Tuesday, September 20, 2016

The Farce of Creative Commons

Creative Commons is a well intentioned idea gone bad, and finally their existence will be put to the test, in a lawsuit brought that challenges the notion of what is "commercial" versus "noncommercial" use of an image.

Ars Technica reports, in "Creative Commons licenses under scrutiny—what does “noncommercial” mean?" (here, 9/18/16) that an educational company, Great Minds, is suing FedEx because their company (in the form of the former Kinkos that makes photo copies) is charging money for photocopies of this material. The basics are that "print shops, like FedEx, negotiate a license and pay a royalty to Great Minds if they wish to reproduce the Materials for commercial purposes—i.e., their own profit—at the request of their customers."

Now, it would be one thing if FedEx had binders of the material in one corner of their stores and that if a customer took the binder to the front desk and paid just for the photocopies, you might be able to skirt the issue here, but that doesn't seem to be the issue. FedEx needs to be paid for things to be photocopied, so why not have things worth printing/photocopying available for free? but the question becomes one of defining "commercial" versus non-commercial.

(Continued after the Jump)

Commercial use is not easily defined. Selling a t-shirt with an image/graphic on it. Making a print and selling the print. Using the photograph in an ad for an organization.But what about  Using an image in a blog? Using an image in social media?

Frankly, all of the above could be argued either way by a skilled attorney.

The Creative Commons wiki notes (here)  NonCommercial turns on the use, not the identity of the re-user. So a high school student and a multi-national corporation like Nike are equal. The definition of NonCommercial depends on the primary purpose for which the work is used, not on the category or class of reuser. So if Nike was printing t-shirts with a CC-licensed image/graphic on it, provided they were not charging a fee for the t-shirt and giving it away for free , it could be considered non-commercial. But there would be significant value in Nike doing this - they give away t-shirts all the time because people become walking billboards for their brand, so there is a commercial value to them doing so, even if the shirt is given away for free.

What about a cc-licensed photo of a skateboarder doing a trick? It could be printed and handed out for free at skate parks as the skateboarder, sponsored by Nike, goes on a tour promoting Nike as cool and hip. It's a free print, but there is value to the skateboarder and Nike in doing this.  How about a frame shop giving away free prints to people who pay the frame shop to frame the photograph? It's clear the print is free, but the frame shop makes a good profit from all the framing they sell.

In the above examples, the CC element notes "“NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation.”"

Here the "commercial advantage" element could easily apply. Consider this case - using photos on a blog - but does the blog sell ad space? Even so, does the blog owner earn money from writing the blog post that the photo is used in, or gain notoriety they exploit elsewhere for compensation? In these cases, the "primarily" applies, but still, it's a commercial use.

Even if the blog post were for a non-profit dedicated to eradicating a disease or the suffering of others, it's still possibly commercial. Someone is going to monetarily benefit. Consider the charity that promotes the inclusion of cancer medications for children in various insurance plans - seems like an altruistic thing to do, as many children are dying from cancers because medication can't be prescribed to them like they are for adults. Yet, when you find out that the organization funding the efforts to make this happen are the pharmaceutical companies that stand to make hundreds of millions of dollars because now insurance must cover their brands of medication, is it commercial now?

What about social media? If a brand is instagramming images out and the feed is free, is there commercial advantage? Sure - the person doing the posting/curating of the images being posted is getting paid and doesn't have to commission artists to create content nor to license them from rights-managed libraries, and instead can just mine the millions of CC images from Flickr. They are getting paid to curate, and the Instagram feed is benefiting from being a cool/cutting-edge organization that then can intersperse advertising in other posts adjacent to that, or after building a critical mass of followers from CC content, switch to paid content/advertising.

I think most people would agree that non-commercial comes into play when a high school or college student does a paper with a photo in it that is CC, but beyond that, most any argument could be made that a use is commercial.

It will only take a few litigation cases and after a few years insurers who underwrite liability will begin excluding copyright claims on creative commons licensing protections, and this will shut down corporate use of creative commons materials across the board. When edicts come down from the legal department that no departments can use creative commons material, companies will stop relying on them in place of material the company pays to produce.

Creative Commons had the chance to define non-commercial use when they first started out. They surveyed stakeholders around the country over a period of months.  The decided against defining that term.

So beware, photographers who use a creative commons non-commercial license are placing their copyright and their work at risk, and are devaluing their work by forfeiting the right to ever issue an exclusive license to any client.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


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Friday, June 10, 2016

Getty Images v. Walter A. Kowalczuk

Getty Images today notified contributors that on June 8th, 2016 it filed a lawsuit against Walter A. Kowalczuk because they allege he "downloaded thousands of images without authorization from Getty Images and profited from those downloads.  In addition, Getty Images believes that Mr. Kowalczuk was not acting alone, and the company is actively pursuing other possible infringers."

Getty Images has been the subject of many criticisms online for their aggressive handling of copyright infringement claims, and just two days ago Geekwire published "Getty Images rights claim against Seattle startup raises ‘phishing scam’ concerns", however, the article notes that the infringer (Aaron Bird) in this case "...will end up paying the settlement fee..."because, well, he infringed. Bird's concern centered around the question of a phishing scam and not whether or not he actually infringed on the work.

It is obvious that, with a reported 80,000,000 images in their archives, even a one-tenth-of-one-percent (.01%) number of infringements in a year that's still 8,000 copyright infringement cases. As such there has to be a system to handle that many infringements.  In 2013, in an effort to resolve what was likely massive infringement issues with Pinterest, Getty entered a deal with Pinterest, which PBN reported on here - Deception? Getty Images & The Pinterest Deal (12/13/13) and again PBN reported here - Monetizing Getty's 35M Image Archive via FREE Editorial Uses - about Getty offering a solution to reduce infringements through free use of the work they represent. While PBN wrote critically about both undertakings, and questions remain about the success of each, the question remains as to whether or not Getty Images contributors are receiving a portion of the revenue from these efforts, however, Getty is trying to find ways to reduce infringement and monetize the content they represent.

