Author: Leslie

Piracy affects real people and this PSA helps to demonstrate that.

Have you paid for every song on your iTunes? Every video? How about all of your software? Unless the item was released by its IP owner for free reproduction/distribution, I mean, of course.

Do you have videos you’ve made which have a soundtrack from your music library? Did you buy the license for that use?

Do you have a $500 “designer” item that you bought for $25?

How about your spouse/partner? And your kids? Do they have illegal downloads on their machines?

I’m betting that many of you have stuff you got by less-than-legal means or use IP in ways for which you do not have the rights. And your kids, almost assuredly so.

We cannot take the moral high ground when we ourselves are infringing on the IP rights of others or permit our families to do so. We must lead by example as much as we preach respecting copyright (and other IP protections). Using excuses like “well, it was just this once” or “I can’t afford the software” or “someone sent it to me” won’t cut it. We must be clean ourselves.

Years ago, I had illegal software. I got rid of it and told my family (who had given me most of it) that it was wrong. I still fight with my brothers about ripping and sharing. It’s not fun, but I know it’s the right thing to do.  I know I’m not hurting other creatives and/or other businesses (yes, even the big ones) who invest time, money, and effort into making these products.

I know that I’m no longer a part of the problem.

How about you? Are you an IP hypocrite like I was? You can change that today, and I hope you will. Take the time to teach those closest to you, too. And please, make sure that it’s clear that in your house, IP piracy/theft/counterfeiting in any form is not permitted.

In the creative industries, as in most businesses really, clients can be…um…challenging. Thank heavens for sites like clientcopia.com. Some examples of brilliant client quotes/stories:

It also helps us keep things in perspective. When a client jerks you around, don’t take it personally. Don’t even take it professionally, so to speak–I mean, it’s not just photographers who get asked stupid questions, etc. Just laugh, and share it with others, anonymously of course.

Going to law school was an eye-opening experience. I learned tons. Of course I learned things like the parol evidence rule (and its correct spelling… no “e”) for contracts and the difference between Past Recollection Recorded and Present Recollection Refreshed (evidence rules). But I learned so much more that applies to everything in my life and business.

Most of all, I learned how much I didn’t know about the law before. And that, my friends, is saying a lot.

For years I had been spouting off about copyright and licensing and I was considered an expert in our industry. That was accurate–I was one and what I knew I was pretty much right about. But although it seemed like tons of info, in fact, I was only scratching the surface of those topics. I know so much more now than I did before law school, when I thought I knew a ton. Moreover, I now know that there is still a ton more to learn.

This is where we get ourselves into trouble. Because photographers and other creatives intersect with the law often in the business, we think we know more than we actually do and we speak when we should defer to real experts. The law isn’t the only area where this happens, but it is the one I know best about now and so will speak to it. Someone will post a legal question on a forum, for example, and very well-meaning colleagues will answer. Others will add their 2¢. But really, even the most articulate responses can be full of legal misrepresentations.

Besides, legal advice via committee is about as good as design by committee, and we all know how good that is.

Of course, the trouble is too many photographers think they know enough about design to design their own promos, too. But that is a different story for another post.

Anyway, back to my point, in the law, language we all use every day can have radically different meanings. Words like “presumption,” “notice,” “constructive,” and “consideration” (just to name a few) each takes on a completely different sense. Let’s look at that last one, consideration. The legal dictionary definition is “a bargained-for legal detriment.” What the heck is that? Well, courts have interpreted that to mean as little as a promise, in the right context, or sometimes much more. Consideration does not have to be of equal value in a contract, but both sides must provide consideration for the contract to be valid. Where the lines are drawn? Well, a lawyer will have read many, many cases which lay the foundation for how a court is likely to interpret the meaning of the word generally and, in your case, will research your specific details to find the best, most accurate & likely result for you. But post a question about consideration on a forum and a lay person will likely say something like “you have to pay the models something–at least give ’em a print” which sounds dangerously like a helpful answer, but may not be of any help to you at all or could even hurt you.

As was said recently in the fabulous Fuck you. Pay Me. video, you can’t be a professional if you don’t hire professionals. Lawyers, CPAs, great insurance brokers, and even designers will save/make you more money than they cost. Don’t rely on the online committee to get the help you need to be successful.

Here’s the thing: no one, no matter how much experience s/he has, can give you good advice on a legal issue except a licensed lawyer. Not even me, yet. You’d never take a prescription written by a bunch of photographers, would you? (I hope not!) Well, this stuff is just as important and specialized. Sure, we all can suggest taking an advil for a headache, but we’ll not know to ask about some other subtle symptom that makes all the difference between a headache and a stroke warning. Same goes for the law. Same goes for accounting/taxes too. There is a reason the hurdles to these professions are high–there is so much to know.

And sometimes that includes knowing what you don’t know.

Yesterday, news broke of the rejection of the Google Books class action settlement. The opinion reads like a parental spanking of Google, and I am all the more happy for it. The basic point of the rejection? Google would get property rights which weren’t even part of the original claim(s) and which are the exclusive right of the IP owners to grant. In other words, it can’t be an Opt-Out system but might be able to be an Opt-In one. That makes sense. And the judge mentioned that, really, some of the issues in the case need to be decided through legislation, not the courts and certainly not through private, self-interested entities. Huzzah.

Bravo to all those who opposed the Books settlement, who wrote the court, and who fought for their rights. The judge in the actual opinion cited several of these “regular” people who asked for their rights to be preserved. Those folk, those regular people helped stop the anti-copright tide. We owe them all our gratitude.

