Buzz Aldrin Sues Topps for Use of Likeness

Astronaut Buzz Aldrin is suing the Topps trading card company in federal court in Los Angeles for the use of his likeness after they used what is arguably him inside a space suit doing the first walk on the moon.

Aldrin, a very private man since his launch to fame, has been very protective of his likeness and has fought to protect others from profiting or exploiting him. What's worth noting here is the fact that you can't actually see Aldrin in the photo on the Topps Heritage box, but you can see the image of a suited man (obvious to all as Aldrin) on the moon.

For a long time it has been said that if you can't see a persons face you don't need a release, and there are numerous court cases that point out the fallacy of that argument. So, the point remains - get a release wherever you can.

If you'd like to know more, the Washington Post has more here.

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R.I.P. PicApp - We Told You So

Back in August of 2009, with great fanfare, PicScout announced PicApp, and we took a critical (and dim) view of it, as we wrote about here - Silly Rabbit - PicApp's Got Problems (8/19/2009). The concept was - free photos for your non-commercial blog/etc, and we'll intersperse some ads among or overtop of the images, and make money that way.

We said it was a bad design then, and, more importantly, we said it made no business sense then, and on their blog here (12/23/2010)

"...the demand was not sufficient to commercially justify this as our core business model, which is why we have decided to terminate the Picapp images search....".

Right. Because it was poorly designed, made no business sense, and was also likely competing with the sources of the images (Getty/et al), and they didn't like it either. Paul Melcher does a fine job of taking a critical look at PicApp here - so I won't rehash what he wrote, other than to say "we told you so."

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When Is Your Black Friday?

Most people don't know what the origin of "Black Friday" is. For those of you not in the know, the answer is - it is the date that most retailers go from being "in the red" to "in the black", that is, profitable. So, the money they make from Black Friday until the end of the year, is, essentially, their profit.

The question then becomes - do you know when you go into the black? Are all your assignments profitable? Should they be?

If you don't know your Cost of Doing Business, check out the NPPA's CODB calculator here, and work it out. If you learn that your overhead for a day's photography is $250, then taking that $200 photo assignment "because you don't have anything else to do that day" is a really bad idea.

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Photopreneur Speedlinks

It's often interesting and insightful to read what's happening over at Photopreneur. Here are links to a few articles worth checking out!

• You Could be a Professional Photographer When… -You’re not ready to become a professional until you also have these elements of professional knowledge figured out:
  
  

  1. You Know the Legal Stuff
  2. You Understand Licensing and Pricing
  3. You Have a Professional Attitude



• Photographers Start to Give Up on Copyright Restrictions - For photographers, the ownership of images seems obvious: they had the concept, set up the shots, used their creativity, drew on their technical skills, and produced beautiful photographs. The results belong to the artists who created them, and they’re the ones who should get to control how the photos are used.


• Photography Deals That are Worse Than They Look - A photographer finds that a bad deal included his being ridiculed by the end user of the photography.

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

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Livebooks - Speedlinks

Our colleagues (and, yes, advertiser) Livebooks does a great job over on their Resolve blog of posting timely and insightful articles on the realities of the business and marketing of photography. Here are a few:

• What is Branding - Want to build a strong brand that best represents your business? Sit down and define the following:
  
  

  What is your mission statement?
  Who are you? What is your business about?
  What are you values and your company’s values?
  What do you want to be known for?
  What is your specialty?



• Selling Relationships - The client wants to know that you are listening and want to meet his or her needs. The client wants a RELATIONSHIP.


• Pricing – How to Factor for YOU in Your Costs - I don’t care if you’ve been in business for 2 months or 20 years; this is something that is always of concern to small business owners. And, for those people who feel comfortable in their pricing, it is a short-lived comfort. Pricing must always be examined and re-examined.

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

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US News & World Report To End Print Edition

For as long as my professional career has been ongoing, I have always held as the holy grail, Time, Newsweek, and US News & World Report, in the magazine industry, as the harbingers of the industry. Now, US News is looking more like a pallbearer. As we learned from the Huffington Post (here) , US News will cease to print it's publication in 2011. You can be sure they'll do print editions of their "Best Colleges" and other "Best" special issues, but US News is essentially signalling that print is dead.

If the thickness of Time and Newsweek are any indication, I expect that they too will stop killing trees and go online, but with 30% of households not having internet according to this article, it would seem that that audience will no longer be served by US News, but, perhaps, that's not the audience they are targeting?

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PDN Acquires WPPI, After Capture, and Rangefinder

The evening of the PhotoPlus Expo Bash, on the USS Intrepid, it was announced by PDN that they (or, rather, their parent company, Nielsen) had acquired the publication Rangefinder, After Capture, and the trade Wedding and Portrait Photographer International (WPPI) trade show.

I've had the opportunity to attend both trade shows, and they couldn't be a more disparate group of people attending the PhotoPlus Expo and the WPPI show, so this seems like a solid move on Nielsen's part. As someone who has attended the PhotoPlus Expo for almost 20 years, and thinking it was the end-all-be-all of shows, it was enlightening (and refreshing) to see the group of photographers at the WPPI show, and, frankly, those photographers seemed far more focused on the business realities of photography than those at PhotoPlus. Further, the show's structure means that the seminars and show floor don't compete as much as they do at PhotoPlus.

(Continued after the Jump)

Interestingly enough, WPPI had tried to expand their perceived market from weddings and portraits to a broader audience, when they attempted to change their trade show name to "World Imaging Expo." Seemed a good idea, no? Well, apparently, the Professional Photographers of America (PPA) didn't quite like that idea, and filed suit a few years back because of their trademarked trade show "Imaging Expo" and "Imaging USA" tradeshows. The suit - Professional Photographers of America, Inc. v. Rangefinder Publishing Co., CV08-02324 SVW, was filed in the Federal District Court of Los Angeles. (more info here).

I think that the acquisition by PDN's parent company does two things - it solidifies and consolidates two well known and well respected brands, and also signifies to people who thought that PDN was on borrowed time that the PDN brand will be around for the forseeable future.

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PhotoPlus Expo 2010 - Day 1

It's the first of three days at the Jacob Javits Center in New York City, and the 2010 PhotoPlus Expo is in full swing. Below are several interviews we did on the show floor with vendors we think you should check out!

ThinkTank Photo - (RSS readers click here)


PNY Technologies (RSS readers click here)


APhotoFolio (RSS readers click here)


Wiebetech Hard Drive Solutions (RSS readers click here)

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Photographs from the Edge of Reality

It is with great pleasure that I announce the release of my latest book - Photographs from the Edge of Reality. The book tells the stories about a number of the assignments I have done over the past 20 years, and the challenges, logistics, and obstacles that were surmounted to bring images back.