Getty Images should continue to aggressively pursue any theft of the intellectual property that they own wholly, or which they are charged with protecting on behalf of their contributors.

The Getty 2011 Contributor Agreement specifies:
1.11 Right to Control Claims. Getty Images shall have the right to determine, using its best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of Accepted Content. You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual property rights (“Claims”). You agree to provide reasonable cooperation to Getty Images and Distributors and not to unreasonably withhold or delay your cooperation in these Claims. Getty Images will not enter into any settlement that will compromise your ownership of the copyright in Accepted Content or that prohibits your future conduct with respect to Accepted Content without your prior written consent. Getty Images will pay you Royalties on any settlements it receives from Claims. If Getty Images elects not to pursue a Claim, you will have the right to pursue it.
Infringers don't like getting caught stealing, and so many claim innocence or ignorance, or attempt to fall back on a faulty fair-use claim. When those don't work, they begin to try to characterize Getty's efforts - wrongfully - as "extortion".  "The Art Law Journal" is a blog that is masquerading as a storied institution of art law journalism, but is nothing more than a facade - a week attempt by it's parent company, Orangenius, to appear to be supportive of creators and their rights. Their article "How to Respond to a Getty Images Extortion Letter"  includes the characterization that Getty "has created an entire business around sending letters to suspected copyright infringers and demanding exorbitant payments in return for not being dues [sic]." What Getty's business is built around, is the lawful licensing of intellectual property, so the author is flawed in his characterization of Getty's "entire business".  The author offers the defense of his writings by noting of his tips on how to respond to Getty "This response letter is not designed to alleviate anyone’s responsibility if they are infringing on Getty Images copyrights." It's pretty clear, if you downloaded an image and did not obtain permission to use the image in a non-fair-use situation and you did not pay a fee for said use, you're infringing. 


In August of 2009, PBN published a post titled Obama Image Copyright Infringement Issues  where Getty was also pursing the infringer of works Getty was representing.




The case is not currently listed in the online records database, which can sometimes take several days to update. When it does, we will update the story with the case number and formal "plaintiff v. defendant" title.


(entire statement after the jump)


Statement from Getty Images regarding the Kowalczuk case

As you know, we take copyright infringement and the protection of your rights very seriously and work hard to ensure that your work is properly licensed. Getty Images is continually pursuing a high number of copyright infringements, usually with the aim of turning individual infringers into customers. 

However, we want to let you know about an unusually serious and organized infringement case which you may see reported by the press [as it is in the public domain].

Getty Images has taken action against a serious copyright infringer who was discovered to have improperly accessed, downloaded and distributed Getty Images content through social media. 

In early March 2016, Getty Images received a report from one of its customers alerting us to suspected copyright infringements that were taking place via a private group hosted on Facebook.  

The ensuing investigation revealed the Facebook group was being used by some members as a forum for unlawfully trading and/or selling sports photographic imagery owned by or exclusively licensed to Getty Images.  As alleged in the lawsuit filed on June 8th 2016, defendant Walter A. Kowalczuk was an active member of this forum and used it to offer for sale, high resolution Getty Images images, and images belonging to other photo companies, for as little as $0.75 per image, using code names to hide the true source of content and to conceal his unauthorized sales.

While Getty Images’ investigation thus far has revealed significant infringement, it believes that further investigation will reveal that Mr. Kowalczuk downloaded thousands of images without authorization from Getty Images and profited from those downloads.  In addition, Getty Images believes that Mr. Kowalczuk was not acting alone, and the company is actively pursuing other possible infringers.  Getty Images filed a complaint against Mr. Kowalczuk for copyright infringement, violations of the Digital Millennium Copyright Act, and other claims.  That complaint was filed in the United States District Court in Cleveland, Ohio.

Getty Images strongly supports a robust and fair industry that recognizes and remunerates our contributors whose expertise, time and livelihood is adversely affected by copyright infringements such as those incurred by Mr. Kowalczuk. 

We intend to hold Mr. Kowalczuk and any others involved in this illegal marketplace accountable for their infringements.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


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Saturday, May 28, 2016

500px, ImageBrief - The Crowdsourcing Scoundrels of The Internet

What camera slinging aspiring pro photographer wouldn't want to be a part of a "Photo Quest" these days? A "quest" conjures up Indiana Jones-esque expeditions for the perfect picture - explorers searching for just the right photo to satisfy the "photo gods of exposure." Who could be so ignorant or desperate? Apparently quite a few, like the natives worshipping a false sun god because of a solar eclipse. Some 840 clueless photographers submitted 6,000 images for the chance at winning the "great honor" of having their creative work product commercially exploited along with 50 others whose work was selected for a FOR PROFIT Lonely Planet book, according to MobileMarketingDaily - "500px Launches Photo Quests, Allows Brands To Crowdsource Original Content" (5/23/16).

 We've written extensively here at Photo Business News about the seriously flawed "SPEC" business model, yet, these models continue to proliferate,  counting on photographers (pro and amateur alike) to line up like lemmings and mindlessly follow each other over the cliff of unsustainability. In February of 2015 we wrote "ImageBrief: A scourge on the photographic industry" yet photographers continue to ask questions in various photography forums. Advertising agencies and design firms are using predatory content resellers like Image Brief to source free ideas and content for their pitches, before they even are awarded the projects. One photographer on the STOCKPHOTO listserv reported watching 50 different briefs and none of them were awarded. According to that same poster, Image Brief is now charging photographers to make a submission for the "privilege" of consideration.

