Thursday, October 8, 2009

PicScout Goes On Offense - But Can it Score?

Since the inception of the PicScout service, which scours the web fingerprinting images and locating the uses (and occasional unauthorized use) of their clients images, PicScout's service has been a defensive mechanism. There was no solution that actually helped connect image buyers to rights holders. Until now.

PicScout announces a product they are calling "Image IRC". The IRC stands for "Index Registry Connection", describing the process. The question at hand is - who will pay for this service, and is the process of actually enabling it so onerous, that it is a flash in the pan? Of greater importance though, is as much as it might help photographers - could some of their tactics damage the stock photography market?

(Continued after the Jump)

In a briefing I recieved last week from PicScout, I was impressed that PicScout has gone on the offense, looking to create a positive encounter with clients, rather than the potential adversarial scenario that would exist when the image user is being caught using the image without permission, and PicScout stepping in.

Let's take a look at the promise of Image IRC. searching for images in a web browser can lead to legal problems for people who don't use images with the proper licenses. What if, however, when you searched Google Images, a small "i" overlay appeared on images for which there was licensing of that image with just a few clicks?

Further, what if you were reading an article on a website anywhere, and decided you wanted to license the image that was in that article for your own specific needs?

No need for hunting, searching for the exact image - just click the "i" icon that is there, and you are a mouse-click or two from licensing and downloading the image - legally - for your own needs. By clicking on the "i", a panel like at right (illustrated based upon our preview) would appear as a pop-up. To see larger examples, PicScout has provided us with screen grabs. Here is a screen grab without the plug-in installed. Here is the result with the plug-in installed, and here is the result when you click on the "i".

Pretty cool, yes?

Not so fast. the challenge here, is that, you won’t see the “i” unless you have first proactively downloaded and installed the PicScout Image IRC plugin into your browser(s). No plug-in, no “i”, no image license opportunity. There is no actual integration with Google Images.

In order for any photographer to benefit from Image IRC the Image Buyer (IB) must:
  1. be aware that Image IRC exists
  2. be convinced that IRC is a good thing and that there is a benefit to them to install and use, even though only a tiny percentage of images on the web will be identifiable using IRC.
  3. convince their IT department to commit resources to testing and approving the plugin for adoption and installation in the browsers of computers on the corporate network.
  4. be looking at an image that happens to have been submitted to PicScout by a photographer or stock agency and then fingerprinted by PicScout.
  5. desire to pay to license the image.
In a one-person office, installing an application or plugin is a fairly simple process. Unfortunately for PicScout and Image IRC, the installation of plug-ins is anything but simple in the corporate environment, where network policy almost always prohibits image buyers and other employees from installing plug-ins in their browsers. IT watchdogs are extremely wary of plug-ins and are unlikely to allow plug-ins to be installed into client computers on the network. This will be a very significant hurdle for PicScout - getting professional image buyers to install the IRC plug-in, without which image buyers will be unable to use Image IRC. If image buyers at the ad agencies, design firms, publishers and other major corporations don’t adopt and install image IRC in droves, photographers and stock agencies will be no closer than they are today to monetizing their images scattered around the web, and will derive little benefit from Image IRC.

Take, for example, Flash. With tens of thousands of cutting-edge developers building content that required Flash, and most of the coolest websites not only requiring flash, but requiring you to "click here to download and install the Flash Player", it still took a decade for Flash to be a mostly transparent part of the browsing experience, as javascript has been almost since the beginning. PicScout does not have these tens-of-thousands of developers, which creates implementation problems.

Image IRC is a very niche product/service, that, while a good concept, is likely to fail due to lack of adoption by buyers.

Would I like to see it adopted? At first, my response was a hearty "Yes - anything that will connect photographers and image buyers to make a sale, I am in favor of."

Then, I took a closer look at PicScout’s recent marketing, which reveals a bombshell:

PicScout is evidently intent upon launching and encouraging an unprecedented and aggressive promotion of free ($0) image licenses, that is ultimately targeted at the very same clients that professional photographers and stock agencies depend upon for their livelihoods. This seems contrary to the potential good of Image IRC for photographers/rights-holders, because if PicScout truly cared about professional image makers who earn a living making and licensing images, they wouldn’t be serving up millions of free Creative Commons images to our clients on a silver platter - especially since there's no apparent revenue stream for them in licensing images that are free. With this in mind, I would be very surprised and disappointed to see any photography trade organization endorse a PicScout service that openly promotes and facilitates widespread free usage of images in competition with pro photographers, within the same user interface. If PicScout succeeds in its efforts to help our clients identify and use millions of free images, PicScout might well be to blame for driving the final nail into the coffin of the independent professional photographer. There's no money in being the facilitator of licensing free images - for anyone.

Which brings me to the cost part of the equation.