Why the title? Well, as I traveled around the world as a photographer, it quickly became apparent that stories like, “I was stuck on an overnight train, sleep deprived en-route Warsaw Poland as the border guards were demanding my travel documents at 4am in a language I didn’t understand…” or, “I found myself celebrating the Fourth of July with the Mexican Ambassador being serenaded by Ben Vereen…” or, “The President looked right at me as he was walking down Pennsylvania Avenue…” all seemed surreal to friends, family, and even colleagues. They seemed, in fact, made up, or impossible. Fortunately, my reason for being there was to document these circumstances–with a camera–seemingly from the edge of reality, hence the title.

Very early in my career, I began writing dispatches and sending them off to family, usually by email, well before the age of the commonly known Internet as it is today. It saved me time, as I didn’t have to recount the stories repeatedly and miss leaving something out. Over time, my life got a bit crowded, and I lost the time needed to do them as I previously had.

However, as most photographers will tell you, their photographs are not just images to them, but an instant reminder of what was seen through the viewfinder, as well as the environment outside of the frame, from weather to assignment challenges, to the shot that got away. This too, is the same for me. I also remember lighting setups, and even for film assignments, I can remember f-stops and shutter speeds, and usually focal lengths too. It’s a form of instant recollection that I am putting down on paper here not just to weave a tale from assignments past, but to bring these stories back to life, and share with you, dear reader, what went into the assignment. The challenges overcome, the missed shots, the lighting setups, and even, in some instances, the full take so you can see how a moment in time gets captured and selected.

As frequent readers of this blog Previously, I wrote the book Best Business Practices for Photographers, and you’ll find some of that information here in this book too. If, however, you want to read about the assignments and see the resulting photographs, and how they were achieved–from photographing presidents to Eastern Europe, to the biggest names in Rock and Roll and Hollywood–often making something out of nothing–then this is the book for you.

In over 20 years spent as a photographer, I have had the good fortune of traveling the world on someone else’s dime to make great images. This is the book of the stories behind some of them.

Here are what a few friends and colleagues have said about the book:

"John Harrington's, "Photographs From the Edge," is a real "how to" book that gives aspiring shooters insight into the real world of assignment photography. Harrington has done it again when it comes to describing his innovative approach to his profession, and his ability to share it with the world."

David Hume Kennerly, Pulitzer Prize Winner

"John shows you the world of Washington DC photography behind the pomp and power posturing. If you want to learn how to do it right, then this is the book for you."

Cameron Davidson, award-winning photographer

When John Harrington goes on assignment, you go with him. It's more than just loading your memory cards and batteries. It's figuring out where you need to be and how to get there. John is a Pro at business, and now with his new book, shares some of his hard won secrets of how to make your clients as happy with your pictures are you are.

David Burnett, award-winning photojournalist and co-founder, Contact Press Images

"With this book, John does not attempt to glorify or sugar coat what it is REALLY like to be a news photographer. This leads to a much more introspective and interesting look into the behind the scenes world that most will never get to experience. I can see this book appealing to both photographers as well as every day people who are interested in the details of what happens BEHIND the camera - not just in front of it."

Vincent Laforet, Pulitzer Prize Winner & frmr New York Times Staff Photographer.

Great stories from a great guy. Read this book.

Bill Frakes, award winning photographer

Let me here express my thanks to them for their kind words.

If you're travelling to New York City this week for the PhotoPlus Expo, I'll be at the Cengage Learning booth all three days (check the booth for times) signing copies, if you'd like one, and they will also have my previous book - Best Business Practices for Photographers, if you'd like a signed copy of that one, and presenting the seminar below, Thursday morning:




Here are the details:

COMMERCIAL/ EDITORIAL
Thursday, 8:45 AM – 11:45 AM

NEW! Delivering What You Promise on Global Assignments [TA3]
John Harrington
Sponsored by Cengage

Once the assignment has been booked and contracts signed, delivering on your promise is often one of the most challenging parts of the job. The key to longevity in the business is making sure the client gets what you said they would, despite the logistics of getting there, the challenges of pre-visualizing the final image and the demands of working with high-profile subjects. Through a series of his own assignments—covering subjects that range from Presidents to rock stars to your everyday Joe—Harrington will talk you through what it took to get the shot. Whether climbing to the crows’ nest of the Golden Gate Bridge or hanging out of a helicopter for air-to-air photography, the core of this presentation will be about learning from experience and knowing what it takes to get the shot. All levels.

So, go, sign up (here). While the book, Best Business Practices for Photographers has all manner of detail on the business of photography, there are not photos. This presentation will show you the photos, the behind-the-scenes images, and other details about how the assignment ended up!

Buy the book (on Amazon): - Photographs from the Edge of Reality.

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Peter Krogh's Rebuttal to Our Post on Lawrence Lessig

In the interests of providing a forum for discourse on this subject, from time to time we offer differing and alternative viewpoints to be put forth, and to that end, Peter Krogh, former ASMP national board member, author of The DAM Book, Digital Asset Management for Photographers, and a longtime colleague of mine, has sent along an alternative viewpoint to our post titled "Lessig's Kool-Aid: Proposed New Norms - Don't Drink", which was a follow-up to our original post - "Thank God for Disney, The Wire Services, and the Record Labels!", in which we take great umbrage with Lawrence Lessig's position that was essentially encouraging wide-spread theft of intellectual property.

Following Peter's rebuttal, we'll offer a short response, and then the floor is open in the comments.

(Continued after the Jump)

John,
At the risk of seeming to be allied with the antichrist, I would like to point out that you are missing a large part of Lessig's point. And one part of it is undeniable - laws have not caught up with changing technology and cultural practice.

If you have not seen it, you need to watch RIP - A Remix Manifesto. It's freely available on the interwebs. It makes a pretty convincing argument that copyright law is broken. I don't agree with all of it, but I do agree with some of it.

It's clear that copyright law is being written for the large copyright aggregator, not the independent creator. The US registration scheme has long been written to protect the interests of big media while it works against the independent creator.

I believe that one of the difficulties we have is that photographers have cast their lot with big media, and our interests do not coincide. As a rule, we don't have the legal firepower nor the long-term interest in IP protection to warrant support of the same policies.

By taking the side of copyright aggregators, we say to the world, yeah, we are on the side of the assholes (as many people perceive them). But we are not Warner music - collecting royalties on "Happy Birthday" 100 years later. We have an entirely different set of realities, needs and priorities.

Pretending that our interests coincide with those of big corporate copyright aggregators will not be effective for us, in the long term.

I'm definitely not saying that appropriation from the independent artist without compensation is okay. I don't think Lessig is saying that either. I think he is talking about big media - remixing works that have become part of the cultural fabric, and have already earned a generous return.

Of course this is a tough line for us to walk. I don't want to say any appropriation is simply okay. But are we really on board with supporting a $400,000 fine for downloading a handful of MP3 files from Napster? I, personally, don't think that's a reasonable punishment for the equivalent of shoplifting a CD from Walmart.

You can say "it's the law", but the law didn't get there by itself. It got there because big media made it happen. And they pushed for that law instead of one that would really be beneficial to the independent creator - such as the right to sue for copyright infringement in small claims court, rather than federal court. (This is a place where the interests of the creator and big media are in direct confrontation).

