Filmmaker-2-Filmmaker: Tip 5 - Why Public Domain Music Isn't As Cheap As You Thought

During my last year in film school, I got some bad advice.

I was working on my student film, the one that would have to play in the senior film festival. I had no budget and most of my actors and crew were generously donating their time to help me finish what I expected would be a masterpiece.

As post-production loomed, I began searching for music to score my film that fell within my budget - zero dollars. I was hoping to hire a local Providence-based band, but none of the ones I contacted were willing to do it for free. While I didn’t know much about copyright back then, I knew enough to avoid using popular songs and I didn’t want to get pinched for illegally downloading music (back then, Napster was all the rage).

Witnessing my plight, a friend suggested that I use classical music. His reasoning: the songs were composed hundreds of years ago and were in the public domain, so I wouldn’t have to ask anyone's permission and I definitely wouldn’t have to pay anyone for the privilege. Even better, classical music would give my film an air of sophistication, like 2001: A Space Odyssey. Because nothing demonstrates film school hubris quite like comparing your student film to one of the greatest pieces of cinema ever made.

Anyway, I followed my friend's advice and used classical music. The film played in the student filmfest and, while not exactly on par with Kubrick’s masterwork, it was moderately well received. I sent it off to some real film festivals and was rejected by all of them.

My friend was right about one thing: music composed before 1922 is not protected by copyright law. As a result, it lives in the public domain (meaning you can use it for any purpose without paying for it). But it was still bad advice. As I later learned in my producing career, where music is involved, not only is the song itself subject to copyright protection, the RECORDING of that song is also explicitly granted copyright protection. Which means that most music is protected twice under the law.

Why are recordings granted their own copyright protection? Because they're considered separate works of artistic expression. The copyright to a piece of music protects only the WRITTEN music and accompanying lyrics. The copyright to a recording rests with the specific audio RECORDING of the song. More than that, each separate recording - even if it’s of the same song - is granted its own copyright. A live recording of Eric Clapton’s Layla (like the famous MTV Unplugged version) has a separate copyright from the original recording which appeared on the 1970 album Layla and Other Assorted Love Songs because it's a completely unique and discrete interpretation of the song. And each of those copyrights stand apart from the copyright granted to the words and music as written by Clapton and his partner Jim Gordon.

Even if the music is in the public domain, copyright protection will still attach to recordings made after 1922. Just yesterday I was listening to a rendition of Fare Thee Well (Dink's Song) by Marcus Mumford and Oscar Isaac off the Inside Llewyn Davis soundtrack. The origins of the song can be traced to 1904, which means it predates modern copyright law. But a simple iTunes search will reveal dozens of recordings of the song by Bob Dylan, Pete Seeger, Dave Van Ronk, Jeff Buckley, Ramblin’ Jack Elliot, and many more. Each recording of the song gets its own copyright, even though the music and lyrics are no longer protected.

So the moral of the story for all you filmmakers out there: don’t do what I did and think you’re getting off scott free just because you chose some archaic piece of music that was popular during the Napoleonic wars. You’ll still have get permission from the owner of the recording's copyright.

Ask Greg: How To Fight Back When Someone Has Infringed Your Work

Q. I recently discovered that someone was selling T-shirts featuring my illustrations. They've credited me as the artist on their website, but I've received no financial restitution and they didn't ask my permission. I want them to either pay me or stop selling the T-shirts altogether. What are my options for getting them to stop?

A. Let's be honest, you don't want to sue anybody. You don't have the time and you probably don't have the money, and even if you did, the effort and emotional toll it takes is astronomical. So before you go down that road, there are some things you can do to save time and money, and hopefully avoid court.

1. Send the infringing party a “cease and desist” letter. You'd be surprised how often people don’t even realized they're infringing someone else's work. Oftentimes, they think the work is in the public domain simply because it's available online. And even when people do infringe your work on purpose, an officious sounding letter is usually enough to make them stop. While you can always draft a cease and desist yourself, it has more teeth if it comes from a lawyer.
2. Negotiate! If you reasonably feel that the infringer isn't acting with malicious intent, give them a call and see if they're willing to talk turkey. You want to get royalties for all T-shirts already sold, and you definitely want to get a fee for all future sales. If this works, it's a classic win-win. They stay in business and you get a financial benefit. At the very least, you'll get a sense of their motives.
3. Use social media to rally people around your cause. This can be a surprisingly effective way to get public support and put pressure on the infringer to do the right thing. You may have heard this story about a graphic designer who wasn't paid for poster designs he made for Spike Lee's newest film, Oldboy. The designer sent an open letter to Lee recounting his abuses. This was a smart choice on the part of the designer. Even though Lee, like most directors, has no role in the marketing of his films (marketing is almost exclusively the domain of the studio), by going right to the top, the designer started creating groundswell. And if he can get Lee to go to bat for him, the pressure placed on the studio could be overwhelming.
4. Lastly, BE NICE, no matter how much of a jerk the other party is. That old saying about catching more flies with honey than with vinegar - it's absolutely true. I can't tell you how many times I've seen victims of infringement get swatted by a judge because they acted like unrepentant assholes. If you look worse than the guy who actually stole from you, you're going to lose, plain and simple. In general, when interacting with a potential legal adversary, you should follow my patented Famous Three Step Rule For Dealing With Infringers: First time be nice. Second time, be nice. Third time, be nice. You can always be direct, but politeness really can make the difference in your outcome.

