Saturday, April 19, 2008

Cultivate Your Creative Talents

If, by some strange convergence of the force, you have been able to combine your creative talents with a level of business acumen necessary to sustain it, do not forget about that creativity. That tap is a well from which you can always draw. Yet, to leave those well waters stagnant, is to neglect your sustaining abilities. The more you draw from that well, the more clear, and refreshing it will be. If you neglect to think yourself, and use other people's ideas for great imagery, giving them utterance only, you will fall far short of your own abilities, and what you are capable of.

~adapted from George Augustus Sala (1828 - 1895),
Journalist


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Friday, April 18, 2008

The 2008 AP Contract Analysis - Opening Recitations


FREELANCE PHOTOGRAPHER AGREEMENT


This FREELANCE PHOTOGRAPHER AGREEMENT (this "Agreement"), entered into as of date written above (the "Effective Date"), is between THE ASSOCIATED PRESS, a New York not-for-profit corporation with its principal offices at 450 West 33rd Street, New York, New York 10001 ("AP"), and the above-named photographer ("Freelance Photographer"). References to AP herein shall be interpreted to mean, where appropriate, AP and its subsidiaries and/or affiliates. AP and Freelance Photographer are individually referred to as a "Party" and collectively as the "Parties."
(Continued after the Jump)
Comments:
This beginning section of the contract is fairly straightforward. I note that the bottom of this page says “Page 2 of 5”, and it’s somewhat confusing. Page 1 is actually a form of a cover letter, but the named photographer isn’t actually listed “Jane Doe”. Instead, it starts off “Dear Jane.” Also of note – it’s not required for this contract to delinate the AP as a “not-for-profit corporation”. Such identification is a negotiation tactic – attempting to soften up the photographer to the notion that the AP doesn’t make any profits, and so, perhaps you should be more willing to accept the terms and rates proposed. Yet, being a “not-for-profit” does not mean that you don’t make a profit, it means that whatever your profits are, you are not distributing them to the owners or shareholders of the organization. It is a tax status, not a reason for compassion.

Could be better if changed to:
More for clarification than anything else, It should read, instead “…and the above-named photographer ("Freelance Photographer")” should read: ”…and Jane Doe, ( hereinafter referred to as "Freelance Photographer".


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The 2008 AP Contract Analysis - Section 1

The principle sections of the contract begin here:

Section 1. Agreement.
1.1. This Agreement sets forth the conditions under which Freelance Photographer shall provide freelance photography services to AP. Freelance Photographer and AP agree that from time to time during the Term (as defined in Section 7 below), AP may commission Freelance Photographer in writing to perform photographic assignments on its behalf (each an "Assignment"). AP may propose such Assignments, but Freelance Photographer is under no obligation to accept any such Assignment by AP. Each Assignment may contain additional terms and conditions that supplement or amend portions of this Agreement for that particular Assignment; such terms and conditions shall be in writing in a separate document prior to Freelance Photographer's acceptance of such Assignment. Any such additional terms and conditions shall apply only to that particular Assignment and shall not apply to any other Assignments. In the event of any conflict between the terms of this Agreement and an Assignment, the terms of this Agreement shall control.
(Continued after the Jump)
Comments:
It is important to note the commissioning of assignments here, takes place before-the-fact. While not specifically delineated, the AP has a separate document (and a separate rights clause) for work that the photographer brings in for consideration that are not assignment related. So, if you are an AP freelancer, and see breaking news, and contact the bureau regarding those images, a separate agreement – that is not an assignment – is put forth. In it, you are not assigning/transferring copyright to the entire coverage of the news event, just the image(s) they select to move. You are then free to take the remainder of that content and do with it what you wish. It may be of value to consider making just a single image from an event of this nature available to the AP, with outs like “no mags, no resales, no online, no archive”, and so forth. Thus, only the member papers, for a brief period of time, can use the images, and that becomes a marketing outreach for the rest of your take, which you could market through an agency or other online service. The negotiated points of these agreements are likely more flexible than this contract is.

Could be changed to:
AP could be more clear in the language here, detailing that work that is to be considered an assignment is only work that was commissioned before the time that the assignment was to take place. There’s ambiguity here.

Here's the next sub-section and commentary:
1.2. Freelance Photographer is acting as an independent contractor under this Agreement. Neither the making of this Agreement nor the performance of its provisions will be construed to constitute either Party an agent, partner, joint venture, employee or legal representative of the other Party. Freelance Photographer is responsible for paying all income and other taxes incurred as a result of the amounts received from AP pursuant to this Agreement. AP shall provide Freelance Photographer with an IRS form 1099 each year for any amounts paid to Freelance Photographer during that year.
Comments:
This is pretty standard language. It says you’re not an employee, and this is important because some guild/union rules may, after certain conditions are met (days/hours worked, etc) force the AP to convert you to an employee. This may be an antiquated concept, but the guild/union is looking to protect it’s number of members that are AP employees, and the extensive use of a freelancer, as opposed to the hiring of them as an employee, may be a long-term effort to suppress guild/union rolls, and diminish their ability to negotiate and affect change through a strike, work-stoppage, or slow-down.

It also reminds you that you have to pay your taxes. Make special note – if you invoice the AP for “photographers fees - $200”, you are taxed on that full amount. If, however, you delineate “Photographers fee - $180, Event Parking - $20”, you may be able to diminish the amount that you are taxed for income by the amount of your expenses. Whether parking, meals, online service charges (Starbucks, etc). More importantly, as noted below, the AP is now paying you royalties.Be sure that the 1099 you get from the AP properly identifies that portion of your income as such. This is important because royalties are not generally subject to self-employment (aka social security) tax, which is a savings of 15%. So, if your income is lump-sum listed as $2,000 in section 3 of the 1099, you might find yourself paying $300 in self-employment taxes. However, if your income is listed as $1,000 for your assignments in box 3 – “Other income”, and $1,000 in box 2 – “Royalties”, you would – generally speaking, only be paying $150 in self-employment taxes. This is a simplification of the process, because it doesn’t take into consideration net income versus gross, and so forth, but it’s important to draw the income distinction for tax purposes.