Photographers following these models are destined for failure or otherwise are ignorant to the realities of being in business. According to the MobileMarketDaily article, "...it allows photographers a chance to have exposure on a much larger scale than they may readily have access to." What is especially troubling is that the article cites Canon as one of the brands that has run a "Photo Quest", and had thousands of submissions.
(Continued after the Jump)
Jim Pickerell, over at Selling Stock (subscription required) reported back in April "Drastic Royalty Cuts Change Photogs View Of 500px" reports that photographers are now only getting a 30% royalty on licensing of non-exclusive images.  Consider the concept of "agents" in other businesses, like actors, book agents, and musicians, for example. Their commissions hover around 20%. The idea that organizations like these can take 70% (or more) and leave the creating artist with a pittance, is just abhorrent.  Especially when you're one of several participating in the "quest" and standing a one-in-many chance of winning the gross, and then having to take a pittance of income as your paltry percentage. 

Less than a year ago, Visual China Group led a $13,000,000 round of funding (source) and Visual China Group is most recently known for acquiring the assets of Corbis Images and then folding them into their other investment - Getty Images, as we reported here (Corbis Sale to Unity Glory (and Getty)).  This money must be being used to buy servers and hard drives for all the hopeful photographers, as well as the overpaid sales agents - Glassdoor reports (here) that a Product Marketing Manager earns over $80,000. How is that reasonable at a company which has, according to LinkedIn "51-200" employees and Glassdoor currently has 18 job openings?  It seems everybody is earning a very nice living on the backs of the starving-artist photographer.

These organizations will eventually find that the crowdsourcing/"Photo Quest"/ImageBrief model is not a viable solution, but by then the hopes and dreams of photographers will have even been further dashed, and content consumers like ad agencies and design firms will be further down the line of devaluing photography.

500px is apparently intent upon flushing the photography business down the toilet while reaping profits from their deals with large corporations seeking content and ideas for pennies on the dollar, if not free.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


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Thursday, February 18, 2016

Getty Images Gets Infusion of Cash from China



Getty images is getting "up to $100 million" according to Reuters (here) from Visual China Group, which might seem like a lot, but, in review, is really not. In 2015, Bloomberg Business reported on Getty's cash situation, in "Getty Images is Running Tight on Cash" (2/25/15).

What was reported was that, in the last quarter of 2014, Getty "depleted a third of its cash during the last three months of 2014, leaving it with $27 million...". That meant that Getty had $41M, or is burning through about $4.5Million a month. This may well not include payment in a $2.6 billion debt service. However, a $100 million investment amounts to just 3.8% of the $2.6 billion that Getty is in debt, and there is no sign that the blood-letting is coagulating. Getty already received $100 million in November 2015 ("Distressed-Debt Lenders Aid Getty Images in Battle Against Shutterstock", 11/5/15) from distressed debt lenders known to prey on troubled companies. 

Carlyle Group LP (NASDAQ: CG) previously used a leveraged buyout scheme to acquire Getty, so when Carlyle bought Getty for $3.3 billion in October of 2012, they saddled Getty Images with $2.8 billion of that debt, making Carlyle's actual disbursement at most just $500 million. Even so, With Visual China making this investment, it seems it is doing so to further their past investments in Getty after their Corbis acquisition. Carlyle is down in early trading 1.44%, with a loss of 42.41% on a single-year return and an 8.26% YTD return. Surely, Carlyle would like nothing more than to cut their underperforming assets, but with an albatross like Getty Images on it's books, it's no wonder The Street is reporting (here):
"TheStreet Ratings rates Carlyle Group L P as a sell. The company's weaknesses can be seen in multiple areas, such as its deteriorating net income, disappointing return on equity, generally disappointing historical performance in the stock itself and feeble growth in its earnings per share."
For those in the financial services sector, it's just one more business to watch the numbers on. For those in the trenches of the industry Getty serves, Getty Images is dying a slow and agonizingly painful self-inflicted death. It's like the shrewd investor analyst who actually goes to the farms in Kansas and sees first-hand the crops with lower yields, and gets out while they still can. Getty Images is near that point where the ships' hull is about to break apart, just like the Titanic. Many with knowledge of this industry know just how low the metaphorical visual "crop yields" are, and just how underperforming Getty Images is to the Carlyle portfolio.


(Comments, if any, after the Jump)


Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


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Wednesday, January 27, 2016

Corbis Details VCG Migration Plans to Getty Images


Corbis wasted no time detailing to photographers how the transition from being a Corbis photographer to a Getty Images photographer will take place, in an email sent out with a FAQ. While the FAQ went into great detail. What was abundantly clear was that Corbis will no longer exist in short order.

Yesterday, Photo Business News detailed the sale of Corbis to Visual China Group (SHENZEN: 000681) subsidiary Unity Glory as well as the same-day announcement of what clearly looks like an end-run around anti-trust laws by Carlyle Group (NASDAQ: CG) when they announced the worldwide exclusive arrangement with Getty Images.

A message yesterday was sent from Jeff Enlow (LinkedIn: Jeff Enlow) to contributors which makes it clear  that Getty is getting all (or, to be more specific, everything they want and think is of value) from Corbis. In it, Enlow wrote:

Hey All,

I wanted to send you all a note about the sale of Corbis. My last day will be February 5th. I will do what I can to help you guys out in that time. Anil will be on for a while longer as well to help with the transition, so anything I’m not able to do you can reach out to him.

Please take a look at the faq sent out
Contributor link: http://forum.contributor.corbis.com/corbis-vcg-getty-images-you/

I’ve pasted a few portions here:
“Contributors who are not invited to sign directly with Getty Images will remain contracted to VCG according to the terms of your Corbis agreement.”
We are still waiting on the exact details of how this would work.

When will I know if I’m being offered a direct contract with Getty Images?
Invitations for direct contracting and content migration will take place over the course of the coming weeks, once all invitations have been delivered, contributors will be notified that the process is complete.
What happens to those contributors who are not invited to join Getty Images?
Contributors who are not invited to sign directly with Getty Images will remain contracted to VCG according to the terms of your Corbis agreement. At VCG’s discretion these contracts may be offered termination, in which case you will be notified by VCG. Regardless, you are welcome to apply to work directly with Getty Images through the Work With Us application process (http://workwithus.gettyimages.com/en).