If you do all of these and the infringer still won't pay you back or cut you in, it's time to sue. Call a lawyer and get that ball rolling ASAP (you have three years from the discovery of the infringement to bring a lawsuit). And if you have anymore questions, don't hesitate to Ask Greg.

Licensing Getty: A Cautionary Tale For Artists Using Stock Photos In Their Portfolios

[Yesterday I got an email from a reader telling me a pretty scary story.  She's permitted me to share it, but for the sake of confidentiality I'll change her name to "Jean".]  

Five years ago, Jean was hired to design an ad for a local business.  As part of the design process, she incorporated a stock photo from Getty Images, an online stock photo library.  Jean's client liked the work and paid Getty a licensing fee to use that photo in the ad.  The terms of the licensing agreement stated that the image could be used in print ads only.  Jean put the ad on her personal portfolio website.

Last July, Getty's netbots discovered the ad w/image on Jean's website.  Because the terms of the licensing did not include website use, Getty sent her a letter accusing her of breaching the license agreement and demanding $8,000 in usage fees.  The netbots also found two images that she had used in mock-ups for other clients, but those mock-ups were never approved by the clients and the images never licensed.

Faced with a pretty scary situation, Jean did what a lot of people would do: she took down the images.  This seems to have placated Getty because no more demand letters were sent.  But did she really have to take them down?

Well, there are two issues determining whether Jean should fear Getty's wrath.  1) Did Jean's use of the image constitute copyright infringement?  2) Did Jean's use of the image constitute a breach of contract?

Regarding Copyright Infringement

Most IP lawyers agree that displaying your work in a portfolio, even when the copyright is owned by someone else, is permitted under fair use.  That's because portfolios are non-commercial in nature, and don't generally compete with the copyright owner's financial interest.  Jean's case is slightly different because the artist and the client aren't the only parties involved.  There's a third-party copyright owner (Getty) who is laying claim to the image.

But even with that wrinkle, Jean is okay leaving the ad featuring the licensed image on her site.  It doesn't conflict with Getty's market and she's not profiting from its display.  She's using it as an example of her prior design work.  No copyright infringement here.

Regarding the unlicensed images, I think removing them was the right decision.  On the face of it, fair use applies to these images just as they would to the licensed image.  But fair use is a squishy doctrine and in the absence of a license agreement, a judge could look at Jean's website and reasonably believe that she's not an innocent infringer (using images without permission from a website whose sole business is to license those images could indicate intent to pirate).

Regarding Breach of Contract

According to Jean, Getty placed very specific conditions on the use of the licensed image - print ads only, no web.  Any violation of those terms constitutes a breach of contract, which is why Getty sent her an $8,000 bill.

Getty is fiercely protective of its copyrights.  Their licensing agreements regulate every possible use of their images: the size of the image, number of times the image can be used, what mediums the image can be used in, and even placement of the image in the final artwork.  When I was a producer, I would license stock photos from Getty all the time and they negotiate like Iranian hardliners.  One time, I was trying to get their permission to use a single stock photo for a fifteen-year term in a documentary.  No matter how hard I pleaded, I couldn't get them to budge from a ten-year commitment.

That said, standard agreements like these don't usually make third-parties liable for breaches of contract.  Meaning that since the agreement was between Getty and the client, the terms of the contract likely didn't apply to Jean.  Therefore, Jean is not liable for breach of contract.

So What Can Jean (And You) Do?

Realistically, Jean had no legal liability for displaying her work on her website.  But to prove this, sadly, Jean would have to risk being sued by Getty.  And as I've discussed before, going to court and winning, especially on a fair use case, is still a loss because of the time, money, and effort she would have to invest in defending herself.  So the trick is to minimize liability before Getty can even send you a letter.

So, for all you designers who use stock photos in your work to stay (legally) safe, here are a few things you should always do:

1. All photos should be properly licensed by you or your client
2. Web use and/or portfolio use should be explicitly permitted in the license agreement
3. Even if the licensing is done by the client, read and understand the terms of the licensing agreement to understand your liability to the other parties (i.e. if the client pays the license fee, are you as the artist liable to Getty as well for a breach of the contract?)

Remember, as an artist, your portfolio is the face of your business.  The less work you can show, the less successful your business is.  But because Getty's first instinct is to throw lawyers at you, each of you has to determine for yourself whether fighting back is a viable option.  Following these three tips will help minimize that possibility.

[Author's Note: I'd be interested to hear from other lawyers out there if you've had different experiences working with Getty.  Ditto for artists.  Hit me back in the comments section below.]

Fairly Useful, Part Deux: Why It's Always Better To Ask Permission Than Beg Forgiveness

[It's the summer!  Which means all the movies in theaters are sequels, so why should this blog be any different?  Last week I wrote a follow-up to my Death of the Unpaid Internship article and it was a colossal hit.  Can lightning strike twice?  I shall endeavor to find out.]

