...and then they were free

Back in February of 2007 (Free photos (and $13 Superbowl ads), 2/1/07) we wrote about the (at the time) latest hair-brained idea - free photos. The idea was that if a photo hadn't sold for many months, it would get tossed into the "free" file, in hopes of driving other sales.

A Google search for "free stock photos" (here), revealing just who wants to give photos away for free. In fact, those top Google postions are, in fact, paying for the opportunity to market free photos. Just how much does it cost to place those ads, and what does it cost them whenever you click on them?

(Continued after the Jump)

Well, we did a little research, and here's what we found:
What does all that mean? Well, to appear in that search term's results, knowing we want to appear in the top three positions, we're paying a minimum of $2.47, and a maximum of $3.58 - PER CLICK-THROUGH, to appear in the top 3. When we set a maximum per-click cost of $5, we learned that $3.58 was the most we'd probably pay. Although once we started the ad, the auto-adjusters for those three would likely auto-increase their per-click payment maximums, and the cost would go higher. Setting a budget of $500 a day (just to get a cieling), and with Google looking at the estimated clicks per day, we can expect to pay up to about $310 per day, all for the privledge of giving away free photos, hopefully as a loss-leader to get you to buy one or two. If we were to adjust downwards to $1.50, then we plummet to the bottom 4-6 listings, meaning we lose a ton of traffic because of our placement:

Thus, not only are the photos free, several hundred people a day are clicking on those top three ads (combined) and the advertisers are hoping you'll come for free, and stay over time for a few $1 photos. Considering that not everyone that clicks buys, let's assume that every 3rd click opts for a free photo. That's roughly $10 paid to Google to get one customer come to you so you can give them a free photo. Then, you earn $0.80 per $1 photo sold, should that customer come back to make a purchase. So, if they come back, or buy others, they need to buy 12 photos, just to break even on that $10. But, how many of those, after they get their free photo, don't come back? Even 1 of 3? If so, you have to sell 36 photos to break even on all those click-throughs. Now it's just getting silly.

Next up is iStockphoto, (for now, a subsidiary of Getty Images - NYSE: GYI) giving free photos to the Microsoft Office community (press release) , and of course there's PicApp, critisized by some as illegal. A search for the word "dog" on their site turned up a pink-dressed dog closeup, with a sourcing/credit of "Getty Images". The idea - the photo carries an ad at the bottom.

Lastly, is the silly wabbit that is Free-Stock-Photos.co.uk, who is out Livingstoning Bruce Livingstone. A designer with a snazzy new camera, looking to share his work. Come now, that idea is so played out! Only this time, it's just free - but you have to give us a link!

Just how hard is it to out-stupid oneself these days? I am beginning to wonder. We already have a ton of "shoot for our magazine, we'll give you photo credit" (woo hoo!) offerings. I guess this is just the online version. Next up? Paying for placement of photos in certain uses, provided there's a credit line/link.

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Kenny Rogers Had A Point

One of my daily reads is Rob Haggart's A Photo Editor. ( As an interesting aside, googling photo editor turns Rob up 5th. Not bad Rob!) One of the things that Rob wrote about today (Single Most Annoying Web 2.0 Feature for Photographers, 4/20/08) was that he was annoyed by those that are "Tracking my movements on your email promos and website."

Rob then goes on to report on a photographer who...

(Continued after the Jump)

wrote to him and said “I see you’ve been checking out my book”. Rob then wrote "Then I realized they had tracked me from an email promo I clicked on and suddenly I felt duped."

As Kenny sings, in his song 'The Gambler', "you've got to know when to fold 'em, know when to show 'em, know when to walk away, and know when to run. You never count your money, when you're sittin' at the table..." and he has a point. What this photographer did was not only ensure that Rob won't book them, but by revealing he knew Rob had been there, he essentially killed his source. The way this photographer revealed this, was creepy.

Instead, the photographer should have either added Rob to a targeted e-mail list for future use, knowing that Rob was interested in him, or, if the photographer really wanted to call, he should have called and said "hey Rob, I wanted to call and follow up with you. I'd sent an e-mail with some images and my site link, and would love to continue to send those if they're of interest to you, and also, when there's a good fit, work with you on a project." And then shut up and say no more.

