The Pathetic and Paltry Time Magazine Assignment Rate & Rights Grabs

What's good for the goose is clearly not good for the gander. "Purchase" is not "license." According to Time's own website (here) " We license Time Inc.’s peerless content, brands and products to partners in new businesses and emerging markets."

DEFINITION: Peerless
adjective 1. having no equal; matchless; unrivaled. Synonyms: unmatched, unequaled; unique, unsurpassed. * source: Peerless, at Dictionary.com

Yet, that "peerless content" which Time wants contributors to produce is not something that they are purchasing like a computer or plane ticket. The software they pay a fee to license from Microsoft and Adobe, while seemingly purchased, is not, it's licensed. They may have "purchased" a physical CD of the software, but they do not have ownership of the software to use across multiple platforms unless they obtain a broader license to the work, and pay an appropriate additional fee.

As reported in PDN Pulse (here), Karen Myers, who is Time's UK’s Director of Corporate Communications, said “...Contributors need to bear in mind that commercial realities dictate that we will be using the content that we purchase in many different ways..." yet Time's website Terms & Conditions (here) make it abundantly clear (regarding the intellectual property on their website) they "own, solely and exclusively, all rights, title and interest in and to the Web Site, all the content (including, for example, audio, photographs, illustrations, graphics, other visuals, video, copy, text, software, titles, Shockwave files, etc.)."

Time UK has been, and it will remain, licensing content from contributors. They will not be "purchasing" ownership of it any more than I can take that Norman Rockwell I want to buy and (once I do) make posters and lithographs off of it. Yet that is what Time UK (and as has been suggested by others, this is a trial balloon for US contracts) wants to do.

This smacks of what occurred in the late 1990's, when Time unceremoniously foisted upon contractors, contributors, and freelancers, a new egregious contract. Many of the seasoned team of photographers, stood their ground and refused to sign, only to be replaced by those who looked up to them as standard bearers - "peerless" photographers, to coin Time's characterization. The "new team" stepped in to fill the void, crumbling what ground those photographers were standing on. You can, no doubt, see those who were undercut by the newcomers sitting back and saying "what goes around comes around..." and not missing a wink of sleep as the downward spiral continues.

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How Far Down Is That Spiral Going?

In 1980, the Time Magazine contract indicated a rate of $350, and in about 1990 it was $450. In 2000 and on through to about 2011, it's $500. It's about $550 in 2014.

In 1980, $350 was worth, well, let's set that as the baseline, and say $350 is worth $350.

Would the 1980 photographers taken an assignment for the "Peerless" Time Magazine for $191? No, they would not.

Here's how Time Inc's (NYSE: TIME) assignment rates have worked, throughout the years.

First is the middle line, which tracks the rate as paid. The top line is the rate had it kept up with inflation alone. The bottom line is the buying power of that rate, over time.

How did we arrive at these numbers? The US Department of Labor has a calculator (here) that allows you to compare buying power, over time. It's a fact that essentially everything increases in cost over time. That loaf of bread in 1980 was about $0.50 and now it's $1.50. Gas? Of course - more expensive too. As such, your ability to buy something has been reduced, over time, unless you get a "cost of living adjustment" in your income stream.

If Time were paying an assignment rate of $1,000.00 it would have just kept up with inflation relative to their previous $350 assignment rate from 1980.

Has their per-page ad rate gone up? Yes.

Have their employees received cost-of-living salary increases? Yes.

Where is the equity in paying those that produce that peerless content that brings in readers? Absent.

Know that if you're a photographer now that accepted the $500 back 10-15 years or so ago (when it should have been about $750), you were undermining the photographers who tried to take a stand for better pay then. Now, when you try to take a stand, make no mistake about it, there will be photographers who will fill the void, and you can join the ranks of past Time Magazine contributors saying "what goes around, comes around - trust me, I have experienced the financial pain that proves it."

You either stand together, or fail separately. Your choice.

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Related:
The REAL 'New Frugality'-Time Style, 7/25/09

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Dumb Hookers and Photographers

How much money are you losing when you're not paid when the services are rendered, or even on time?

There's an old saying:

"even the dumbest hooker knows they get paid up-front."

Setting aside the disparagement some of the purveyors of the oldest profession in the world, the sentiment of being paid up-front is obviously a time-honed position.

Consider this - A common credit card has a 17% interest rate on charges.

Why Interest?

Q: Why do people charge an interest rate? A: It's "the cost of money." The concept is - if a financial institution loans you money to buy a house, they're not able to use that same money to invest in stocks or other investments that will, over time, increase in value. Therefore, when a bank loans you $300,000 with 30 years to pay it back at 5% interest, and with you paying a monthly mortgage of $1,654, at the end of 30 years, they will have earned $229,910 in interest and you will have paid a total of $595,639 for that house.