Several months ago I wrote a post called Fairly Useful: Why Fair Use Is A Simple, But Dangerous Legal Doctrine.  The purpose of that post was to provide a bird's eye view of Fair Use, a concept that many artists know about but don't generally understand.  In that article, I said that Fair Use is "extraordinarily dangerous" when misunderstood and that if you're going to use someone else's copyrighted work, you're better off asking for permission.  Whereas that article was all about discussing the elements that make up a fair use claim, this article will elaborate on why asking permission is better than begging forgiveness.  And, as I often do, I will illustrate why with a story from my early producing career.

*****

I was on the second week of a location shoot somewhere near Bowdoin, Maine and I was looking for an eye-catching outdoor backdrop in front of which to film a conversation between our on-air personalities.  We drove around for what felt like hours looking for a suitable location and discovered that if there's anything  Maine lacks in multitudes, it's eye-popping outdoor backdrops.  Fortunately, we found our way to a quasi-civilized area and parked in front of a deli with a colorful and swirly logo.  Since we weren't going to film inside the deli, I decided not to ask for permission to film the logo.  Here's why:

1. We weren't bothering the deli owner or his customers.
2. We weren't on the deli owner's property.
3. The logo, while conspicuous, was in the background.
4. We would be there for a total of five minutes and the scene, when edited, would last ten seconds.
5. The show's format required a lot of driving, which meant that much of the filming took place inside a car... I was desperate to break up that monotony.

These were all bad reasons.  It didn't matter that we weren't in anyone's way, that we weren't on private property, or even that we'd be gone before the traffic light changed from yellow to red.  On the off-chance the owner saw his logo on TV, we would be, in the words of our in-house counsel, "royally buttf***ed."  He could sue us for copyright infringement, and while the issue was in dispute, we wouldn't be able to use the scene.  Either the show would be pulled from all future time slots - causing a significant problem for the network since ads are sold weeks and months in advance - or we would have to reshoot the scene and cut it into the show, which is the kind of expense that can only be made after firing an unwitting associate producer and using his salary to cover the cost of the reshoot.

Which isn't to say we would lose a lawsuit if the owner decided to sue.  This was a straightforward a case of fair use because it met all the requirements under the law.

1. The use was transformative because it didn't comment on the logo or the deli.  It was simply a tacit acknowledgment that the deli existed.
2. The use was non-commercial (even though the show was made for commercial reasons, that profit didn't arise due to use of the logo).
3. The use was minimal since it was in the background of a scene lasting no more than ten seconds.
4. The use did not negatively affect the market for the deli - if anything, I figured it was a bit of free advertising.

But that didn't matter.  As our lawyer explained to me when I returned from the shoot, getting sued and then winning (by successfully defending on a fair use defense) was still a loss because the amount of time and money required to defend ourselves would never be recouped.  If I had asked for permission, the best case scenario was that we would be allowed to film the logo.  The worst case scenario: the owner would either charge us a licensing fee, or say no outright and we would have to film somewhere else.  Either way would have been easier and cheaper than plodding through arbitration hearings or waiting to see if a judge would buy our fair use argument.

Lucky for me, history didn't pan out that way.  The owner was alerted to the sight of several video cameras milling around near his property and came to investigate the hubbub.  Even though I was a lowly associate producer, I was the only one in charge at that moment, so I took full responsibility (which mostly looked like groveling and blaming the cameraman).  Ultimately, the owner approved of what we were doing and signed a release for the logo.

*****

For artists, it's tempting to throw the dice and assume that you won't be sued.  Suing for copyright infringement is damn hard, and requires registration with the Copyright Office.  And many of those that threaten to sue are either bluffing or have dramatically underestimated the cost of following that threat all the way through.  But as a lawyer, I can tell you that despite all that stuff being true, taking the risk is still not worth it.  For every empty threat that gets made, I can point you towards a legitimate copyright lawsuit.   And when the time comes for you to actually beg forgiveness, it never works - especially with corporations.

You should always always always ask for permission because even if the copyright owner says no, that loss is nothing compared to what you'll lose if you wind up defending yourself in court.  Because even if you successfully make a fair use argument, it's still a loss.  As an artrepreneur, your money is time - and that should be spent making and selling your work, not defending yourself in federal court.

So the next time you find yourself wanting to use someone else's copyright work in your own art, ask them for permission.  The worst thing they will say is "no."  Compared to a years-long legal battle, that's not such a bad thing.

When Foreign-Born Artists Make the U.S. Their Home, a.k.a. Common Immigration Misconceptions

Here's something a little different.  A few months ago, I was asked by the Rhode Island School of Design Alumni Office to contribute a short legal column for the upcoming Spring/Summer issue of RISD XYZ, the school's alumni magazine.  This particular issue focuses on how art and design can function as a way to communicate across cultural and ethnic barriers.