For those of you photo editors who think that clicking around a photographer's site, there's a little thing called Google Analytics, and this is how it looks on Rob's blog (under the hood):

<script src="http://www.google-analytics.com/urchin.js" type="text/javascript">
</script>
<script type="text/javascript">
_uacct = "UA-2938384-1";
urchinTracker();
</script>

So, whenever you come to his blog, he can track it, and rightfully so. There is a degree to which Google does not share information on that. In other words, Google is not revealing exactly who is coming to your site, but through some triangulation, they know the exact names (and a whole lot of other information) about who's going where.

For you photo editors who are getting e-mails from vendors, every e-mailer tracks clicks! At right is an example of a piece of a report I can get. I can drill down and see when you received the e-mail, when you opened it, if you loaded the graphics, and if you clicked through to my site. This is not unusual data mining.AgencyAccess, Adbase, and Vertical Response are among those that not only launch these campaigns for you (for pennies per-e-mail), but also track the effectiveness of each campaign, allow you to compare them to other campaigns, and so forth. Further, they maintain robust "opt out" options, so you will not only never get another e-mail from that photographer, but you can elect to never receive an e-mail again from any client of that list provider. Interestingly enough, a search for "agencyaccess", as noted above, shows adbase coming up in the paid listings above the search result that the searcher wanted, and I'd caution Adbase, as there are lawsuits ongoing now about the legality of doing this (Trademark lawsuit could put the squeeze on Google AdWords, 4/7/08)). But I digress....

This ability to track and observe the surfing habits of site visitors is not only not new, but will get more and more invasive. Further, it is this ability to target, with laser-like precision, the interests of surfers, that will, while taking away our privacy, at the same time deliver us more of what we've demonstrated we're looking for. What do we want, spam for everything from medical offerings to watches, or just spam about photography? It's an interesting question.

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This Joker of a Photographer

Leave it to DC Comics (Batman: The Killing Joke) to depict the Joker as a photographer.

Yet, how many photographers are jokers?

(Continued after the Jump)

I don't mean practical jokes like muttering "please be seated" in an authoritative tone in the East Room of the White House at a Presidential event, only to see the entire room actually sit, on cue. Thank you Mr. D, for years of entertainment from this.

I don't mean grabbing a photographer's camera who inadvertently left their camera unattended, and taking images of your colleagues' backsides, or slipping a wide-angle lens down the front of one's pants to make a few images, and then standing behind them as they review their cards in the pressroom. Ye who shall remain nameless, I still laugh at your hijinx on this.

And I surely don't mean the juvenile attempt at humor by putting nose grease on the front of someone's lens. I see enough smudges on the front of photographers' lenses (including my own) that they probably won't even notice that it was an intentional joke, and more than once just blamed themselves.

Instead, what I am referring to are photographers who just aren't professional. These jokers:

- Turn up at events incorrectly dressed. For photojournalists, I don't care if you were just out on an outdoor assignment in the hot sun, carry atleast a blazer/jacket (and, preferrably a tie for the boys) in your car so you can turn up at an event where everyone else is in business attire and not stand out like a sore thumb. For editorial photographers - dress like you respect the office location you are entering - t-shirts are not acceptable. For corporate/commercial photographers - dress like your client - they will have so much more respect for you. One of the things I see all too often is videographers dresses in jeans when everyone else in the room is in business suits, a nd then they wonder why they don't get respect they deserve.

- Comport yourself in a professional manner. This means not slinging your bag against guests at an event (both PJ's and event photographers). This means don't make inappropriate remarks or comments you haven't fully thought through on a shoot (both editorial and corporate photographers). If what you are thinking of saying does not contribute to the image you're trying to make, or does not contribute to the client's positive opinion of you, then don't say it. This also means turning your cell phone on silent - or off - whenever you are actually working, or in the presence of others "on site".