Could be changed to:
It would be better if the AP stated that they would properly delineate the distinction on the 1099. So, instead of it reading “AP shall provide Freelance Photographer with an IRS form 1099 each year for any amounts paid to Freelance Photographer during that year”, it might better read “AP shall provide Freelance Photographer with an IRS form 1099 each year for any amounts paid to Freelance Photographer, reporting assignment payments as “Other Income”, and reporting royalty payments as “Royalties” income (if any), during that year.


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The 2008 AP Contract Analysis - Section 2

Here's Section 2, followed by commentary:

Section 2. Assignments.

2.1. Freelance Photographer shall use his/her own equipment for the purposes of executing and completing each Assignment. Notwithstanding the foregoing, in the event there is specialized equipment required to complete the individual Assignment and the Freelance Photographer does not possess or have access to such equipment on his/her own, then AP may in its sole discretion, supply such equipment, which shall be used by Freelance Photographer only in connection with such Assignment and then returned immediately to AP upon completion of such Assignment or prior to that, immediately upon AP's request.
(Continued after the Jump)
Comments:
At what point is what you own, expected to be a part of your core set of owned equipment? Is specialized equipment a 300mm lens? At the purchase and maintenance costs of such a piece of equipment, the ability to recoup the $5k or so that this lens costs makes owning it, financially unjustifiable. Local camera stores in the DC area charge roughly $50 per day for that kind of lens. The AP does not allow for the rental of this, or any other specialized equipment. It just says they can, at their discretion, supply it. I can’t see the long-term value in owning a long lens like this when you’re not properly compensated by either a surcharge allowance, or the ability to be reimbursed for rental charges. There does not appear to be the allowance for that. Further, the AP should allow you to “rent to yourself” a lens like this. This concept is very common in the television news arena, where you are hiring the cameraman for $X, and if you want him to bring his $30k camera, it’s $X+$Y, where $Y is a standard up-charge for the use of the equipment. Otherwise, the hiring company provides the camera and other equipment.

I propose below a change to be in-line with the TV model. A schedule could be attached which would allow for a standard package of equipment – say 2 bodies, and lenses ranging from 14mm – 200mm, 2 strobes. Since a standard camera rental for a single body is $125 or so a day, and lenses of that type are $15 or so a day, Even though it would be irresponsible for the AP to send you out with one body, and a full rental package should be $300 for that range of gear, it might be reasonable to pay you $150 for the days use of your equipment. In some cases, there may be an editor on-site you are delivering your cards to, and so a laptop may not be necessary. In cases where you are required to have a laptop and wireless internet to deliver images, a per-day laptop rental/usage charge of $50 could apply.

The basis for this concept was that some networks required betacam’s, other’s betacam SP, some shoots required lights, backdrops, dollies, and a wide variety of audio gear. So too, but to a lesser degree, do still photographers have a variety of potential equipment needs to fulfill the requirements of an assignment. It’s not unreasonable to apply the TV model of compensation here.


Here ,a New Jersey firm, Euro-Pacific, delineates the level of professional equipment needed for the assignment. Perhaps the AP could specify Nikon D70 or Canon 10D, as is delineated on the video package, for a Mini-DV camera, versus a top of the line Betacam SP. For a Betacam SP package for the day, it’s $1225. Here this crew rates listing shows that a camera operator only is $525 for the day (an audio tech is $420), and you can add-in a Sony Betacam SP for $630, for a total of - $1155 for the day. This surely looks to be a fair method, especially when you look at the equipment they bring, and similarly, still photographers bring, to an assignment. While it's somewhat silly to suggest a D70/10D over an EOS 1Ds or a D3, or any other technical specification for the camera, the point remains that the cameras could/should well be separated out.

Could be changed to:
“then AP may in its sole discretion, supply such equipment,” should be changed to “then AP may in its sole discretion, supply such equipment or authorize the rental charges of same,”. Ideally, this clause reads, in part:

AP may in its sole discretion, supply such equipment necessary for the execution of the assignment. In the event that the AP supplies such equipment such equipment, it shall be used by Freelance Photographer only in connection with such Assignment and then returned immediately to AP upon completion of such Assignment or prior to that, immediately upon AP's request. Freelance Photographer may, at the AP’s discretion, use his/her own equipment for the purposes of executing and completing each Assignment. The AP shall pay rental charges pursuant to the attached schedule of rental fees, for equipment normal and usual for the completion of the assignment. Any specialized equipment needs shall be discussed and agreed to prior to their application on the assignment.

Sub-section 2.2, up next:
2.2. AP shall provide to Freelance Photographer, on a per-Assignment basis, a description of the Assignment, and may provide a letter of introduction to obtain working press credentials necessary for Freelance Photographer to gain access in connection with the Assignment. All such items must be returned immediately to AP if Freelance Photographer does not accept an Assignment or upon AP's request. Freelance Photographer may not use the AP name to obtain media credentials except in order to gain access as a freelance photographer when performing Assignments that Freelance Photographer has accepted under this Agreement. Freelance Photographer will act in a professional and businesslike manner while on Assignments for AP. Freelance Photographer may not create credentials, badges, business cards or similar identifiers using the AP name or trademark. Freelance Photographer will not have access to or use of AP's systems, equipment or materials except as otherwise specified in Section 2.1 above. In the event that AP provides Freelance Photographer with access to metadata, captioning standards or other proprietary tagging information ("AP Metadata, Captioning Standards and Tagging Information") for purposes of tagging Assignment Photos (as defined in Section 3.2 below), Freelance Photographer shall not use any such AP Metadata or Tagging Information for any other customer, purpose or project other than an Assignment. AP Metadata, Captioning Standards and Tagging Information is confidential and proprietary to AP, and may not be used in a manner not expressly authorized hereunder, and may not be made available or disclosed to any other party or used for any other purpose.
Comments:
Be cognizant of the description of the assignment. Some events may require a just a few images to be transmitted, while for others, even of a similar duration, could require a dozen. I can assume that the AP thinks that, on average, it will work out and be fair.

Note the preclusion that you “may not create”, however, this does not preclude you from wearing or displaying AP lanyards, luggage tags, stickers, and so forth that the AP made, but that you are using on your equipment. Simply affixing or wearing those identifiers is not a technical breach of this term, when they are AP created.