I balked at the idea at first.  I don't know squat about international law so I wasn't sure that I could contribute anything worthwhile (learning American law is difficult enough).  But after a little back and forth with the editor of the magazine, it was suggested that I draft a column discussing some common immigration issues that are routinely faced by members of RISD's sizable international student body.  It's not unusual for students to come to RISD with the goal of making the U.S. their permanent home, so even though immigration law is not my area of specialty, I decided to write the column to give them a little boost when navigating this elaborate area of American policy.  Coming from a family of immigrants, I do actually know a little something about the trials and tribulations that accompany the path toward citizenship (but don't worry, I do have some actual immigration law training).

Then I decided that this isn't an issue faced only by RISD students; every year thousands of foreign-born students come to American universities with the hope that America will become their permanent residence.  So why not put it on my blog?  For that reason, I've reprinted below the un-edited version of what will appear in the magazine.  As always, this is a cursory overview of an immensely convoluted topic.  If you're seeking citizenship in the United States, seek out an attorney who specializes in immigration law.  This is one area where you can't afford to skimp.

*****

Making The U.S. Your (Legal) Home [the title may change when the magazine goes to press]

By Greg Kanaan '02 FAV

RISD is well known as the top art school in the world, so it’s no surprise that students are drawn here from every nook and cranny of the globe.  Twenty-five percent of the student body is made up of international students representing fifty-four separate countries.  Upon graduation, many of those students will choose to stay in the United States to make their living… a difficult prospect to say the least.  As the son of an immigrant, I can tell you first hand how arduous the immigration process is (my cousin is currently going through the years-long process right now).  It doesn’t help matters that the Immigration and Nationality Act, the law governing U.S. immigration policy, is one of the most incomprehensible and byzantine laws ever written.

 That’s why I’ve singled out the three most common mistakes I’ve seen RISD alums make when trying to obtain legal residence in the U.S.  Avoid these and your path towards citizenship will become just a tad easier.

 1. Thinking student visas count towards a green card.

Nope, they don’t.  Everyone knows that it takes years to get a green card - anywhere from five to twenty-three depending on your particular circumstances and nationality (those coming from Mexico have a longer wait than most other nationalities, as you might imagine).  I once met a man who gained citizenship after twenty-nine years of residency, some of which were spent here as an undocumented worker.  Unfortunately, the student visa you got allowing you to attend RISD doesn’t count because it’s considered an M1 temporary “non-immigrant visa,” which is issued under the assumption that you’ll return to your country of origin when it expires - i.e. when you graduate.  The citizenship clock doesn’t start running until after you leave school, which means that the four years you spent in the U.S. don't count towards citizenship.

 2. Assuming that freelancing counts toward an employment-based visa.

Unless you have a parent, sibling, or spouse who is a citizen or Legal Permanent Resident and is willing to sponsor you for a family-based visa, your best hope for citizenship is through full-time employment.  Freelance work, no matter how frequent, will not get you a visa.  You need an actual legal employer, and the employer has to jump through some pretty significant hoops to get you.  They must A) advertise the job to American citizens, and B) prove that you’re qualified for the job, and that no American citizen was as willing, able, or qualified as you are for the job.  Basically, you have to be the best candidate they’re ever likely to see, and that's a tough burden to overcome.

 3. Leaving out important information in the application process.

We all make mistakes. But don’t lie about those mistakes during the application process... especially if those lies can be rebutted by the public record.  The ICE officers (Immigration and Customs Enforcement) who are tasked with looking into your case are tenacious and thorough; if you lied or withheld information, they will find out eventually.  This means that if you have a DUI or anything else you think might compromise your chance at citizenship (such as prior immigration violations), admit to them right away.  You probably won’t get squashed for driving under the influence, but you’ll DEFINITELY be denied citizenship if you’re caught lying about it.

These pointers are just the tip of the iceberg.  As I mentioned above, the Immigration and Nationality Act is extremely dense and very difficult to wade through, even for those trained in its intricacies.  So if you really are planning on emigrating, please do yourself a favor and seek out a licensed immigration attorney to help you get through it.  One wrong step could mean years lost in a process that isn't designed to be helpful to you.

How American Copyright Law Made Kim Jong-un Look Like A Fool: A Beginner's Guide to the DMCA

So for the second time in 63 years, we're being pushed to the brink of war with North Korea.  Kim Jong-un, the young bellicose ruler, has been making provocative statements for past few weeks and has aimed his ballistic missiles at U.S. bases in South Korea and Guam.  To make matters worse, because of his youth and untried-ness on the world stage, he's been harder to read than his father and grandfather, making him much less predictable that either of his forebears.  I don't wish to downplay the peril of the situation and I think the Obama administration should be taking all appropriate steps to ensure the safety of the American people, as well as America's allies in Japan and South Korea.  That said, I find it hard to take their threats seriously when they can be made to look so foolish because of American copyright law.

Let me explain. Back in February, the North Korean military released a propaganda video on YouTube that quickly went viral.  The video, scored by a bizarre instrumental version of Michael Jackson's "We Are The World," showed footage of Korean missiles reducing New York City to a flaming husk of rubble.  Unfortunately for Mr. Kim, that footage was taken directly from Activision's hit video game, Call of Duty: Modern Warfare 3.  And since the North Korean military failed to get permission to use that footage, Activision issued a DMCA takedown notice to YouTube.  YouTube complied with the takedown notices and removed the video from their site.  Now when you Google that video, you'll see the image I've posted above.