- Treat others with respect and due consideration. This means, when you're at a news event, don't be the ass who goes in with a 14mm lens while everyone else is respecting their colleagues and staying back where a 35mm lens works so everyone can get the shot. Doing this means you just may get a monopod across your skull - I've seen it happen. Further, respect TV. I can't tell you the number of times I have seen still photographers just walk through a videographer's shot, or stand up at a press conference infront of a video camera on sticks - which results in the "down in front" or "stills move" burst of a loud voice from the back of the room. Additionally, while I can throw an elbow just as well in a press scrum as the next guy, I'd much rather work with my colleagues to get the shot, or better yet, when everyone else is getting the same shot, look at things from a different angle.

Respect your profession, those whom you are working for, and those who you are photographing. Doing so ensures that same respect is returned to you.

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Cultivate Your Creative Talents

If, by some strange convergence of the force, you have been able to combine your creative talents with a level of business acumen necessary to sustain it, do not forget about that creativity. That tap is a well from which you can always draw. Yet, to leave those well waters stagnant, is to neglect your sustaining abilities. The more you draw from that well, the more clear, and refreshing it will be. If you neglect to think yourself, and use other people's ideas for great imagery, giving them utterance only, you will fall far short of your own abilities, and what you are capable of.

~adapted from George Augustus Sala (1828 - 1895),
Journalist

(Comments, if any, after the Jump)

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The 2008 AP Contract Analysis - Opening Recitations

FREELANCE PHOTOGRAPHER AGREEMENT

This FREELANCE PHOTOGRAPHER AGREEMENT (this "Agreement"), entered into as of date written above (the "Effective Date"), is between THE ASSOCIATED PRESS, a New York not-for-profit corporation with its principal offices at 450 West 33rd Street, New York, New York 10001 ("AP"), and the above-named photographer ("Freelance Photographer"). References to AP herein shall be interpreted to mean, where appropriate, AP and its subsidiaries and/or affiliates. AP and Freelance Photographer are individually referred to as a "Party" and collectively as the "Parties."

(Continued after the Jump)

Comments:
This beginning section of the contract is fairly straightforward. I note that the bottom of this page says “Page 2 of 5”, and it’s somewhat confusing. Page 1 is actually a form of a cover letter, but the named photographer isn’t actually listed “Jane Doe”. Instead, it starts off “Dear Jane.” Also of note – it’s not required for this contract to delinate the AP as a “not-for-profit corporation”. Such identification is a negotiation tactic – attempting to soften up the photographer to the notion that the AP doesn’t make any profits, and so, perhaps you should be more willing to accept the terms and rates proposed. Yet, being a “not-for-profit” does not mean that you don’t make a profit, it means that whatever your profits are, you are not distributing them to the owners or shareholders of the organization. It is a tax status, not a reason for compassion.

Could be better if changed to:
More for clarification than anything else, It should read, instead “…and the above-named photographer ("Freelance Photographer")” should read: ”…and Jane Doe, ( hereinafter referred to as "Freelance Photographer".

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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 2008 AP Contract Analysis - Section 1

The principle sections of the contract begin here:

Section 1. Agreement.
1.1. This Agreement sets forth the conditions under which Freelance Photographer shall provide freelance photography services to AP. Freelance Photographer and AP agree that from time to time during the Term (as defined in Section 7 below), AP may commission Freelance Photographer in writing to perform photographic assignments on its behalf (each an "Assignment"). AP may propose such Assignments, but Freelance Photographer is under no obligation to accept any such Assignment by AP. Each Assignment may contain additional terms and conditions that supplement or amend portions of this Agreement for that particular Assignment; such terms and conditions shall be in writing in a separate document prior to Freelance Photographer's acceptance of such Assignment. Any such additional terms and conditions shall apply only to that particular Assignment and shall not apply to any other Assignments. In the event of any conflict between the terms of this Agreement and an Assignment, the terms of this Agreement shall control.