Note that the AP considers its’ Metadata and Tagging Information as proprietary – and thus – of value. You too, if you don’t already, should be recognizing the value of this aspect of your work.


Sub-section 2.3:
2.3. Freelance Photographer is free to engage in any other business or profession and to contract his or her services with any other entity or person ; provided that while on Assignment, Freelance Photographer shall perform services solely for AP. Freelance Photographer may retain or subcontract with other individuals to assist on Assignments; provided that only Freelance Photographer shall compose and capture the images in the Photographs (as defined below) .
Comments:
The AP has to have this clause in here, otherwise, your preclusion from working for, say, Reuters, might be something that could trigger an IRS look at your relationship, and deem you to be an employee, regardless of what Term 1.2 above specifies.

The AP also here is careful to ensure that your assistants aren’t triggering cameras (remotes, etc) since that may cause that assistant to have a claim to the copyright of the work. This is an important clause here – be careful you pay special attention to this when working with assistants.


Sub-section 2.4 is pretty straightforward, and doesn't really need any comments:
2.4. All Photographs (as defined below) created by Freelance Photographer while on an Assignment must be submitted to AP in accordance with Section 3 below.


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The AP 2008 Contract Analysis - Section 3

Here's Section 3, followed by commentary:

Section 3. The Photographs. For purposes of this Agreement, the term "Photograph" shall mean any reproduction , negative, transparency, digital file or reproduction of a still image in any form.
Comments:
This is a very important distinction here – the definition of “Photograph”. This section specifically delineates what you are required to deliver, and it does NOT include any audio you capture, nor video. That content is not covered by this agreement, and your capturing of it can allow you to significantly enhance your portfolio use of the assignment images, and moreover, produce video content from the same event for your sole use/licensing, without being in breach.
(Continued after the Jump)

Section 3.1:
3.1. In connection with any Assignment for AP, Freelance Photographer shall promptly select in good faith and transmit, using reasonable, professional judgment, the best Photographs created by Freelance Photographer during the Assignment ("Best Cut Photos"), whether such Photographs relate directly (e.g., Photographs pertaining to an entertainment event that is the subject matter of the Assignment) or indirectly (e.g., Photographs pertaining to a fire that breaks out during that entertainment event) to the subject matter of the Assignment. An Assignment may specify a minimum number of Best Cut Photos to be submitted; however, Freelance Photographer shall continue to submit Photographs until AP affirmatively tells the Freelance Photographer that AP has received a sufficient number of Best Cut Photos. Freelance Photographer shall caption each of the Best Cut Photos and provide accompanying metadata as provided in the Assignment. Freelance Photographer shall supply such Best Cut Photos to AP in a timely manner, or as directed by AP during the Assignment.
Comments:
Herein lies the distinction of the value of a laptop, versus a home computer. The use of the word “promptly”. If I do not bring my laptop – something that I pay upwards of $3k every two or so years for – then the AP is at a disadvantage as it relates to time if “promptly” means “when I get back home”. And further, it “promptly” means using my dialup connection, instead of the investment in a cable modem, if it’s even available. Even though many of you reading this may be in metropolitan areas, the fact remains that there is a significant percentage of Americans who don’t have high-speed internet access.The AP is expecting a great deal of additional infrastructure for you to have at your disposal, and the fees, regardless of region/bureau, just are not commensurate with that.

Also, do not underestimate the additional amounts of time necessary for captioning multiple images. Also, be sure to save any correspondence (whether e-mail, or instant message) which proves the affirmation that the Best Cut Photos delivery requirement has been met.


Could be changed to:
The phrase “An Assignment may specify a minimum number of Best Cut Photos to be submitted;” could be more fairly noted to read “An Assignment will specify a minimum number (or range) of Best Cut Photos to be submitted;”

Section 3.2 is below:
3.2. Within five (5) days of the end of the Assignment or as otherwise specified in the Assignment, Freelance Photographer shall provide to AP all Photographs taken during the Assignment in electronic form, along with caption information and metadata necessary to document the Photographs created during the Assignment according to AP's requirements (collectively with the Best Cut Photos, the "Assignment Photos").
Comments:
This is an interesting clause. In my conversations, it was indicated to me that the submission of other images from the assignment was optional, and that it was intended to generate additional images that wouldn’t be sent on the wire, but go directly to the AP archive, and that part of the reason for the royalty was to incentivize photographers to do this work. However, the language here requires “all Photographs taken”, which is an excessively burdensome phrase, and, I believe, not the intent of those who drafted the contract.

Further, this clause is ambiguous; as it could be that you deliver a CD to them, with a shot list, and simply be done with it.


Could be changed to:
This phrase “Freelance Photographer shall provide to AP all Photographs taken during the Assignment” could be changed to “Freelance Photographer may, at their own discretion, provide to AP all Photographs taken during the Assignment for placement in the AP archives.”

Section 3.3 begins below:
3.3. Freelance Photographer represents, warrants and covenants, as applicable, that: (i) Freelance Photographer has all necessary authority to enter into this Agreement and all necessary rights to provide the Assignment Photos to AP under this Agreement; (ii) Freelance Photographer has the necessary equipment and ability to process and transmit Photographs to AP; (iii) the Assignment Photos are original works created by Freelance Photographer; (iv) the Assignment Photos have not been altered in any manner beyond the methods normally used to prepare an image for transmission, which include color correction , cropping , burning, dodging and spotting for dust or other technical imperfections in the image; (v) the Assignment Photos (excluding the contents depicted therein , which Freelance Photographer does not give any representation and warranty with respect to unless otherwise required in the Assignment) do not infringe any third party copyright; and (vi) all moral rights pertaining to the Assignment Photos have been waived .
Comments:
The distinction in clause “v” is new, and appropriate. Many times, a clause like this reads “the Assignment Photos do not infringe any third party copyright;”, and you just can’t sign something like that without taking on substantial risk and potential liability. The AP has done a fair job here of delineating what you are warranting.

Clause “iv” is important, and it’s just worth re-stating. Don’t alter your photos. Don’t dodge or burn so significantly that it’s no longer a real and true representation of the scene, as it appeared. This is news, and not the opportunity for a photo illustration.


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The AP 2008 Contract Analysis - Section 4

Here's Section 4, followed by commentary:

Section 4. Rights.