If Getty Images does not offer me a contract, or I don’t want to sign with Getty Images, will the Corbis contract continue with VCG?
Yes. Contributors who are not invited to sign direct with Getty Images, or choose not to, will remain contracted to VCG according to the terms of your Corbis agreement. At VCG’s discretion these contracts may be offered termination, in which case you will be notified by VCG.

SO:
1.    If you may want to sign on to Getty just sit tight and someone will reach out to you.

2.    If you know you absolutily do want to be apart of the VGS/Getty deal then you need to send a termination letter to Contributor Relations <Contributor.Relations@corbis.com>
In it say you want to terminate your contract, to pull all your images, and that you want no survival rights on them.
It will be up to VGS/Getty weather they will honor that or make you wait out the remainder of your contract. But that is the first step and it will be on record.

If you have any other questions please let me know here.

Last if you want to keep intouch after all of this my personal info is
enlowphotos@gmail.com        
415-317-2698
www.enlowphotos.com
https://www.linkedin.com/in/jeff-enlow-118b8ba
https://www.facebook.com/jeff.enlow
https://www.instagram.com/enlowphotos/
Its been great working with you all and I look forward to the next journey.

Jeff
Jeff Enlow
Editor News Sports and Entertainment





(Continued after the Jump is the announcelemtn and FAQ)

Corbis, VCG, Getty Images & You!

Today Corbis is announcing the sale of the Corbis Images (excluding Splash), Corbis Motion, and Veer licensing businesses to Unity Glory International, an affiliate of the Visual China Group (VCG), a leading Chinese visual communications and new media business.
In connection with this transaction, VCG is excited to announce the expansion of its longstanding partnership with Getty Images, and, following a transition period (which we’ll explain in more detail), Getty Images will become the exclusive distributor of Corbis content outside China.
As a valued contributor, we want to be sure you understand what these announcements mean for you and your content and the opportunities they represent for you going forward.
As part of this transaction, your existing Corbis agreements have transferred to VCG, however in practical terms nothing changes for the time being. The Corbis sites, licensing and royalties processes will continue to operate as they do today.
Over the coming months, select content from the Corbis collections will be identified and invitations will be extended to you for migration of those files to Getty Images. For those of you whose content is selected who do not currently work directly with Getty Images, you will be offered a direct contract that will apply to migrated content and any new submissions you choose to make going forward to Getty Images. If your content is selected and you are already contracted to Getty Images, you will be offered an assignment letter to move content selected for migration to your existing Getty Images’ agreement.
During this transition period, all content will continue to be available through Corbis, and, as it’s migrated, content will also become available through Getty Images. Content that is not migrated to Getty Images will either continue to be represented by VCG, or distribution rights will be returned to contributors.
We’re very excited to represent your great content and look forward to expanding its reach through the unparalleled global sales and distribution network of Getty Images to almost one million customers in nearly 200 countries.
We’ll be sharing more specifics on the migration process over the coming weeks, but in the meantime please refer to our FAQ for additional details.
CONTRIBUTOR Q&A
About the announcement: 

What is the news we’re announcing today?

Today, Corbis announced the sale of its content licensing business to Unity Glory International, which is an affiliate of the Visual China Group (VCG), a leading Chinese visual communications and new media business. This sale includes the images and motion archives from Corbis Images, Corbis Motion, and Veer, and all their associated brands and trademarks. The sale does not include the Branded Entertainment Network, Splash, or Greenlight, its rights clearance and representation business.

Subsequent to the sale, Getty Images, the world leader in visual communications, and VCG announced a global distribution partnership which will see customers globally benefit from an unprecedented content offering. The existing Getty Images collection of almost 200 million images spanning creative and editorial, stills and video, contemporary and archival, is expanding to include Corbis imagery, video and historic archival content. This content will be available to customers in China via the VCG platform and to the rest of the world via Getty Images’ global sales teams and industry-leading website, gettyimages.com.

What is Unity Glory/VCG acquiring?
Under the terms of their agreement with Corbis, Unity Glory/VCG is acquiring the assets and brands of Corbis’ Images division, one of the world’s leading image archives and licensing businesses. Going forward, it will own and manage the images and motion archives, names and trademarks associated with the Corbis Images, Corbis Motion and Veer licensing brands.

Corbis is not selling the businesses in its Corbis Entertainment division, so, going forward, Corbis Entertainment will continue to own and operate its Branded Entertainment Network, Splash and Greenlight, its rights representation business, under a different brand.

Why is Getty Images partnering with VCG on this?
As the most trusted and esteemed source of visual content in the world, Getty Images is always innovating to bring its customers the most comprehensive offering of diverse and high quality content in the market. The addition of Corbis content to Getty Images’ industry-leading collection means Getty Images now offers customers an unprecedented breadth and depth of gold-standard content across creative and editorial, stills and video, and contemporary and archival.
Getty Images is the trusted partner to a network of over 200,000 contributors and content from approximately 330 existing image partner relationships, including prestigious partners NBC Universal, BBC Worldwide and AFP.

What happens to Corbis moving forward with the business that they aren’t selling?
Corbis will be focused on building and growing its entertainment advertising business under a different brand. The sale does not include the three Corbis Entertainment businesses – the Branded Entertainment Network, Splash and Greenlight, its rights clearance and representation business.
Corbis Entertainment will be rebranded under a new name in the coming months.

What does this mean for contributors? 