If you were to buy $10,000 in photo equipment, and not pay it off in a year, you would have to pay $1,838.92 in interest if the interest was "compounded monthly" as compared to $1,852.58 if the interest was "compounded daily." As such, the difference between "compounded monthly" and "compounded daily" is $13.66. How does that work? What happens is that "compounded daily" means that on day 1 you owe $10,000.00. At the end of day 1, approximately $4.66 in interest is accrued, and so on day 2 you owe $10,004.66. Compounded monthly, you wouldn't owe any interest until the end of the month, but then you would owe $141.67 in interest.

(Continued after the Jump)

Now, consider the value of your own money - that which you earned. If you earned $5,000 for an assignment, and you get paid that money up front, you could, in theory, immediately invest it in one of the safer investments - bonds - with a 4% return. So, at the end of the year, it would have $5,204 in value. Thus, it should be painfully obvious that if that client waited a year to pay you, you would have lost the ability to make that investment, thus, losing $204. Simple math tells you that if they waited 6 months, you'd have lost $102, and in 90 days, you'd have lost $51.

So, when that client tells you "we pay in 90 days" what they're saying to you is "I know your bill is $5,000, but we're going to pay you in 90 days, and you'll have lost $51 in earning value during that time, so you'll only have earned $4,949.00."

Consider that most clients and vendors should be on a 30 day pay cycle, that same $5,000 has a per-month value of $17.00. That's like a client disavowing a parking garage expense or a two-person fast food meal, "just because…"

Here's the rub - when you incur a $5,000 expense your credit card company wants it paid back in 30 days, or you pay interest. $70.83 at 17%. Where's your $70.83 when a client doesn't pay you in 30 days?

So, on that $1,000 assignment, where's your $14.17 when that client doesn't pay in 30 days?

It compounds. If you're a photographer that does three $500 a week assignments, that's a gross revenue of $78,000. That's 156 assignments a year. The difference between getting paid in 30 days versus in 60 days is, at $7.08 an assignment, an $1,104.48 loss in the power of your money, or doing just over two of those assignments for free.

There are many "standard" payment cycles, all built into your business model and what works for you.

Most wedding photographers take a deposit when the contract is signed and the full amount a week before the wedding, or upon delivery of the proofs (I'd recommend a week before the wedding.)

Many commercial photographers expect a deposit when the contract is signed (so they can start booking air/hotels and incurring other expenses on the clients' behalf) and the balance due on receipt of final images (but before first usage of said images).

Other photographers are on a 14-day, 21-day, or 30-day schedule. Some require clients to pay on the spot with credit cards.

In the end, it's important to recognize the value of your money, and get it as soon as possible.

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FUSEVISUAL - 5 Questions | 5 Answers | 5 Images

For almost a year now, the website FUSEVISUAL has been doing insightful interviews of a number of photographers from around the world. Recently, I was interviewed (here), and found myself sharing a number of things with my interviewer, Cameron Davidson, I hadn't intended to. I've been following the site for some time, and while some of the photographers I know (Renee Comet, Robert Seale, Seth Resnick, Chris Crumley, and Susana Raab, many I don't. Cameron (whom I have known for many years) takes a surprisingly in-depth look at each of them, and it's refreshing.

The concept is simple - 5 questions and their answers, along with 5 images. The idea, of course, is to draw in viewers to see, as the founders write "to deliver a site that uniquely showcases visual communication experts", but the mission is to not only share the answers and images, but also to make a difference through charitable contributions both in the United States, and Haiti. Their "Give" page details these charities, and encourages others to get involved.

So, go check out FUSEVISUAL, not because I'm featured there, but more importantly, because they're doing good and you just might learn a thing of two (or a dozen) about how other creatives have mastered their craft, as a part of your journey to master yours.

(Comments, if any, after the Jump)

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House Judiciary Committee - Orphan Works and the PLUS Solution

On April 2, 2014 - Congress' House Subcommittee on Courts, Intellectual Property, and the Internet held a hearing titled Preservation and reuse of Copyrighted Works about orphan works, and asked for insights into matters regarding the need to preserve copyrighted works.

Testimony was heard from the Library of Congress, Gregory Lukow, Chief, Packard Campus for Audio Visual Conservation, The Library of Congress (testimony PDF); Mr. Richard Rudick, Co-Chair, Section 108 Study Group (testimony .doc file); Mr. James Neal, Vice President for Information Services and University Librarian, Columbia University (testimony PDF); Ms. Jan Constantine, General Counsel, The Authors Guild (testimony .doc file); Mr. Michael C. Donaldson, Partner, Donaldson + Callif, LLP (testimony PDF); and Mr. Jeffrey Sedlik, President and Chief Executive Officer, PLUS Coalition (testimony PDF). Much of the testimony was about preservation, and the questioning of the need for new laws related to orphan works was discussed at length over the course of two hours.



Jeff Sedlik's PLUS Coalition testimony proved to be most relevant to visual artists, given the presentation of PLUS as a solution to the problem of orphan works. Prior to the hearing, Sedlik spoke with the committee chairman, Rep. Howard Coble (R-NC) (as seen below).