4.1. Freelance Photographer agrees that the Assignment Photos have been commissioned by AP, and each of the Assignment Photos is a "work for hire" under the Copyright Act; and to the extent that the Assignment Photos are not deemed to be a "work for hire" under the Copyright Act by a court of competent jurisdiction, Freelance Photographer hereby assigns all right, title and interest in and to the Assignment Photos to AP, including all copyrights and any other rights in law or equity (including but not limited to other derivative works of any kind, made by any method or technology known or invented hereafter, derived from the Assignment Photos) . Freelance Photographer agrees to assist AP, at no further cost to AP, in perfecting any such assignment, including executing any documents within a reasonable time period after AP provides them to Freelance Photographer.
(Continued after the Jump)

Comments:
Ok, here’s a bit of splitting hairs, but worth considering. First – the circumstances under which a “work for hire” situation exists, doesn’t really meet the terms that that terminology requires. As such, all contracts I’ve read also include something like “you agree to transfer all rights/copyright…” to the photos. However, in order to transfer, or assign them, you must first register them.

Now, two things come into play. First is that you may have to actually register the copyright yourself in order to transfer it, hence the language where you agree to – for free – assist them in securing those rights. More importantly, is, a copyright transfer need not be forever. The Copyright law allows for you to recover copyrights you transferred –it’s called a “termination transfer.” For more information (keeping in mind my indication about the lack of your work as being a WMFH) check out the Copyright Office’s section 203 .

Thus, any attempt to collect your copyright for a duration longer than 35 years, would be inconsistent with the language in section 203.

In addtion, I don’t know of a single instance where freelance colleagues of mine have signed any Copyright Form VA documents effecting this transfer, so it may be that there are massive amounts of freelance work of the AP’s that are not registered. Additionally, there's a great article about termination of transfers here.


Section 4.2:
4.2 . AP hereby grants Freelance Photographer the worldwide, non-exclusive license to reproduce, prepare derivative works of and publicly display Assignment Photos in a personal portfolio only; provided that any Assignment Photos displayed include proper attribution to AP, and the display is only for personal, non-commercial use by the Freelance Photographer.
Comments:
Seeing this in writing is of value. In many instances, it’s not there, meaning you can’t use the work on your website, or portfolio. Although it may technically be that a website is a commercial use.

Could be changed to:
“in a personal portfolio only” could better be clarified to read “in a personal portfolio, on a website demonstrating photographer’s photographic capabilities, or for the purposes of self-promotion”. This would allow the photographer to also send out a promo email with a “here’s what we’ve been doing this week” type of client update.

Section 4.3
4.3. The attribution provided for Assignment Photos licensed by AP shall be "[Freelance Photographer's name]/AP." Failure to include such credit or to cause licensees to include such credit will not be deemed a breach of this Agreement.
Comments:
The AP has chosen curious language here, and it may be a just an oversight, but the language says ”licensed by AP”, and the AP actually becomes the owner, so I’m not sure why it says “licensed”, but it could be to be cognizant of the non-WMFH status of the images, and as such, the transfer of rights.


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The AP 2008 Contract Analysis - Section 5

Here's Section 5, followed by commentary:

Section 5. Payment. In exchange for accepting and performing Assignments and for the rights conveyed in Section 3 and Section 4 above , AP shall pay to Freelance Photographer an assignment fee provided for in writing in connection with each Assignment. Freelance Photographer must submit an invoice to the AP address shown on the notice of Assignment within 30 days of each Assignment. The invoice must be on the Freelance Photographer's personal business letterhead and it must itemize the Photographs made during the Assignment and the fee for the Assignment. Non-conforming invoices shall be returned to Photographer and payment shall not be made until a conforming invoice is submitted to AP. AP shall pay the undisputed amount of each submitted invoice within thirty (30) calendar days of receipt of the invoice. Any dispute about any invoice shall be resolved through good-faith and amicable discussion. Freelance Photographer acknowledges and agrees that Freelance Photographer shall be responsible for his or her own personal expenses (e.g., travel, accommodation, food, mileage and parking expenses) related to the Assignment and that AP will not reimburse Freelance Photographer for such expenses. AP may at its sole discretion adjust basic assignment rates to account for extraordinary assignment expenses.
(Continued after the Jump)

Comments:
It’s just not considerate to foist upon a freelancer a one-size-fits-all fee, which includes parking, mileage, and so forth. An assignment that requires the photographer to park at a downtown DC parking garage, for example, could incur $25 in parking, or a comparable figure in taxis to and from the assignment. This alone amounts to about 10% of the assignment fee. Expenses should be and additional amount. Parking doubtfully will ever be allowed as an “extraordinary” expense, for example.

Could be changed to:
This section could recognize the reality of being a photographer in a metropolitan area, where parking is an additional approved expense, as should mileage be. Including a sentence such as “Photographer may bill fair and reasonable expenses directly associated with the completion of the assignment, such as parking, mileage, and so forth.”


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The AP 2008 Contract Analysis - Section 6

Here's Section 6, followed by commentary:

Section 6. Royalty.

6.1. AP shall pay to Freelance Photographer, during the life of the Freelance Photographer only, a royalty of Twenty-Five Percent (25%) of the net revenue collected by AP (the "Royalty (ies) ") from the a la carte licensing within the United States of qualifying Assignment Photos to third parties that are not (i) members of AP, or (ii) customers on a fixed, metered or other subscription basis of AP, and AP's subsidiaries or agents , (such licensing, "Assignment Photo Licenses"). For the avoidance of doubt, the phrase "Assignment Photo Licenses" shall not include: (a) licensing of one or more Assignment Photos via an images subscription service to members and customers of AP and its subsidiaries and affiliates; (b) licensing or sale of archive news or video stories that incorporate one or more Assignment Photos; and (c) licensing or sublicensing of one or more Assignment Photos by AP and its subsidiaries and agents outside of the United States . Furthermore, Freelance Photographer acknowledges and understands that he/she shall be entitled to no Royalties for (a) licensing or use of any Assignment Photos in any subscription news services of AP or its subsidiaries or agents, or use by the members and customers of AP or its subsidiaries or agents with a license to access and otherwise use such subscription news services; (b) use of any Assignment Photos in publicity or advertising materials of AP, its subsidiaries and agents, or in books published by or on behalf of AP; (c) licensing of any Assignment Photos by AP or any subsidiary or agent of AP located outside of the United States ; or (d) any use of any photographs or other material submitted by Freelance Photographer to AP prior to the parties entering into this Freelance Photographer Agreement. AP shall provide written notice to Freelancer of any changes to the Royalty (ies) made in AP's discretion to all similarly situated freelancer photographers under a Freelance Photographer Agreement.
(Continued after the Jump)
Comments:
On the surface, this appears to be a thoughtful clause. However, so many potential licensors are stripped from qualifying to owe the photographer a licensing/royalty fee, that I will be surprised if photographers earn much at all. I understand that this is for the US only, and while seemingly limited, I further understand that the ability to pay for foreign licenses will be added at a later date. Further, “the little word that could” here is the word “net”. As in, “net revenue collected.” Ask any Hollywood writer who was given 5% of the movie’s net revenue, how much they’ve ever seen, and the answer will be zero.

