Copyright Infringement?

We regularily read the gadget blog Gizmodo, along with EnGadget, Consumerist, and countless others. About two years ago, we wrote about how Consumerist just published a Getty Images photo with the watermark - (Getty Infringement, 2/27/07) which, to me, is a sure sign that you didn't download the image with permission. Now, we find that Gizmodo has taken a generic shot of the Las Vegas Convention Center, as a part of their CES coverage, and co-opted one of Jill Greenberg's crying babies images to make an editorial comment about CES -(Gizmodo's Guide to CES, 1/7/09). Note that the comment isn't about Greenberg, so this is highly likely to be an infringement.

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Note that we did a bit of research and couldn't locate a place where Greenburg's crying baby images were being licensed as stock, and they surely are not a part of a subscription model at any stock agency, so Gizmodo would have had to specifically license the image either through Greenberg, or through wherever they might be individually licensed as stock.

Further, it is reasonable to assume that Greenberg would require photo credit, and further, she would require sign-off on a montage of her images with others, and I am not making a major leap here to believe she wouldn't sign off on the above montage.

This would be where a service like TinEye, PicScout, or others would be of great service in locating infringements of your work, or atleast places where your work appears so you can confirm it's authorized, or not. We showed you how TinEye found one of my images within a montage of others last July (TinEye - Oh My!, 7/18/08). Becoming aware of and comfortable with, image search/recognition technologies will be important, and likely something you should do once a day (if you're doing it manually), or set up a solution to search for your images and report all appearances of your images via e-mails.

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111th Congress - Orphan Works Futurecast

With the end of the 110th Congress, all the formal legislative activity that was done regarding Orphan Works is now dead, and a new bill, with new hearings, and new negotiations, with new players, must begin anew. Yes, you can expect the language in the bills on both the House and Senate sides of the process to be the basis for the new legislation, but both have far more pressing issues to contend with.

Every cabinet official and other congressionally confirmed administrative official must make it through the Senate Judiciary Committee, then, all of the appointed judges that were delayed in anticipation of a democratic President must go through the process, so you can expect a very busy Senate schedule as eight years of delayed and lost efforts begin anew for the Democratic Party.

What of the House?

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In the past session, the Subcommittee on Courts, the Internet, and Intellectual Property, headed up by Chairman Berman of California, handled Orphan Works. It was thought by some that Virginia Congressman Rick Boucher would take over the Chairmanship of the Committee, and by others, that it would be Congressman Jerrold Nadler of New York. Instead, the Chaiman, John Conyers, of Michigan, has done away with that subcommittee, and it has been decided that all intellectual property issues will be heard before the full committee, according to a conversation I had today with a Committee staffer, and which was reported by the Washington Post - House Judiciary Chair Conyers Takes Control Of Intellectual Property Issues, 11/13/08.

This means that the issue of Orphan Works must now be fit into the very very busy schedule of the House Judiciary Committee, (including a continued look into the mortgage banking crisis) and all of the needs and wants of those members, as well as the procedural work of all of the other committees. According to GovTrack, "John Conyers has sponsored 191 bills since Jan 5, 1993. of which 159 haven't made it out of committee and 9 were successfully enacted."

The Washington Post article, in discerning how this will affect the owners of intellectual property rights, notes " this one is seen as a win for Hollywood over the consumer electronics industry given that Rep. Rick Boucher (D-Va) is perceived as an ally of the latter and might be more sympathetic towards fair use arguments."

So, what's good for protecting the IP of Hollywood suggests a similar slant towards the IP of the music industry and, yes, that of creatives.

Further, in trying to discern Conyers' stance on IP, we can turn to what Ars Technica reported back in April - Controversial Pro-IP Act sails through Judiciary Committee (4/30/08), when they wrote:

"The House Judiciary Committee has unanimously approved the Pro-IP Act, a legislative proposal which aims to impose stronger penalties for copyright infringement. The approval is no surprise, since the bill's chief sponsor is committee chairman Rep. John Conyers."

