Author: Leslie

Today, I got to do the thing I most love doing during the holidays: I bought and donated a trunkful of games and HotWheels to Toys for Tots. I say “I got to” because what enables me to purchase a pile of gifts for kids who don’t have much in their lives is you, my clients. You give me the joy of being able to give to them.

I am grateful for every one of you. Thank you for that holiday gift.

In the current business culture, all creatives are struggling with the devaluation of their work. Although I primarily work with visual artists, I have been lucky enough to be involved with the Content Creators Coalition which has exposed me to the struggles of people working in music as well. Last Sunday, here in San Diego, the 3C had a fundraiser concert where they played the trailer for the unfinished movie Unsound. I met the filmmaker, Count Eldridge, as well (although we had talked several times on the phone before this), and to say he’s passionate about this issue would be understating it a bit.

As a firm believer in the rising tide floats all boats theory, I’d like to encourage all of you to share the link to the film and promote it. Musicians’ issues are very much like your issues. Also, if you can, donate something to get the film finished. Count has spent years of his time on this project and now needs to raise the funding to finish the editing. Every bit helps and there is a link on that site to contribute.

Finally, think about your own use and acquisition of music. Yes, tools like Spotify and Pandora are cheap and convenient, but they aren’t paying the artists anything close to a fair rate. How can you expect to be paid a fair rate for your creative work if you don’t buy music in forms that are best for those artists?

Heather Elder continues to share really helpful information for photographers. In today’s post, she lets us know what art producers think about treatments, specifically, what information is the most important to include. It’s a definite must-read for photographers, but I’ll give you a little spoiler here: it’s mostly about your vision.

In this PDN interview, now-former rep Julian Richards lays it all out there. It is a painful read, but an important one.

Mr. Richards says at one point, “The photographer’s role as sorcerer and custodian of the vision was diminished.” I could not concur more. This is something I have been railing against for some time and something I think you can change, but it will be a fight. For a photographer to be seen as the minor miracle worker s/he is, s/he must control the process more. The mystery of the art must be recaptured.

I have been hearing about a few photographers who, if not shooting film (and yes, there are still film shooters out there), will not permit the clients to look at a monitor… at least not until the photographer reveals. That is a very big thing. It is also only one part of the shift.

Overall, you have to say “no” more often, especially when saying “yes” compromises your vision in any way. You have to make it unquestionably clear that while you will work with the art director and other creatives, you will not do what they want just because they want it. Most importantly, you should align with the ADs (who really do want this although they have their own fears, as have always been there) to tell the clients that they need to trust you to provide the best creative because that is what you do.  Yes, that is politely telling end-clients to shut the eff up.

As Mr. Richards says, “By abdicating those responsibilities to the guy who’s paying, you’re undergoing a sort of self-inflicted castration.”

Ouch, but accurate.

Think about how much you have sold out. How does that make you feel as an artist? What you can do to change? As much as I agree with Mr. Julian’s comments, his choice to leave the business was based on more personal reasons than just his frustrations with the state of the photo business world. You don’t have to give up as he has. Change is possible, although it won’t be easy. I don’t think any of you should give up or give in, but rather let’s stop the slide to mediocrity.

It has been far too long since I’ve posted. This is what happens far too often when one stops being religious about scheduling the things one should be doing and instead does all the stuff one feels one must be doing….now now now.

Now now now is rarely good. Even for creatives. There is a difference between being in the moment–being mindful and aware–and now now now. The latter is reacting, often on the verge of panic, to the outside. You can’t make your best work when you are reacting to the outside. Good creative has to come from the inside. You have to make the mental space available to do that.

You also need to do some things that aren’t as creative, in order to keep the business humming. When you get work and get in that now now now mindset, I’ll bet the first thing that gets pushed off your agenda is your marketing. You’re suddenly too busy to send emails or research new clients. Must plan the shoot! Can’t take time to work on your portfolio.

You’ll regret that when the brief work flurry is over.

Make sure that, even when you get swamped with work, you make the time to at least touch in with your marketing (and other biz stuff like invoicing, bill paying, etc.). That way not only will your work be more regular, you won’t be faced with the overwhelming mountain of crap you don’t enjoy doing when you get back to it.

So this photographer had an image ripped off by National Geographic. While that is of course totally wrong on National Geo., the photographer has a lot wrong in his post about how the law works and how the magazine reacted. I’m NOT saying National Geo got it all right or are the good guys here, but they aren’t as wrong or bad as he seems to think.

First off, the photographer claims that “If the infringement is ‘willful infringement’, the settlement range is typically $150,000.” Oh child… if only that were so. No, the maximum statutory damages available for a willful infringement are $150,000. Maximum. Most settlements are far, far, far below that. So are most awards by the court.

Second, the photographer ignores the registration requirements for statutory damages to be available. That is, I assume he has since he doesn’t mention if he had timely registered his work. Registration timing is a very big deal. If your work is not registered with the copyright office before the infringement takes place (or within the three calendar month safe harbor immediately after first publication by you), then you cannot even get statutory damages. Oh, and National Geo gets that part wrong too, by the way. The registration has to be before the infringement; it doesn’t have to be “within ninety (90) days of first publication” as National Geo stated but rather anytime before the infringement (also the safe harbor is three calendar months after first publication, not 90 days).

If the work isn’t registered, then all one can recover is what are called actual damages which, here, would likely be his lost license fee. He’d have to prove up that fee and if he doesn’t have a record of similar licenses then he’d have to prove a reasonable market license fee. Since there are a lot of free or almost free images available anymore, that number can be very low.

Also, this photographer offered the work under a Creative Commons license for free. The terms of that license state “non-commercial” use and often editorial use falls into non-commerical. I personally disagree with that labeling, but there it is. The cover use by a magazine, however, is usually considered commercial (this is one reason why editorial use is complex legally) at least within the industry. Nonetheless, that would be a difficult legal battle. I have railed against Creative Commons licensing since they were created and here is another example of why they suck. That “free use” could also impact his ability to prove the value of his license for the purposes of actual damages.

I feel for this photographer. It was completely wrong for National Geographic to use the work without a proper license. But all creatives have to take the right steps to protect their work, like registering the copyrights. I tell photographers to think of it like insurance–you buy it and may never use it, but when you do need it you are surely glad you took that responsible step.

Don’t forget that, for many of us US folk, the quarterly tax payment(s) are due on Monday, September 15.

Oh, and if you have to pay up, be happy that you’ve earned money rather than upset that you have to pay taxes. It just makes life better to keep that in your head.

 

Sorry for not updating too recently; I’ve been a bit buried in other work. While I’m digging out, you do need to read this post by Heather Elder. In it she gets some great insight from a buyer, including “…how you bid is just as important as how much you bid.”

If you don’t like that the Copyright Office is including the example of the “monkey selfie” as a non-copyrightable work, you can let them know it should not be included in the final version of the Compendium III. Just go here and politely explain your point.

Seriously, be polite and respectful. A lot of work went into creating the Compendium and this is not the time or place to rant and rave. If you feel they got something wrong, like I do (see previous post), let them know what is wrong (specifically–cite the section) and why and how leaving the wording as it is will hurt photographers.

Well, this does not bode well for any photographer claiming authorship of a monkey selfie when U.S. Law applies. The public draft of the Copyright Office Compendium III has just been released (more info here) and it includes the following (from Section 306: The Human Authorship Requirement):

The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

Examples

• A photograph taken by a monkey.

• A mural painted by an elephant.

[…]