So how did Activision rout the mighty DPRK?  Well, as I've discussed again and again on this blog, you can't just use someone's copyright without their permission, even if you're a rogue nuclear state who won't submit to U.N. treaties.  That's infringement.  And when you post someone else's copyright online, the DMCA (short for Digital Millennium Copyright Act), gives you the ability to bypass the infringing party and go straight to their Internet Service Provider (ISP).  One of the most common provisions of the DMCA - and the one that's applicable to most artists - is the takedown provision. It's basically a cease and desist letter to the infringer's ISP which states, in effect, that the infringer has used your copyright without permission and the ISP must remove the copyrighted material immediately.  This is something any artist can do... you just include the following in your letter:

1. Your signature
2. Identification of your work that was infringed
3. Identification of the material that infringed your work and that you wish to have taken down, and enough information to allow the ISP to locate the material
4. Your contact information
5. A statement that you have a “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”
6. A statement that “the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

There's no other work required, no fee, no central clearinghouse.  Most ISPs, like YouTube, would rather just take down the offending work than fight you in potential litigation.  That's one of the benefits of the DMCA takedown provision - it's quick and painless and it almost always works. Another benefit of this provision is that you can fight back against infringers without paying a dime in lawyer's fees or litigation costs.

But there are downsides too.  For example: it requires perpetual vigilance.  In this case, Activision went right after YouTube, which took down the video immediately.  Yet the video is still present on the web and can only be taken down if Activision sends whoever is hosting the video a takedown notice.    To wit: Liveleak was able to catch the video before it went down; you can watch it here if you want.  It's truly ludicrous and hilarious.  This is one reason why the DMCA (signed into law in 1998) is simultaneously despised and beloved.  When it works, it really works.  But when it fails, it's a giant clusterfuck.  As with most of this country's intellectual property laws, I'm of two minds on the DMCA.  I'm a big fan when it helps the small and struggling artist, but I'm less forgiving when the law can be used by giant corporations to abuse copyright and bully individual artists.  And Lordy Lordy Lordy does the DMCA get abused by corporate copyright holders.

Last week, Gizmodo published this piece discussing how large corporations use the DMCA to strong-arm researchers into censoring their work in order to prevent embarrassing revelations related to their copyrights.  And who could forget NBC sending Brian Kamerer a DMCA takedown notice for HIS OWN COPYRIGHTED VIDEO after it was featured on The Tonight Show without his permission?  And my personal favorite, the RIAA (Recording Industry Association of America), complaining that Google (YouTube's parent company) wasn't taking the problem seriously, even after Google removed 1.2 millions of copyrighted links in one month after receiving the RIAA's DMCA takedown notices.

One of the problems, of course, is that because issuing a takedown notice is free of charge, the only hinderance is the cost of paper and printer ink.  Corporations can fire off reams of takedown notices without batting an eye.  And while it's certainly possible to fight the takedown notice and have your work reinstated online, well that requires fighting it out through litigation, another cost that a corporation can absorb much more easily than an individual artist.

I don't have an answer on how to fix this, but I do know that there needs to be a way to disincentivize the corporations from issuing takedown notices en masse under the DMCA.  One possible way is to include the infringer in the process instead of going directly to the ISP.  Maybe create a department within the Copyright Office that would handle the takedown notices or attach a fee to it.  I'm just spit-balling here.  I'm perfectly willing to concede that these could be bad ideas, but I do think we need to start somewhere.

Nevertheless, I don't think the DMCA should be killed wholesale, precisely because of the boon it provides to the individual artist who wants nothing more than to protect his or her work.  And if North Korea wants to reissue their propaganda video without using someone else's copyrighted video, I will stand up for their right to do that.  Although somehow I think they have bigger fish to fry at the moment.

Saying "No": A Lesson In Controlling Your Business

A coworker heard about my background in TV production and asked for my help in shooting a documentary about a social justice issue she was passionate about.  Since we both work full-time, she wanted to film on nights and weekends.  I declined politely, saying [truthfully] "I don't do that kind of work anymore."  I'd long since sold off all my production equipment and I've turned down every producing job I've been offered since 2009.  Undeterred, she continued to sell me on the project and when she was done, she said what they always say: "I can't afford to pay you, but you'll get lots of great experience."  This was my response:

"I don't need experience.  I need money."

I get asked to help out on video projects a lot... at least once a month and sometimes weekly.  I say no to all of them.  That's because most of the time, people don't realize what kind of time and effort these projects require, and therefore, what kind of commitment they're asking of me.  The few who ARE aware will offer me "experience" in the hopes that it will be enough to sway me.  It never is. I don't produce anymore, but if you're going to convince me to lend my considerable production expertise to your video project, I want - nay, DEMAND - to be paid for it.  I'm not shy about it and I feel no shame or embarrassment by telling someone that without $$$ they'll have to look for someone more altruistic.

I've written about doing unpaid work in the past so I won't go into the pros and cons again here.  Instead, I'm going to talk about the power of learning to say "No" to situations that don't propel your art and business forward. It's such an important thing for young artists to know, yet so hard to put into practice.