I think what Lessig is saying is that laws have not caught up with the reality of the digital age. The deficiency of those laws gets a lot more obvious once you take your perspective overseas. A licensing scheme that seems plausible in the USA is laughably unrealistic in most of the rest of the world.

I recently spoke with a software company representative who acknowledged that there is simply no way that they could mass market in India or China. The value proposition is entirely broken. I have seen this myself in Africa.

I certainly don't have the answers (in many cases, there simply are no good answers at the moment). And I don't think Lessig has all the answers either. But until we accept some of the nuances and complexities of the entire situation, we won't even start down the road to a solution that works for the independent creator.

As I said earlier, I suggest taking a look at Brett Gaylor's film RIP. It really helps to frame this as a more complex issue

Peter Krogh
Author, The DAM Book, Digital Asset Management for Photographers
Second Edition May, 2009
www.theDAMbook.com

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We respond:

So, let me follow your logic on this one, see if I get it wrong:

The laws against the theft of intellectual property should be updated to allow for more efficient enforcement, tracking and compensation.

So, in the mean time, people should be encouraged to steal photographs from photographers, and photographers should be encouraged to throw away their IP or to allow unauthorized and objectionable uses of their creations?

Anyone should be able to go to your website, take photographs, use them, "remix" them, and do so without your knowledge or permission. Is that correct?

Really?

If not, what position would you take on people who visit your website and 1) want to use a photograph without your permission, or 2) take a photograph and remix it without permission?

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Lessig's Kool-Aid: Proposed New Norms - Don't Drink

Mr. Lessig, Professor of Law at Harvard Law School, and the Director of the Edmond J. Safra Foundation Center for Ethics, has responded to criticisms of his position which essentially recommends wide-spread theft of intellectual property by re-mixers (and the law will eventually catch up and relent that doing so is ok), by using the time-honored defense of the beleaguered politician, suggesting what he was cited as having said was done so "without making clear the context within which I was speaking." Ok, let's first let readers listen to, in the entirety provided by The Creators Project, what Mr. Lessing actually said, because it's on embeddable video (and thus, allowable, according to Vimeo). So, without further ado, Mr. Lessig, in his own words:


(For you RSS readers, here's the link to see it on Vimeo)

Ok, so, let's look at what we said, in our last post:

"[Lessig] attempted to decree that the thieves of the world "can teach this culture how this form of expression is essential." By "this form" he meant, the mash-ups and repurposing of others intellectual property, and he goes on to say "When we've taught the culture, the law catches up..."

Hmm, that's spot-on accurate. That's exactly what he was saying. No contextual error there.

We also cited him as saying:

"We need to stand up and acknowledge what we're doing, give people credit, and thank them, but not ask permission"

What he said, if we are to actually believe the video showing the words coming out of his mouth, through the sound system, and recorded on video, is:

"Now, I think it's time for us just to stand up and be brave enough to acknowledge what we're doing. And acknowledge and respect the people we're building upon by saying it's this person's work I am using, and thank you for creating that work, but I'm not asking permission to remix that work."

Lessig spoke of this in relationship to how the hip-hop artists of the 80's and 90's were advised by corporate lawyers to hide whom they were remixing - why? Because it was illegal then (as it still is now) to do it. The context was essentially telling people that if you're using someone elses' creativity which they have transformed into intellectual property, whereas before people were hiding that violation of copyright, now, Lessig seems to be saying "stand up and be counted as someone who's taking others creative works, and give them credit when you repurpose it, but don't ask them for permission." Not withstanding the slight difference between the quote we cited from another blog, and the actual transcript of what he said, the sentiment is the same.

The last thing we quoted him as saying was:

"Respect in the 21st century is acknowledgment. When you use someone else’s work, you give them credit."

What was said was:

"Now we don't respect them in the old fashioned way, which means calling their lawyer or having your lawyer call their lawyer to get permission to include their stuff in your stuff, that's not respect in the 21st century. Respect in the 21st century is acknowledgement. it's to say, that when you use somebody else's' work, you're upfront about it. At the end, in the credits, somewhere, deep down, you clearly state I remixed, or I used this."

Hmmm, the context looks pretty much the same there, Mr. Lessig.

How about this one:

"When we've taught the culture, the law catches up..."

What he said, was:

"doing this more, acknowledging who we're building upon, and demanding the artist be respected as an artist, we can begin to teach this culture how this form of expression is an essential 21st century form of expression. We can encourage a much wider range of people to do it and celebrate it, and when we have done it in culture, then the law catches up."

And by "this", he was referring to his three (not four, as he suggested) points:

1. Spread re-mixing of others creative works far and wide, in every context possible. Not just on video sites, but in schools, public performance spaces, "in every single place we can."
2. Respect the work of others in a way he proposes to newly define "respect". By giving credit "deep down" somewhere, "in the credits", but not asking permission, nor, it seems, paying for that respect.
3. Building environments where the re-mixer owns the rights to the re-mix. (But not the underlying source material, he cautions.)

So, let me get this straight - we need everyone to do as much re-mixing as possible without asking for permission from those whose work we remix and rights we violate, and then build a paradigm where the remixer has rights that should be respected? And, eventually, Congress and the law will have no other choice but to accept this new paradigm?

Thankfully, no.

Now, Mr. Lessig has presented his defense. In his response, on the Huffington Post, he write in an article titled "The "Imbecile" and "Moron" Responds: On the Freedoms of Remix Creators", he revises and then re-outlines his position - this time, intended for a much broader audience.

Now, Mr. Lessig, it's time for your cross-examination.

(Continued after the Jump)

Mr. Lessig states that the frame for his presentation was having just watched 50 remix videos for a video contest, and that he was to address that kind of creativity. Lessig first points to how the competitors must have done more than just "grab" the work of others, but rather, they must have been "using the work of others in a way that is transformative...", and Lessig, if his professorship at Harvard Law School is worth it's salt, must know that setting forth this notion of using the copyrighted work of others in a transformative way - compilations and re-mixes is often specious, at best. Transformative uses, according to Stanford University (here), is "any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work." With transformation, at least as it pertains to Copyright, it means that the use is in the public's interest, and as such, does not infringe on the copyright holder's copyright. So, hmmm, the famed Zapruder film of JFK's assassination - that old footage seen from a hill overlooking the motorcade as it passed by - the public's interest is so great that all showings of that film are transformative because of the public's interest? Hmmm, I think I know of at least one great lawyer who has demonstrated that this is false, in multiple courts of law.

Lessig then goes on to provide a history lesson on "fair use", the siren song of many an infringer. I agree that fair use is a critical cornerstone of copyright, and the ability to cite portions of a book, motion picture, or even a song (lyrically, or instrumentally) is important. When Lessig writes in his defense "even the most vigorous defenders of copyright recognize the critical importance of 'fair use' to our copyright system", I would fall into that category.

Let me make that PERFECTLY CLEAR again - I agree that fair use is a critical cornerstone of copyright, and the ability to cite portions of a book, motion picture, photograph, or even a song (lyrically, or instrumentally) is important.