Further, it was Conyers' bill that created the new position of Copyright Czar (New Intellectual Property Czar Authorized, 10/13/08), and the Pro-IP Act was signed into law on 10/13 by President Bush. The Michigan Telecommunications and Technology Law Review has an interesting series of insights into how this law changes things in a big way - The PRO-IP Act, 11/10/08.

It was believed that the Pro-IP Act and the Orphan Works Act were to be somewhat of a pair of dove-tailed acts cum laws, enhancing significantly IP rights and enforcement options, while freeing up orphaned works in other areas, and that there was a form of a quid-pro-quo amongst the players. The fact that the Pro-IP Act passed, while the Orphan Works Act died in the House, while the House squashed the IP sub-committee that created the Orphan Works House Bill does not sit well with the pro-OW crowd. You can bet that those who were pushing for the OW bill and accepted the Pro-IP bill as a quid-pro quo but who ended up with nothing are none-too-happy about losing the OW battle, and I suspect some feel tricked into allowing the Pro-IP to pass and then not getting their OW bill, so they feel betrayed and will be loaded for bear in the new Congress.

So, a Pro-IP Chairman will be the gate-keeper of Orphan Works in the 111th Congress - certainly much more Pro-IP than Rep. Berman, who was the Orphan Works champion on the committee in the 110th. Things are looking better, but don't count your chickens just yet.

Stay tuned.

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Pete Souza - Official White House Photographer

As a Washington DC photographer, knowing who the official photographer for the President is (or will be), is a big deal. It's even a bigger deal when the photographer chosen was one of the official photographers for President Reagan. Such is the case as Pete Souza, a friend and colleague, has accepted the offer as White House Photographer for President Obama.

The NPPA's article reporting this cites a very important point - Souza "said he accepted the offer today after...reaching an agreement that the primary function of the White House photography office will be to document Obama's presidency for the sake of history." This point - while nuanced to those who are not photographers, is critical and key from a historical standpoint.

What is being said here, is that the function of the photographer is to document history in the making, and not serve as an arm of the press office. That's not to say that the press office needs won't be exceptionally well fulfilled, but rather, Souza will have the accessibility he needs to record history for generations to come. Following in a long line of photographers who had this approach - David Hume Kennerly, David Valdez, Bob McNeely, and others, making images for the ages, and not the days' news cycle is a remarkable opportunity, and a huge responsibility.

With that, congratulations go out to Pete as we welcome him back to Washington.

(Comments, if any, after the Jump)

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Free Hits A New Low

I ran across a comment in one of this weeks' blog posts (the comment has since been deleted), promoting free in a way that is a new low.

It's one thing to argue about working for free for a charitable organization, or to say "hey, I can't get the images in my portfolio unless I trade work for access...", or some other notion that I've taken issue with. We can debate those issues on and on.

Yet, when a "fellow photographer" who "understand(s) the frustration in obtaining high-priced photography DVDs online" decides he is going to give them away for free, that reaches a new low.

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Much like the MP3 mentality - "I made the effort to buy these original DVDs and took time to upload them. All I am asking is a minimal fee to cover my costs", but in this case, to use movie-industry parlance, he is charging what is called a "distribution fee", for the efforts in duplicating and uploading the content.

The blog (which, if it isn't deleted by now, will likely be soon), has as a sub-title "Learn from the Gurus of Photography. Learn from the Best".

On the blog, he lists "free" DVD's from the likes of Gary Fong, Mike Colon, Gino Lucadamo, Jerry Ghionis, Dean Collins, Joe Buissink, Bambi Cantrell, Doug Gordon, Ryan Schembri, Kevin Kubota, Yervent, Tommy Colbert, Mary Du Prie, Guy Gowan, Zack Arias, and many others.