(Continued after the Jump)

Comments:
It is important to note the commissioning of assignments here, takes place before-the-fact. While not specifically delineated, the AP has a separate document (and a separate rights clause) for work that the photographer brings in for consideration that are not assignment related. So, if you are an AP freelancer, and see breaking news, and contact the bureau regarding those images, a separate agreement – that is not an assignment – is put forth. In it, you are not assigning/transferring copyright to the entire coverage of the news event, just the image(s) they select to move. You are then free to take the remainder of that content and do with it what you wish. It may be of value to consider making just a single image from an event of this nature available to the AP, with outs like “no mags, no resales, no online, no archive”, and so forth. Thus, only the member papers, for a brief period of time, can use the images, and that becomes a marketing outreach for the rest of your take, which you could market through an agency or other online service. The negotiated points of these agreements are likely more flexible than this contract is.

Could be changed to:
AP could be more clear in the language here, detailing that work that is to be considered an assignment is only work that was commissioned before the time that the assignment was to take place. There’s ambiguity here.

Here's the next sub-section and commentary:

1.2. Freelance Photographer is acting as an independent contractor under this Agreement. Neither the making of this Agreement nor the performance of its provisions will be construed to constitute either Party an agent, partner, joint venture, employee or legal representative of the other Party. Freelance Photographer is responsible for paying all income and other taxes incurred as a result of the amounts received from AP pursuant to this Agreement. AP shall provide Freelance Photographer with an IRS form 1099 each year for any amounts paid to Freelance Photographer during that year.

Comments:
This is pretty standard language. It says you’re not an employee, and this is important because some guild/union rules may, after certain conditions are met (days/hours worked, etc) force the AP to convert you to an employee. This may be an antiquated concept, but the guild/union is looking to protect it’s number of members that are AP employees, and the extensive use of a freelancer, as opposed to the hiring of them as an employee, may be a long-term effort to suppress guild/union rolls, and diminish their ability to negotiate and affect change through a strike, work-stoppage, or slow-down.

It also reminds you that you have to pay your taxes. Make special note – if you invoice the AP for “photographers fees - $200”, you are taxed on that full amount. If, however, you delineate “Photographers fee - $180, Event Parking - $20”, you may be able to diminish the amount that you are taxed for income by the amount of your expenses. Whether parking, meals, online service charges (Starbucks, etc). More importantly, as noted below, the AP is now paying you royalties.Be sure that the 1099 you get from the AP properly identifies that portion of your income as such. This is important because royalties are not generally subject to self-employment (aka social security) tax, which is a savings of 15%. So, if your income is lump-sum listed as $2,000 in section 3 of the 1099, you might find yourself paying $300 in self-employment taxes. However, if your income is listed as $1,000 for your assignments in box 3 – “Other income”, and $1,000 in box 2 – “Royalties”, you would – generally speaking, only be paying $150 in self-employment taxes. This is a simplification of the process, because it doesn’t take into consideration net income versus gross, and so forth, but it’s important to draw the income distinction for tax purposes.

Could be changed to:
It would be better if the AP stated that they would properly delineate the distinction on the 1099. So, instead of it reading “AP shall provide Freelance Photographer with an IRS form 1099 each year for any amounts paid to Freelance Photographer during that year”, it might better read “AP shall provide Freelance Photographer with an IRS form 1099 each year for any amounts paid to Freelance Photographer, reporting assignment payments as “Other Income”, and reporting royalty payments as “Royalties” income (if any), during that year.”

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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 2008 AP Contract Analysis - Section 2

Here's Section 2, followed by commentary:

Section 2. Assignments.

2.1. Freelance Photographer shall use his/her own equipment for the purposes of executing and completing each Assignment. Notwithstanding the foregoing, in the event there is specialized equipment required to complete the individual Assignment and the Freelance Photographer does not possess or have access to such equipment on his/her own, then AP may in its sole discretion, supply such equipment, which shall be used by Freelance Photographer only in connection with such Assignment and then returned immediately to AP upon completion of such Assignment or prior to that, immediately upon AP's request.