Below is a video that combines Sedlik's testimony from the hearing - it's well worth watching to better understand how orphan works will return to the fore, and what is being done to solve the problem.

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Disclaimer: I sit on the boards of the American Society of Media Photographers and the National Press Photographers Association, both of whom have provided substantial funds to support the development of PLUS. Each organizations' initial funding of PLUS pre-dates my role on the boards.

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CalumetPhoto - Chapter 7 Bankruptcy

While rumors have been swirling for much of the day on Wednesday, the story about whether or not the storied camera store chain CalumetPhoto has filed for bankruptcy have come true.

Calumetphoto.com LLC has voluntarily filed for Chapter 7 bankruptcy, listed as case #14-08908 in the Northern District of Illinois United States Bankruptcy Court. The filing is dated March 12, 2014 and the first meeting is scheduled on April 22, 2014.



CalumetPhoto, in recent months, has been pulling back from their participation in activities they have, in the past, normally sponsored or been involved in, and there have been grumblings amongst store management as well as serious concerns raised by some equipment manufacturing representatives and vendors as well. While many companies file for Chapter 11 bankruptcy in order to reorganize, sources tell Photo Business News that while CalumetPhoto tried this route, ultimately they found themselves in Chapter 7 bankruptcy, which is the phase companies end up in when Chapter 11 does not work, and the company has to liquidate.

CalumetPhoto, founded in 1939 grew to almost 3 dozen stores nationwide, and, in recent years, most notably acquired the Penn Camera camera stores in 2012 in the Washington DC region after they had gone into Chapter 11 bankruptcy. After shedding 5 of the 8 locations, the remaining 3 were intended to continue to fulfill the various government contracts that Penn Camera had acquired over the years, as a hopeful source of ongoing revenue for the beleaguered company.

(Continued after the Jump)

According to court documents (see below) CalumetPhoto lists assets of less than $50k, and estimated liabilities in excess of $1,000,000, and 585 debtors:



All CalumetPhoto stores in the United States are closed, and classes have been cancelled and their @calumetphoto twitter account is now non-existent, yet there were posts on their Facebook account up until mid-day Wednesday. The overseas CalumetPhoto stores in the EU remain operational. According to Seng Ng, the Director of Finance for CalumetPhoto U.K., when asked how this will affect the UK store, responded "not at all" continuing "we share the same name but are two distinct entities." Their website remains operational and stores there are open.

Late in the day Wednesday, visitors to the Calumetphoto.com website found it non-operational, as below:



Reports from current and former employees and individual store management have reportedly been detailing the trials and tribulations of their times at CalumetPhoto and the state of the company has reportedly not been well.

The PDF of the court filing can be viewed here, as a PDF.



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Update: At about 10:30am Eastern time, CalumetPhoto posted this on their Facebook page:

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Getty's Flickr Agreement Ends Like Titanic

Getty Images, a Carlysle Group (NASDAQ: CG) company, today, announced a "notice to terminate" their relationship with Flickr as a source of images. What was launched in March of 2009, when Getty's editors were characterized by Flickr as "...inspired by the quality and creativity of our members...." (Building the Flickr Collection on Getty Images, 1/21/09) has now ended.

The parallel between the launch of the largest ship in the world, and it's eventual sinking because of poor stewardship is similar to Getty and Flickr, where arrogant captains in both settings think they know what they are doing. Getty, arguably the largest stock operation in the world, as the Titanic, ran into the immovable object that is the iceberg in the form of Flickr. Now as the executives of Getty stand amidst the musicians entertaining the unknowing on the aft decks, the ship is taking on water. It's only a matter of time before she breaks apart and sinks to unfathomable depths.

Of course the agreement didn't end before Getty sifted through, what they characterize as their having "...assessed over 90 million images, selecting 900,000 from 42,000 contributors as part of our Flickr collection." Interestingly enough, using the $0.15 per image valuation factor Getty is said to use to value their collection, that's only a valuation of $135,000 over the course of 5 years. I am sure that they paid editors more than that to cull through all the images, so I'd count that as a bad business decision. Given they have two years to make up enough money to generate the $1,200,000,000 for their 2016 loan, the Flickr deal seems to have generated content that is a few zero's short of solving their problem. Consider that they had an existing pool of 9,000,000 images, which was a massive library of content for them to consider, and they still were only able to select 900,000 images. With that pool of images exhausted, and the relationship now terminated, they now have to look at the normal ingestion rates of images into their systems, and there does not seem to be any mathematical way that they can bring in enough images to satisfy the $1.2B loan that is coming due.

(Continued, after the Jump)

What's amazing is that, if you consider that they looked at 90,000,000 images, and they only came up 900,000, that's only a 1% success rate for a salable image from Flickr. Compare this to their stated production levels at the 2014 Sochi Winter Olympic Games - "our photographers captured 1,004,849 images, of which 52,362 were distributed to the world..." and you get a 5.2% ratio. Now, to be fair, I'm sure Getty wanted to report a figure higher than a million, so they likely counted the many times a photographer producing 12-14 frames per second used their camera's maximum capture speeds, so it's reasonable to consider that a 2 second burst producing 25 images would only produce 1-2 selects of the best image, however, they're boasting the numbers, so when you celebrate by the numbers you are subject to criticism by those same numbers.