Next Lessig posits his points from his talk (in his defense he suggests there were four, in the video, he only cites three). He states:

1. "First, I urged creators of remix to make much more of it...It should be practiced and critiqued in a much wider context." He then goes on to attempt to draw a parallel between re-mixing and kids learning to do creative writing essays by quoting other creative writers. In other words (it seems) - this is all about learning and education. He attempts to suggest that in his video, where he wants this done "not just on sites like Vimeo, in schools, in elementary schools, in universities...", however, there's a big difference between "making much more of it" as he defends himself saying, and saying "We need to spread this kind of creativity and expression in every context we can...in every single place we can", and then later referring to all the money that the hip-hop artists of the 80's and 90's would loose if it was discovered that their remixes contained the creative efforts of others, when he envisioned a statement from the rappers' lawyers to the rappers, who might have said "if they ever discover it they're going to sue your ass, and you're going to loose all the money you're making, so, be as obscure about it as you can." Lessig understands then, as now, that there's money in them thar remixing hills.


2. "we needed to develop better norms to govern remix creativity." The new norm, according to the videotape of his remarks, should be "Now, I think it's time for us just to stand up and be brave enough to acknowledge what we're doing. And acknowledge and respect the people we're building upon by saying 'it's this person's work I am using, and thank you for creating that work, but I'm not asking permission to remix that work." There are already established norms. For example, in publishing, if I wanted to quote Lessig in my book, I can cite a segment of his book - and while there is no hard and fast rule on the number of words citable without infringement, a paragraph or three, or a few hundred words from a 100,000 word book, would likely be within reasonable bounds. On TV shows, it's often 12 seconds or less of audio/music from a single copyrighted work. The problem with still photography, of course, is that the showing of a still photograph is not using a segment of the copyrighted work (i.e. a few seconds, or a few words) but the entire photograph. The new norm, it seems he's suggesting, should be that I can re-mix as much as I want, without needing permission. Norms, for sure in other arenas, have changed over the years. For example, the norm of acceptable language, sexual situations, and topics on TV has changed over the years. The norms for proper attire in public (street clothes and beach wear) too, has evolved. Yet, the norms of property ownership and the protection thereof should not be changing much.


3. "the remix creator needs to be recognized as a creator -- meaning, that creator needs to be assured she can keep the rights to her creativity." What he said was "we need to build environments where the remix artists is an artist - meaning, that artist - he or she owns the rights to what he or she creates." In this instance, I will agree with Mr. Lessig, along very narrow lines.
   
   For example, I for one can appreciate the talent that went into remixing the Sham-Wow guy's re-emergence into tv sales for the slap-chop commercial (here - 11 million view). That re-mix was amazing, yet, yes, an infringement. Would that re-mix artist ever have gotten permission to do that? No, but it went viral, and the slap-chop garnered far more publicity because of it, which is why the slap-chop people didn't send a DMCA take-down notice - in fact, they used it as an actual commercial, as noted here. In fact, the re-mixer, DJ Steve Porter, according to this Reuters article, was all but unknown doing "standard dance remixes to little fanfare for a decade", and then along comes the slap chop video, and he's a star. Next, he re-mixes an NBC News affiliate's interview of Antoine Dodson after an attempted rape of his sister in their home, and now it's the "Bed Intruder Song" with a combined 48 million views - but wait - also according to Reuters, there's "revenue for Antoine Dodson and his family, who will receive 50 percent of the track's sales profits".
   
   Lessig, however, wants the artist to be able to, for example, simply by re-mixing Star Wars video, be able to claim ownership of the finished product, and the creativity that a Star Wars remixer employs and the benefits derived thereof can't easily be separated from the creativity of the original underlying Star Wars material. Because, it seems, there could be commercial value to that remixed finished product, but the finished product would be worth far less had not just the original costs of creativity been incurred, but also the tens of billions of dollars of marketing that has made Star Wars a household name since the seventies. Lucas is essentially coming at it from the mindset that movie editors are a credited contributor to the movie, but not a stake holder in the final movie, as is the case in Hollywood now, and then, compensated as an editor. Lucas is essentially saying that you can re-edit my movies, but you can't commercialize the finished product no more than someone I hire as an editor on a movie I make can.
   
   Lessig then employed a charged word "sharecropper" - which draws direct lines of recollection to the South after the Civil War, where former slaves would work the land of property owners as sharecroppers, which became, for some, a new form of slavery. A choice use of words, Mr. Lessig, but the slaves saw few alternatives to earning a living and felt relegated to that station in life, hereas assigning the word "sharecropper" to re-mixers sets them up as an underclass that does not exist - they have countless opportunities. They can sow the land of creative opportunity in the land of public domain, or they can do so in Tornado Alley where the risks are far greater.


4. Lessig then spoke out of both sides of his mouth when he said "I suggested that remixers signal to others the freedom that they themselves have practiced....It's not my job to tell artists to give away their rights." Which one is it? You just did that, and, in point of fact, you espoused it's widespread happening "in every context...in every single way we can."

Then, you go on and suggest that "None of it, I thought when I finished, anyone should have any reason to disagree with. " Really? How about your organization, Creative Commons, whom you seem to have thrown under the bus? Where are you espousing CC licenses? Where? In fact, you didn't mention CC once! You espoused widespread use without regard for the rights of the original creators, as CC has a mechanism already in place and widely accepted, to do. Is this the ethical thing to do? I suppose as the Director of the Edmond J. Safra Foundation Center for Ethics, you can define what's ethical and what's not - or, well, maybe not? I am supposing that the ethics of banker Safra would not not have approved. In fact, from the Foundations' website we learn that Lily Safra, who chairs the foundation and espouses a commitment to the caring for the less fortunate, would find a need to defend the rights of the starving artist photographers who's work would be a part of a re-mix and could not bring suit in your new norm and new world of ethics. While it may be attractive to serve the underprivileged in third-world countries, closer to home there is a creative community that is starving for the ability to pay rent and put food on the table, and your new world order would harm that very creative community. Realize what I was trying to point out in the previous post - what you espouse for Star Wars re-mixers because it couldn't possibly hurt the pocketbook of George Lucas would most definitely hurt the freelance photographer, independent musician, or documentary videographer who doesn't have Lucas' bank account nor lawyers, but would suffer in your new world of copyright without the means to defend their rights nor earn a living.

Then, when you defend your statement "take it and use it" by saying:

"If you understand 'take it and use it' to mean take whole copies (what others call 'piracy'), rather than what everyone in the audience heard, take in order to remix, then indeed it does sound as if I'm 'advocating widespread infringement.'"

Yes, when you're talking about the use of, say, a photograph in a video, guess what - you're taking the whole copy. That's what happens when you use a still image.

When you state "it would indeed be outrageous that a professor of law would be advocating infringement. "

Yes, it would, and - certainly when it comes to still images - you would be doing so. In fact, many remixers use whole songs as the audio track of their visual remixes. Here's an especially amazing example of that (25 million views) - possibly using military footage (which would be likely be in public domain) but a copyrighted song. So, what say you?