(Continued after the Jump)

Comments:
At what point is what you own, expected to be a part of your core set of owned equipment? Is specialized equipment a 300mm lens? At the purchase and maintenance costs of such a piece of equipment, the ability to recoup the $5k or so that this lens costs makes owning it, financially unjustifiable. Local camera stores in the DC area charge roughly $50 per day for that kind of lens. The AP does not allow for the rental of this, or any other specialized equipment. It just says they can, at their discretion, supply it. I can’t see the long-term value in owning a long lens like this when you’re not properly compensated by either a surcharge allowance, or the ability to be reimbursed for rental charges. There does not appear to be the allowance for that. Further, the AP should allow you to “rent to yourself” a lens like this. This concept is very common in the television news arena, where you are hiring the cameraman for $X, and if you want him to bring his $30k camera, it’s $X+$Y, where $Y is a standard up-charge for the use of the equipment. Otherwise, the hiring company provides the camera and other equipment.

I propose below a change to be in-line with the TV model. A schedule could be attached which would allow for a standard package of equipment – say 2 bodies, and lenses ranging from 14mm – 200mm, 2 strobes. Since a standard camera rental for a single body is $125 or so a day, and lenses of that type are $15 or so a day, Even though it would be irresponsible for the AP to send you out with one body, and a full rental package should be $300 for that range of gear, it might be reasonable to pay you $150 for the days use of your equipment. In some cases, there may be an editor on-site you are delivering your cards to, and so a laptop may not be necessary. In cases where you are required to have a laptop and wireless internet to deliver images, a per-day laptop rental/usage charge of $50 could apply.

The basis for this concept was that some networks required betacam’s, other’s betacam SP, some shoots required lights, backdrops, dollies, and a wide variety of audio gear. So too, but to a lesser degree, do still photographers have a variety of potential equipment needs to fulfill the requirements of an assignment. It’s not unreasonable to apply the TV model of compensation here.

Here ,a New Jersey firm, Euro-Pacific, delineates the level of professional equipment needed for the assignment. Perhaps the AP could specify Nikon D70 or Canon 10D, as is delineated on the video package, for a Mini-DV camera, versus a top of the line Betacam SP. For a Betacam SP package for the day, it’s $1225. Here this crew rates listing shows that a camera operator only is $525 for the day (an audio tech is $420), and you can add-in a Sony Betacam SP for $630, for a total of - $1155 for the day. This surely looks to be a fair method, especially when you look at the equipment they bring, and similarly, still photographers bring, to an assignment. While it's somewhat silly to suggest a D70/10D over an EOS 1Ds or a D3, or any other technical specification for the camera, the point remains that the cameras could/should well be separated out.

Could be changed to:
“then AP may in its sole discretion, supply such equipment,” should be changed to “then AP may in its sole discretion, supply such equipment or authorize the rental charges of same,”. Ideally, this clause reads, in part:

AP may in its sole discretion, supply such equipment necessary for the execution of the assignment. In the event that the AP supplies such equipment such equipment, it shall be used by Freelance Photographer only in connection with such Assignment and then returned immediately to AP upon completion of such Assignment or prior to that, immediately upon AP's request. Freelance Photographer may, at the AP’s discretion, use his/her own equipment for the purposes of executing and completing each Assignment. The AP shall pay rental charges pursuant to the attached schedule of rental fees, for equipment normal and usual for the completion of the assignment. Any specialized equipment needs shall be discussed and agreed to prior to their application on the assignment.

Sub-section 2.2, up next:

2.2. AP shall provide to Freelance Photographer, on a per-Assignment basis, a description of the Assignment, and may provide a letter of introduction to obtain working press credentials necessary for Freelance Photographer to gain access in connection with the Assignment. All such items must be returned immediately to AP if Freelance Photographer does not accept an Assignment or upon AP's request. Freelance Photographer may not use the AP name to obtain media credentials except in order to gain access as a freelance photographer when performing Assignments that Freelance Photographer has accepted under this Agreement. Freelance Photographer will act in a professional and businesslike manner while on Assignments for AP. Freelance Photographer may not create credentials, badges, business cards or similar identifiers using the AP name or trademark. Freelance Photographer will not have access to or use of AP's systems, equipment or materials except as otherwise specified in Section 2.1 above. In the event that AP provides Freelance Photographer with access to metadata, captioning standards or other proprietary tagging information ("AP Metadata, Captioning Standards and Tagging Information") for purposes of tagging Assignment Photos (as defined in Section 3.2 below), Freelance Photographer shall not use any such AP Metadata or Tagging Information for any other customer, purpose or project other than an Assignment. AP Metadata, Captioning Standards and Tagging Information is confidential and proprietary to AP, and may not be used in a manner not expressly authorized hereunder, and may not be made available or disclosed to any other party or used for any other purpose.