How will the VCG/Getty Images deal benefit me?
Corbis content will reach a wider audience throughout the world via Getty Images’ industry-leading site and global sales team, and in China via VCG.
Corbis contributors who are not already represented by Getty Images may be invited to become GI contributors:
    • Creative contributors will benefit from working with the industry’s largest and most experienced Creative team – trend insight researchers and award-winning art-directors who understand what imagery brands and businesses will be looking for tomorrow
    • Editorial contributors will benefit from being part of our global award-winning editorial team, covering the most exciting, important and interesting things happening 24/7 around the world.
    • Contributors with archive and historical content will benefit from working closely with our dedicated team of global archive editors and will be represented alongside some of the most important names and collections in the history of photography. 
  • When will I know if I’m being offered a direct contract with Getty Images?
    Invitations for direct contracting and content migration will take place over the course of the coming weeks, once all invitations have been delivered, contributors will be notified that the process is complete.
    What happens to those contributors who are not invited to join Getty Images?
    Contributors who are not invited to sign directly with Getty Images will remain contracted to VCG according to the terms of your Corbis agreement. At VCG’s discretion these contracts may be offered termination, in which case you will be notified by VCG. Regardless, you are welcome to apply to work directly with Getty Images through the Work With Us application process (http://workwithus.gettyimages.com/en).
    Will Getty Images migrate all of my content or just a smaller selection?
    Content selected for migration will be case by case - some entire portfolios will be invited for migration and others will be partial selections.
    What criteria will Getty Images use to select the Corbis content it will invite for migration?
    Content selection for migration to Getty Images will be based on a variety of criteria including license history, uniqueness, quality and exclusivity of content.
    What are the specifics of the agreement I’m being offered by Getty Images?
    In general, standard Getty Images agreements will be offered, but it is understood that in some cases there are unique circumstances that will need to be addressed.
    If Getty Images does not offer me a contract, or I don’t want to sign with Getty Images, will the Corbis contract continue with VCG?
Yes. Contributors who are not invited to sign direct with Getty Images, or choose not to, will remain contracted to VCG according to the terms of your Corbis agreement. At VCG’s discretion these contracts may be offered termination, in which case you will be notified by VCG.
So what is happening to the Corbis site once content has been migrated to Getty Images?
During the transition period, VCG and Getty Images will evaluate how best to improve the value and benefits for Corbis customers globally and will reach out to customers in the coming weeks.
Can I still submit content to Corbis during the transition period?
There will be a short window of ongoing submissions but we want to ensure there is time to process content that is currently in our production queues. We would advise you do not submit further content if possible and instead wait for Getty Images invitations. Once signed to Getty Images you will have access to direct submission processes there.
I want to terminate my contract with Corbis, how do I do this?
Your contract has been re-assigned to VCG as part of this transaction, the same termination terms and process remain in place. Please refer to your contract for specific information. 

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


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Tuesday, January 26, 2016

Corbis Sale to Unity Glory (and Getty)

The sale of Corbis to Unity Glory, a Beijing China headquartered company, and the simultaneous announcement that Getty has an exclusive global distribution partnership with the parent company - Visual China Group, foretells the continued demise of the stock photography industry, and as well, Getty Images.

Corbis website announces sale.
One of the things that is remarkable about this, is that the following sentence appears at the beginning of a press release on the Corbis website:
"NEW YORK (January 22, 2016) - Getty Images, the world leader in visual content and communications, and Visual China Group ("VCG"), a leading Chinese visual communications and new media business, today announced an exclusive distribution partnership that will enable Getty Images customers to access the extensive visual library from Corbis Images."
Later the press release states:
"VCG and Getty Images will immediately begin work to migrate Corbis content, with migration to be completed as quickly as possible to ensure a seamless transition for customers, contributors and other partners."
The "Spotlight on" section of the front page lists several links:
Announcement of VCG acquisition and Getty Images exclusive deal on front page of Corbis website.

Consider the optics of the above. Corbis is calling Getty "...the world leader..." Corbis is no longer competing with Getty, this sentence alone makes that clear. So why do this? Simple. Anti-trust.

Several years ago, Getty investigated the viability of buying Corbis directly, according to sources familiar with the due-diligence efforts at the time. However, both U.S. and U.K. anti-trust laws prevented it at a time when Getty was trying to acquire both Corbis and Rex Features.  This joint announcement of the sale of Corbis to a Chinese company, and, simultaneously, the announcement of the exclusive distribution partnership is clearly an effort to skirt anti-trust laws.

November 3rd, 2015 Getty announced they struck a deal with creditors, which, as Bloomberg aptly notes has "...been struggling for cash amid a price war with newer rivals, is getting a lifeline from investors known for profiting from distress." (Distressed-Debt Lenders Aid Getty Images in Battle Against Shutterstock, 11/4/15).

The fact that there are 84 days between these announcements should belie the real situation. The certainty of the deals announced on January 22, 2016 was almost certainly the reason that Getty received the additional round of funding. As Getty Chairman Jonathan Klein tweeted (and then deleted):

Getty co-founder Jonathan Klein boasted about the acquisition of the exclusive rights deal on his twitter account. Let's dissect his tweet. "Almost 21 years, but got it." - He's referring to his long-term plan to acquire Corbis Images. "buying the cow" refers, of course, to a purchase of Corbis outright. He's happy he didn't have to buy it. Now comes the really offensive part: "the milk, the cream, cheese, yoghurt and the meat" - what exactly is he referring to? That's right, the intellectual property rights to the material produced by Corbis photographers. Getty now has the exclusive worldwide distribution deal for all of Corbis' content. For anyone owning or being a distribution partner of Corbis, what does this mean?

Here's how it worked previously for an individual photographer:

$100 image gross image licensing fee
$50 goes to Corbis
$50 goes to photographer

Here's how it will work now for an individual photographer:

$100 image gross image licensing fee
$50 goes to Getty
$50 goes to Unity Glory/Corbis
$25 Unit Glory/Corbis keeps
$25 goes to photographer

So if you're an individual photographer represented by Corbis, EVERY image licensing fee you will get will now be half of what it was. (this assumes the standard 50/50 deal, some places are 60/40).