Could be changed to:
This clause should take out the word “net”, and there should be a mechanism to compensate photographers who’s work was used in subscription services. More and more, online users are licensing the entire content steam from wire services, using whatever they want.

Section 6.2
6.2. Within sixty (60) days of the end of each calendar quarter, AP shall provide to Freelance Photographer a report of the Royalties from Assignment Photo Licenses to be paid to Freelance Photographer (the "Royalty Report") for the immediately preceding calendar quarter. The Royalty Report shall identify the following for each Assignment Photo License: (i) the party to whom Assignment Photo(s) were licensed on an a la carte basis ; (ii) the download date(s); (iii) the respective license amount(s); (iv) the applicable Royalty; (v) the caption(s); and (vi) the invoice date. The Royalty Report shall be accompanied by the Royalties for the calendar quarter. It is understood that AP may offer Assignment Photo Licenses for Assignment Photos at a bulk rate to a la carte licensees, which may require allocation of revenues across photographic images from various photographs downloaded and/or made available to such a la carte licensees. In the event Assignment Photo(s) are licensed on an a la carte basis with other photographs at a bulk rate, the net revenue received by AP shall be apportioned on an equal pro-rata basis across all photos included in the a la carte bulk rate, for purposes of determining the Royalties for each Assignment Photo.
Comments:
Just as the AP can apportion the amount of bulk licenses here, so too should they use that same (or a similar) mechanism to apportion royalties due as a part of a subscription license.

Section 6.3
6.3. Freelance Photographer shall maintain with AP valid, complete, accurate and current information as required by AP ("Freelance Photographer Payment Information") including without limitation, address information and bank information required for direct deposit, by which AP may remit Royalties to Freelance Photographer, via United States Mail or electronic direct deposit, or such other method of payment in AP's sole discretion, and provide other necessary documentation, including any appropriate tax documents. AP shall not be responsible for payment of Royalty if Freelance Photographer does not maintain or provide upon request of AP such Freelance Photographer Payment Information, as required by AP. AP shall not be responsible for paying any interest on amounts held by AP. Freelance Photographer shall provide AP with written notice of any changes to the required Freelance Photographer Payment Information at the address listed in Section 9 below .
Comments:
Here, they say you have to keep them informed of your location, or bank account information. Fair enough. They also say they’re not responsible for any interest from monies which they held. However, they don’t stipulate how long they might hold monies for you. They should stipulate that the money due you is forfeited after 5 years, or 10, or your death.


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The AP 2008 Contract Analysis - Sections 7,8 & 9

Here's Sections 7,8, & 9, followed by commentary:

Section 7. Term and Termination. The term of this Agreement (the "Term") shall begin on the Effective Date and shall continue until terminated by either AP or Freelance Photographer, with or without cause , upon thirty (30) days' prior written notice. Upon termination, all obligations of both Parties , except for any obligations under Section 3.3 i, iii, v, vi, Section 4, or Section 6 above, shall end. Any provision of this Agreement that, by its nature is intended to survive termination of this Agreement, shall survive termination of this Agreement.
(Continued after the Jump)
Comments:
You’re a lifer here. Once you sign, you’re on the hook until you provide the AP with notification that you terminate the agreement.
Section 8. Indemnification. Freelance Photographer will indemnify and hold AP harmless for any claims , matters , complaints, liabilities and actions arising out of AP's engagement of Freelance Photographer for Assignments, including but not limited to Freelance Photographer's failure to comply with applicable laws, rules and regulations concerning the withholding and payment of taxes in connection with services rendered to AP pursuant to this Agreement.
Comments:
Here’s one you need to discuss with your insurance agent. They will most assuredly tell you that you are taking on the liability if the AP misuses your photographs, and that you, the sole proprietor/LLC/S-Corp can’t possibily sustain the costs and liabilities of this indemnification clause. Just as you are limited in Section 3.3(v) as it pertains to providing a warranty and the exclusions of such a warranty, so to should you be excluded from misuses by the AP, or an AP licensor, of the images that you provide.
Section 9. Miscellaneous. This Agreement shall not be amended, modified or changed in any respect except by written agreement of the Parties. No trade, custom or usage shall affect this Agreement or the terms and conditions thereof. This Agreement incorporates the entire understanding of the Parties and supersedes any and all prior agreements, oral or written, relating to Freelance Photographer's relationship with AP and is intended as a complete and exclusive statement of the terms of the arrangement between the Parties . The terms and conditions of this Agreement shall inure to the benefit of any entity, which succeeds to or acquires all or substantially all of AP assets or business or the AP Images business. Freelance Photographer agrees that any dispute, claim or controversy concerning this Agreement, or the termination thereof, shall be governed by the laws of the State of New York without regard to its conflicts of law provision . A facsimile copy of this Agreement fully executed by the Parties shall be deemed to be an original Agreement. The failure of AP to demand adherence to one or more of the provisions of this Agreement shall not be construed as a waiver nor deprive AP of the right thereafter to insist upon strict compliance therewith. If any provision in any paragraph of this Agreement shall be deemed to be invalid or unenforceable, the remainder of such paragraph and of the Agreement shall not be affected . Any notice or other communication required to be given hereunder shall be in writing and shall be deemed sufficiently given when delivered personally or mailed by registered or certified mail to the Parties at the following addresses (or at such other address as either Party may designate by notice given pursuant hereto). Notices to Freelance Photographer shall be given to the contact information set forth above. Notices to AP shall be given in writing to: The Associated Press, 450 West 33rd Street, New York , New York 10001, Attention : Office of the General Counsel; Ref: Freelance Photographer Agreement. Notice shall be effective when received.
Comments:
This too is a pretty standard clause. However, it’s problematic because the AP does business in all 50 states. As such, they have legal entities in each state. Further, when they sign a lease for a building, or execute other business transactions in each state, the governing law is almost certainly that state’s laws. Since you are working in your state, they have an office in your state, and the assignment in in your state, the governing laws should not be New York, but rather your state.


