What was the inspiration behind becoming a fine artist and photographer? What do you enjoy most about the creative process?
I actually never planned to be a visual artist. So, the career I have now came as a total surprise. There was definitely a nascent appreciation for design, color and drawing from an early age. And my photography had been an avocation for decades before I was paid for it. But overall, I always thought that my main creative outlet would be writing. In fact, when I was younger I was diagnosed with a kind of spatial reasoning deficiency. So, composing images can be more challenging for me than for most and that’s something I’ve had to compensate for.
I guess the fortunate thing for me was that I had a solid liberal arts education. I was an English major, but my schooling was still broad enough that I was able to sample a range of other things. When I sometimes get asked to do lectures for photography students I always advocate for a generalist approach to education, as opposed to limiting oneself to a specialty as an undergraduate. Having a broad base of education not only allowed me the flexibility to respond to doors of opportunity as they opened, but to know how exactly to go about fitting through those doors.
Regarding the creative process, I don’t know if I’d really describe any of it as enjoyable. Not having worked a 9 to 5 job since I was 35 years old is certainly a nice thing. But I find creative pursuits challenging and difficult, often with a lot of self-doubt involved. Every aesthetic decision can be fraught, whether I am making these determinations myself for a fine art image or trying to satisfy an editor or a team of creative directors for commercial work. I’m definitely of the school of thought that no design is ever so perfect that it can’t be improved if you devote more effort to it.
Can you take us through your process? How long does it take? Does everything you produce make money?
There isn’t really one process. Things can vary widely depending on whether I am creating an image for fine art, for an editorial assignment or for a commercial client. The former is the purest creatively as I’m working to please myself with a certain subject or composition. Sometimes the idea will come to me in advance. I’ll make sketches based on a concept in my head and then the work consists of chasing that idea to make the practical image match the initial concept. At other times I’ll start with a certain subject — usually a food product — that I want to work with and I will spend time trying to work out the context of how the tiny figures I work with are interacting with that food. There have been times when I’ve worked on and off for many hours on a certain image and then galleries and collectors don’t have much interest in what I’ve created. At other times I’ve set up something quickly and stumbled into what would go on to become an iconic image that resonates with a lot of people. So sometimes you struggle and at other times you get lucky. You never know what the outcome will be going into it. There’s just a leap of faith in not giving up because you know (or hope) that something good might emerge.
Not every part of my creative output generates revenue, nor do I expect it to. Overall, I’m a commercially successful photographer and I’m fortunate that fine art collectors continuously seek out my work and that editors and creative directors approach me for commissions. One of the great things about being a photographer is that successful images can be sold in multiple channels: editioned fine art photographs, editorial and commercial licensing, greeting cards, publishing, etc. Having certain images sell multiple times certainly makes it okay to not have every single image make money.
What do you think is the biggest misconception about your line of work?
When my work first went viral I had already been doing that specific work for nearly ten years. And I only began the initial work because it was something that interested me and that I wanted to explore. The images were never created with the intention of publishing them. So, the initial response to the work was a huge surprise. As much as the reaction to the images happened quickly, many years of work were a prologue to that point.
I also find that a lot of photographers look to me to explain how they can replicate my success and career path so they can become top earning photographers who are represented by fine art galleries and who shoot large campaigns for advertising agencies. That’s always a tough subject for me to address as so many of the opportunities that have come to me are a result of fielding incoming interest based on a body of work I’ve created. But what those aspiring photographers maybe don’t think about is all of the work that goes along with running a professional photography studio with galleries in different countries (with different currencies), dealing with commercial clients and varying cultures and languages, responding to short, high pressure editorial deadlines, and all of the associated difficulties of running a business, etc.
There is definitely some glamour in attending solo fine art gallery openings in New York or London with my name and artwork on the walls. Or having museums call to ask to include my work in exhibitions. But there’s a ton of work that goes on in the background to keep everything running smoothly, as with any business. It can be all-encompassing. I’m fortunate that this career came to be a bit later in life when I had sufficient maturity and business experience to handle it.
What is the most fun project(s) you’ve worked on and why?
That’s a tough question to answer as there have been a lot of challenging and fun projects that have come along. Doing a cover for Lucky Peach magazine was a blast, both for working with a really stellar art director and for the reaction that the cover garnered from a cult audience of foodies who fiercely love that publication. I shot a commercial project in Japan several years ago that was really fun to do too, mostly because I adore Japanese culture. But if I had to pick one project it would be a very large commercial commission I did a couple of years ago for Ogilvy and one of their Fortune 500 clients. The producer and the creative directors were really the best in the business. Of course, the schedule and the amount of work was exhausting. There was also a behind-the-scenes video crew documenting the project that added a layer of chaos to the shoot. But upon reflection, Ogilvy really pushed my studio to do better work than we had ever done before (especially my animation team which expanded as a result of the demands of that project). A lot of it was motivated by fear and not wanting to let them down. But on balance they really motivated us in a way that left everything indelibly changed afterwards.
When did you first become aware of copyright and why?
