The Week In Review, October 1st - 5th, 2007

Well, you have John Paczkowski, over at Digital Daily to either thank, or blame, for this idea. JP does a daily video post going over what he's written each day, so, I thought, well, perhaps I'd do one once a week, and here it is. Hit me with comments/criticisms in the comments section!

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Freeloaders Beware - Justice Prevails

So, when those that think it's ok to steal songs without paying the artists get ahold of the comments section of this post, I expect a barrage of criticism - sobeit. Today, The justice system awarded $9,250 in damages to Capitol Records for each of the 24 songs that were stolen without being paid for, as reported (with a rather anti-RIAA slant, here) by Gizmodo.

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The maximum award was $150k, so the kid got off scott-free, relatively speaking. Further, if anyone thinks that the kid is going to ever actually make good on his due, keep dreaming. This was a message being sent to all those freeloaders who can't bother to pony up $0.99 a song - don't steal. This suit gives teeth to the letters the RIAA is sending out. (I might add, this was 24, out of over 1,000 that were stolen.)

Despite my criticisms of Getty, Corbis, et al, I will be the first to stand on their side when they sue for infringement of the works in their collection. What's good for them is good for me (and the rest of us). With over 100,000 of my images registered, methodically back to 1989, I intend to fully and completely protect my copyright.

The only thing people think they can steal and get away with more than music, are photographs. Damn the infringers, and full speed ahead!

From the site All Things Digital RIAA Stamping Out Music Piracy One Single-Mother-of-Two at a Time comes a citation of the LA Times, "“In sum, the case will be the first test of the RIAA’s ability to sell a jury on its investigative methods, which have a degree of imprecision because of the anonymous nature of the Internet,” according to the Times' Jon Healey. The blog went on to say "...the RIAA has the Internet protocol address it claims was used to illegally share the songs at issue in the case, it must demonstrate that Thomas was actually using it in order to win the case. And that may well prove difficult."

Guess Not.

The Jury says: Justice 1:Thieves 1.0E+9

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Raiders of the Lost Pix

Screenhead is reporting:

over 2,500 stills have been stolen from the set of Indiana Jones and the Crystal Skull....The pictures are supposedly pretty revealing, and producers are scrambling to recover the photos that were taken by photographer David James. The pictures are reported to have been stolen from the Paramount Lot."

Images are assets, folks. I can only be thankful that a good friend of mine, who was up for the Unit Photographer part of the movie, but didn't get it, and is now off in the world on another assignment, didn't get this one.

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Welcome HP & Apple!

The past few days, I've been mired deep in metadata hell, getting my images prepped to be distributed to the masses from wence they came from their analog prison. It's now 4:30 am, and I've just finalized 1,500 images, all of which could have benefited from the latest travelling seminar series from HP and Apple, aptly titled:

'Images - Organize. Edit. Print'.

Brent Haley, who's earned his stripes at Adobe, Apple, and yes, the mystery that is Pantone, is travelling around the country over the next few months spreading the good gospel that is "The Ultimate Seminar For The Working Photographer".

To that end, the "Images" tour has discerned that you, dear reader, are a solid audience to reach with the message, and announcement, so please welcome them as our newest advertister by clicking over, and checking out more about the seminar, and when they're coming to a town near you. Currently, they're slated for Boston, SF, San Diego, Culver City, Miami, and New York between 10/23 and 12/6, with more cities coming online in the near future.

Oh, and did I mention, it's ** FREE ** ?!?! That's just how Apple and HP roll.

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Re-evaluating What You're Worth

I appreciated how highly regarded photographer Bill Frakes made a point during his recent appearance at the PhotoShelter Town Hall in Atlanta. Frakes recounted a story where he was asked to shoot a particularly challenging assignment of a sports facility, in use. For what the client wanted, Frakes quoted a figure of $10,000 for the assignment, and the client just went off, calling into question Frakes' pricing, and just how overboard and beyond the pail it was. The client said they'd hire someone else to do the work who was more reasonably priced, and Frakes thought that that was the end of it. Or was it?

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Instead, the client called back, saying that they'd hired another photographer, who's work just didn't cut it, and the images just didn't work, or were otherwise unusable. The prospective client now wanted Bill. Bill responded that the cost for the assignment was $20,000. The client was, as it was recounted, near speechless. How could it now be $20k? Hadn't he just quoted $10K, the client wanted to know. Frakes said "now you know how difficult the assignment is, so that's what it really should cost."

The client paid the new figure.

It helped that Bill's original estimate was only valid for 3 days, which gave him the leeway to make that adjustment. Not placing an expiration date on an estimate might have created a different - and $10k less - outcome in this situation.

For the past several years, I have been called upon by a high profile Washington DC client to execute a challenging assignment. It's become easier for me, to be sure, with the repeated experience. The assignment involves working directly with the President while away from the White House for one days' worth of the work, as well as a lengthy additional assignment the next day. This year, it had come to my attention that I was still onboard for the event with the President (because it was something they all knew I could do, and that there is a limited pool of people in town with that experience), however, I'd not even recieved a phone call asking about the second piece of the work.

In fact, a good friend of mine, who knew I had done this assignment over the years, did get a call, and he called me to ask about some of the specifics of the assignment, and I was happy to help - because he was a friend more than anything else. The client's events firm went so far as to tell my friend the figure he needed to stay within, and he did. In the end, the client didn't even extend to him the courtesy of a call saying he was not chosen, and he was frustrated, because he'd gone out of his way to assist them, and work within their budgetary figure. (FWIW, this figure was in the $4k range.)

