Friday, January 29, 2010

PILFERED Magazine - Copyright Scumbags10

Pilfer: to steal stealthily in small amounts and often again and again

Source: Merriam-Webster

There are scumbags, and then there are SCUMBAGS. In my book, when you are a "publication" whose sole existence is based upon stealing and exploiting work from all over the internet by creatives, then you are the embodiment of the word "scumbag", and as such, PILFERED magazine is one such uber-scumbag.

When your website's About page defines you, in part, as such:
"PILFERED is a place where artists, photographers, designers, and the inspired can submit their favorite visuals pilfered from the web to share with one another. Founded on the spirit of web democracy, and built to aid in communicating ideas and concepts, PILFERED Magazine aims to assist in speaking the thousand words – visually."
You seem to be headed down a dangerous path.
(Continued after the Jump)

The lawyers for PILFERED, however, can't have it both ways. Despite a publication title and raison d'etre that seems to promote the theft of intellectual property, their privacy policy page notes under "Prohibited Uses" that you may not:You may not use the PILFERED MAGAZINE site and or its services to transmit any content which...causes distress...upon any other person...includes any unlawful...material...may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, trade secret, patent, publicity right, or privacy right.

Then they state under their "No Warranty and Limitation of Liability" :
And you think that these disclaimers will get you out of legal hot water when you are infringing peoples' copyrights? Really? REALLY??!!??

Founders and Chief-Thiefs Patrick Hoelck, Rudj, Nate "Res" Harvey, and Mia Van Valkenburg, promote themselves as "hav[ing] in the past spent hours surfing the web to put together presentations for various commercial ad and editorial jobs…and noticed the hours it took to gather images and felt it was time to have a massive image collective shared by the people, for the people." What about the people who's creative works you're stealing?

Their About page goes on:
"Content on PILFERED is submitted from around the world and carefully edited by an in-house team, as well as a new monthly guest editor, to keep issues cutting edge, fresh and informative."

Guest editors? What mini-scumbags have agreed to participate in such a scheme? Well, while their March 2009 issue was a "test issue", the rest:
  • King Britt was the guest editor for the April 2009 issue, who describes himself as a "media revolutionary" and believes that he is one who "set the example of an individual[s] what freedom truly is."
  • Cory Kennedy was the guest editor for the May 2009 issue.
  • For the guest editor for the July issue they had twins Gisela Getty and Jutta Winkelmann, described as being "actively involved with the German underground Communist Organization...they meet the young millionaire heir Paul Getty III and become life's play companion with him..."
  • George Pitts guest edits the July 2009 issue, describing himself as a photo editor and photographer whose own photographic work "is an extensive meditation on Women...", and was a former editor for Vibe Magazine
  • Guest editing the August issue is Tyler Gibney, and his site's about page lists his business "HVW8 Art + Design gallery was established in Los Angeles as a studio + gallery space for HVW8 and friends. The current mandate is to support avant-garde graphic design..." and then, for some inexplicable reason, contrary to PILFRED, has a contact person where you can contact their representative for licensing - one can only assume, for some form of compensation?
  • Brett Ratner guest edits the September issue. I wonder how he'd feel if someone PILFERED one of his films?
  • Christina Ricci guest edits the October 2009 issue - I wonder how she'd feel if someone PILFERED her likeness to sell products and services?
  • Susan Kirschbaum guest edits the November 2009 issue
  • Yosi Sergant guest edits the December 2009 issue - Sergant is descibed as a "community organizer...he organized and supported artists working to elect then candidate Barack Obama, including...artist Shepard Fairey" - enough said.
  • Anthony Mandler guest edited the January 2010 issue- I wonder how he'd feel if someone PILFERED and profited from his movies, or how his friends like Rihanna would feel about having her work PILFERED? Readers, what do you think? Is Mandler a Jackass?
This seems to me to be but one visual variation on Napster - which was inundated with copyright infringement lawsuits. Yet why hasn't PILFERED been inundated with similar suits by visual artists? There are plenty of well-known images, any one of which could be the cause for a suit that could shut them down. Copyright Action wrote about this site in May of 2009 here - and it seems that on more than one occasion, the site has been shut down, but why not permanently?

