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

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

Section 7. Term and Termination. The term of this Agreement (the "Term") shall begin on the Effective Date and shall continue until terminated by either AP or Freelance Photographer, with or without cause , upon thirty (30) days' prior written notice. Upon termination, all obligations of both Parties , except for any obligations under Section 3.3 i, iii, v, vi, Section 4, or Section 6 above, shall end. Any provision of this Agreement that, by its nature is intended to survive termination of this Agreement, shall survive termination of this Agreement.

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Comments:
You’re a lifer here. Once you sign, you’re on the hook until you provide the AP with notification that you terminate the agreement.

Section 8. Indemnification. Freelance Photographer will indemnify and hold AP harmless for any claims , matters , complaints, liabilities and actions arising out of AP's engagement of Freelance Photographer for Assignments, including but not limited to Freelance Photographer's failure to comply with applicable laws, rules and regulations concerning the withholding and payment of taxes in connection with services rendered to AP pursuant to this Agreement.

Comments:
Here’s one you need to discuss with your insurance agent. They will most assuredly tell you that you are taking on the liability if the AP misuses your photographs, and that you, the sole proprietor/LLC/S-Corp can’t possibily sustain the costs and liabilities of this indemnification clause. Just as you are limited in Section 3.3(v) as it pertains to providing a warranty and the exclusions of such a warranty, so to should you be excluded from misuses by the AP, or an AP licensor, of the images that you provide.

Section 9. Miscellaneous. This Agreement shall not be amended, modified or changed in any respect except by written agreement of the Parties. No trade, custom or usage shall affect this Agreement or the terms and conditions thereof. This Agreement incorporates the entire understanding of the Parties and supersedes any and all prior agreements, oral or written, relating to Freelance Photographer's relationship with AP and is intended as a complete and exclusive statement of the terms of the arrangement between the Parties . The terms and conditions of this Agreement shall inure to the benefit of any entity, which succeeds to or acquires all or substantially all of AP assets or business or the AP Images business. Freelance Photographer agrees that any dispute, claim or controversy concerning this Agreement, or the termination thereof, shall be governed by the laws of the State of New York without regard to its conflicts of law provision . A facsimile copy of this Agreement fully executed by the Parties shall be deemed to be an original Agreement. The failure of AP to demand adherence to one or more of the provisions of this Agreement shall not be construed as a waiver nor deprive AP of the right thereafter to insist upon strict compliance therewith. If any provision in any paragraph of this Agreement shall be deemed to be invalid or unenforceable, the remainder of such paragraph and of the Agreement shall not be affected . Any notice or other communication required to be given hereunder shall be in writing and shall be deemed sufficiently given when delivered personally or mailed by registered or certified mail to the Parties at the following addresses (or at such other address as either Party may designate by notice given pursuant hereto). Notices to Freelance Photographer shall be given to the contact information set forth above. Notices to AP shall be given in writing to: The Associated Press, 450 West 33rd Street, New York , New York 10001, Attention : Office of the General Counsel; Ref: Freelance Photographer Agreement. Notice shall be effective when received.

Comments:
This too is a pretty standard clause. However, it’s problematic because the AP does business in all 50 states. As such, they have legal entities in each state. Further, when they sign a lease for a building, or execute other business transactions in each state, the governing law is almost certainly that state’s laws. Since you are working in your state, they have an office in your state, and the assignment in in your state, the governing laws should not be New York, but rather your state.

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Continue Reading:

• The 2008 AP Contract Analysis - Introduction
• The 2008 AP Contract Analysis - Opening Recitations
• The 2008 AP Contract Analysis - Section 1
• The 2008 AP Contract Analysis - Section 2
• The AP 2008 Contract Analysis - Section 3
• The AP 2008 Contract Analysis - Section 4
• The AP 2008 Contract Analysis - Section 5
• The AP 2008 Contract Analysis - Section 6
• The AP 2008 Contract Analysis - Sections 7,8 & 9
• The AP 2008 Contract Analysis - Rates

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The AP 2008 Contract Analysis - Rates

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

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

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

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

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

Each rate sheet includes the following language:

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

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

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Continue Reading:

• The 2008 AP Contract Analysis - Introduction
• The 2008 AP Contract Analysis - Opening Recitations
• The 2008 AP Contract Analysis - Section 1
• The 2008 AP Contract Analysis - Section 2
• The AP 2008 Contract Analysis - Section 3
• The AP 2008 Contract Analysis - Section 4
• The AP 2008 Contract Analysis - Section 5
• The AP 2008 Contract Analysis - Section 6
• The AP 2008 Contract Analysis - Sections 7,8 & 9
• The AP 2008 Contract Analysis - Rates

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The Value of a News Photograph

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

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

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

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



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

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

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

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

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

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

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

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

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

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

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(Not so) LuckyOliver - Shuttering Operations

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

What did their investors want?

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

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

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

Bryan Zmijewski wrote on his blog:

"We spent the last year looking for the funds to grow LuckyOliver because, without the addition of significant capital, the return on investment for LuckyOliver and its contributors would not be satisfactory. After reviewing the options, the investment team decided that it was in the best interest of all stakeholders to shut the company down."

Let's re-phrase that, shall we? Try clearing out the nice-speak and saying:

"the investment team didn't see it as smart to pump more money into a failing business model, so they decided to cut their losses, and hobble home licking their wounded pocketbooks."

Even Bryan notes that he was pursing "...a passion that often went beyond reason."

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

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

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

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

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

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Staff Photographers - An Endangered Species

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

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

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

Since then, many staffers have been let go.

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

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

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

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

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


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

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

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Nikon D3x -Impending Announcement?

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

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

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

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

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

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

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

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Classified: Seeking hardworking service providers...

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

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

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

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

I hope to have you work for me soon!

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

(Comments, if any, after the Jump)

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The Baby Photographer

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

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

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

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

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

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

(Hit the link after the Jump)

MIStupid.com - Stupid Joke: The Baby Photographer

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

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iPhone Y Connector/Splitter and Recording Capability

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

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

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

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

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

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

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

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The Discriminating Photographer

Alleged no more, according to the Las Cruces Sun-News, (NM commission rules photographer discriminated against gay couple, 4/11/08) Albuquerque photographer Elaine Huguenin violated New Mexico's discrimination law, according to a human rights panel.

The panel ruled that Elane Photography, owned by both Huguein and her husband Jon violated the state Human Rights Act by discriminating against Willock on the basis of sexual orientation, and should pay

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$6,637, which covers Vanessa Willock's costs and attorney's fees.

But it's not quite over yet. The Alliance Defense Fund is planning to appeal, and has 90 days to do so. The ADF is a Christian-based religious organization that defends religious liberties where they feel there is an infringement upon religious freedoms by government.

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Related :2/28/08 - Rights: Yours, Mine, and Theirs.

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