One of the questions I asked PicScout was “who will pay for this service?” (hint - no one, if the photos are free!) Though, apparently, they haven't quite worked that the dollars and sense cents on this yet. One idea would be for the photographers to pay for fingerprinting and tracking, and the appearance of the “i”. This would be cost prohibitive for me, and for almost any photographer, and is the reason that I don’t currently pay for PicScout’s web spidering and enforcement services. In addition, the fact that PicScout also requires that photographers agree to allow PicScout to exclusively handle any resulting litigation and settlement discussions (and take a huge chunk of the resulting award/settlement) also doesn't sit well with me. One other idea floating around is that PicScout wouldn't take anything up front, but take a percentage (which should be under 5% in my opinion) of the license fee resulting from the image buyer clicking on the “i” and then licensing the image.

As I said - this hasn't been decided yet, and even if PicScout succeeds in getting significant numbers of professional image buyers to install the plug-in, they will not succeed unless they come up with a pricing solution that convinces photographers and stock agencies to buy into their service and submit large quantities of images.

PicScout's own FAQ outlines who their general audience is, when posing this question and answer:
How many images do I need to sign up for your services?

The quick and easy answer is that we've found the cost-benefit tradeoff to be around 30,000 images, which is currently our minimum requirement to use our services. If you have less than that, chances are that you will pay for more than what you'll get in return...Stock photo agencies and higher-end commercial photographers tend to be typical candidates for our services for these reasons."
So, it seems that the average photographer as an independent is not their audience.

Further compounding the problem – when a user searches Google Images and the search yields thousands of images, that user is unlikely to browse past the first 3 pages, and many users never go beyond page 1. How many images on that page will happen to include the PicScout “i?” Using Image IRC without a Google partnership will require that image buyers wade through page after page of Google Image sludge, with only an occasional image happening to have been registered with PicScout, and thus displaying the Image IRC “i”.

Of course, adoption by Google would go a long way toward solving that issue, but Google is apparently not buying into Image IRC. Given that Google’s business model is almost entirely focused on advertising revenues, a partnership between PicScout and Google is unlikely. Not impossible, but highly unlikely.

I am doubtful that this great idea will succeed. I am hopeful that I am wrong, and I am really really hopeful that they will not be a part of promoting free images.

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7 comments:

Rich Green said...

You had my rapt attention until you mentioned that the "i" could only be seen with a plugin. This doesn't get my vote.

argv said...

John-- since I cited this blog post in mine, I thought it appropriate to link to it:

http://danheller.blogspot.com/2009/10/picscouts-irc-commenting-on-other.html

Amy D Love said...

I’m Amy Love, VP of Marketing and Business Development for PicScout. John, you addressed some interesting points that I’d like to clarify for your readers.

You are correct in saying PicScout “is looking to create a positive encounter with clients” — it is our mission to help the industry ensure that every image gets its credit. But do note we will not act as a middleman, but rather we are providing the enabling technology to link two parties that have never been linked before. We are proposing a proactive model where a transaction or exchange takes place between licensor and user, rather than chasing copyright infringement as the industry does today.

Re: Market adoption. There are two related points here: industry adoption and user/licensor acceptance.

- Industry adoption of this announcement is in its infancy and this release was the first of a series of announcements that will be made this month and over the quarter, however the industry-at-large has pent up need and desire to have some type of mechanism to connect the user and licensor at time of experience. The efforts behind http://www.dontscrewus.org helps to highlight the challenges and your prior post helps to bring visibility to this issue http://photobusinessforum.blogspot.com/2009/10/asmp-new-york-kicks-it-up-notch.html The Image IRC and the ImageExchange provides the connection so desperately needed.

- As with any new industry-wide initiative, adoption will take time, but all our indicators tell us that the market will embrace this solution both horizontally and vertically, and at a much faster pace than perhaps your article suggests.

- Photographers — whether it’s a UGC content of a mom uploading family photos or a professional photographer or a stock photo company — will benefit by retaining credit on their property. As the process for using Internet-based images changes, users will learn, by default, about photo copyright rules and amazing stories — such as the Missouri Smith family who discovered their family portrait was being used by a Czech Republic grocery store billboard ad — will occur less often. http://www.pdnpulse.com/2009/06/how-did-this-familys-facebook-picture-end-up-on-a-czech-poster.html


As for who pays for the service, it is based on affiliation. The Image Exchange add-on will be free to everyone.

We welcome comments and feedback from the community, and welcome conversation either at our blog (http://blog.picscout.com) or on Twitter @offirg @amydlove or @picscout. We will be making additional announcements in the coming weeks and months that will demonstrate the viability of the vision.

Vittore Buzi photographer said...

Well I'm the owner of more than 4 sites related to my business, I produce more than 20.000 pictures every year. I have a strange positon, my great pictures are well known, and a lot of them have not hit the net ( Guinea Bissau Guinea Conakry ) and I will be upset if someone stole them but for example I know that there are some Wedding Photographer that in the past stole my images from my site (Wedding Photographer) and mail them to brides and grooms that were going to be married in Italy. Well I can't control everything I prefer to work and produce, I'm only upset about the stealing of pictures but I believe that it's too expensive for a single user to try to have his own right respected. We need a regulation from the net and from countries. It is not possibles that I will try to have justice in Canda, China or England... So I try to work and to produce nice pictures...

mecredis said...

