Author: Leslie

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?

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).

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.

This morning, a young exterminator came to my house as I apparently have rats in my attic (San Diego is rat heaven, in case you didn’t know). He kept looking at my art-covered walls and said that I had some great pieces. He talked knowledgeably about it. I asked him why he was an exterminator when he obviously had such art knowledge and he said “I’m a photographer. I do this to pay the bills.”

It was all I could do not to hug the kid. He was unquestionably devoted about his art and would not compromise on it, so he had no complaints about having to kill rats and the like to earn the money for his “camera addiction.” He talked about how he had so much to learn and far to go, but that he made his art whenever he could (and he does so regularly–rather than go out or whatever) and this job was a perfectly fine way to make a living while he walked his along the path. He had absolutely no shame about his day job, and I loved him for it.

The next time you think about taking a bad deal because you need the money, remember the kid who, rather than sell out his art, climbs into disgusting places to kill dangerous beasties. Face it, what he does is, for must of us, pretty close to the proverbial ditch-digging in cache. Let his respect for his art rather than pride in his ego remind you that protecting your art is worth far more than your (imaginary) pride. You need money? Get a job. Don’t sell out your art.

One of the things I suggested giving up this year is being a whiner. As I mentioned, I am tired of hearing photographers (and others) say “I can’t do that,” especially when it’s something as simple as asking for something like a meeting with a target. What is the worst that will happen? You’ll be told “no.”

Ooooo! Scary!
Not.

So, in the hopes of convincing you that “no” just isn’t all that bad and that sometimes, when you ask, you get a yes (even for crazy requests), I offer you this article. This guy asks for stuff most of us would never dream of asking. He gets plenty of noes for his efforts, but he also gets some surprising yeses and, most of all, he’s learned his way past his original fear of asking.

For those of you who have the BAP2Go app, the tech provider is still having problems and there will be significant changes soon. I would appreciate it if you would email me so that I can contact you directly about these changes and to send you a link to a new podcast. Leslie@burnsautoparts.com is the address.

As a wrap-up to 2012, after looking back over the year and what I’ve seen happening, I’d like to make the following suggestions of things any creative professional should quit for 2013 (and beyond):

1. Complaining about the state of the industry. This is a big one and it’s eternal. For as long as I’ve been working with creative pros (and that’s like 20 years now), every creative I know has complained about his/her particular industry, but photographers are particularly “good” at this. Let’s just stop it. There will always be lowballers and idiots (clients and colleagues)–whining about them is a waste of effort. Instead, use that energy to do something positive for your business, like calling an old client and touching base.
2. Being a bad client’s bitch. You know what happens when you drop a client who treats you like a dog and you lose that income? Not much, because in exchange you free up your time to find a client who respects and appreciates you. You can’t change a bully client, so just walk away and feel how great that is! You’ll also be able to hold your head up and respect yourself more.
3. Fixing it in post/Photoshop. There is nothing wrong with doing great post-production, but there is something wrong with relying on it for stuff you should be doing in camera (or on the page). This is happening way, way, way too much. For photography, the quality shows when you shoot really well, even if you manipulate the bejeezus out of the image later (same goes for music, etc.).
4. Doing it for free/cheap, especially just because you want to be a nice person. If you are losing money doing the work, you aren’t being a nice person, you are encouraging business failure. It’s not selfish in a bad way to do what you need to and that is to say “no” when people ask for freebies or deals. Saying “no” often results in you being more respected as a professional. Bonus!
5. Avoiding doing the business-y stuff. Instead of putting off doing your books (etc.) until you have no other choice, pay your bills and do your books regularly, like every week. Schedule it. I like what my friend John Durant does: every Monday morning he does the business stuff like invoicing, etc.; if he gets a shoot, he bumps the paperwork of course, but otherwise it is every Monday, boom. That also works to get the icky stuff done and off your plate first thing in the week–freeing you for the rest of the week.
6. Doing too much social media stuff. Social media will not make your business successful. You will not be that one in a gazillion who hits, so stop wasting all your time posting and tweeting and following and using far too many so-called tools to reach out to a huge audience. If you want to be famous, then you need to think about what you are doing with your life. If you want to be a successful artist/creative professional, put your efforts on making and monetizing your art, not making people like you. You can’t pay your rent with a +1 or a like. Instead, spend more time targeting the best targets for your work and reaching out to them directly and, preferably, in person.
7. Contributing to the problem. Every time you make it look easy or play down the work behind your work, you are lowering the perceived value of your work and the work of your colleagues. Stop saying “I got lucky” or “It’s not that hard” and the like. This is part of why I encourage creatives to try to bring back some of the mystery of their art. For example, don’t provide monitors for your clients–tell them you will show them when you are ready. They may bitch about it at first, but as long as your work is fabulous, they’ll get over it and, more importantly, you will look more like the miracle worker you are.
8. Being a hypocrite. You cannot have pirated/torrented music or films or books (whatever) and be a professional creative without being the worst kind of hypocrite. Don’t like reading that? Tough. It’s the hard truth. No, your free music doesn’t only affect the impersonal labels, it hurts “little” people just like you. More importantly, though, it’s just simply wrong to take someone else’s creative work and then expect to get paid for yours. Stop justifying it however you do and instead do the right thing: pay for the creative works you acquire. All of them.
9. Shooting only digital or using only digital tools to make your work. Whatever your discipline, photography, illustration, even writing, do it the old fashioned way occasionally. If you can get a client to pay you for this, great (and more are, by the way), but just do it for yourself. Draw, sketch, hand letter, shoot film, write longhand… doing your art the old way will force you to slow down and change how you approach your work (for the better) when you then go back and use your more usual tools. I can’t over-emphasize this idea enough–you will use the modern tools better and will be more creative overall, if you do this every so often. I like the idea of taking at least one day a quarter (preferably more like one day a month) to make art manually/sans digital.
10. Not registering the copyrights in your works. I’m going to put this as plainly as I can: pursuing infringers is now a legitimate secondary income stream for many creatives (replacing stock sales for more than a few people) but it only works if you register your copyrights. Imagine you find one of your works reproduced on (for example) Forbes.com without your permission. If your copyright is not registered before the infringement (or during the safe harbor time, but I’m not going into that here), you can only get the reasonable license fee for that use (“actual damages”) and that will be maybe a couple of hundred bucks. However, if your work is registered before the infringement, you can get statutory damages and your attorneys’ fees–likely thousands of dollars. Which do you want?