You then write "I believe copyright law should be updated to the 21st century. But in the mean time, I am quite explicit: don't violate other people's copyrights." So, which is it, Lawrence? "in the mean time...don't", or, is it do it now "in every context...in every single way we can." and then, as you state in the video "when we have done it in culture, then the law catches up." You can't have it both ways.

Then, seemingly chagrined to be challenged by the rights-holders when your mindset comes to light for an audience greater than 150 people, you write "I didn't give the talk I gave on national television, or even, on the Internet. I gave it to 150 souls." So, this is like the Dixie Chicks hoping their anti-American tirade they went on on stage in Europe shouldn't reach their American audience? Or, perhaps, then candidate Obama, who, in an intimate donor's dinner in San Francisco, as cited in the Huffington Post here where he thought he didn't have a broader audience, criticized the good people of Pennsylvania when he said "they get bitter, they cling to guns or religion."

You then suggest "We need an anti-moron norm: If something sounds crazy, assume its not." Really? "A woman drives her minivan with her kids strapped into the seats into a lake to drown them, so she can be with her boyfriend." Crazy, but true.

How about: "Mr. Embassy official - my son, he's going on a jihad against America. He's going to strap a bomb in his underwear and try to blow up an airplane on Christmas Day." (here).

If you follow "if something sounds crazy, assume it's not", then what about that guy (here) who built a "community where they could escape American capitalism—and criticism—and practice a more communal way of life?" In the end, his followers, under US government scrutiny relocated to Guyana, and no one could have ever imagined that his direction to drink the Kool-Aid he gave them would kill more than 900 people!

It seems you're offering up your own flavor of "new-norm" of Kool-Aid, and no one should be drinking. Not 150. Not 900. Not anyone. Please, return to your ivory tower, and while you're at it, get Rapunzel a haircut.

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Thank God for Disney, The Wire Services, and the Record Labels!

Fortunately, for we lone photographers, awash in a sea of a litigious society, our rights stand equal to that of the mighty behemoths - Disney, Sony Music, and all of the news photography wire services. Now, don't get me wrong here, but there's an old adage - the enemy of my enemy is my friend. I greatly dislike what the record labels have done to independent musicians, and the contracts that the wire services dictate to the freelance community is crushing self-employed photographers like Steinbeck's Joads were. While I want to tag them as Steinbeck did when he wrote "I want to put a tag of shame on the greedy bastards who are responsible for this", in reference to the Great Depression, there'll be enough time to sort out things and finger point later. Right now, these folks, with their deep pockets, and unreasonable demands for our intellectual property will be the defenders of intellectual property in general, and thus, in a strange twist of fate, the IP of yours and mine as well.

How so?

(Continued after the Jump)

We need only look a few years back, when the hooligans that ran Napster were, quite literally, running amok with the creative talents of musicians everywhere. More than one professional photographer I knew had streams of Napster-sourced music running in their studio, and they seemed to see nothing wrong with it, until I pointed out the hypocrisy, but then I was the killjoy. Too bad. Call me Kilroy, or Killjoy, stealing music was stealing from artists. Period. Then, someone (ahem - Apple) invented a way to properly manage music, and Napster was lobotomized into a lifeless parody of itself, all legal, of course. All, thanks to the music industry's deep pockets and lawyers on retainer.

Now, we have the imbecile Lawrence Lessig, who, from the ivory tower of Harvard University (by way of a video festival awards ceremony), attempted to decree that the thieves of the world "can teach this culture how this form of expression is essential." By "this form" he meant, the mash-ups and repurposing of others intellectual property, and he goes on to say "When we've taught the culture, the law catches up..." Really? Is that what they're teaching at Harvard these days? Teaching the general public to break the law, and eventually it will be ok? Gosh, that sounds a lot like the early arguments for the 12,000,000 illegal aliens undocumented immigrants, and they're close to getting just that. Lessig posits "We need to stand up and acknowledge what we're doing, give people credit, and thank them, but not ask permission". Fortunately, what's good for the goose is good for the gander.

With we as the goose, enter the gander. While I didn't like that Disney mickey-moused with the copyright laws to protect their aging-into-public-domain mouse, it did demonstrate their might, when they wanted it to be exercised. Photographers will likely be among the beneficiaries of the platoons of lawyers the intellectual property industry entertainment industry brings to bear against ill-concieved pronouncements like Lessig's. When the wire services, music, or movie industries leverage their might against the mash-up madness, the laws (and yes, the constitution) will rear up its ugly head and lop off Lessig's Medusa-like head. Lessig can pander to the masses, who no doubt cheered his cute little idea, but if he has any sense at all, he knows it'll never happen, but he gets points and street cred from the mash-up artist for these ideas. How's that working out for you so far, Mr. Fairey?

Lessig, according to the PDN article on this, is quoted as saying "Respect in the 21st century is acknowledgment. When you use someone else’s work, you give them credit." Ok, and I can pay my mortgage with....credit? Mr Lessig, are you saying "let's screw the creative community now, and you'll respect them in the morning?" If so, who's wearing the beer goggles now?

While the concept of Creative Commons was a good one, Lessig has essentially named himself Creative Evisceration Officer, and anyone who now supports CC is aligning themselves with his as-yet-unstated-until-now position. ASMP, who has previously associated themselves with Lessig (here) should immediately disassociate themselves from Lessig in no uncertain terms. Plagarism Today, asked in a piece - Is Creative Commons a Rights Grab? - and it seems that that was the smoke, and Lessig's latest comments reveal the fire. Who will he burn next?

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Pitching the Photographic Client - On the Phone

Often what it comes down to when calling a prospective client is the introduction. Suppose, for example, you want to call Jason Adams* at Spin magazine to shoot portraits for them. Your objective is to engage him with your creative talents, right? Wrong. Your objective is to get his permission to send an email to him with a few images, and a link to your website. How do you do this? Well, break down your call into what happens.

First - find out his direct dial number. How do you do that? Well, first things first - what's the main number? A Google search for "Spin Magazine" turns up this - and once there, they conveniently have a "masthead" link - here. Their direct dial number turns out to be 212-231-7400. That'll get you to the receptionist. You can first call that number and say "Hi, can you please tell me the direct dial number for Jason Adams?", and maybe you'll get lucky. If they say "oh, we don't give those out...but I'll connect you..." say "no thank you, not right now" and hang up. You can also ask what his extension number is, and they may give you that. You can also call after hours, select the company directory, and enter Jason's name, and often that automated system will say "connecting you to extension 312, please wait while I connect you", and now you have somewhere to begin.

So, you now now that Jason's extension is 312. That'll get you to him when you dial the main number after hours, and key in his extension, or when you're in their lobby, and want to stalk Jason from the phone on the side table. Don't do that. The next resource is the jobs, PR, or advertising sections of the website. Unlike all the other sections of the website designed to keep the hundreds of thousands of readers from bugging the staff, the advertising department (and thus, that section of their website) is chock full of contact information and direct dial information. So too, the PR section. So, let's delve a little deeper, shall we?