It gets worse if you're part of a distribution deal that Corbis has with other agencies. For example, here are four of the many agencies affected by this deal:
A few of the many Corbis partner agencies
How will they be affected:

Here's how it worked previously for a photographer where Corbis handled their agency distribution:

$100 image gross image licensing fee
$50 goes to Corbis 
$50 goes to sub-agent
$25 sub-agent keeps
$25 goes to photographer
Here's how it will work now for an individual photographer:
$100 image gross image licensing fee
$50 goes to Getty
$50 goes to Unity Glory/Corbis
$25 Unity Glory/Corbis keeps
$25 passes to sub-agent
$12.50 sub-agent keeps
$12.50 goes to photographer

So if you're an photographer with agencies that distribute through Corbis, EVERY image licensing fee you will get from your agency will now be half of what it was. (this assumes the standard 50/50 deal, some places are 60/40).

If you're a photographer currently represented by a sub-agent who distributes through Corbis, or even directly with Corbis, assuming all other things being equal, you'll want to cancel your representation by the sub-agent or with Corbis, and transfer all your images to a Getty contract. This seems to be the only way you'll keep your revenue percentages. There's nothing anti-trust that would jeopardize Getty when individual photographers (or even agencies) move to Getty directly and cut Corbis out the the middle. With all content on Getty from Corbis in short order, it's not going to change your sales quantities, just your net bottom line revenue.

What is not clearly known is what investor arrangement Getty has with VCG behind-the-scenes, if any, beyond the revenue share from each license. How has Getty and the Carlyle Group (NASDAQ: CG) structured this deal? And, to what extent is there a financial arrangement that could risk an anti-trust claim between Carlyle and VCG?  Further, this will increase Getty's library substantially, but only at a percentage of the total. With Getty as a subsidiary of Carlyle and VCG a Chinese company that can't really be reached by U.S. anti-trust claims, Carlyle could be in a position where they are left holding the bag on an anti-trust charge, even years after Getty Images is gone (or sold) and no company that might be interested in acquiring Getty Images from Carlyle would be interested in purchasing the liability of an anti-trust lawsuit, which would then make Getty's position with VCG a poison pill for as long as the shadow of anti-trust issues persist. The revenue share between VCG and Getty is not known, but Getty will only be getting a percentage - is that going to be enough for Getty to survive? Likely not, it will just stem the bleed-out of the dying corpse.

One other thing that will come up is how Getty Images ranks search results. When Getty Images assigns a photographer to cover the Tony Awards in New York City, they will also be distributing the images from Agence France Presse. Getty just announced yesterday - Getty Images and AFP renew leading content partnership (1/25/16). An AFP staffer may not care that this deal happened, if they're not getting a revenue share from the licensing of their staff-produced content, but make no mistake about it, if a Getty, and AFP photographer are covering the Tony Awards, Getty wants their content to appear first in search results because they don't have to share the revenue with AFP if an editor selects a Getty image during the first returned results.

As such, if you're a Corbis (or Corbis sub-agent) photographer, your work will likely also appear below the Getty images in the search results. So, if both a Getty and Corbis photographer are at the same event, the images from the Getty photographer will "push down" the Corbis photographer results, and so the Corbis photographer should rightly see the Getty photographer as cutting into their revenue stream.

In addition, any sponsorship deals that Corbis had, are now at risk. For example, the Look3 Festival of the photograph website states "Without the support of our sponsors, contributors, & patrons, LOOK3 would not exist."  Corbis was one of the major funders for Look3, and that deal could now be in jeopardy.

All around, this is a really really bad deal for photographers, and a good deal for Unity Glory and Corbis. And, to top it off, the vast majority of the Corbis employees (especially in the U.S.) have been laid off and only a few remain to clean up the mess that's left.

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Friday, January 15, 2016

Sports Illustrated Layoffs - Smith, 2 others, OUT

News out of New York is not good today. While the Time, Inc (NYSE: TIME) photo editors are scrambling with today's extended deadline for photographic contributors to sign, this morning SI Director of Photography Brad Smith (LinkedIn: Brad Smith), along with Photo Editor Claire Bourgeois (LinkedIn: Claire Bourgeois) and John Blackmar (LinkedIn: John Blackmar) are among those that have been laid off, according to sources familiar with personnel changes at this Time Inc property.

 Their actual date of departure is not currently known, but with the Superbowl coming up fast, their departure before that would no doubt adversely affect the quality of coverage by Sports Illustrated.

 In related news, Time, Inc apparently only has about half of their photographic contributors having signed the egregious contract, even with their "clarification" document. Because of these low figures, which do not include many big names who are still refusing to sign, a revised contract is expected in the coming week.

 One of the tactics employed by Time Inc photo editors has been to identify non-signing principal photographers, and then contacting similarly styled photographers in that same geographic region who may have had a sporadic assignment schedule for Time Inc, and offering them the assignments of that geographic regions' principal photographer, if they sign while the principal photographer is not.

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Saturday, December 12, 2015

Why You Should Not Be A Freelance Photographer

As a professional photographer, one of the worst things you can do is be a freelancer.  That is, just as you should banish the phrase "day rate" from your lexicon, so too should you banish the word "freelance" from the word set you use to describe yourself.

Words not only have meanings, they insinuate something about whomever they describe. An entire chapter on language was included in the book MORE Best Business Practices for Photographers, titled "A Linguistically Accurate Lexicon", for that very reason.

Consider the characterization of a person of the female gender. The word "girl", "woman", "lady", "chick, "madam", and "doll", all carry similar sentiments to "boy", "man", "gentleman", "dude", "sir", and "guy" for a person of the male gender. The disparity between saying "that boy over there" versus "that young man over there" is not lost on the recipient of that characterization, nor is "please help the chick with her luggage" versus "please help the lady with her luggage" in a hotel lobby.

Fast Company recently wrote an article about the value in stopping calling yourself a "freelancer" (12/3/15, "Why I stopped calling myself a freelancer"), and I commend it to you.

What can you do?