We here at Photo Business News, in 2008 reported, in The Curious Case of Getty and Flickr (7/11/08) about much of the problems that the Getty deal with Flickr was for photographers. With Getty last week having culled through what they believe to be all the salable/valuable images, announcing their image embedding feature ( Monetizing Getty's 35M Image Archive via FREE Editorial Uses, 3/7/14) put them in competition with Flickr, which has a slideshow/embedding feature since 2007.

Getty announced:

Statement by Getty Images re Flickr

Getty Images and Flickr have worked together for five great years, celebrating the originality of photography enthusiasts worldwide. Getty Images curators have assessed over 90 million images, selecting 900,000 from 42,000 contributors as part of our Flickr collection.

Getty Images has provided notice to terminate our existing agreement with Flickr. Our original agreement reached its end, and while we continue to be open to working with Yahoo!/Flickr, we do not have a new agreement at this time. We will continue to work with the tens of thousands of contributors and license the existing content.

Innovation and evolution are at the core of our work at Getty Images and we are continuously developing new technologies and tools to enhance our crowd-sourced imagery for our contributors and customers. We recently launched Getty Images Moment, our new iPhone app designed for contributors, as well as global content partnerships with EyeEm and Samsung. We look forward to announcing further developments in the coming months. Watch this space.

These developments are not surprising, however, they do indicate a continued flailing about as the Getty leadership team, who clearly not only don't get it but are also playing catchup in many other areas where they are behind. It's only a matter of time before Carlysle's investment turns out to be as ill-fated as the Titanic. Strike up the band for one more melody. Don't bother watching the crew scurry about for the lifeboats. Don't say you weren't warned.

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Copyright Office Roundtable Discussion on Orphan Works - 2014 Edition

The United States Copyright Office brought together stakeholders from across the spectrum of intellectual property producers and consumers to discuss various ways to approach the issue of orphaned works during two days of roundtable discussions Monday March 10th and Tuesday March 11th, 2014, held at the Library of Congress in Washington DC.

Almost six years ago, we here at Photo Business News wrote Orphan Works Act = Thieves Charter? which delved into what the bills that were proposed to be law were espousing. We followed that up with Orphan Works - History In the Making, and we even wrote about the problems with the bills then, espousing the need for a solution to orphaned works, just not the one that was being proposed, in Orphan Works 2008 - A Wolf In Sheep's Clothing. We even produced a piece titled Orphan Works - A Unique Set of "Myths" and "Facts" in an attempt to dispel some of the myths surrounding orphan works as proposed.

While the problem has not changed, the public and the stakeholders are much more engaged on the matter now, and the discourse seems to be taking a more reasoned approach. The Association of Research Libraries, for example, has changed their position from a call for orphan works legislation to an approach that utilities fair use. Here, they note "Unlike any option that will require legislative action, fair use is already the law...certain rightsholder groups are sufficiently fearful about misuse of their abandoned property that seemingly no search will be sufficiently diligent for them."

One thing is clear, this time around, the provisions of the bills that we will likely see in the next iteration will be better and more clear than what was in the 2008 bills. Below are a series of images from the roundtable discussions on the subject.

Over a hundred people came together to participate and listen to participate in a roundtable discussion on Orphan Works/Mass Digitization, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

Karyn Temple Claggett Associate Register of Copyrights and Director of Policy and International Affairs listens to remarks during a roundtable discussion on Orphan Works/Mass Digitization, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

Eugene Mopsik, Executive Director of the American Society of Media Photographers, Left, makes remarks during a roundtable discussion on Orphan Works/Mass Digitization as Jeff Sedlik, CEO of the PLUS Coalition, right, looks on, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

Jeff Sedlik, right, CEO of the PLUS Coalition makes remarks during a roundtable discussion on Orphan Works/Mass Digitization, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

Mickey Osterricher, general counsel for the National Press Photographers Association makes remarks during a roundtable discussion on Orphan Works/Mass Digitization, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

(More photos, after the Jump)

Douglas Hill, right, managing partner of Rights Assist, makes remarks during a roundtable discussion on Orphan Works/Mass Digitization as Colin Rushing, General Counsel of Sound Exchange, looks on, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

Rob Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practices, U.S. Copyright Office makes remarks during a roundtable discussion on Orphan Works/Mass Digitization, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

Nancy Wolff, right, counsel for the Picture Agency Council of America makes remarks during a roundtable discussion on Orphan Works/Mass Digitization as Mickey Osterricher left looks on, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

Over a hundred people came together to participate and listen to participate in a roundtable discussion on Orphan Works/Mass Digitization, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

Eric Harbeson of the Society of American Archivists makes remarks during a roundtable discussion on Orphan Works/Mass Digitization, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

Karyn Temple Claggett Associate Register of Copyrights and Director of Policy and International Affairs listens to remarks during a roundtable discussion on Orphan Works/Mass Digitization, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

Maria Matthews, manager, Copyright & Government Affairs at Professional Photographers of America makes remarks to remarks during a roundtable discussion on Orphan Works/Mass Digitization as Charles Sanders of the Songwriters Guild of America looks on, Monday, March 10, 2014 at the Library of Congress in Washington, DC. The roundtable discussion, held over the course of two days, is being held by the US Copyright Office to gather insights for future legislative solutions to orphaned works. Photo: © 2014 John Harrington.