I’m not sure when I first thought about or became aware of copyright. I certainly knew what it was an how it worked for a long time before I ever thought it had anything to do with work I created. Writing and photography were always just an avocation. It was maybe only at a point at which I started writing for film projects in the early 2000’s that I began thinking about registering things with the Writer’s Guild and the US Copyright Office, especially after hearing horror stories about theft in Hollywood. And then with photography, I registered my first image copyrights around the first time my work began to be stolen. In a digital age it quickly became clear that the entire system is set up in a way that makes infringement incredibly easy.
Have you experienced copyright infringement and if so how has it affected you personally and financially?
Since my work first went viral in 2011, I’ve experienced widespread, rampant and continuing copyright infringement. The way knowledge of my work first spread was through editorial syndication. And virtually from the first week that images were being (legitimately) published internationally, the infringement began to spread like wildfire among less legitimate publications around the world.
As much as I was surprised and flattered with the attention that my Big Appetites work garnered, I was really unprepared for the level of exploitation that I experienced right out of the box. There were media organizations of all kinds that thought nothing of using my work as free content while generating traffic and ad revenue for themselves. Even when they took the time to include my name or some information about the work, what they published was often distorted, taken out of context or just plain wrong.
The infringement expanded over the years to businesses of all sizes (all around the world) using my work without permission or license (and very often without any attribution) in their marketing. Sometimes they’d slap logos over my work. And lastly there are people who’ve published vast amounts of my images on their websites, blogs and on social media. As much as I’ve gotten used to it to some extent it is still always really violating.
By republishing my work without my involvement they spread misinformation about the work, cause brand confusion, deprive me of licensing income, and waste heaps of my time in that I have to chase down infringements and police my own copyrights. There is so much infringement – even ten years on – that I could spend full workdays dealing with nothing else but infringement matters and never even make a dent.
I’ve also had a problem with copycat photographers. And I’m not talking about those who have seen my work in the press and who have done work in the same genre (that’s very close to mine) but photographers who have actually almost identically replicated the composition and subject matter of my work. Some were even successful in selling those images before we shut them down. The creepiest part was seeing them basking in accolades and attention for their “originality and creativity.” In some cases they were even interviewed about their images and many of the answers about their inspiration were stolen word-for-word from my website. It is really incredible how brazen the theft has been.
What do you do when you encounter someone stealing work that you’ve invested your intellect, time and money into?
Well because there is so much infringement I have to prioritize which situations that I will deal with. When I find the work being used without any attribution and/or if they’ve used a large group of images, I’ll often file DMCA takedown requests. If we find commercial uses we will often document the infringement, file a takedown, and then send a demand letter and invoice giving the infringer an opportunity to pay a settlement to avoid litigation. And I have to say that my studio has a very high success rate with that strategy. They’re not happy about it but ultimately better than 90% will pay when facing the threat of litigation. Given the amount of infringement that is out of reach (in countries like Russia, China, Brazil, Argentina, etc.) it is impossible to hold everyone responsible. But the financial settlements from commercial exploitation in the countries where copyright infringement is enforced nicely offsets the burden of time spent in chasing after infringements.
Of course, there is a vast amount of disinformation about how copyright works. Most infringers will claim their usage was okay because they didn’t “claim ownership” or they’ll make some kind of obtuse Fair Use claim. They often say they thought the images were free to use because they found them online without watermarks. Many also find the idea of paying for their unauthorized use to be abhorrent. But as much as the entire system is set up to make infringement extremely easy, copyright law and the threat of litigation is a very big hammer that motivates people to settle.
While the safe harbor protection of the DMCA gives large media corporations and ISPs protection against the infringements of their users, there has been ample opportunity to go after those companies when they eventually drop the ball. Over the years, I’ve sued companies like Google, Twitter, Pinterest, Facebook and many others when they have claimed infringements were removed but then we found the reported URLs still live many months later.
What is your best piece of advice for fellow creators in your field regarding copyright and how to protect themselves?
Well, creators should, of course, do what feels right for them and that might differ from how I approach these matters. I view the pursuit of commercial infringers of my work as just another part of doing business. If a company is willing to exploit the value of something I’ve created – for traffic, interest or attention for their own brand – than I’m certainly willing to do whatever I reasonably can to claw back the value of what they’ve absconded with.
I’ve been fortunate to have found skilled, sympathetic lawyers who specialize in copyright matters, not only in the U.S. but with others who have helped me with settlements in Canada, the UK, Germany, Sweden, Hong Kong, Australia and even recently in Albania. While I’m always fully prepared to litigate, only a fraction of these situations have seen the inside of a court and usually can be resolved through negotiation. The level of success with handling these situations makes it a no brainer to pursue them. And the money gained from judgements and settlements can both compensate me for the value of licensing and time lost, as well as funding the pursuit of other infringements.
Obviously, I’d love to not have to deal with exploitation at all and to devote 100% of my time to being creative. But again, I see having to deal with infringement as part of the business side of running a creative studio. While the objective is mostly about seeking compensation for something of mine that has been taken, I also honestly like to think that some of these victories are educating infringers on the real cost of what they are doing which might make things better for other creatives as well.
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