When people run around espousing the notion that "copyright is changing", I get it, and I know that. However, there is a huge difference between "changing" and becoming worthless or irrelevant. PILFERED seems to suggest that your copyright is worth something because it's worth stealing, but worth nothing in terms of the creator being paid for the use of their work. Hoelck, in an interview here, suggests " You either get it or you don’t and are pissed by it." No, we get it - you are promoting stealing of creative works. Anyone who's been a guest editor should hope that this "magazine" vanishes into the ether, because if these guest editors ever have their work stolen and they sue, the defendant in that lawsuit will hold up PILFERED and say something to the effect of "...why isn't what's good for the goose, not good for the gander?"

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Monday, January 25, 2010

On Commercial Photographers - Everything Is Relative

Anytime people get together to focus attention on the critical matter of the business aspects of photography, even when they are misguided, I applaud it. I applaud even the misguided discussions because someone will come out and get it right, and others will alteast spend some of their otherwise mis-focused thoughts on business for a change, and eventually, they'll get it right.

It is to that end that I applaud Rob Haggart's A Photo Editor, who poses the important question - How Much Money Do Commercial Photographers Make?

And I thought I'd take and make commentary on much of what was said, correctly, or incorrectly.

"One commercial photographer told me he was bringing in $250,000 in profits and another said he has several million in billings."
This is a loaded statement, because someone could have $250k in profits and next to no expenses in a number of circumstances. Further, someone could have several million in billings and be running at a deficit.
(Continued after the Jump)

"So, what do successful commercial photographers make? I’ve always believed it was a lot."
Success is not always defined by what someone makes. For example, the owners of LifeTouch - the business that does a large number of school portraits across the country is a commercial enterprise, bringing in millions each year. Yet is that success? For the owners? For the commercial photographer that runs the on-tripod camera with formulaic strobe setups?
"How has the economy effected the way people price? "
While you might seem to think that there would be an effect, and erroneously, there is, it isn't a long term solution - because when you're a $1,000 photographer for X, and you do the job for 1/2 of X, that client will remember you at the 1/2 price rate when the economy rebounds.
"Are photographers starting to base their usage on their cost of doing business instead of the cost of the use?"
This too is a flawed question - usage should never be based on the CODB, it should be based upon the use. However, one's photographers fees should have, as an absolute floor, that photographer's CODB when it comes to a photographers creative/assignment fees.

Amanda Sosa Stone and Suzanne Sease wrote:
"we had 1 photographer bold enough to give the answer everyone has been waiting for."
I'm not sure which one they are speaking about, so knowing this would be helpful.

The "Hot Emerging Photographer" (HEP) states "...My rep basically bids on what the client’s budget is..." and that's a problem. Knowing what the client's budget is is critical, and it's a question I always ask. However, when the budget is too low to properly do the assignment, then bidding on that can be a problem! Further, sometimes prospective clients will mis-represent the budget for any number of reasons, not the least of which is to see if you come in at a proper number that is well above the stated budget. I understand the point HEP makes when stating "...we push the production as low as we can to do a good job then create the fee out of the gap..." but that gap has to be a number that includes your CODB as well as a fee that compensates you for whatever creative talents you bring to the assignment. Lastly, HEP suggests "...I vote to keep an industry standard of fees..." and that's not going to float from an anti-trust standpoint. However, resources like FotoQuote/FotoBiz, Hindsight, and others are great resources for photographers to refer to outside of and formal establishing of prices by the trade organizations, which legally cannot happen.

The Established Photographer 1 (EP1) suggests "...250K in profits! I want to be him. In my best year, I grossed 225K and I was quite pleased. I can’t remember what I net’d but would have to guess around 1/3 of that." Most businesses look at a 3% - 7% net profit after taxes. If your net profit is 30%, I'd suggest that either you are the most amazing business person of the year, or you're not factoring in overhead items that you should be.

EP1 goes on "...It’s also difficult to compare me to most; I was away from business from 2005-2007 and have had a very challenging economy to grapple with upon my return so there’s no steady recent history for me to gather information with." So, we're to rely on the insights of someone who's been out of business for 2 (or even 3) years, with no steady recent history? This alone should be reason to discount these insights as valuable.

EP1 concludes "...I have estimated jobs based on usage, and I haven’t won many of them :-(" which to me that EP1 isn't doing a proper job of conveying usage to clients, or calculating it.