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Monetizing Getty's 35M Image Archive via FREE Editorial Uses

Much has been said about the decision by Getty Images to make available to editorial online outlets, over 35,000,000 images, for free. Well, free in the sense that you're not spending any money to use the images. However, in exchange for this, you agree to allow Getty to track all the visitors to your website. How many come, their IP addresses, how long they stay, and so on and so forth. Make no mistake about it either, this isn't "free forever", Getty is looking to get into the big-data business, connecting image viewer data with data analytics from other sources. Once they reach a critical mass of users, they will essentially be able to sell advertising alongside and beneath their images (note the big white space between their name and the social media links in all the samples everyone is sharing) and they can also sell animations, where before the image appears, an ad is displayed for a few seconds, just like the lead-in advertising on videos just like YouTube. The revenue from repeated views here is far and away greater than the few cents Getty makes from web page usage. Getty's big splash is akin to Steve Jobs keeping secret the iPhone and then getting hundreds of millions of dollars in free advertising to promote it when it launches.

Getty has made clear that their current contributor contracts allow for this, and that no compensation is due the rights holders of those images. These images are put forth as a part of a marketing effort, and so to that end, those who created the images are out of luck.

Getty has said that they are tired of suing their userbase, and creating angry factions of the online community like those at organizations like "Extortion Letter Info" where lawyers gather together to fight off Getty's demand letters.

Could there be something else that's a problem for Getty? In 2010 we reported on a copyright problem where the methodology used by Corbis, on the advice of lawyers, was found to be flawed, and countless registrations were deemed invalid (see: Corbis' Copyright Registrations - Images "Not Registered" Court Finds). Could it be that Getty does not want to face this same house of cards that could be stirring within their registrations? Could it be that all (or almost all) of their registrations are invalid? Or, perhaps Getty just doesn't bother to register their work, and as such, the teeth that people think they have are actually toothless and decaying gums that have no bite to follow up their bark?

A search of the US Copyright Office shows for a search of their database under "Getty Images" shows their last registration as 2008, specifically images related to the images of Brad Pitt and Angelina Jolie's twins. Here's a listing from the Copyright Office as of March 7, 2014:



They have a total of 172 registrations. On the other hand, we here at Photo Business News register regularly, and a search of the Voyager database shows 229 records for our registrations alone. Consider the tens of thousands (or even hundreds of thousands) of images Getty produces worldwide each day, and receives from contributors, and unless there's some secret registration system they are employing, or they are doing it under a different name, then there's a bit of a problem for Getty in that they're not registering their work. That's a problem if that's the case. Oh, and the notion of a "database registration" doesn't really hold much water either when it comes to photographic registrations.

(Continued after the Jump)

So, if your copyright registrations have no teeth and thus you are not getting your day in court, and you're engaging in toothless fights with hundreds of infringements, why not allow people to use them and get analytics out of them?

The fact is that there are millions of images sitting dormant and otherwise generating no money on web pages, even when they're rights-managed images at a web resolution, someone forgets the image is there, forgets to renew, and so on and so forth. Royalty-free images, of which many many rights-managed images are competing against, generates a one-time fee of about $1.00. Then, that image sits there for months and years. Now, most every blogger wants good SEO, and they work hard to link-bait people into driving traffic, whether to sell ads, or generate notoriety. Now, you have thousands and even hundreds-of-thousands of bloggers generating millions and millions of pages using free Getty content. Once a critical mass is created, Getty will begin selling ads.

In addition, because it may well be that Getty doesn't have registrations for all the images that are being infringed, the removal of the iframe and copyright management information ("CMA") is a DMCA violation of upwards of $2,500 per infraction, that, wait for it, does not require a copyright registration to be awarded. So if someone strips out the iframe or copyright information from an image Getty can easily collect $2,500 or so per image. Have a look at this:

17 U.S. Code § 1202 - Integrity of copyright management information

(a) False Copyright Management Information.— No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement—

(1) provide copyright management information that is false, or (2) distribute or import for distribution copyright management information that is false.