I don't turn down requests to work on unpaid video projects out of greed or selfishness.  I do it because I learned from personal experience that it did actual harm to my business. When I was first breaking into the entertainment industry I took tons of unpaid work because I was too afraid to turn down any job, regardless of compensation, for fear of doing irreparable harm to my reputation.  "Don't hire Greg.  He's not a team player... he [gasp] wants to be paid."   At one point, I had three simultaneous unpaid internships, and various unpaid production assistant gigs.  I had more jobs than I knew what to do with, but my parents had to pay my rent because my income was $0.  I wasn't in control of my sh*t.

In hindsight, I realize that I took all that unpaid work because I didn't understand the value I brought to the job.  I didn't believe that I could say "No" and get away with it.  One day, I made a conscious decision to take control.  I would refuse all unpaid job offers and only accept paying gigs.  That was a good decision - a difficult decision because it resulted in a nine month work drought, but I'm glad I made it.  Eventually, the paying work came and it paid a living wage.

I understand how tough it can be to turn down a seemingly perfectly good job, especially for young up and coming artrepreneurs.  Figuring out what situations are good for your business or bad for your business is a calculus that's different for everyone.  And it can only be done through personal research and soul-searching.  It took me years to discover that working for free was harming my business instead of helping.  So instead of just yelling at you to say "No" to bad situations, I'll give you two real life examples (three if you count mine above) that will hopefully inspire you to be vigilant about what kinds of work situations are right for you.

1. An illustrator friend of mine was recently working for a client.  The client became difficult to work with and made numerous demanding requests.  My friend decided to inform the client that she would no longer be able to work under these conditions.  She further told the client that if they no longer appreciated her work, they were perfectly in their rights to find another illustrator.  After several conversations, the client decided to discontinue the relationship.  When I asked my friend if she was angry, she said, "No.  That relationship wasn't working for me and it wasn't working for them.  Neither of us were happy.  I had to walk away."
2. A painter friend of mine was selling his paintings.  All the paintings were at a fixed price and he refused to negotiate over them.  When I asked him why he didn't negotiate, he said, "I don't like negotiating so there's no point wasting my time doing it.  The paintings cost what they're worth."

Both of these people are professional artists who make a living by making art.  They each figured out what situations worked for them and what didn't.  They each learned how to say "No." And once they learned to say "No," they didn't run from it or act embarrassed by it.  They embraced it.  And once you learn how to make that choice, your business will be able to take off.

[Updated!] Paper Equals Proof, Why You Should Get Everything In Writing

"A verbal contract isn't worth the paper it's written on." - Samuel Goldwyn

Even though this quote is both misattributed and didn't actually happen, I love it because it speaks a simple truth about contracts. Namely, if you don't have one in writing, you don't have one.

When I first moved to LA after graduating from RISD, I picked up some freelance work from an indie producer who was trying to get some low-budget TV projects off the ground.  He liked my moxie and we got along well, so he hired me as a camera-operator for a demo he was producing.  He offered me $100 per day for three days work in a transaction that was conducted orally.  I wanted the offer in writing, but I was so desperate for work that I didn't want to negotiate myself out of the job by asking for it.

Yes, I was stupid for not getting it in writing and when he stiffed me on half the payment, we both knew that even though a verbal contract is legally enforceable, I couldn't prove that he owed me another $150. There are thousands of young artists - and a whole lot of experienced ones - in the same boat who don't put anything in writing because they don't know that they should, can't be bothered, or think that drafting a contract is too expensive and/or time-consuming.  Now I certainly can't do anything about laziness or apathy, but I can tell you why contracts are important and how you can draft your own.

As a lawyer, I like everything in writing because paper equals proof; that is to say, having something in writing is proof that a conversation took place, or that an agreement occurred.  That's all a contract is after all: evidence that an agreement took place so that if you end up in a legal battle, you can prove your side of the story.  Otherwise you end up in a "he said/he said" situation and courts generally don't look favorably on those. So for the love of God, if you're hired to make a work of art, or you sell a piece of art, memorialize it somewhere somehow.  "But Greg" you might say, "don't contracts have to be drafted by lawyers?"  Well my friends, here's the dirty little secret behind contracts - NOPE!

At the risk of negotiating myself out of potential clients (I do that a lot, don't I?), a contract is no more enforceable in court just because it was written by a lawyer.  Obviously there are certain benefits to having a contract drafted by someone with a legal education - namely a lawyer can think of all sorts of ways to protect you in writing than you couldn't dream of - but if you're like most artists out there, then you don't have a lot of discretionary cash lying around to make this happen.  So instead, I'm going to give you some tips to help you make your own while maximizing your self-protection.