Hi John,
I just wanted to chime in here from Creative Commons' perspective regarding free content out there.

First, CC content can be monetized in a number of ways. One way is by using one of the three CC NonCommercial licenses. These allow photographers to retain the commercial rights to their photographs while alllowing non-commercial sharing. When a user wants to use a NC licensed photo commercially, they can negotiate a paid private license with the photographer.

But even CC licensed photographs allowing commercial use can be monetized since our most permissive license still requires attribution. This means that when someone wants to use a CC licensed photograph (let's say its under CC BY) without giving attribution, they can negotiate an agreement with the photographer that can be based on compensation, etc.

On top of that, Creative Commons has developed a protocol, called CC+ that allows creators to articulate where rights outside the scope of the CC license can be obtained. Check out more about CC+ here:

http://wiki.creativecommons.org/CCPlus

Best,

Fred

Edward Silk said...

A CC license is s ticket to steal. Any pro photographer who ends up on court against an infringer and is found to have offered CC licenses in the past will find that his/her ability to collect "actual damages" is severely impaired by the practice of making images available to millions of unnamed licensees for free. From the perspective of the court, if a photographer values his/her images at $0, so be it. CC is a good thing for anyone who does not rely on photography to generate revenue, and simply wants to share work with others. CC is a disaster for any pro photographer. The various CC license designations (attribution, no derivatives, non-commercial, etc) are routinely ignored and leave no possibility for the rights holder to track usage by the licensees, because the CC licenses permit usage by anyone and everyone on earth. Theories that CC licenses promote paid licenses are hogwash at best. The fact that PicScout is now moving ahead with promoting "millions" of free CC images side by side with images owned and offered by professional photographers is a huge slap in the face to the professional photography community that PicScout claims to serve. They are using UGC and CC to promote their product, at the expense of their core customers. Shame on you, PicScout.

mecredis said...

Hi Edward,

I'll reply to a couple of the concerns you've raised about CC.

First you say that:

A CC license is s ticket to steal.

No, a CC license is a indicator of how the original creator (photographer in this case) wants their work used. A CC license says precisely you may not use this work without attribution, etc. It gives re-users explicit instructions not to misappropriate a photo.

Any pro photographer who ends up on court against an infringer and is found to have offered CC licenses in the past will find that his/her ability to collect "actual damages" is severely impaired by the practice of making images available to millions of unnamed licensees for free.

Do you have any evidence or court precedent to backup this argument? CC license terms have been enforced in many jurisdictions. A pertinent case is Adam Curry's lawsuits against a tabloid for commercially exploiting his photos (which he licensed under CC Attribution-NonCommercial) of his family. The judge in this case specifically said that the reuser had to honor the terms of the CC NonCommercial license. Here are more details:

http://creativecommons.org/weblog/entry/5823

There is also strong US precedent set by the 9th Circuit Court of Appeals (the so-called "intellectual property" court) that public licenses like Creative Commons licenses are enforceable:

http://creativecommons.org/weblog/entry/8826

From the perspective of the court, if a photographer values his/her images at $0, so be it.

I'm not totally clear on what you mean by this, but the argument in Jacobsen v. Katzer specifically centered on whether abdicating economic rights in a work results in abdicating all rights to that work -- the judge decided that that was not the case.

CC is a good thing for anyone who does not rely on photography to generate revenue, and simply wants to share work with others. CC is a disaster for any pro photographer. The various CC license designations (attribution, no derivatives, non-commercial, etc) are routinely ignored and leave no possibility for the rights holder to track usage by the licensees, because the CC licenses permit usage by anyone and everyone on earth.

Again, I think you're overlooking the fact that the various CC license options are routinely adhered to and enforced. We can debate about how often license terms are adhered to vs. how often they're ignored, but I do not think it is the case that CC licensed photos are infringed upon more frequently than any other set of photos are. We'd obviously be interested in seeing any data or research done on this point.

Theories that CC licenses promote paid licenses are hogwash at best. The fact that PicScout is now moving ahead with promoting "millions" of free CC images side by side with images owned and offered by professional photographers is a huge slap in the face to the professional photography community that PicScout claims to serve. They are using UGC and CC to promote their product, at the expense of their core customers. Shame on you, PicScout.

As an organization interested in arguing that CC licensing can (and does) lead to paid licensing, we're paying close attention to whether certain use cases lead to revenue. Services like PicScout are testing the water for whether this can happen but for now there are limited marketplaces where we can actually prove it one way or another.

But you seem more interested in dismissing the possibility that CC licenses can generate revenue for professional photographers prima facie, than actually determining whether they do or don't promote income for photographers. Would you concede that it is possible that a CC licensed photo could lead to more income for a professional photographer? I'm not asking whether you believe this to be the case, I'm merely asking whether you think it would be possible to determine whether this is the case or not. Right now, I don't think either side of this argument has enough data or evidence to make the kinds of claims you're making.

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