(b) Removal or Alteration of Copyright Management Information.— No person shall, without the authority of the copyright owner or the law— (1) intentionally remove or alter any copyright management information,

(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or

(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law,

knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

Now, that means that the removal of CMA allows the copyright owner access to civil court, and does not compel them to enter federal court, which, in turn, requires a valid registration certificate before you can have your day in court. Now, on to section 1203:

17 U.S. Code § 1203 - Civil remedies

(a) Civil Actions.— Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.

(b) Powers of the Court.— In an action brought under subsection (a), the court—

(1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution;

(2) at any time while an action is pending, may order the impounding, on such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation;

(3) may award damages under subsection (c);

(4) in its discretion may allow the recovery of costs by or against any party other than the United States or an officer thereof;

(5) in its discretion may award reasonable attorney’s fees to the prevailing party; and

(6) may, as part of a final judgment or decree finding a violation, order the remedial modification or the destruction of any device or product involved in the violation that is in the custody or control of the violator or has been impounded under paragraph (2).

(c) Award of Damages.— (1) In general.— Except as otherwise provided in this title, a person committing a violation of section 1201 or 1202 is liable for either—

(A) the actual damages and any additional profits of the violator, as provided in paragraph (2), or

(B) statutory damages, as provided in paragraph (3).

(2) Actual damages.— The court shall award to the complaining party the actual damages suffered by the party as a result of the violation, and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages, if the complaining party elects such damages at any time before final judgment is entered.

(3) Statutory damages.—

(A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.

(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.

(4) Repeated violations.— In any case in which the injured party sustains the burden of proving, and the court finds, that a person has violated section 1201 or 1202 within 3 years after a final judgment was entered against the person for another such violation, the court may increase the award of damages up to triple the amount that would otherwise be awarded, as the court considers just.

Well, Getty's 2011 contract outlines how they get to handle intellectual property claims:

1.11 Right to Control Claims. Getty Images shall have the right to determine, using its best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of Accepted Content. You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual property rights (“Claims”). You agree to provide reasonable cooperation to Getty Images and Distributors and not to unreasonably withhold or delay your cooperation in these Claims. Getty Images will not enter into any settlement that will compromise your ownership of the copyright in Accepted Content or that prohibits your future conduct with respect to Accepted Content without your prior written consent. Getty Images will pay you Royalties on any settlements it receives from Claims. If Getty Images elects not to pursue a Claim, you will have the right to pursue it.

So now Getty gets to go after people who remove copyright management information, and collect on each of those in civil court. Faster and easier than federal court, and much cheaper.

Now, enter object recognition. A company like Stipple monetizes images with their own embedder that means that if I as a photographer take a photo of a celebrity wearing Prada boots, using a Gucci purse, and an Old Navy dress, provided I include that information as tagged in the image, I can generate revenue if someone clicks through from that image to a site like Amazon that would sell them, and I collect a few percentage points in revenue from each sale. A $400 purse could garner $4 - $8 in income from a single click/sale, so it encourages photographers to manually tag them. A company like Samsamia tags images using fashion image recognition semi-automatically. Other software automates object recognition so that no one needs to manually tag them - it's done automatically. If Getty controls the iframe where all this is happening, on hundreds of millions of images around the world, they could generate tenfold amounts of income.

As such, Getty has just co-opted the entire blogosphere as free distributors of their advertising vehicles. Getty's minions are now doing their bidding like the Wicked Witch of the West sent out her flying monkeys, yet the monkeys had to be fed. Getty's minions are doing all the work for less than peanuts. Consider that a magazine produces editorial content in order to generate readers who will view the paid advertising adjacent to it. It spends a great deal of money producing that content, and then charges advertisers. This upends that model, where the editorial content is being produced for free, in every known niche of interest globally, and Getty gets all the income from the ads and also a much broader audience for commercially viable images to consider.

This is why they're allowing the New York Times to use their content online for free, which at first blush seemed like a bad idea. But, in the end, they are essentially taking over the advertising that appears in the newspaper. They are not satisfied to take over the ads adjacent to the editorial content, they will now own the ads within the editorial content. You can't pay to get monetizable links within a New York Times editorial story - that's as sacrosanct as the space inside a baseball diamond to sports fans, even moreso. However, Getty, provided the NYT opts to use the images for free, has now given up control of the visual part of their editorial content, ceding it to Getty.

Imagine you're a Getty ad sales rep - and you can say "we can offer you an ad inside the New York Times' editorial space." In fact, it's even reasonable to assume that, say, the pharmaceutical CEO who testifies before Congress on a particularly polarizing point, and who could never dream of being able to immediately place adjacent to the article about his testimony, a rebuttal or company link for more information on the company's perspective, could now, within seconds of the story appearing, buy an ad that would appear below his photo, or as a 5 second preview before his photo appears, providing a rebuttal to the article. In fact, a company could buy such a rebuttal ad space wherever images from that testimony appears, worldwide. I even see a point where the Getty sales team sees news events of this nature on a schedule and makes initial outreach to the marketing departments for those companies, pre-selling ads to appear beneath or over the photos just like magazines put out a schedule of topics in the comping year so when the big travel issue comes out all the travel companies have already bought space in those issues. As such, I suspect, respected news outlets will not cede this space to Getty's free offering, unless they're getting a piece of it that equals or exceeds what they would get for the ads adjacent to the editorial content. The NYT may well continue to pay for their uses so as to keep their editorial pages within their control.