Next up Established Photographer 2 (EP2) reveals one of the reasons that this industry - especially assignment-type work, is in the current state, when they state "I have always tried to avoid talking about this kind of stuff." Whomever EP2 is needs to be talking about the business of photography with atleast their assistants, if not their local colleagues.

Then EP2 says "Even though I bill well over a Million Dollars in gross billing annually. What you actually pay yourself is much, much less....I am at the top of my game and probably make about what a halfway decent Attorney makes...It is quite exaggerated what photographers make." According to, the median salary for an attorney with 5-9 years ranges from $70K-$114K. An attorney "at the top of their game" can expect a salary of $200k or more coming out of a top-end law school.

Established Photographer 3 (EP3) seems resigned to the fact that they "... can’t say I am a poster boy for usage fees either. " Atleast EP3 acknowledges the possibility (hint: reality) that "..... Maybe I am getting played, but it usually happens in competitive bids where they say the other guy will do this usage for this money, so to be competitive I need to come closer to that number – that kind of thing. I typically but not always cave into it..." THAT is the definition of getting played - that they are playing you against the others, and the others against you.

EP3 does, however, suggest "... in that sense my cost of business does figure into it, but I only consider it when pressed to meet another person’s price." and in doing so, hopefully isn't accepting creative/assignment fees that are lower than their CODB.

EP4, while the least of the providers of information, does include a few details that are worthwhile. EP5 on the other hand, has it right in handling his money properly through a corporation, and I think EP4 was asked the flawed CODB question. EP5 concludes with one model that works for a lot of photographers "...License model, combined with photographers fee (shown as one line item!!) is the way the top guys estimate."

The EP with actual salary numbers provides succicint numbers, however is that a wedding photographer, an event photographer, or some other type? It seems to me that it is a wedding photographer.

The Very Established Art Buyer (VEAB) has some great insights. They know that "... top photographers do gross a million or more in fees.", but those fees cover overhead, and, as they acknowledge, "...agent commissions come out of that, but it’s still a nice living." It's refreshing when they reveal "...I don’t see top photographers any more willing to compromise on pricing than before the economic downturn." and that should be a guide for the rest of us.

The VEAB notes that "...Usage pricing is all over the board and there seems to be no rhyme or reason to it." and this is something that I, along with others (including Leslie Burns Del'Acqua) have been trying to promote for some time now, and that is that usage fees should be a percentage of media buys for advertising, anywhere from 5-7% down to 2% or so for large buys. Heck, if an ad buy is $2,000,000, is it unreasonable that you'd be paid $40,000 when it is your heroic picture selling the product? I don't think so.

I agree with Amanda and Susanne when they say " have to do your part to get those jobs and keep those clients and ask for what you are worth – NOT WHAT IT COSTS TO PAY YOUR BILLS!" However, you have to know what it costs to pay your bills before establishing your fees, or risk setting them below your CODB.

Commenter Jacob wrote "...I’ve noticed more and more that major ad campaigns are now crediting the photographer in ad work." and then Suzanne responded "...I am on the phone with Amanda right now and the answer is yes..." and it is important to note that the advertising landscape will change whenever the Orphan Works legislation gets through, because most of the versions I've seen will need photo credits in order to properly protect the work, even in ads.

Glen Wexler commented, on this subject ".... With ad work, a comparable level of freedom rarely exists, and the photographer’s vision is often shaped to the “greater good” of the brand. The process of making an ad is much more collaborative than editorial. An editorial photo credit is a must..." and then he goes on to point out, quite accurately, "...the media buy almost always dwarfs the photo fees" and then makes a huge point "...If photographers begins to reduce fees in exchange for exposure gained by ad work, where is the payoff? Wouldn’t you simply be setting a precedent of reducing fees to gain more reduced fees?"

Edward McCain seems quite fatalistic when suggesting "...I hope young photographers in most parts of the U.S. realize that they probably won’t ever net as much as a school teacher or plumber." If that's the case, the photographer has only themselves to blame. McCain also suggests "...I only know a handful of photographers that actually net more than $25-50K." I do hope ( but doubt) that he's referring to a net on their business income after having paid themselves a reasonable salary.

In the end, the discourse is of significant value, and I do look forward to Amanda and Suzanne's continued contributions.

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

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