Hard Truths and Sage Business Advice From a Photography Rep-Turned-Lawyer

Hard Truths and Sage Business Advice From a Photography Rep-Turned-Lawyer

Business

I used to be a marketing consultant and rep to commercial photographers, before I went to law school. When I work with photographers now, I see a lot of the same issues arising, both legal-and marketing-related. So, in a holiday gift to help, here’s a list of 15 things I think you should/should not do to be more successful in 2023:

  1. If anyone talks about ROI or value propositions or anything else that smacks of weasel-in-a-suit when it comes to your marketing, run away. Sure, you want to get the best bang for your buck, but the most effective marketing for a creative business is simply not quantifiable in that way. Lest you forget, you are not selling widgets or some service that anyone can do, but rather a very specialized service that has virtually no competitors. Much of that MBA mumbo-jumbo doesn’t apply to highly specialized service providers, and all artists are (or should be) exactly that. Despite our hyper-image-based social media world, your marketing today needs to be honest, real, and a reflection of who you really are. I sure as hell hope you are not a “suit.” Stay away from buzzwords–don’t use them and be skeptical of those who do.
  2. Forget about old selling tools like “elevator speeches.” Look, when you shill, no one cares who you are or what you do—they just want you to shut up. It’s totally off-putting to get the spiel–be that at a party or (yikes) in an actual elevator. Car salesman-esque. Fake. Ew. Instead, if someone asks what you do, answer the question. My non-elevator speech is I’m a lawyer for creative professionals. That’s it. When meeting someone new, especially a target, after answering the “What do you do” question, follow up with a question (or more than one) about the other person: Do you work on the Widget campaign? Who’s your dream to work with? etc. Just like in dating, you are a hell of a lot more interesting to a potential target when you are more interested in them than in yourself.
  3. SEO is a waste of your time and money. People who sell SEO services are the used-car salesmen of the 21st century. The reality is that Google has like >98% of search traffic and it manipulates its results something wicked; same for Insta and every other algorithm-based platform. Chasing that SEO goal is wasted effort. Chasing any market is. Be yourself and find the right targets for your work (see numbers 1, 4, and 5).
  4. Put on your big boy/girl panties and, for the love of Buddha, stop whining that you can’t do X or Y. I’m so tired of hearing “Yeah, great idea, but I can’t do that,” like you’re somehow different. That attitude is crap: yes, you can do it, whatever “it” is. It might be hard and it may be risky, but you can do it. I don’t care what it is, almost always you can find a way. Look at me: I started law school when I was over 40 and had my marriage shockingly blow up before my first set of exams; I started my own business first in 1999, then again more than 20 years later, as a lawyer. Life ain’t always easy, but it’s worth it. Business is often hard and there are no guarantees. You want a guarantee, buy a blender. You want to be a creative pro? Accept that it is tantamount to doing the flying trapeze, blindfolded and without a net. Let go and, most of all, have fun with it. You chose to be an artist–stop whining about the risks. Be a friggin’ ARTIST, unapologetically.
  5. The answer to the question But what if someone doesn’t like my work? is always Screw ‘em!  In short, they aren’t your target audience so don’t give them any attention. Being an artist is not a popularity contest where the person with the most followers wins.
  6. Speaking of, the trick to having a successful creative business is finding the right people to market to. This isn’t hard: when you see work you love and that you wish you could have been a part of, research who made that work and add them to your marketing lists. Like attracts like. Don’t be afraid to reach out to those people–it’s not like they’re going to have you killed if they’re not interested in working with you; they’ll just say “no.” More importantly, they might say “yes.”
  7. Make art for yourself, as often as you can. Instead of creating for any other reason (like to specifically make something for your portfolio), create for the love of creating and for making the work that excites you. Don’t worry if it’s good or right or what you should be doing, just make some damn art for you (see number 5, above). That is your job and you have to do it for your business just as much as you have to pay your web hosting bill. Often, you will “accidentally” make great stuff that will appeal to the very targets you want to work with.
  8. Get out of your office/out from behind your computer and interact with people. Social media is a form of connection but it’s a weak and highly manipulated one. You want to get work, you need to meet people in real life. Yes, that means actual meetings, not just Zoom. It means traveling to the places where your targets are and meeting with them there or putting on events to get them to where you are. Go to portfolio shows. Getting out also means going to events connected to your targets, like AIGA presentations, Ad Club events, AIA talks, or even lectures by lawyers (look up your closest Lawyers for the Arts chapter). Take people to lunch (or bring it with you), throw studio parties, put yourself out there. And have fun with it! By the way, at the end of any portfolio meeting, do NOT ask for a job on the spot. You are not selling, you are marketing–it’s a long game.