(Continued after the Jump)

The "contact" section of the advertising section of the website (here) lists all sorts of emails and direct dials that were missing from the main "contact us" section of the site - here! Surprise Surprise!

In the ad section, we learn that while the main # is still 212-231-7400, the publisher's direct dial number (obviously, to his secretary!) is 212-231-7302. We also learn that one of the account managers there has the direct dial number 212-231-7355. Other people listed on this page have the suffix of the phone number 7421, 7426, 7450, 7440, 7470. So, it seems, Spin owns the 7300 and the 7400 exchanges for the 231 prefix, of the 212 area code. So, Jason's direct dial number is most likely 212-231-7312. Bingo! Now, don't dial it just yet, TEST it during off hours. Say, around 10:30 at night, call the number and see if it's Jason's voicemail. Be careful, in today's day and age, many people are forwarding their work numbers to their mobiles, so if he answers, apologize for the wrong number, and hang up! You're not ready to actually talk to Jason yet!

Now, you need to learn Jason's email address. Why? Because you don't want to ASK him for it - you should be saavy enough to have figured it out BEFORE you talk to Jason. Do some more research. Often, as before, the advertising, PR, and Human Resources section of the site has peoples' email addresses. BUT WAIT! You shout, I don't want a job - I want to do a shoot for them! Patience there, friend. heading back to the advertising URL - here - we see that the publisher's email - Malcolm Campbell is mcampbell@spin.com, and the Fashion Director - Kelly Rae is krae@spin.com. Seeing a pattern there? That's right - Jason's email is likely first initial then last name, @spin.com. In other places, it's firstname.lastname@company.com, and then it can be lastname_firstinitial@company.com. In other words, learn the email nomenclature. Now, be careful, because if the person's name is John Smith, there may be more than one "JSmith@company.com", so it'll either be first two letters of the first name then the last name, or it could be jsmith2@company.com. It can get a little tricky there. You an also try doing a search for his email address "jadams@spin.com" and see if it comes up.

Ok, now that you have the contact information, head to the website, or the local bookstore and check out what they're doing now. DO NOT call and offer them something you do that they don't! See what they're doing and think about if you are a good fit or not, and be honest - don't waste there time or yours. If you're spending all your time doing this research, I am assuming you've already been pining about how your work is just as great as what they are running, or better, and you could do that too, so that's why you're doing this research, but, really, be honest!

So, say, you see a great portrait of Fat Joe and Jay-Z in the magazine, and you light your stuff like that, but it says in the credit "Photographed on location in Jay-Z's Atlanta studio, August 12, 2010." And, say, you're a detroit photographer, and the car executives aren't calling these days for updated portraits. So, prepare your pitch. You have 20 seconds. Write it down. Refine it. It might go something like this:

"Hi Jason, I hope I'm not catching you at a bad time, but I wanted to just call and get your permission to send you an email promo. I hate spam, and I didn't want you to think I was spamming you, but I saw that amazing portrait the magazine ran of Fat Joe and Jay-Z, and I work in the Detroit area and wanted to share with you some of my work if that's ok?"

When Jason says "sure, no problem". You can either say "thanks, I'll send it right along", or say "I have your email as JAdams@spin.com, is that correct?" Either way, don't ASK for it, but you could confirm it's right.

There are a dozen ways you can script your call, but the key is to script it, and read it a dozen times to yourself to ensure it's smooth, and you don't stumble, and you sound natural. My first read of that script took 15 seconds. Some might dissect that and say the "I hate spam..." sentence fragment is negative, and should be avoided, but the positive side of that is you're trying to point out that you don't want to spam him. The point is - think, and then re-think your pitch on the phone.

When he says "sure", send it right along - as in, within 5 minutes or so. Don't call first thing in the morning, or at the end of the day. Right before lunch time (remember time zones changes from yours!) or midday - between 2 and 3:30.

Don't leave messages. If he doesn't answer, call back 20-30 minutes later. Don't call right before an "on the hour" or "on the half-hour" time, because he's likely headed to a meeting. So, call between the :10~:20, or the :40~:50 time windows.

How many times does Jason need to experience your name/offering before being ready to do business with you? Nine times. The problem is - for every three times you do put your name/offering infront of him, he's actually only paying attention once. Yup. Don't believe me? Check this link for more insights, and then go buy it as it's a book I highly recommend - Guerrilla Marketing. So, you've just done it twice, and maybe he'll remember it once. You've now got 8 more conscious experiences for Jason to have with your work before he's ready to work with you. Maybe less, if you're really all that you think you are.

What else could you do? Well, you could look up Jason on Facebook and LinkedIn, to see if you can learn more about him. Read his wall postings, and really get to know Jason. Yes, I know you might think this is stalking, but, in reality, it's called gathering business intelligence about your prospective clients, so they become your clients. Once you get to know Jason, you'll want to note in your smart phone things like his favorite drink(s), birthday, kids names, spouse's name, the neighborhood where he lives, where he grew up, and so on. Again, this isn't stalking, it's getting to know more about your client, over time, and then not forgetting that he's, say, an alcoholic, so you don't send him a nice bottle of wine for the holidays. Or, knowing that he's jewish, and would likely take offense at your "Christmas" gift. The above personal client "data" are things you learn from them, over time, whether they share that information with you directly, or post about it on their facebook account - i.e. publically! Either way, be careful how you use the information, as it could come across as really creepy. For example, if you say "hey, my kid just joined Babe Ruth baseball, does your son Timmy like it?" And when Jason says "how do you know my son Timmy plays Babe Ruth?!?!" You can say "oh, I remembered you posted on facebook about the game..." - be honest wherever possible.

You could, of course, get all sorts of contact information from Agency Access, or AdBase. Back in July of 2008 we wrote Getting Clients - A Few Options, and in November of 2008 we wrote Marketing 201: AdBase - A Timesaving and Valuable Tool, which does a lot of the initial research for you, for a fee, of course.


next up? What to write in that email!

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(* Jason Adams, by the way, is a made-up name. He's fictional. I have no idea of there ever was a Jason Adams at Spin, but, you get the point.)

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Photographer Prevails in Wedding Lawsuit

In November of 2009 we posted Wedding Photography Contracts - A Cautionary Tale - about the risks on assignment, as well as the possibilty of a tarnished reputation when things go south. Photo District News posts today - Blushing Bride Loses Underwear Photos Lawsuit - with the update that the photographer prevailed in court. The problem now, is that "One of the Best 10 Wedding Photographers" (according to his website, ranked by American Photo) has to restore his reputation, tarnished by this brides's suit.

Reading all the links above serve as a good reminder of the risks to our business by clients who feel wronged, even, as decided by the court in this case, the client was wrong.

Thus, ample proof that the client isn't always right. Want more insights into this?