The event I did do, came, and several people in attendance said "oh, we'll see you tommorrow..." and I politely said "oh, no. This year, I'm not on for that", and that response was met with repeated surprise. In fact, the head of the events firm said the same thing to me, and I said "let's talk about that, I didn't even get a call for consideration...", and this person was very surprised. I have a decade-plus relationship with them, and they know that it will be a challenge without me there.

When I made inquiries to friends of mine within the client's organization, I was primarily concerned that I had done something wrong. I couldn't concieve that there would be another reason I wasn't even given the courtesy of a phone call. My inquiries came back that the client "wanted to try someone else", and that there were no problems with me. Whew, I thought. Several people had some trepidation about having someone new, and an outsider, try to do the work. We were a well oiled machine together, and, in the end, my gut tells me that someone got the bright idea that it could be done cheaper. This wouldn't be the first time that a client of mine got that idea.

Well, while it could be done cheaper, at what cost?

Well, the event came and went, and the word back from inside the client's office is not good. Apparently, the "new guy" (or girl) just didn't get it. They were overwhelmed. They missed shots, they got in the way. Whomever made the decision not to use me is (probably privately) expressing regret about that decision. While I expect to continue my working relationship with this client over the coming year for other assignments, that particular event, to be sure, when it returns next year, will have a similar response that Frakes' had. My rates will significantly increase. Significantly.

Far too often, we make things look easy, and really make things run smoothly for clients, and we forget what a significant value that has for clients. We are far too quick to diminish the contributions we make, either in getting it right the first time - or when it really counts - and delivering what they want, when they want it.

As a result, we get stuck in the mindset that we can reduce what we charge, when asked, despite the fact that countless other clients have paid that amount, without complaint, for similar-type assignments.

I look forward to being able to be considered again next year for this assignment. And this experience has steeled my resolve to not only maintain my rate structure, but, wherever possible, to increase my rates on a regular basis.

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Proceed with Caution: The Retroactive License

One tactic in resolving unauthorized uses of one's images is to offer the copyright infringer a "retroactive license". This solution is often employed by photographers once the infringement is discovered, before engaging an attorney, or understanding fully what the risks of doing so are.

What risks are there in doing so?

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Nancy Wolff wrote in this article Masterfile wins $46,816.91 in internet copright infringement suit about how the court considered the amount of the retroactive license when awarding damages. Wolff wrote, in part:

"Before finally bringing a lawsuit, Masterfile offered to enter into a retroactive license agreement with J.V. Trading for the three years that J.V. Trading infringed. Although J.V. Trading did not respond, the courts used this offer as guidance in assessing whether the damage award requested by Masterfile was reasonable."

So, how does this work? Well, suppose you would normally license an image for a specific use for, say, $275. Oftentimes, a photographer might offer then, a retroactive license (that is, to pretend that the client actually licensed the image and was billed for it) for 3X the original amount. Sometimes, it's the amount PLUS 3X, or sometimes it's just a total of 3X the original amount. Either way, be careful when doing so, as you may place yourself at risk of a lower final judgement/award in your favor by doing so. A retroactive license should be a part of settlement talks, if at all, rather than a general offering, since settlement talks between both parties are not to be disclosed during court proceedings, thus, you would not be hindering yourself.

Lastly, make darn sure that whatever you do, you resolve only the infringment(s) at hand, and not grant to them a blanket agreement/license/settlement for "all infringements", since what you caught may be the tip of the iceberg.

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Speedlinks 09/30/07

Today's Speedlinks.

• Journal of a Photographer - Martin Fuchs' blog+ where he talks about life as a PJ.


• Photografr Blog - Chris Nixon's worthwhile amalgamation.


• Chromatic Soul Blog - Veronica Lynne's approach and perspective on the world is worth a look.


• Photoblogs.org - Just really interesting photos, and little else.


• Photowalking - What the hell is Photowalking? Check out the site, and learn for yourself!

Now go! Check 'em out, and come back soon!

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Media Removed - Managing Your Rights On The Web

I stumbled across this graphic today, and it got me thinking about rights on the web. Here, TMZ has a standard graphic that they swap in when their rights end for a particular piece of video, and, more importantly, they say "so sorry - we don't own everything". That's a perfect example of how things should occur.

How are others handling this?

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One of the big things will be how Getty handles the management of their 3 month license for online uses. Just as textbook publishers manage the rights when they order a second edition of a textbook, with no changes, so too must image buyers manage the rights of the images they have on their websites. It's nice to see that TMZ has some form of management of this, or perhaps, the video owner sent them a message along the lines of "if you want to keep that video up, it'll be $x more, otherwise, take it down", and TMZ felt that they wanted to keep their story up, but without the video. Somehow, without the accompanying video, it's just not as impactful - so too with photographs.

The use of some form of management/auditing system, to maintain image licensing aging, will be critical moving forward. One major solution would be for a photographer to submit a photograph to a third party with the licensed URL, and that organization would maintain the licenses for the photographer, and scour the web for unauthorized uses. PicScout currently scours the web, but it doesn't keep a watch on authorized URL's, and sending out invoices on a photographer's behalf for re-licensing, or licensing extensions.

This would be a natural service that a PhotoShelter or DigitalRailroad would apply to the licenses they grant onbehalf of photographers, which would generate them more money as well as you, the photographer. Perhaps they could also manage your licenses for images you negotiated yourself, if you just gave them the URL and image for reference. This could be a boon of a new service!

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