  9. Register your friggin’ copyrights already. Please. I beg you. Stop making excuses and start doing this. There are services, but I don’t recommend using any of them because the resulting registrations might not be anything more than maybe adequate and they might possibly be deficient. A well-done registration can make a potential defendant in an infringement matter settle fast and for more money. A wonky one will be challenged by a wily defendant. Registration is not hard anyway, particularly for visual artists and even more so for still photographers. The cost is a legitimate business expense and so you can write it off and it is like insurance that you pay for once but off which you can make many claims (and for much more than the original cost). You will (almost assuredly) make more money in your business if you register your copyrights… and do number 10. 
  10. Pursue infringers. Not every case has to be worth 5-figures or more to get legal help. Many attorneys, like me, will take on small cases because they believe in fighting for the “little” artist. Also, small cases add up. If you have $2500 as an average settlement (that number is just for sake of argument), 10 of those cases over the year is $25K. Now, let’s say your attorney gets 36% of that: you’re still pocketing $16K. 20 cases makes $32K in your bank. Some photographers make 6-figures annually because they register their work and go after the infringers—some cases bring in $2500, some bring in much more. You can register work today and, for infringements that start after that registration, you can wield the statutory damages stick!
  11. I don’t care what any consultant or other artist tells you, separate out your Usage Licensing Fee from your Creative Fee and make sure the License Fee is where most of the “cost” lies. Especially if you don’t register your copyrights, but even if you do, you need to be able to prove the value of your license and you just can’t do that if you use a combined fee on your estimates and invoices. The other side will have a great argument that most of that number is the Creative/Shoot Fee and you get screwed a second time. Why do you think buyers say they want them combined? Because it benefits their bizes, not yours. If a buyer insists on a combined number, do this: on the cover/summary page of your estimate (and invoice!) you lump your numbers together into two main categories (Fees, Production Charges) so that there is a simple, one-page overview for the buyer to glance at. Inside, however, you break out every Fee and Production Charge, line item by line item, and make sure to line item the License Fee separately.
  12. Speaking of fees, increase all your rates, especially your license fees. Every creative pro who does this is terrified the first time. I have, however, never heard anyone regret it later. You may lose some clients, but really, you needed to kick those cheapskates to the curb already. Ever notice the inverse relationship between budget and pain-in-the-assishness? Why bend over backwards for the clients who nickel and dime? Just stop. Demand more money and you will get more money and you will respect yourself more.
  13. Watermark your art. For bonus points, make it a proper copyright notice. See here for the details but, the short answer is that if you do that you (a) have a stronger case for willful infringement (more money); (b) eliminate the “innocent infringement” defense; and (c) if it gets removed, then you may have a good case for a lawyer to help with even if you have not registered the copyright and can’t prove your damages, or you can get more money if your work is registered.
  14. Get your paperwork in order. Yeah, I know, contracts are not sexy but they are a very necessary evil in business. Get contracts drafted for you by your own lawyer so that your interests are in first position. If the other side insists on using theirs (sure, big companies can be bullies), get those reviewed by your own lawyer. Have releases and licenses crafted for your needs. Think you can’t afford that? Think more about how signing one bad contract can wipe you out. Besides, not all lawyers demand insane retainers to be there for you. 
  15. This last item is the most important: be yourself and be proud of yourself in everything you do. Honesty, ethical behavior, and real connections are what will make your business successful now. Have convictions and don’t apologize for them. Most of all, be passionate about your work. Being real beats being conventional, every time. A few years back I decided to be more real and open with my thoughts and opinions, to fire clients I couldn’t respect, and to refuse to work just for money–I’ve never regretted it.
    For the others who don’t like it, well, see number 5, above.
About Leslie Burns
After seeing how creatives got screwed so often in business, I decided I’d love to go to law school to protect them better. It took a while before I could make that happen, financially, but in 2008 I got offered a full scholarship and leapt at the chance. I loved law school. I passed the California bar on the first try and have been licensed and practicing in California since 2011. I call myself a “bad buddhist” and you’ll see references to that in my work and writings here. Basically, it means I try to use respect, compassion, and a desire to resolve problems amicably whenever possible. However, when needed, I’m as tenacious as a badger. Think Carol Kane in Scrooged–sweet, but more than capable of going all lawyer-ninja on opponents. A Midwesterner until my 30s, I now live in San Diego with my boyfriend (Tony), cat (Ruth Bader Catzburg), and Blue Heeler (Mongo Santamaria).
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