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The AP 2008 Contract Analysis - Rates

The rates are all over the place. We couldn't collect the figures from all the various bureaus, but we've got what we understand to be a few. If you have one for your city, feel free to post the figures in the comments section of this post - anonymously of course - so others may know the different rates per region/bureau. If you've got a correction, send it along and we'll update this post.

(Continued after the Jump)


Ohio's base rate is now $175, and the multiple assignment/tournament rate is now $275.

In Florida, the rate for news or Feature coverage - single assignment. Legislative, business, news, sports news conference, weather feature, interviews, or a member special went from $160 to $250. For news or feature coverage - multiple assignments, assignments in nearby locations, the rate is $425. For major assignments, all day stake-outs, in-depth feature coverage of a story that is particularly time consuming, the rate is $350. Single sporting event - pro and college basketball, baseball, or hockey, for instance, the rate is $250. For football, both pro and college, the rate is $300. for the multiple assignment/tournament rate, pro and college golf, car racing, tennis, or other sporting tournaments, for example, the rate is now $350.

For DC, the first assignment is now $250, Football games are $300, extended coverage is $350, and multiple assignments are apparently now $425.

For Richmond, the single assignment is $200, major assignments that require extended coverage is now $300, multiple assignments are now $325, all single game or single event sports (except football) are $225, all football games are $250, and multi-game sports tournaments or sports events requiring extended coverage is now $300.

Each rate sheet includes the following language:
"AP does not pay itemized assignment expenses. Assignment rates include typical costs including mileage in and around town, parking, and tolls. Assignment costs for assignments requiring extended travel or other extraordinary expenses are estimated and agreed upon in advance and reflected in a new, overall negotiated rate. Unforseen extraordinary costs are negotiated after the fact and reflected in a new, all inclusive rate."

Yes, these rates are higher. They certainly should be since the last rate hike, since everything - including cameras! - has gotten more expensive. Factoring in just a the cost-of-living increases since the last rate hike, these rates are not a "raise", they barely (if they even do) keep up with the cost of inflation.


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Thursday, April 17, 2008

The Value of a News Photograph

I can't tell you the number of times I hear from friends and colleagues that define themselves as "news photographers" that their images aren't worth that much, and re-use/licensing isn't a big deal to them.

Enter Aaron Eisenhauer (his blog), a staff photographer for the Southeast Missourian. Aaron was in the right place at the right time (from a news photographer's perspective anyway) to capture the rescue of a vehicle by a passerby, and a story about the rescue ensued. Next, the paper wrote about how the photo (and events) had received national attention. (check the link for other images from the incident).

Guess who decided to turn this photo into an advertisement, after some retouching?

(Continued after the Jump)

Why, FedEx. The photo appeared as the sole visual element in a full page ad that ran in the A section of the Washington Post yesterday. (click to see it larger in a new window).



The first thing that caught my eye was the photo credit - "Courtesy of" it read.

Could it be that the newspaper simply gave the photo to FedEx for free? The follow-up article notes "FedEx got permission from the Southeast Missourian to use the image on its internal employee Web site," but this is a national advertisement. Was it Aaron's to license himself? "FedEx is paying us for the photo. We didn’t just give it to them" wrote Aaron in an e-mail when we asked. Whew! FedEx, with their "Courtesy of" photo credit, which in newspaper parlance means "free", is usually used in relation to "Photo courtesy of the Jones Family", when no other art is available.

For Aaron, he's on staff there, so a resale really benefits his employer. Now, some employers have policies (either formal, or informal) where the staff shares in reprint or licensing sales, and Aaron's paper does as well. Aaron writes - " They paid $5,000 for one photo. They also paid $500 for the use of two hi res images from the sequence. Those two images were only used to create mock-ups of the ad, never to actually be used in the print ad. It was only to help them decide which photo they used. They still have the option, if they want, to buy the rest of the photos in the sequence for another $5,000. But for now, they are paying the Southeast Missourian a total of $5,500. I will get a share of this payment, but that percentage is still being discussed."

FedEx also used the image in a newsletter-type manner here, (which I would have expected), but then also on this external, much more commercial use on this FedExStories.com website, as seen, in part, here:

The next thing I wanted to know was if FedEx had gotten permission to use the photo of the man rescued. So, we placed a call, and spoke to the 78 year-old who's life was probably saved, Odell Bunch. "Oh yes", he said. "They came and got me to sign something." I asked if they were paying him anything, and he responded "oh, I don't know. I think they're going to send me something, I don't know, and I don't care."

I thought, perhaps that FedEx might buy him a new truck, so I asked. He said "no, the insurance paid for it. The engine was fine, just needed oil and fluids changed." So you're driving the same truck? "Yup" came the response.

I asked about what happened that day, and he was happy to recount the story. One point he made in the re-telling was that he knew his rescuer, Jay McMullin, saying "I know his folks, and he's a good kid, he would have stopped to help anybody." This didn't come out in the story, just that it was a FedEx driver who rescued Odell. Yes, saving someone is good. The FedEx ad leads us to believe that their employee just saved some random person, rather than someone that is a family friend.

But I digress. this isn't just about FedEx paying Mr. Bunch, or not. Nor just about the fact that the guy that is standing in the background on his open car door's edge (the black doors open are the car behind the FedEx truck, not those of the FedEx truck), who was retouched out of the photograph (either because they couldn't find him, or they did, and he wouldn't sign a release), but it's about the value of your news photo - the one you think isn't worth much.

