it can go to voicemail and you can listen to it and choose for yourself whether it is a real emergency or something that can wait until Monday morning. If you are too available, you look desperate (see #4).
8. Let your date pay. I’m going to get my butt kicked for this and yes, it is totally sexist, but in this you need to think like a dating woman and, if the guy asks you out, he should be paying for the date. In marketing, this is much like #2 above. In this case, I mean don’t offer a discount in the attempt to get a project. It also makes you look desperate (see #4). If you get asked to estimate on a project, don’t think about how cheaply you can do it–think about the value you bring to the project and price accordingly. Stand out for your specialness, not the money, and don’t cheapen yourself.
9. Show a little leg, but don’t dress like a ho-bag. Like #1, you have to put yourself out there and you should do that in your marketing by showing your best work. But keep a little hidden! Don’t put it all out there (on your website or whatever). If you keep some goodies in your print book only (or at least in a private electronic format like a pdf or something) then you have something special to “put out” to those who make the effort to respond to your flirtations. Oh, and your best work is often your personal work so don’t be afraid to reveal some of that “leg.” Targets love to see the real you in your work–that is going to show in your personal work most of all.
10. Don’t lie. If you lie, you break trust and you will never build a relationship. Again, remember you want (eek!) a relationship, not just a bunch of notches in your bedpost. Lie once and you have quite probably no shot at ever “getting in bed” with this target. Ever. Be honest about who you are, what you want to do creatively, what your capabilities are, what you bring to the relationship, why you are attracted to your target… everything. You can spin the facts to make them look as positive as you can (kind of like wearing makeup or dressing up), but do not lie.
    For example, if you haven’t had a paying project in six months and your target asks how things have been, you can answer “Good. Busy.” Why? Because you have been busy trying to get work and that’s good! But if the client follows up with “Who have you shot for in the past six months, you should say “I’ve been working on personal projects” rather than lie and say you shot for Bob’s House o’ Widgets or whatever. The truth will out, as they say. It’s not worth it.

So, with those ten starter tips in mind, go out there and flirt… er, market!