The Client Isn’t Always Right: Dealing with Abuse as a Freelance Writer

Just Say No: Three Reasons the Customer Isn’t Always Right

10 Freelancer Mistakes that Damage Your Success

(Comments, if any, after the Jump)

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Morel v. AFP, AFP v. Morel - Which Way Blows the Wind?

Much has been said critical of Agence France Presse (AFP), and Twitter (and the unrelated yet seemingly related site TwitPic), in the case where, in the early hours following the devastating earthquake in Haiti, photogapher Daniel Morel "tweeted" 13 of his photographs to the outside world via the TwitPic network, and AFP distributed those same photographs to their worldwide network of customers, without compensating Morel for their use of his photographs. To date, much of that criticism has been directed towards AFP and TwitPic/Twitter, admonishing them because they "stole" the photographers work.

To the contrary.

(Continued after the Jump)

Morel signed up for a TwitPic account, which is free, and which has a lengthy set of terms and conditions under which he may use the account, and further, what TwitPic may do with material he transmits across their network (text or visuals). He agreed to these terms and conditions. Whether he conveniently forgot what he agreed to, or whether he never read them before clicking the metaphorical "I accept TwitPic's Terms and Conditions" button, the photographer is in the wrong. TwitPic has a network, and the tangent to TwitPic has a network, Twitter, which is bearing the brunt of this suit, and alleged wrong-doing. They both provide the service for free, for reasons that are mostly unknown right now. It may be that they are mining data from tweets about trends in society, age groups, or otherwise taking the pulse of the collective consciousness, and that may be a marketers dream data set. However, the Twitter network spends millions of dollars a year to operate itself, and in exchange for making that multi-million dollar network available to it's users, Twitter gets rights to content it carries over it's proprietary network. Their conveyance of those rights to third parties - in this case AFP, is perfectly within the bounds of their rights, and Morel is out of line.

Jean Francois Leroy, the Director of Visa Pour L'Image has a similar take on this. Over at Duckrabbit, (here) they use similar language - "AFP took Morel’s pictures without the photographer’s permission" and "they thought the photos belonged to somebody else". The operative word in the first quote is "took", and it's wrong. "Took" implies without permission, and they make it clear that's what they meant, when they say just that. The fact is, Twitter's T&C give AFP permission, granted to them by Morel, when he accepted them as a condition of his use of Twitter.

Leroy was quoted as saying:

"Anyone who puts images on Flickr or on Twitter, and then sees them being used, well too bad for him… a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough. You can’t ask me to defend you. What I’d like is for all photographers reading this is that they stop putting images on such sites."

The only objection I would have to that quote is that Leroy characterizes the action as "stolen", and, as I have detailed above, AFP did NOT steal them, they have a license (permission) to use them. Otherwise, Leroy is spot on.

What if Morel had been smarter about his images, and used the internet to transmit his images to, say, a service like Photoshelter, where people can access and license images immediately, and which are search-engine friendly so the photos get found easily? They might not have seen the distribution and publication depth and breadth that they did because AFP has thousands of subscribers worldwide, but Morel would have maintained control of the licensing of his images, and likely profited significantly from controlling his rights.

I stand with Leroy, and common sense - don't use free internet services when your own intellectual property is at risk. Not only do you risk losing control of your work, but also, it's just not professional.

For those of you curious, here are the respective Terms of Service (i.e. the terms under which you may use the service, and further, agree to):

From Twitter's TOS:

- You may use the Services only if you can form a binding contract with Twitter

- The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites...You should only provide Content that you are comfortable sharing with others under these Terms.

- You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
- You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

- Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

- We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

From TwitPic's TOS:

- By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites

- you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.

What part of that's not clear? Photographer “A” delivers images to party ”B” (TwitPic and then Twitter) and in doing so, accepts terms expressly providing that party “B” has the right to sublicense his work to third party/ies “C”, then the photographer must abide by terms to which he/she agreed. As to Party "C" being Lisandro Suaero, who downloaded the images from TwitPic and reposted them on Twitter under his name (see FastCompany article here for this gem of information), nothing in TwitPic's terms require photo credit, let alone, an accurate photo credit. Setting aside Suaero's ethical breach for taking credit for someone elses' work, AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legimiately got them from Morel. AFP did the right thing, as they learned that Morel was in fact the photographer, and not Suaero, so they corrected the photo credit to attribute Morel. Morel is not some newbie, or someone unschooled in how to transmit photographs - he used to be an employee of the Associated Press as a photographer, so any claims of "I didn't know..." will, for me, fall on deaf ears.

Any questions?

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Related:

AFP sues Morel for defamation (PDF)

BJP - AFP v. Morel: The debate rages on

BJP - AFP v. Morel: The Important Questions

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Property Releases - Not Necessary One Court Rules

For years, it has been espoused that, in order for you to use someone else's property in a commercial way, you needed permission from the owner of that property in the form of a Property Release, much like a Model Release. No so, says the U.S. District Court in Northern California, in a rare case that likely will have far reaching consequences.

In the case of Robinson v. HSBC USA, Mr. Robinson's home, an often-photographed Victorian-era home in San Francisco, was used in advertising for the HSBC bank. (Read the decision here). The case, interestingly enough, was brought against the bank, one can assume, because they had the deep pockets for an award, as opposed to being brought against the photographer, who had far shallower pockets than a multi-national bank.

The front of the brochure, is at right, where Robinson's home is the yellow one.

(Continued after the Jump)

With the court's decision, it was dismissed "with prejudice", which barrs Robinson from bringing another case on the same claim. At right is the inside of the brochure - a second use of Robinson's home.

Over at the Property, Intangible blog, there is an excellent dissection of the case by an intellectual property lawyer that's well worth the read. Carolyn Wright, over at A Photo Attorney, discusses that there is almost no need for property releases in the United States, and she writes a bit about it here.

Essentially, there was no libel or defamation, nor even the suggestion that Robinson had a home loan with HSBC. Further, there was no trademark issue (like a logo visible in the image), nor a copyright issue. Further, the image was taken without trespassing on private property.

While I'm not a lawyer, and further, this isn't legal advice, it seems that unless you're going to use an image of someone's home and say "hey, here's a great place to open a brothel", or "this house looks like a crack house", a property release isn't as necessary as we have all been led to believe in the past.

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Paying Attention to your backgrounds - Avoid 'Photobombing'

As professional photographers, paying attention to all the elements of your photograph is critical. Now, I'm not talking about studio work, or situations where you are in control of the entire environment, for this blog post. Instead, what I am talking about are uncontrolled situations are the regular experiences of wedding photographers, photojournalists, event photographers, and so on.

A good photographer will do more than just properly expose and focus the image, but taking it to the next level, they will actually compose a good image too, so the subjects are properly framed as well. Once again, taking it to a higher level, eliminating static "photo bombs" like glowing exit signs, lamp posts and trees coming out of peoples heads, and other odd objects makes for a much more professional photograph. One of the few remaining road blocks to a good image is the human 'photo bomb'. That is, when there's someone in the background doing something distracting, either by happenstance, or with the intention of ruining your photograph. In news coverage, waiting for the other people in the photograph to either be a part of it by looking at your subject can take seemingly forever. Few things irk me more than photographing a subject at a podium only to have the people on either side of the speaker looking down, looking away, or otherwise not paying attention to the person whom the entire audience is expected to be listening to!