Comments:
Be cognizant of the description of the assignment. Some events may require a just a few images to be transmitted, while for others, even of a similar duration, could require a dozen. I can assume that the AP thinks that, on average, it will work out and be fair.

Note the preclusion that you “may not create”, however, this does not preclude you from wearing or displaying AP lanyards, luggage tags, stickers, and so forth that the AP made, but that you are using on your equipment. Simply affixing or wearing those identifiers is not a technical breach of this term, when they are AP created.

Note that the AP considers its’ Metadata and Tagging Information as proprietary – and thus – of value. You too, if you don’t already, should be recognizing the value of this aspect of your work.

Sub-section 2.3:

2.3. Freelance Photographer is free to engage in any other business or profession and to contract his or her services with any other entity or person ; provided that while on Assignment, Freelance Photographer shall perform services solely for AP. Freelance Photographer may retain or subcontract with other individuals to assist on Assignments; provided that only Freelance Photographer shall compose and capture the images in the Photographs (as defined below) .

Comments:
The AP has to have this clause in here, otherwise, your preclusion from working for, say, Reuters, might be something that could trigger an IRS look at your relationship, and deem you to be an employee, regardless of what Term 1.2 above specifies.

The AP also here is careful to ensure that your assistants aren’t triggering cameras (remotes, etc) since that may cause that assistant to have a claim to the copyright of the work. This is an important clause here – be careful you pay special attention to this when working with assistants.

Sub-section 2.4 is pretty straightforward, and doesn't really need any comments:

2.4. All Photographs (as defined below) created by Freelance Photographer while on an Assignment must be submitted to AP in accordance with Section 3 below.

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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 - Section 3

Here's Section 3, followed by commentary:

Section 3. The Photographs. For purposes of this Agreement, the term "Photograph" shall mean any reproduction , negative, transparency, digital file or reproduction of a still image in any form.

Comments:
This is a very important distinction here – the definition of “Photograph”. This section specifically delineates what you are required to deliver, and it does NOT include any audio you capture, nor video. That content is not covered by this agreement, and your capturing of it can allow you to significantly enhance your portfolio use of the assignment images, and moreover, produce video content from the same event for your sole use/licensing, without being in breach.

(Continued after the Jump)

Section 3.1:

3.1. In connection with any Assignment for AP, Freelance Photographer shall promptly select in good faith and transmit, using reasonable, professional judgment, the best Photographs created by Freelance Photographer during the Assignment ("Best Cut Photos"), whether such Photographs relate directly (e.g., Photographs pertaining to an entertainment event that is the subject matter of the Assignment) or indirectly (e.g., Photographs pertaining to a fire that breaks out during that entertainment event) to the subject matter of the Assignment. An Assignment may specify a minimum number of Best Cut Photos to be submitted; however, Freelance Photographer shall continue to submit Photographs until AP affirmatively tells the Freelance Photographer that AP has received a sufficient number of Best Cut Photos. Freelance Photographer shall caption each of the Best Cut Photos and provide accompanying metadata as provided in the Assignment. Freelance Photographer shall supply such Best Cut Photos to AP in a timely manner, or as directed by AP during the Assignment.

Comments:
Herein lies the distinction of the value of a laptop, versus a home computer. The use of the word “promptly”. If I do not bring my laptop – something that I pay upwards of $3k every two or so years for – then the AP is at a disadvantage as it relates to time if “promptly” means “when I get back home”. And further, it “promptly” means using my dialup connection, instead of the investment in a cable modem, if it’s even available. Even though many of you reading this may be in metropolitan areas, the fact remains that there is a significant percentage of Americans who don’t have high-speed internet access.The AP is expecting a great deal of additional infrastructure for you to have at your disposal, and the fees, regardless of region/bureau, just are not commensurate with that.