Everyone seems to see this as Getty's way to combat copyright abuse. This is a naive as a day old bambi. It makes Getty appear as if they are giving up, giving in, and supporting blogs and being helpful. They are not. They are positioning themselves as the world's largest advertising resource so that the Carlysle Group (NASDAQ:CG) , which owns Getty, can turn around and sell Getty to Google or Yahoo. The pitch is "this is the YouTube of still photography - free photos and revenue from wraparound and play-over ads...". Look at how Google snapped up YouTube for that reason. Free videos propagated globally and Getty just sits back and counts the validated eyeballs and collects all sorts of data about them. It's the same with still photos now. Further, As crazy as it sounds, when Carlysle bought Getty, they did it in fast-and-loose-80's-style leveraged-buyout fashion, using a loan secured by Getty's assets to buy Getty and made Getty responsible for paying the loan back. Getty doesn't have that kind of money sitting around, and they've got a $1,200,000,000 loan coming due in about 2 years.

So far, the contracts that Getty has with it's contributors allow them to do this as marketing, for free, without compensation to the contributors. And, just as with Getty monetizing the metadata of an image from Pinterest without being obligated to share that income with the photographers (because Getty's contracts don't require it because a metadata income stream isn't from an "image license") and from what I have heard, there are no plans for photographers to earn any part of the advertising that is adjacent to (or precedes the viewing of) their image. Getty's telling photographers "oh, this will drive people to our site and the commercial sales will give is a reach we haven't before." This sounds remarkably like "we'll loose a little on each use, buy make it up in volume."

The real losers will be the content producers - the photographers. Of course, Corbis and the rest of them will look at this and wait, and all the while Getty's images will get embedded deeper and deeper into the internet's archives and the rest of the stock agencies will be playing catchup. Considering that 20% of Getty's archives are generating about 80% of their income, this isn't a problem, monetizing the rest of the 80% sitting around, making them all a sort of homing pigeon. However, Getty's own internal valuations are at about $0.15 per image, so if a photographer with 100,000 images decided to pull out, the monetizers look at that and say "oh well, too bad for them, that's about a $15,000 loss for us. Moving on. Next."

Welcome to the new world order of stock photography.

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Northern Short Course 2014 - Warwick RI

Every hear the National Press Photographers Association holds one of the best educational offerings around. A 3 day conference that rotates between three regions of the Northeast brings together many amazing speakers on a variety of subjects.

From lighting to sound, motion to still, and, yes, business practices and copyright. Looking for feedback on your portfolio? There are portfolio reviews by seasoned and highly talented editors who will help your portfolio (or online website/gallery) look it's best.

This year I have the pleasure of returning to the NSC as a speaker on how to register your copyright, and, yes, again to speak about negotiating, best business practices, contracts, and surviving as a freelancer. Other speakers include Ami Vitale, Jamie Rose, MaryAnne Golon, Alicia Calzadam Liz O. Baylen, Daniel Morel, Rick Loomis, and Barbara Davidson.

All the details are here - Northern Short Course - where you can find out about registration, hotel, and so on. This event is definitely worth traveling for, because the breadth, depth, and caliber of programming is second to none.

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Disclaimer: I sit on the national board of the NPPA.

(Comments, if any, after the Jump)

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Friend or Foe? Social Networks and Your Image Rights

Which of the well-known social media websites - Facebook, Instagram, or Twitter, take a perpetual license to your images? By now, you should already know the answer - all of them, to varying degrees.

I would like to suggest to you that you should stay off Facebook, but that would be all but impossible. What I will tell you is that you should never post images from a shoot where not only could your client see the images (unless, of course, a part of your obligation to your client is to promote the results of your shoot via social media) but also, where the simple fact that you are granting the social media website rights to the image would violate the terms of the agreement you have with your client to the resulting images. It would be very easy for a client to cite this as a reason to not pay you, and otherwise to pursue you in court as well. To that end be absolutely certain you have the right to do that in writing.

Because social media has reached a critical mass, and it is difficult to ignore from a professional standpoint, where in many cases marketing your work is done via the social networking of today.  So, to that end, how do you make the sacrifices that their rights grabs call for while preserving your rights or at least understanding the value of the rights you are granting to them. Colby Brown (here) does a great job of breaking down many of the different social media issues. The bottom line is that most photographers that shoot weddings, rights of passage events like Bar Mitzvahs, and family portraits, will find a solid prospective client base on Facebook.  However, a commercial photographer could well be followed, and thus seen as actively out shooting projects, by art directors as well.