Yesterday, Thursday, April 17, 2008, on page A16 (full page, above), the Washington Post's ad rate (as seen here) for 126 column inches, or 1 full page, runs $12,247.20 for one single day's media buy. With a license to use the photo forever, how many hundreds of thousands will they spend on advertising with just this one picture? Aaron also notes - "The full page ad also ran in USA Today and New York Times that I know of." Ok, so apparently the NYT's ad rate for a full page is $142,083 (as noted here). Maybe I got the ad rate wrong for the Post then? How could there be such a disparity between the Post and the Times? Oh, right, the Post sees itself as an educational company now! (Washington Post Company Now Skooling U, 11/24/07), And a full page in USA Today (as noted here) is $178,700.

Remember this the next time you say you don't care about re-use/re-sales of your "news" photos. Pictures are worth, yes, a thousand words, and this picture - over $5,000, the assignment, potentially $10,000+.This isn't a unique situation. I've seen ads using news photos for Hershey's, and the Red Cross, to name just a few. (heck, even a news photo of Eliot Spitzer ended up in an ad (see it here) from his State of the State address, but I'd doubt he signed any releases - but someone licensed that image for an ad!)

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Wednesday, April 16, 2008

(Not so) LuckyOliver - Shuttering Operations

Those who actually have brain-cells functioning realize that the production of quality images - consistently and over the long term - is best left to the professionals. Surely, the Infinite monkey theorem applies to microstock - and that non-starter that is being referred to as mid-stock. Yes, NotSo-LuckyOliver tried to parlay the "we're not microstock" approach into something.

What did their investors want?

(Continued after the Jump)

Why, a big cash payout, of course! Investors like to see large dollars as a return on their investment. When they see their one potential big buyer going private, and a wait-and-see attitude on the other players in the market, that burn-rate must have gotten scorchingly hot, and they decided to cut their losses.

I just can't see my way clear to feel sorry for the people who are losing their jobs, or losing their image outlet. They are just one player in a segment of the industry that has been doing damage to the profession of photography. It's a nice idea - (nearly) free images for all, but like communism, the economic viability of both is doomed from the beginning.

As they fall, photographers will respond - "see, I told you so..." Those that remain will utter that, at-least. Those that have left the profession will only shake their heads, wishing the microstock demise would have come sooner so that they could have remained photographers.

Bryan Zmijewski wrote on his blog:
"We spent the last year looking for the funds to grow LuckyOliver because, without the addition of significant capital, the return on investment for LuckyOliver and its contributors would not be satisfactory. After reviewing the options, the investment team decided that it was in the best interest of all stakeholders to shut the company down."
Let's re-phrase that, shall we? Try clearing out the nice-speak and saying:
"the investment team didn't see it as smart to pump more money into a failing business model, so they decided to cut their losses, and hobble home licking their wounded pocketbooks."
Even Bryan notes that he was pursing "...a passion that often went beyond reason."

I am not convinced that there will always be a robust microstock industry. How many redundant servers can continue to run with a significant staff to take orders and collect $1 here, and $4 there? I expect that iStockphoto will, in some shadow of it's former self, remain. Jupiter will likely collapse under it's own weight - and the fickle demands of shareholders who no longer see this industry as meeting the growth that they want for their own return on investment. Further, the novelty will wear off for many of the amateurs, and the demands for releases and indemnifications of Corporate America by judgement proof individuals, followed by the lawsuits that inevitably will quash this field, will just poison the well.

One of the primary problems from a cost standpoint is the cost of maintaining customer call centers. Corporate America has wrongly outsourced that to India, and many are reeling from that stupid move. These costs, both needed to service contributors as well as the paying customers, along with IT upgrades will be what makes these models worse than risky.

We photographers, those still standing in the aftermath, will be left to pick up the pieces. And we will.

Those UnLucky "Olivers" are headed elsewhere already, as noted here. From iStockphoto, to fotolia, Crestock, to all the rest of the soon-to-be gone shops. Let the dominoes continue to fall!

To those doing this industry harm, I shall applaud as you fail. If you are contributing images to these organizations, I can say that what goes around comes around, and, to be sure, karma's a bitch.

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Staff Photographers - An Endangered Species

This isn't the first time I've written about the demise of the employee photographer (aka "staff photographer"), nor, sadly, will it be the last.

I was, at one time, a staff photographer for a magazine. So was this other guy. Rather than let one of us go, they offered us both 1/2 time. I said yes - panicked that I was, he said no, and left. I thought this meant I could stay. I was wrong. this began a rushed effort to become self-sufficient and a commitment to be my own boss. It certainly didn't come at an opportune time, but with Corporate America, they never do.

Previously, I wrote about Time Inc's staff-slashing (And The Staffers Go Marching One By One... , 1/21/07), hence the parodied POTY cover that ran with that piece, and appears here again.

Since then, many staffers have been let go.

(Continued after the Jump)


The Washington Post - again - has offered buyout packages to their staffers. Here's the deal, generally speaking: We pay you $X per year of service, and we guarantee you 100 days as a contract/freelancer for one year, and, I think it happened that you also got your gear (yes, that would be the gear that's old and worn out - think maximum shutter actuations). To be sure, they're turning out amazingly talented photographers - perhaps even pulitzer winners - without the skills to remain in business as photographers. No website, aged gear.
These people are my friends, and the bean counters at the paper have determined that they can (supposedly) get the same talent from their $200/day (or less) freelancers. THINK AGAIN. Oh wait, The Washington Post Co no longer considers itself a media company, but an educational company (
Washington Post Company Now Skooling U, 11/24/07). The sad fact is that the deal they've put out looks great with the lump sum payment, and the year's contract for 100 days looks like a good deal, but it only really answers the "will I still be able to shoot if I leave..." question, and what they're paying for a day is below most anyone's CODB. Those bean counters are counting on the short term lump sum to make the deal look better than it is.

Also the San Francisco Chronicle, New York Times, and recently, the Seattle Times. While speaking at the just finished tour of ASMP's Strictly Business 2 program, there were a number of currently full-time employed staff photographers in attendance. I say to them "good for you for taking control of your future."

Back February of 2007, I wrote - How to Do It Without Ruining It For Others, which, while it was more directed to the amateur/pro-sumer, it could well have been titled "How to do it without ruining it for others, and yourself", and then the nuggets that are in there could be extracted as they apply to the staffers.