1. For a contract/agreement/bill of sale to be valid, it must state all the material terms.  Specifically, you need to mention the parties involved in the transaction, the quantity of items sold or the type of service rendered, and price.  You should also put anything else you think is important.  If you don't wish to have a return policy, make sure to state that all sales are final.
2. If you're shipping a work to a buyer, write down which party is liable if the art is destroyed or damaged during shipment.  This is called Risk of Loss and can bite you in the ass if it's not discussed ahead of time.
3. Make sure to mention who owns the copyright upon completion of the work.  If it's a work-for-hire situation, you could end up losing it without even realizing it.
4. Use plain English.  Most people think a contract needs a lot of "heretofore's" and "wherein's" and "thusly's"  but they just make it harder to read.  Instead, draft a contract like you would draft a professional email to a colleague.
5. Email chains are acceptable in lieu of a paper agreement as long as the material terms are there and understood by all parties.
6. For bills of sale, they can be sent after the sale, although they still need the material terms.
7. You can use a template version so you don't have to draft a new one from scratch for each transaction.
8. Keep two copies of each final agreement, one physical paper copy and one scanned copy on your hard drive.
9. A contract isn't valid if both parties don't agree to all the terms.  Before you start working, make sure the other party is on board because you could end up doing a lot of work without getting paid.
10. Finished contracts should be signed and dated by both parties and each party should have a copy of the signed and dated final.
11. Stand your ground on the terms you can't live without and be flexible on everything else.  If our Congress has taught us anything, it's that drawing a hard line in the sand on every issue results in no one getting anything they want.  Be flexible and willing to negotiate.
12. Finally, don't be afraid to ask for a written version of your verbal agreement.  Too many people don't do this because they think it's disrespectful or indicates mistrust.  This is not true.  If anything, you'll look more professional for it.

The truth about contracts is that if you know what you want and are willing to put a little time and effort into getting it down on paper, they're not nearly as intimidating as they seem at first.  That said, if you truly don't know what you're doing (I leave it to you to know when that is), or you're just not comfortable drafting an agreement, please please please hire a lawyer to do it for you.

If you're trying to make a living as an artist, then you don't need things to be more difficult... the deck is already stacked heavily against you.  Having a written agreement for each of your sales/hires/commissions/whatevers may create a bit more work up front for you, but I promise you that the one time you need it and you have it, it will save your ass.  And then it will be worth it.

Sweat the Business Stuff Redux: Patience and The Art of Turning Your Art Into Your Business

While visiting my family in Connecticut over the holidays, my mom came to me on behalf of a friend who had a legal question.  This friend "Sally" is a middle school teacher and had developed a unique idea for an educational curriculum for science teachers.  She wanted to market and sell the curriculum, but had some concerns over whether she could use the title she came up with.

Since I was in the Christmas spirit and Sally was operating on a budget of less than zero, I told my mom that Sally could very easily (and for free!) run a trademark check at the U.S. Patent and Trademark Office website (titles are protected under trademark law, but only if registered through the USPTO).  If the title was available, the website explained how she could register it and what it would cost.  I also suggested to my mom that Sally find a way to hire a lawyer despite budget constraints because A) I'm not licensed to practice law in Connecticut and therefore couldn't provide anymore worthwhile advice, and B) there might be some trademark dilution issues if the title was too similar to something else already out there.

A few days passed and my mom told me that Sally had gone to the USPTO website but ended up without any answers.  To Sally, the website was difficult to navigate and understand; she wound up more confused than ever.  When my mom asked me what Sally should do, this was my answer:

"Sally should hire a lawyer.  If she can't afford one, she'll have to become her own.  That will mean spending a lot of time being confused at first.  But eventually she'll understand and be a better business owner because of it."

In the past, I've spoken about sweating the business stuff, but I haven't really detailed what that means for all you budding artrepreneurs out there.  So by way of closing out the year at The [Legal] Artist, here are the top three things you and Sally need to do to turn your art into your business:

(1) Have patience.  Seriously, this may be the most important thing I ever tell you.  Artists, by nature, are doers who thrive on activity and creation.  That's a wonderful thing in my opinion, but successful businesses require someone behind the wheel to be thinking and planning, playing the long game (for your Boardwalk Empire fans out there, think of it this way: every Lucky Luciano needs a Meyer Lanksy).  And playing the long game requires patience.  In Sally's case, if she can't hire a lawyer to walk her through this process, she's going to have to do it herself.  Which means looking at a lot of documents she won't understand.  Sally will end up frustrated and agitated and the business will take off a lot slower than she wants.  But that's okay!  If she has patience and keeps at it (with a little help from Google) these complicated things will eventually seem less complicated.  When I started law school, I had to read each case 3-4 times before I understood what I was reading.  With some practice, I learned how to do it in a fraction of the time.   If Sally spends an hour or so clicking around the USPTO website, eventually it will start to make sense and she won't need to pay a lawyer $400 an hour to do something she can do by herself for free... if only she has some patience with the process. 

(2) Decide what kind of form your business will take.  There's no doubt about it - people take you more seriously if you're a business.  Years ago when I was a young television producer, I went out to pitch a number of TV show and script ideas.   One network executive looked me right in the eye and said "we like you, but we will not do business with you until you incorporate."  A week later, Hammerspace Productions LLC was born. 