The American Society of Media Photographers (ASMP) has done an exceptional job of detailing what the latest Terms of Service means to you, the photographer. Visit this link to learn more, but here's one excerpt regarding the latest changes:

"These changes appear to allow Facebook to exploit your name, likeness, content, images, private information, and personal brand by using it in advertising and in commercial and sponsored content — without any compensation to you. Facebook claims the right to monetize, not just your images, but a sizable portion of your entire online identity."

My first recommendation, then, is to NOT upload a high resolution image to Facebook (I realize that suggesting you don't upload any images isn't likely going to be a viable option). There's no reason to do that. Of course, a sizable online image can easily be repurposed by those with nefarious intent, especially when they have online intentions for the work they'll infringe of yours, so a watermark is always important. More on that later. Many photographers are uploading 720 pixel images on the long side, and certainly no more than 1,000 pixels.

How might you upload images in a respectable workflow to Facebook and Twitter then?

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We use a workflow we recently expanded to include an service called ProPic. Before that, we would capture, enhance/adjust, watermark, and then upload. We've changed our "enhance/adjust" application to be Process instead of Snapseed. Neither one does watermarking, but there's more to that within the Process/ProPic workflow. Here's how we do it:

	Capture the image as you normally would, and the images are stored in the devices Camera Roll. We continue to use the default iPhone app because it is the only one accessible from the Lock screen, and also, allows for the switch between the still camera and the video camera. Until we can re-assign the icon there to a different app, we're sticking with this.
	From within Camera Roll, identify the best image you want to share. One of the problems with capturing and processing images within a different app, like using Process, which can capture the image, is we often will shoot more than one, so we just want to select and process the best image.
	Open up the Process App, and process as you see fit.  The app is not free, currently it's $14.99, and well worth it. I used to use Snapseed, and while I like that, integrating the ProPic capability alone is worth paying for this app. This app is not associated with ProPic other than it being able to upload to ProPic.
	Click the “share” icon, which is located in the upper right corner
	When the "share" window appears, instead of choosing Mail or Twitter, choose instead ProPic. You may also want to choose "Save Image" at the left, as Process won't save the finished file to your Camera Roll unless you ask it to. Select the ProPic icon(you should already have a ProPic account set up)
	Type in a caption or other description to accompany the photo. Select to additionally post it to Facebook and Twitter at the same time using the two switches, then click Send.
	The resulting image sent has a Copyright Notice added alongwith a thin black border. The image resides in your ProPic web account, which you can access at www.ProPic.com. The same image is posted to Twitter as well as to your Facebook account. If you want a larger watermark or copyright notice, then before entering Process, use an application like Marksta, or the one we prefer, iWatermark, to add in a larger watermark.

For more information on the importance of watermarking, and how you can use the Digital Millennium Copyright Act to pursue copyright infringements (even without registering your copyright with the copyright office) check the blog here for this law firm.


Here is the resulting image as would then appear on Facebook:


It's important to note that while ProPic does not take any of your rights like Facebook and Twitter do, whatever the current rights position is on those social media websites still remains.

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TIPS60 - How to partner with friends without making enemies

Here is another of our videos offering tips and inisights into the business of photography. a transcript of the video is included after the jump.

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TRANSCRIPT:Here are a few thoughts on opening up a business with a friend or partner. I'm John Harrington. When you open up a business with a friend or partner and you're starting out, let's say you're doing wedding photography and both of you are going out and building up a clientele where you're both shooting weddings together, it's really important that you have a contract that establishes that business. Now, if you're married that's one thing, or if you're in a partnership and the dissolution of that business would end up being handled if you both got a divorce completely differently than if you were just two friends, but if you're just two friends, growing a business together you want to make certain that down the line you understand that if that partnership does sour or that friendship does sour and you decide to go your separate ways, so let's say your friend decides to move to another state and wants you to buy them out, there needs to be an understanding about what assets are owned by the company, what assets are owned personally or individually and also who gets what and who has to buy whom out of what, and if there's a disagreement, who makes the decisions in the business. So it's really important that you write a contract that really takes care of all of these things, you might want to work with a lawyer.

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TIPS60 - Whatever you charge, to someone, it will be too much!

Here is another of our videos offering tips and inisights into the business of photography. a transcript of the video is included after the jump.

(Continued after the Jump)

TRANSCRIPT:Here are a few thoughts on pricing models. I'm John Harrington. No matter what you charge for the photography services you provide, for somebody, is going to be too much. Maybe someone was thinking of spending $50 or $100 on a portrait and your portraits are $750 or $1,500. Maybe someone was thinking about spending $500 and your portraits are $2,500. No matter what, however much you charge, it's going to be too expensive for someone. I strongly encourage you to not be discouraged by this, but in fact recognize that just as there are those people who buy a t-shirt say at Kmart or Wal-mart, there are also people who buy t-shirts at Nordstroms and Saks Fifth Avenue. The clients that you want are the clients who are willing to pay a premium for the value and the quality of services you bring and the level of customer service you provide. So don't be discouraged because, as I said, you will always be too expensive for someone.

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