Avoid introducing yourself using that word. Don't say "Hi, I'm a freelance photographer", or even, "I'm a freelancer." Instead try:

  • I'm a professional photographer
  • I produce photography on assignment for a range of clients
  •  I'm a photographer
  •  I'm a photojournalist
  • I'm an independent photographer
When asked "oh, who do you work for", I would avoid "I work for myself", and instead try:

I work for a variety of clients in the...
  •  News business
  • Industrial sector
  • Public relations area
  • Magazine industry
       ...etc.
When someone tries to then re-characterize you as "oh, so you're a freelance photographer?" The answer is "no, not really. I work independently for a variety of clients, and the word "freelance" just doesn't speak to the broad spectrum of services I offer, not just for covering a story or making images, but all the production and organization involved in making the final results possible."

Avoid using it in your LinkedIn profile, your resume, CV, or biography. Describe what you do instead. Don't use derogatory shorthand. Saying "I'm a freelancer" is derogatory compared to "I'm a professional photographer", almost like calling saying "get the guy a coffee" when what you should have said was "get the gentleman a coffee" instead.

Another point from the Fast Company article was that "freelance" connoted cheap or low-cost,  something I don't think any professional photographer would want themselves characterized as. You want to be considered a "premium" - as in:
  •   "he's an amazing football photographer..."
                               or 
  • "she's an incredible portrait photographer..."
                               or 
  • "he's a wonderful wedding photographer..."
                               or 
  • "she's a stunning storyteller with her images from around the world..." 
For anyone whom you hear described as above, you are immediately going to have a perspective in your mind that they are not "cheap" nor "low cost."  in the chapter I reference previously, I talk about Jenika, a baltimore luxury portrait photographer, who uses the word "luxury" in all her language about what she does. So, who would you rather hire, a "luxury portrait photographer", or a "portrait photographer'? Whom do you think will produce a better result? Or, better yet, who would you rather your clients perceive you as?


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Friday, November 27, 2015

ASMP Issues An Alert regarding Their Position on Time Inc. Contract

ASMP issued the following alert to exercise "extreme caution", which we are posting here, in it's entirety on the Time Inc (NYSE: TWX) contract:

Open letter to Time Inc. regarding one-sided independent photographer contract


ASMP has joined with the National Press Photographers Association (NPPA), the Digital Media Licensing Association (DMLA)American Photographic Artists (APA), and the Professional Photographers of America (PPA) in a letter to Time Inc. regarding our collective objections to the terms and conditions under which professional photographers are being required to operate come January 1st, 2016. Under the terms of the new contract, first detailed by Photo Business News ( here ), many of the fees and rights demands are unfair to professional photographers and will severely limit the ability of ASMP members to earn a sustainable living. The letter which ASMP co-authored with theNPPA and others can be viewed here.

ASMP continues to work both publicly and behind-the-scenes tirelessly on behalf of professional photographers. Just as it has in the past with Conde NastGetty Images, and Knight Ridder.

Founded in 1944, the Society amended it’s charter in 1949 to begin “the fight to represent magazine photographers in matters of wages and working conditions.” In 1967, ASMP issued a “Declaration of Conscience” stating that “reproduction rights and ownership belong to the photographer; that each use of a photograph must be compensated for; that limitations on a photographer’s freedom to reuse his own creations must be related to the purpose and protection of the publication and must be limited in time; and that no ASMP member or unaffiliated photographer should agree to terms inconsistent with the resolution.” A two-year battle with Time Inc. was waged, and many ASMP members jeopardized their livelihoods before this basic right was recognized by the publishing industry. The stock photography business, and the benefits photographers realize from it, is a direct result of ASMP’s stand.


Just as in 1967, when ASMP engaged directly with Time Magazine, and served the interests of not just ASMP members, but all photographers, ASMP continues to work hard to foster good and fair working conditions for photographers in all of Time Inc.’s publications. You can read more about the founding of ASMP and the efforts on behalf of photographers here.

ASMP Executive Director Tom Kennedy states:
“I believe photographers are willing to work with Time Inc. to enable a new management system that would enable better tracking of assignments and to foster a consistent assignment approach across its properties. But it is essential that such an agreement not be done on the basis of an effort to unilaterally impose draconian contract terms that do not take into account the needs of photographers in their employment. I think it is far better to enter into discussions with photographers to produce a fair and mutually beneficial contract solution that also addresses Time Inc. business needs.”

ASMP urges any photographer considering signing this contract to proceed with extreme caution.
Follow updates on Time Inc. independent photographer contract on the current ASMP News page.
If you have any questions, please feel free to ask.



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Saturday, November 14, 2015

EyeEm - The Joke Is On Us



The sad joke amongst photographers is how many clients seem to think "will work for photo credit" is fair and reasonable; and the varied responses include "my landlord won't take photo credit for my rent" and "I can't eat a photo credit". Unfortunately, EyeEm is capitalizing and compounding on the joke "there's a sucker born every minute" because many of those suckers are talking themselves into shooting for credit.

That's right.

There are several over-arching concerns any professional photographer should have with the EyeEm business model. David Robin, photographer and advocacy lead for the American Photographic Artists (APA) trade association , has outlined several problems. Among them -

  1. EyeEm's pricing model undercuts the established market and extremely undervalues and commodifies professional photography. EyeEm's compensation rate to photographers for stock imagery with unlimited rights in perpetuity is as low as $10 ($5 if split with a third party). Even more egregious, EyeEm has dredged the bottom and doubled down on their exploitation model by only offering a credit line as compensation for photographer-funded spec work with unlimited rights in perpetuity for use by Fortune 500 corporations. Clearly their pricing sets a dangerous precedent that, if it supplants established pricing models, will in the end deprive pros from making a viable living. 
  2. The fact that EyeEm is based in Germany with no established legal entity in the U.S. should be a concern for any U.S.-based photographer. The cost and logistics of a U.S. citizen pursuing any legal recourse against a German based company for any breach or cause would be extremely prohibitive. There are many examples of companies based overseas that have been guilty of a breach of contract and/or illegal activity that went un-pursued leaving victims with limited to no recourse. 
  3. EyeEm has inappropriately portrayed their business model as a benign social media site rather than the for-profit stock photo and spec-assignment agency they are. 
  4. EyeEm has inappropriately lifted many of their contractual stipulations from social media TOS agreements. This deception is financially convenient for EyeEm, their investors and image buyers, but devastating for photographers and image creators. 
Here is an outline of the concerns with EyeEm's Terms of Service and Third Party Distribution Agreement. Here is the delineation of the most troubling stipulations in these documents:

  • Clause 5.2 Undermines the creators copyright (and future value of their work) by allowing EyeEm to have the unlimited royalty free ability to sub-license the User's work worldwide in perpetuity to any and all unnamed third parties without express approval nor compensation to the creator. 
  • Clause 5.2.3 Undermines the creators' copyright (and future value of their work) by allowing EyeEm to use the work for any and all advertising for EyeEm and any unknown affiliates in perpetuity without express approval nor compensation to the creator. This clause goes on to allow EyeEm to modify or change in any way they see fit the creators' images without express approval. Even if that modification might expose the creator to undue legal and financial ramifications caused by infringement, privacy violations, defamation etc. not of the creators' making. 
  • Clause 5.3 This inequitable clause allows EyeEm to post or use a creators' images without proper copyright notice or identifying the creator in any way. In this way EyeEm potentially undermines the creators' ability to prove ownership if infringement should occur. This is especially troublesome as it sets up a claim of Fair Use by an infringer under the Orphan Works carve out. 
  • Clause 7.2 EyeEm forces creators to take full legal and financial responsibly for their content even if that content might have been altered and / or modified without their approval by EyeEm (see 5.2.3) and in so doing exposed the creator to potential infringement, privacy violations, defamation etc. without their knowledge nor approval. 
  • Clause 8.1 This extreme indemnification clause places an undo financial and legal burden on creators to protect EyeEm, a wealthy global corporation and any and all third parties they associate with, against any and all damages or lawsuits arising from events that the creator may have no control over including defamation, infringement, privacy violations etc. In addition this section fails to provide any reciprocal indemnification for the photographer by EyeEm and it's affiliates. 
  • Clause 9.2 This places the undue burden to ensure the "legality of any Content" on the creator even if EyeEm or it's affiliates should alter that Content without the creators' knowledge nor consent and by so doing expose the creator to legal ramifications not of their making. 
  • Clauses 9.5 - 9.6 These clauses expressly release EyeEm and its affiliates from having to pay for any and all legal or financial damages if EyeEm or it's affiliates should alter content without the creators' knowledge nor consent and by so doing expose the creator to legal ramifications not of their making. 
  • Clause 10 Allows EyeEm to change this signed and executed agreement at any time and for any reason at their sole discretion without being obligated to directly notify creators via email in advance. A legal and binding agreement such as a TOS is not changeable under the law unless all parties proactively agree to the changes. Short of that, the accepted and ethical way for EyeEm to go about changing the terms of the TOS is to send an email to each and every member with an appropriate amount of lead-time to either accept or reject the changes, as banks have done for decades. 
There are also several critical omissions from their TOS that are standard and required to ensure all parties are protected:

  1. EyeEm has purposely omitted any stipulations that outline their responsibility to collect and hold funds in a fiduciary capacity and further fails to stipulate that these funds are being collected on behalf of the creator and are not the property of EyeEm. This clause is standard in any agreement between an entity or person collecting funds on another's behalf. 
  2. EyeEm has failed to delineate the method and timeline for the distribution of monies being collected and held on the creators' behalf and have failed to provide remedies should EyeEm default on their required duties in this regard. 
  3. EyeEm seems to purposely fail to delineate the prevailing law, venue and method for resolving disputes with creators. While deceptive and non-standard for American based companies, this glaring omission seems to be a common tactic used by overseas corporations doing business with U.S.-based photographers by unnecessarily withholding this critical information from the creator, EyeEm anticipates that U.S.-based creators won't realize the extreme cost and prohibitive logistics of bringing a case against EyeEm for breach, in German courts. If EyeEm wanted to be truly transparent and supportive of U.S.-based photographers, they would create a legal entity in the US to facilitate the fair resolution of disputes. At the very least EyeEm should state the venue, prevailing law and method for reparations in their TOS. 
In terms of their third party Distribution Agreement, there are several areas in the Agreement that appear purposely opaque (and/ or omitted) which hold a potential for the photographer to be unwittingly exploited. The key areas of concern are:

  1. EyeEm fails to list the third parties the creator is agreeing to have their images sold through. 
  2. EyeEm fails to provide the unnamed third party's terms and conditions the creator is expected to adhere to. 
  3. EyeEm fails to acknowledge that they have partnered with Getty Images as a third party and does not delineate the onerous terms of the Getty Images in the Agreement though they require the creator to adhere to them. 
  4. EyeEm fails to outline how the funds will be split between the third parties and the creator. 
  5. EyeEm fails to delineate the method and timeline for the distribution of monies being collected and held on the creators' behalf and have failed to provide remedies should EyeEm and / or the third party defaults on their required duties in this regard. 
So, how does EyeEm do this? They entice you with "missions" you don't get paid to complete. Here's one for Mercedes Benz:
Your Mission: The sheer beauty of nature, an incredibly stylish couple or perhaps some breath-taking architecture… this mission is all about finding the elegance all around us. If elegance is the quality of being graceful and stylish in appearance or manner, what images convey this? Show us to take part in this mission.
Your Reward: The winning five images will be featured across Mercedes Benz social media platforms, which have a cumulative reach of over 17.5 million people. The top images will also be featured on the EyeEm blog as part of an image collection.
Then there's one for Motorola, where they pitch it as:
What’s super cool about these missions is that your photo could end up as a featured wallpaper on one of Motorola’s phones. Motorola are putting together a range of images to be featured as wallpapers on their devices, and are looking for your colorful photos to be included!
In the end the EyeEm business model is representative of the pervasive devaluation of professional photography and a race to the bottom to see which entity can charge the least for photographs while covering their risk on the backs of the ones they rely on for their product. Without the proactive participation of pro photographers, however, this practice could not succeed.

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