If you want to turn your art into a business, then you're going to have to actually turn it into a business; that means deciding what type of business you want to create.  For artrpreneurs, the most obvious choices for business type are sole proprietorships (if you're the only employee) and LLCs, mainly due to the low start-up costs and paperwork.  There's a good article here explaining the difference, but the gist is that with an LLC, you pay income tax for both yourself and the business, but the business shields you from personal liability (if you're sued, they can only come after business assets, not your personal assets).  With a sole proprietorship, you only pay taxes on the profit you make, but you are open to personal liability (meaning someone can sue you for the acts of your business, putting your personal assets at risk, such as your checking and savings accounts, and even your house).  In a sole proprietorship, you generally do not file any documentation with the state, whereas an LLC requires certain documentation to get going (such as a federal EIN, state and federal tax documents, etc).  Check with your state's Secretary of State to find out wha documents they require.

(3) Draft a business plan.  This is a tough thing to ask of artists because it requires them to think about things like taxes and finances and long-term planning.  Hell, even after seven years producing and three years of law school (and dozens of jobs and internships in between) I'm still struggling with it.  But a business plan is extremely necessary for two reasons:  First, it shows outsiders that you're serious and have given your business some thought.  Second, it lays out a path for you and helps you understand steps you need to take to get your business off the ground.  A business plan need not be written in stone.  It should be a living document that grows with the business.  Put in as much or as little detail as you want.  Regardless of whatever form the plan takes, it should impart one clear message: you have thought about this business and know what is required to make it a successful one.

As you build your business, there will be a lot of little things to consider.  How will you accept payment?  How will you market your wares?  Will you pay taxes yearly or quarterly?  All of these things are important on some level, but getting these big decisions made will take some time, so don't rush it.  Have a little patience.  I promise that you (and Sally) will be glad you did.

Have a Happy New Year everyone!

Filmmaker-2-Filmmaker: Tip 4 - You Need To Insure Your Gear

A few weeks ago, I was on the phone with my cousin, a freelance photographer living in Los Angeles.  He had been shooting some fashion shots at a client's warehouse and paused to look over some of the slides with the client.  He set his camera on the ground and one of the client's employees accidentally kicked it while walking by.  Luckily, the camera body (worth about $5K retail) remained intact, but the lens was shot to hell. It would cost him $600 to replace and he wasn't sure if he should ask the client to cover that cost.  On the one hand, the client was responsible and my cousin didn't have 600 spare dollars lying around.  On the other hand, my cousin is a freelancer and didn't want to risk losing the client by asking him to pay for the lens.  To add another wrinkle, he needed to get the lens replaced ASAP because he only had the one camera and couldn't book more jobs without it.

We discussed the pros and cons of approaching the client, but in my mind, time and ability to book more jobs was more important, so I told my cuz "file a claim with your insurance company right away."  His response: "I don't have insurance."  D'oh!

With the exception of acting or interpretive dance, every artist needs some form of equipment to do the job.   All art is reliant on it, especially film and photography.  Which is why you absolutely, positively, unequivocally without hesitation need to insure your gear.

Because here's the thing: your gear is the single biggest investment you will ever make in your work.  And if it gets damaged, your ability to do your job decreases exponentially.  You do have some legal options, but the law is not particularly user friendly, what with all the time and money involved in suing someone... money that you probably don't have lying around waiting to be burned.  And anyway, why sue when insurance is so much cheaper and easier?   Besides, it's not like you have an unassailable right to have the client pay for your damaged gear (unless the client agrees to it in writing which I've never seen in my seven years of producing television). In my experience, insuring your gear is the best way to cover your ass... especially in those early lean years when you really can't afford to piss off a client by demanding he pay for gear he broke.

Truth: early in my freelance career, I had upwards of $15K worth of camera and editing gear insured through a "personal articles policy" with State Farm.  Do you know how much I paid on a monthly basis to have that peace of mind? $10 a month.  And the policy covered theft, loss, and damage (even if I was the responsible party).  Having that coverage was a no-brainer.  And because of it, I never had to jeopardize a relationship with a client over equipment that was damaged, and I never had to cancel a gig because I couldn't afford to replace broken gear.

But let's say you have no insurance and your client smashes your camera to bits.  Let's also assume that your relationship with the client is beyond saving and you're willing to litigate.  From my seat, there are two legal options.  If you can't prove that your client maliciously destroyed your property but he/she is clearly to blame for its demise, you could sue for damages under a simple run-of-the-mill negligence claim.  Even if the damage was done by the client's employee as opposed to the client him/herself, the client will still be liable for it (in tort law, respondeat superior makes the actions of an employee attributable to the employer).

On the other hand, if you have some proof that the client (or the client's employee) willfully and maliciously destroyed your equipment?  You could sue under the intentional tort of trespass to chattels, otherwise known as vandalism.

The problem with litigation, of course, is the cost.  Not just in litigation fees, but in time.  An average lawsuit can take years to litigate and cost tens of thousands of dollars.  It's a serious investment that can get even more serious if you lose.  That's not even mentioning the emotional and creative suckage it causes.  And if you're a small-business owner or struggling artist, do you really want a lawsuit taking up space in your brain when it could be filled with creative stuff instead?  I spoke before about sweating the business stuff, and I think insurance is no.1 or no.2 on the list of smart, cheap things that will help your business in the short and long run.