Also, do not underestimate the additional amounts of time necessary for captioning multiple images. Also, be sure to save any correspondence (whether e-mail, or instant message) which proves the affirmation that the Best Cut Photos delivery requirement has been met.

Could be changed to:
The phrase “An Assignment may specify a minimum number of Best Cut Photos to be submitted;” could be more fairly noted to read “An Assignment will specify a minimum number (or range) of Best Cut Photos to be submitted;”

Section 3.2 is below:

3.2. Within five (5) days of the end of the Assignment or as otherwise specified in the Assignment, Freelance Photographer shall provide to AP all Photographs taken during the Assignment in electronic form, along with caption information and metadata necessary to document the Photographs created during the Assignment according to AP's requirements (collectively with the Best Cut Photos, the "Assignment Photos").

Comments:
This is an interesting clause. In my conversations, it was indicated to me that the submission of other images from the assignment was optional, and that it was intended to generate additional images that wouldn’t be sent on the wire, but go directly to the AP archive, and that part of the reason for the royalty was to incentivize photographers to do this work. However, the language here requires “all Photographs taken”, which is an excessively burdensome phrase, and, I believe, not the intent of those who drafted the contract.

Further, this clause is ambiguous; as it could be that you deliver a CD to them, with a shot list, and simply be done with it.

Could be changed to:
This phrase “Freelance Photographer shall provide to AP all Photographs taken during the Assignment” could be changed to “Freelance Photographer may, at their own discretion, provide to AP all Photographs taken during the Assignment for placement in the AP archives.”

Section 3.3 begins below:

3.3. Freelance Photographer represents, warrants and covenants, as applicable, that: (i) Freelance Photographer has all necessary authority to enter into this Agreement and all necessary rights to provide the Assignment Photos to AP under this Agreement; (ii) Freelance Photographer has the necessary equipment and ability to process and transmit Photographs to AP; (iii) the Assignment Photos are original works created by Freelance Photographer; (iv) the Assignment Photos have not been altered in any manner beyond the methods normally used to prepare an image for transmission, which include color correction , cropping , burning, dodging and spotting for dust or other technical imperfections in the image; (v) the Assignment Photos (excluding the contents depicted therein , which Freelance Photographer does not give any representation and warranty with respect to unless otherwise required in the Assignment) do not infringe any third party copyright; and (vi) all moral rights pertaining to the Assignment Photos have been waived .

Comments:
The distinction in clause “v” is new, and appropriate. Many times, a clause like this reads “the Assignment Photos do not infringe any third party copyright;”, and you just can’t sign something like that without taking on substantial risk and potential liability. The AP has done a fair job here of delineating what you are warranting.

Clause “iv” is important, and it’s just worth re-stating. Don’t alter your photos. Don’t dodge or burn so significantly that it’s no longer a real and true representation of the scene, as it appeared. This is news, and not the opportunity for a photo illustration.

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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 - Section 4

Here's Section 4, followed by commentary:

Section 4. Rights.

4.1. Freelance Photographer agrees that the Assignment Photos have been commissioned by AP, and each of the Assignment Photos is a "work for hire" under the Copyright Act; and to the extent that the Assignment Photos are not deemed to be a "work for hire" under the Copyright Act by a court of competent jurisdiction, Freelance Photographer hereby assigns all right, title and interest in and to the Assignment Photos to AP, including all copyrights and any other rights in law or equity (including but not limited to other derivative works of any kind, made by any method or technology known or invented hereafter, derived from the Assignment Photos) . Freelance Photographer agrees to assist AP, at no further cost to AP, in perfecting any such assignment, including executing any documents within a reasonable time period after AP provides them to Freelance Photographer.

(Continued after the Jump)

Comments:
Ok, here’s a bit of splitting hairs, but worth considering. First – the circumstances under which a “work for hire” situation exists, doesn’t really meet the terms that that terminology requires. As such, all contracts I’ve read also include something like “you agree to transfer all rights/copyright…” to the photos. However, in order to transfer, or assign them, you must first register them.