I know what I want for all of you… for all of us… a successful and fantastic 2013. Go out there, quit doing the bad stuff that gets in your way, and make it happen!

For those of you who have the BAP2Go app, I’m just as frustrated as you are about the lack of new podcasts. The tech people are having problems with their cloud provider and, well, I’m stuck. And not happy. There is a new Manual posted, but the podcasts… nope.

So, if you have the app, please email me and I’ll send you a private link to the latest podcast as an mp3 which you can download.

Mea culpa.

-Leslie

 

Here is some interesting research into how “faking it” actually works… in some ways. Fundamentally, it seems that how we use our bodies affects us more than we might think–as in literally affects how our bodies function (hormones like cortisol and testosterone) and that affects how we think.

It also affects how others perceive us. You might not feel powerful, but striking an “expansive” pose can subtly signal others that you are, and that means you’ll get greater attention.

The combination can be a powerful tool to getting what you want in business.

Pay attention to the other side of that, though, as the article mentions. It’s not about being a bully. It’s not about being a dictator. It’s about using your body to attract a certain level and kind of attention that encourages others to follow you, to buy into your story.

Of course, that means you have to have a good story as well. By story, I mean either your marketing message or your plan for a particular project… whatever you are trying to, for lack of a better term, sell in that context.

The best stories, by the way, are true ones. You had better believe in your story first or no amount of posing will make others buy into it.

So the cloud is still hosed. Oh well.

I can’t blame everything on the cloud, unfortunately. A lot of the delay was by my own choice. See, I’ve had a month, well, more like a month and a half, from hell. Now, my hell isn’t as bad as others’ hells, but for me, it was enough that I had to make some choices about what I could and could not accomplish. I put off doing a podcast and have completely bailed on the Manual for this month (monthly subscribers got their money refunded–if any of you annual subscribers want a refund, please contact me!).

What actually happened to me isn’t really important, but I will tell you that a big part of it involved finding out that my email had been, for lack of a better term, hacked. Someone I know had been accessing it for a long time–years, in fact. The feeling of being invaded… I can’t express it fully. It’s enough to make one hurl.

Luckily, the invasion was not into my legal work’s email (that would have been all sort of worse!) nor (apparently) my actual computer, but still… imagine having your email read without your knowledge… for years. Yeah, creepy as all get out.

So, part of my delay has been that I didn’t want to do anything until I figured out the extent of the invasion (hence no blog posts, etc.). Then I was delayed while I changed over my hosting, etc.

It’s been a big pain. And a costly one (not just financially).

So, having been through this, here is my advice to you: never ever ever share your login information with anyone, no matter how close to you. Sadly, we never really know some people and what can happen should the relationship sour (or even if it doesn’t!) can lead to your privacy being utterly violated.

If you want your digital self deleted or otherwise managed at your demise, put your login info in a document in a safety deposit box or something. Or check out some of these services or read how the issue is being approached by estate planners and lawyers here.

Prevention, as they say, is much cheaper in the long run.

Anyway, for me, my life is getting back to some semblance of normal on the technical side. I’m now being hosted by the fabulous people at dogbark.com (where if you contact support you will still interact with a real, live human and one here in the USA) who made a complicated transition as painless as possible. Seriously, they did all the lifting. Good people.

And getting that done will give me more time to write here, and a new Manual next month, and podcasts.

… that is, if my app company can get the cloud worked out. 😉