So, for some inexplicable reason, it is with a good chuckle that I saw this tounge-in-cheek new 'feature' in Photoshop. Enjoy the video, and for more examples of photobombs, check these out on YouTube, and Flickr!

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Beware Your Copyright Infringements - Case in Point

Your copyrights, and those of your colleagues, are under constant attack. It's critical to not just police yours, but to help out your fellow photographers, where it seems likely an infringment might be possible.

Today, while in-between assignments, I was in Washington DC's Union Station. There, I stumbled upon Images 4 View (listed here), a kiosk operating a green screen business. Most of the images appeared to be snapshots they could have taken themselves, or, in a few cases, White House public domain images. However, one image stood out for me - the image from the cover of Sarah Palin's book. Set aside your opinions of Sarah Palin, the fact is, this was the one image I thought was a candidate for having been infringed.



First, I made several images of the booth scenery, and it being operated.

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Then, a quick online search turned up the photographer - Seattle photographer John Keatley. Fortunately, his cell phone was listed there, and a quick call to him confirmed what I suspected - he was being infringed. While no one likes learning this, I think what they like even less is that people are profiting off of their work and they are not being compensated. What's interesting here - is that while locations like Union Station must be certain that their vendors are not selling illegal drugs, and are operating with a license to do business, they should also be making sure that their vendors are not violating federal laws like Copyright. I get this same type of frustration when I see a kiosk in the mall where a sketch artist has "sketched" famous images like John Lennon with his arms crossed, or other iconic images of celebrities. I can't wait to stumble upon one of my images that has been infringed - I will have a field day with that vendor.



In this case, I sent along all of the images I shot of the booth. Next, I went to the hourly photographer working the booth, and asked for the company owner's name, and she provided it, and his email address, which I promptly sent along to Mr. Keatley.



If each of us, when we see what could well be an infringement, or, well, just looks odd, spend a few minutes on your smart phone, make a few images, and help out. The more we police this, the better our community will be.

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Practice Makes Perfect

Every so often, I post over at the blog of my agent, Black Star. My most recent post is - "In Both the Craft and Business of Photography, Practice Makes Perfect".

I come across so many photographers who seem to think good things should just happen to them — and if they don’t, it’s their “bad luck.”

To that, I counter with one of my favorite sayings, by the Roman philosopher Seneca: “Luck is what happens when preparation meets opportunity.”

Even the Declaration of Independence doesn’t promise you happiness. It only says you have a right to pursue happiness. That’s very different; it puts the responsibility on you to make it happen.

When it comes to your photography business, that means professional success and fulfillment are up to you.

Continue reading at Black Star Rising.

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The Power of One

One of the most hotly discussed issue among professional photographers, is "to combine, or to not combine? Whether 'tis smarter to join together fees for creative and use, or to separate them out." Here, I shall endeavor to address this issue with several concrete examples, and some insights into the issue.

Warren Buffett once said "price is what you pay, value is what you receive." This is true across every spectrum of business transaction. Is the price too high? Well, it may be for some, but no so much for another. While some may scoff at the cost of a smartphone, saying the extra data plan and phone features are just not worth it, almost every day the price of the phone and connectivity charges are a drop in the bucket compared to how having that phone keeps me connected to clients and booking jobs. Recently, I was on assignment, and booked for a shoot to photograph an auto accident that was staged and set up, because the client said they couldn't find good images of cars having an accident. To the client, it cost them tens of thousands of dollars to stage the accident, from stuntmen to actors to totaling a car. Could they have searched among the 70,000+ images on flickr (here) that turn up for the search term "car accident?" Sure, and they could have possibly gotten the image for next to nothing. However, to this client, the value of what we delivered was worth the investment of all that went into it. (And they did search Flickr,Getty, etc and did not find what they wanted - I asked.)

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Magazines value photography because it entices readers to subscribe of buy single-copies, which ensures that there are eyeballs looking at ads, which pay the bills. Advertisers buy ads and use images because almost always a well used photograph tells a story and sells a product better than any written words can. These advertisers make their investments in ads and images to sell products or services, increase their bottom line, and make a profit for the company owners, whether a private company, or one traded on the stock market. It's all business all the time, make no mistake about it.

While it used to be that breaking apart the costs to produce an image (creative fee) from the costs to use an image (usage/licensing fee) was common, more and more these fees are being put together, and not separated. Consider that the combined fee is not full compensation for the image's coming into existence, but rather, the least that the photographer will accept for the initial work and effort. On more than one occasion, I have done a stellar job or delivering far above a client's expectations, and the client (especially when they are on set) begin to see things far and away beyond what the original intent of the shoot was. Usually, I overhear a client saying to their colleague "oh my god, we could do a whole campaign around these images, instead of just the one we were planning - these visuals are great." Usually, the negotiations for the additional licensing fees for extended or expanded uses of the photography are handled after the fact, but not always.

Yesterday, we went into great depth about a license as a "window of opportunity." If the client wishes to expand their window of opportunity, then additional fees should be paid. However, if the photographer delivered as required, and then, say, the client does a focus group on the commissioned visuals, and decides to kill or scale back the project, they are not entitled to a refund. This is the client's right - to control the exploitation, or lack thereof, in the work you created. This does not mean that you can't give back money, or bill for less. If you determine that it is in your own best interests to do so, then, by all means, do so.

Here's a case where keeping the fees together made a huge difference. This is a real example, but I'll change the industry/client for the sake of the example.

The problem is taxes. The government is trying to impose taxes on a variety of snacks - chips, cakes, and cookies. Enter the American Snack Foods Association. I get hired to photograph all the snacks (which means that while my client is the ASFA, the end client is Frito Lay, Enteman's, Hostess, General Mills, Altria, and so on. You get the picture - a lot of people who usually compete, having to work together on an issue) together. We do, and we get sign off from ASFA. The bill - $10k for the creative and usage, combined. I do this job on a Friday. Sunday, I get a call - one of the Frito-Lay bags is the old branding, and we need to re-shoot on Monday. No problem. We send another contract for $10k. We get on set, ready to go, crew at the ready, computers and lighting ready. The client doesn't even turn up to the shoot, and scrubs the shot. No problem. Send a bill for $10k. We are told Monday afternoon we are to finally shoot Tuesday. Send another contract for $10k. We do the shot, and the client again signs off on the job, and this time, they mean it. Total bill? $30k. Paid in a week. This client is an ongoing and repeat client for me. If I had separated out creative and usage fees, it may have been more challenging to argue that they still needed to pay those fees.

When putting together estimates, keeping fees together, wherever possible, ensures a greater amount of revenue for your business, and thus, has a significant impact on your bottom line.

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