First things first - get your own website. Get either www.yourname.com, or www.your-name.com, or something close. Don't cheap out on the site, get a good one. Yes, liveBooks, or hire someone who knows how to design a site that is modifiable so you can update it easily. Budget between $3k and $5k for this. Get it up now.

Talk to your colleagues in your community. First apologize to them if you were doing those "gravy" jobs for $200, when they should have been more appropriately priced at $750, and then ask them what the proper going rates are for photography in your community. Think about those figures, and see how they work for you. They're probably rates you think are high, but really have taken into consideration the CODB in your community.


This isn't going to get better, it's going to get worse. More papers will slash staff. Oh wait, it just happened again - Tampa Tribune Offers Buyouts To Half Its Staff ( reported all around by Editor & Publisher & NPPA & editorsweblog & A Photo A Day, & PDNPulse). Taking that one step further - more papers will take advantage of unsuspecting freelancers who will use their meager bank accounts and savings to subsidize these newspapers.

If you see a staff photographer, send them this link. Tell them that you care about them and want them to continue to do what they love, and if they don't look out for themselves - NOW, and prepare for the forthcoming cuts, no one will.

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Nikon D3x -Impending Announcement?

We had a lot of fun with our Nikon vs. Canon piece last December. In fact, over 400,000 pageviews ensued, so that means there was a lot of interest!

So many of my colleagues are blown away by the D3's noise handling, and for that I gave the D3 a "win" over the EOS 1Ds Mark III, despite the filesize/megapixel disparity. In fact, I'd say that that was the unmentioned elephant in the room when I did that piece. While I did mention the D3x back then (Nikon vs Canon - The Future), and it's tech specs had been floating around the rumor mill and I had caught wind of them, I didn't want to get into great detail.

Then Nikon releases new firmware, listing, in the firmware, resolutions that are selectable by the photographer, and it's maximum listing is 24.4 megapixels!

(Continued after the Jump)

Don't take my word for this - check out the posting at Engadget! Those guys rarely get things wrong, and they got it from here at dpreview!

So, the next question is - when? I expect that the camera's already camouflaged on the street now, probably in a D3 body, being tested. I'll expect an announcement before the end of May. I had heard through the ubiquitous rumor mill March/April, and it's surely potentially announceable in the next two weeks. Surely, it will be on the street in time for the Olympics.

Don't let this beast of a chip convince you to wait. Buy the D3 - it's amazing. Let the D3x work for you as a separate and complimentary tool. I'll speculate a smaller buffer, and probably a max ISO of either 3200 or 6400, but with comparable characteristics of the D3. These are, however, obvious speculative points, and are consistent with how the previous camera variations looked.

Oh, and to you Canon shooters thinking of switching back to Nikon, this should seal the deal!

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Monday, April 14, 2008

Classified: Seeking hardworking service providers...

Continuing the day's theme, this from Craigslist in their "Best of craigslist":

I'm a fabulously wealthy photographer / artist making money hand over fist. Here's what I need:

A mechanic to overhaul my custom '57 Chevy.
A maid to clean my house on a regular basis
A doctor to perform some minor surgery on me.
A band to perform theme music for me where ever I go.
A carpenter and electrician to build an extra wing on my sweet house in East Austin.
A nanny to watch my spoiled kids.

Of course there will be no pay involved. In return for your services you will get FULL CREDIT on my website, AND you can add all of this work to your PORTFOLIO! If you ask me, this is an absolutely awesome deal!

I hope to have you work for me soon!

-------
(with thanks to Walter Rowe for sending this in!)

(Comments, if any, after the Jump)



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The Baby Photographer

Here's a bit of a laugh for today....

The Smiths were unable to conceive children and decided to use a surrogate father to start their family. On the day the proxy father was to arrive, Mr. Smith kissed his wife goodbye and said, "Well, I'm off now. The man should be here soon."

Half an hour later, just by chance, a door-to-door baby photographer happened to ring the doorbell, hoping to make a sale.

"Good morning, Ma'am", he said, "I've come to..."

"Oh, no need to explain," Mrs. Smith cut in, embarrassed, "I've been expecting you."

"Have you really?" said the photographer. "Well, that's good. Did you know babies are my specialty?

(Hit the link after the Jump)


MIStupid.com - Stupid Joke: The Baby Photographer

Sometimes, a good laugh - even when it gets a little silly, is worthwhile!

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Sunday, April 13, 2008

iPhone Y Connector/Splitter and Recording Capability

There wasn't a single source for you to share both the audio and mic inputs between two headsets, or the capability of capturing the audio of both the mic and the speaker from the iPhone. Now there is.

Why, you ask, would I want to do this, and why is this on a photo forum? Because when I am on the phone with a client, and I need to capture a conversation about specifics and I can't take notes because I am driving, or shooting, or otherwise just can't write, simply hitting the 'record' button solves that problem, ensuring that I don't miss a point.

(Continued after the Jump)

I was contemplating ways for me to splice into an Apple iPhone headset to record conversations I was having on my phone. Because of the specialized jack - and the fact that it's recessed - made considerations for how to do this difficult. Then I realized that Michael Bass Designs does custom cords. An e-mail or two to him later, and the cord has arrived in my mailbox - perfectly created.

Now, I can plug my standard iPhone headset in, use the headset's inline mic and listen to the conversation in both ears, and I can plug into the cord a standard mini-stereo cord with left and right channels, and output both what I am hearing on my headset and what I am saying on the other, to separate channels.

Not content with just that, I wondered - what if I wanted to play audio direct into the iPhone? No problem - the signal goes both ways, so now if I want to patch an audio signal straight into my phone, I can, from any device.

Further not content, what if I wanted to use two headsets on my iPhone? A seperate Y splitter was created, so now I can not only have two people with headsets on the phone (avoiding the problem of a too-quiet speakerphone or loud ambient noise) but I can record the entire conversation.

Devices for land-line phones are sold by Radio Shack, (like this one), but on most cell phones, you're SOL. If you want one yourself, it'll set you back about $100 or so, because he has to not only buy an Apple headset to splice into, but the Y connector and jacks, and do all the custom, one-off work just for you. Check his site here for more details.

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