This isn’t done yet, but it’s a good sign. I get the feeling that things are at least judicially swinging back in the pro-protection direction. Maybe even societally too.

One thing that lots of people haven’t understood is that Google was never interested in doing all this work (scanning, indexing, etc.) without knowing that in the end they would make money from it… and lots of it. The company is not some benevolent demi-deity who reaches out to benefit humanity. No, it’s a business, and a damn big one. It has a Board of Directors and stockholders to answer to. It’s a smart business, no question, but it is in business to do one thing and one thing only: make money. That’s not a bad thing–I’m not down on Google for that–but too many people seem to think making money is in second position to some other lofty goal for that company. Nope. Just like any (successful) business, making money is #1.

The books project is just another example of the company’s fantastic PR machine. People have bought into the idea that it was all about “sharing” information. Horse-hockey. Google doesn’t change a lightbulb without considering the fiscal implications of the act. By being the leader in the “all information should be free” movement, Google secures its financial future as the access point to that info.

Don’t forget, also, that Google is moving into media more and more each day. It wants content to be cheap so that it can provide it at a greater profit to itself. Whatever it can grab for free, it will, and not to benefit mankind but to make a buck.

I don’t fault the company for making money. I don’t fault it for being a huge corporation. And I don’t fault it for doing whatever it can (legally) to maximize its profits. I do fault those people who believe for a second that it does anything for any reason other than to make money.

I’m so excited! Most of you know, or should know, of Carolyn E. Wright, aka PhotoAttorney.com. Carolyn has been an IP attorney and a supporter of photographers’ rights for years. Her firm represents creative professionals, particularly photographers, and she has a great attitude about how to help her clients. Well, Carolyn and I have entered into a working relationship, and I think it’s a great collaboration!

As most of you are aware, I graduated law school in December and took the California Bar at the end of last month. However, I won’t get the results for months and, until I pass and get sworn in, I’m not a lawyer. I can’t take on legal clients or offer legal advice. I’m just a well-educated lay person. However, I can do some legally-related work, under the proper supervision of a licensed attorney. So, in this new relationship, I will be helping Carolyn out with some of the tasks related to her representation of her clients. It’s a great match, I think.

This does not mean I won’t be doing my usual consulting work–I will definitely be continuing that, don’t worry. Instead, in a part-time capacity, I will be working with Carolyn. I look forward to helping her (and her colleagues) help her clients and to learning more about effective representation from her.

The White House announced yesterday that they have issued a new set of proposals for changes to copyright and other IP enforcement. The white paper is available for download, but the general gist is available here and there is a link there to the paper itself.

Although most of these proposed changes will not directly affect photographers and other small creative businesses, they are important steps for both the actual economic structure of IP and the perception of piracy to the general public. That second part is the important bit for most of us. By clarifying that infringement is a felony (in appropriate circumstances) as well as the other steps listed, the public will become more aware of the seriousness of the problem. Instead of the issue being about “whining creatives” or “greedy corporations” as so many systematic infringers claim, people will start to see that infringement is theft and that it has a big economic result. Infringement hurts the USA.

Regardless of your politics, if you are an IP creator, this is a good thing.

Sometimes I get comments to this blog or to my posts on the BAP Facebook page that are argumentative, negative, or just downright nasty. Here, I don’t approve them and they disappear into the ether. On the Facebook page, I generally delete them. This often results in more emails, comments, and complaints which all usually strike the same note: How dare you censor! This is about open dialogue!

Um, no it’s not.

Your blog, your business Facebook page, your LinkedIn and Twitter and every other social media tool you use are NOT first for the purpose of open dialogue. These tools’ first purpose is to promote your business. Everything else is secondary to that.

Oh, and this is why you should have two personas in the social media world: your business and your personal. Keep ’em separate so that you can rant about politics (for example) without offending the potential client who disagrees with your position.

You must control the message your business sends to the world. That is a first and basic rule of marketing. You must have a consistent brand message, even when you are talking about a video you liked on FB or whatever. Controlling your message includes controlling the responses to your message on any public forum like social media. You need to send a consistent message and nasty comments will distract from that.

So, make sure you moderate your blog comments. For example, I never publish a comment from an anonymous poster. At the very least, the poster has to come out to me privately, then I may approve the comment. If someone posts something negative on your blog, don’t reply on the blog, just delete the nasty comment and move on.

Same goes for your other tools. If someone feels compelled to disagree with you on any tool, look at it to see if it takes a reader off your message and if so, delete delete delete.

The internet may be an open forum in many ways, but when it comes to your business, you have to drive your own consistent path and not let the jerks take you out of your way.

One of the favorite things I get to do as a consultant is to help build a portfolio. I’ve tried to describe my process before, and I’m sure I will again, but until I do, you really need to read this fabulous interview with C. Monaco of Monaco Reps.

In particular, note that she looks at lots of images, old and new, and tells stories with the work. That’s really the crux of it all.

Now, how you get there, that’s the trick. 🙂

I’ve posted not one, but two new Creative Lube podcasts to make up for the two months I missed while studying. The first one is on your cashflow and how important that is for your business. I also discuss your attitude towards money in general. The second is on how a creative pro is a performer, or should be, and I offer concrete advice on how to improve your performance.

If you are a subscriber, you can access them as you usually do. For anyone who isn’t yet a subscriber, you may purchase individual episodes for $8 per.