Now, two things come into play. First is that you may have to actually register the copyright yourself in order to transfer it, hence the language where you agree to – for free – assist them in securing those rights. More importantly, is, a copyright transfer need not be forever. The Copyright law allows for you to recover copyrights you transferred –it’s called a “termination transfer.” For more information (keeping in mind my indication about the lack of your work as being a WMFH) check out the Copyright Office’s section 203 .

Thus, any attempt to collect your copyright for a duration longer than 35 years, would be inconsistent with the language in section 203.

In addtion, I don’t know of a single instance where freelance colleagues of mine have signed any Copyright Form VA documents effecting this transfer, so it may be that there are massive amounts of freelance work of the AP’s that are not registered. Additionally, there's a great article about termination of transfers here.

Section 4.2:

4.2 . AP hereby grants Freelance Photographer the worldwide, non-exclusive license to reproduce, prepare derivative works of and publicly display Assignment Photos in a personal portfolio only; provided that any Assignment Photos displayed include proper attribution to AP, and the display is only for personal, non-commercial use by the Freelance Photographer.

Comments:
Seeing this in writing is of value. In many instances, it’s not there, meaning you can’t use the work on your website, or portfolio. Although it may technically be that a website is a commercial use.

Could be changed to:
“in a personal portfolio only” could better be clarified to read “in a personal portfolio, on a website demonstrating photographer’s photographic capabilities, or for the purposes of self-promotion”. This would allow the photographer to also send out a promo email with a “here’s what we’ve been doing this week” type of client update.

Section 4.3

4.3. The attribution provided for Assignment Photos licensed by AP shall be "[Freelance Photographer's name]/AP." Failure to include such credit or to cause licensees to include such credit will not be deemed a breach of this Agreement.

Comments:
The AP has chosen curious language here, and it may be a just an oversight, but the language says ”licensed by AP”, and the AP actually becomes the owner, so I’m not sure why it says “licensed”, but it could be to be cognizant of the non-WMFH status of the images, and as such, the transfer of rights.

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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 - Section 5

Here's Section 5, followed by commentary:

Section 5. Payment. In exchange for accepting and performing Assignments and for the rights conveyed in Section 3 and Section 4 above , AP shall pay to Freelance Photographer an assignment fee provided for in writing in connection with each Assignment. Freelance Photographer must submit an invoice to the AP address shown on the notice of Assignment within 30 days of each Assignment. The invoice must be on the Freelance Photographer's personal business letterhead and it must itemize the Photographs made during the Assignment and the fee for the Assignment. Non-conforming invoices shall be returned to Photographer and payment shall not be made until a conforming invoice is submitted to AP. AP shall pay the undisputed amount of each submitted invoice within thirty (30) calendar days of receipt of the invoice. Any dispute about any invoice shall be resolved through good-faith and amicable discussion. Freelance Photographer acknowledges and agrees that Freelance Photographer shall be responsible for his or her own personal expenses (e.g., travel, accommodation, food, mileage and parking expenses) related to the Assignment and that AP will not reimburse Freelance Photographer for such expenses. AP may at its sole discretion adjust basic assignment rates to account for extraordinary assignment expenses.

(Continued after the Jump)

Comments:
It’s just not considerate to foist upon a freelancer a one-size-fits-all fee, which includes parking, mileage, and so forth. An assignment that requires the photographer to park at a downtown DC parking garage, for example, could incur $25 in parking, or a comparable figure in taxis to and from the assignment. This alone amounts to about 10% of the assignment fee. Expenses should be and additional amount. Parking doubtfully will ever be allowed as an “extraordinary” expense, for example.

Could be changed to:
This section could recognize the reality of being a photographer in a metropolitan area, where parking is an additional approved expense, as should mileage be. Including a sentence such as “Photographer may bill fair and reasonable expenses directly associated with the completion of the assignment, such as parking, mileage, and so forth.”

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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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[More: Full Post and Comments]