Further, this "fellow photographer" has posted this same list on many other blogs that I found. And, likely when this blog gets deleted by Google because it violates their terms of service (i.e. the infringing of Copyright is a Google TOS violation) you can bet that other resources will pop up because people have a perverted belief that these DVDs should be free.

Sources have informed me that the person in question is allegedly one David Tran, from Malaysia, and, as such, is essentially untouchable from the US, and since Malaysia thrives, as many have said, on piracy, he will continue, as he has done for some time now, as this posting is a repeat performance for him. Interestingly, going to the services that he uses - if you want to download something, unless you're willing to pay $14.99 for two months of "premium" download access, the free download access gives you a 24k/sec download speed - worse than a dialup modem.

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Know What You're Signing Away

Yesterday I was traveling uptown and I spotted this bus. At first glance, it's just a plain DC Metrobus - the G8, in fact. It travels from Farragut North downtown all the way up to the eastern border of the city. All along, drivers to the rear of the bus are treated to an advertisement. In this case, it's an advertising campaign for a leukemia/lymphoma race to raise funds and awareness.

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A bit of research (here) shows that they probably spent about $500 to have this ad showcased around the city for four weeks, for one ad, and they have to do more than one, probably more like 20 to 40, which tanslates to $10k to $20k, for four weeks.

Do these photos below look like advertising photographs?They are. "But wait!" you say, did they sign model releases? You bet they did. The very fact that they are wearing the race number, or race-specific shirt means they signed this form (or one just like it), which includes, in part:

I also give permission to The Leukemia & Lymphoma Society, Inc. and its sponsors for the free use of my name, picture and voice in any broadcast, telecast, print account, or any other account in any medium of this Event (the “Personal Release”). I understand that this Personal Release is perpetual in time and that it encompasses, without limitation, any copyright or right of publicity or privacy that I may have in my name, picture and voice.

Now, I am not picking on this organization in specific, I am commenting on how these photos - seemingly generic event photos, become advertising images for an expensive advertising campaign.

Be very cognizant when you sign away all your rights because you think the photos are just photos of a foot-race or other generic event. Do I know one way or another if this photographer was paid at all; paid an event rate; or paid an advertising rate? I do not. But what I do know is that many many people sign away all rights to their images because they think "what are they going to do with them anyway? They don't have model releases..." and so on, and so forth. The above images are model released images, and will be used in not just advertising campaigns (take special note of the corporate logos at the bottom of the ad - Seagate, American Airlines, Nike) and also seen on their website here. These are the corporations that are benefiting from this positive visibility.

What do they get? From this cached file, we see, for a LOCAL sponsorship in New York:

Gold Sponsorship $10,000 +

•Your company logo will be silk screened on all the team racing singlets and jerseys for four seasons.

•Your company will be named Title Sponsor of the NYC Team In Training Team for four seasons (approximately 18 events in the Spring, Summer Fall, Winter including localevents. Each event has at least 3 major functions connected with them).

•Your company will be listed as a Title Sponsor one full year in our Team in Training Manual and local TNTwebsite.

•Your company will be spotlighted once a season for four seasons in our TNT monthly newsletters that aredistributed to all active participants.

•Your company banner will be displayed prominently at all Team In Training events (kick off parties, sendoff parties, local events etc.)

•Your company brochure will be placed in all team participants’ send off goodie bags for each season

That doesn't get you that national advertising placement like is shown on the ad. Those rates are probably closer to $100k.

Again, I applaud the organizers of these types of events for their ability to fund-raise, and to make a difference, but when you are offered $300 or $500 to be the photographer at one of these events, and you are required to sign an "all rights" or "work for hire" contract that they present to you, do not think for one minute that they won't use the photography for advertising and other commerial purposes, and further, realize they are allowed to make those images available to the corporate sponsors for the purposes of their own advertising.

In my case, several years back, I was called upon to photograph a foot race here in DC. I did it, with a limited rights package, and they kept coming back. When someone new came in, they tried the "you have to sign our contract" argument, and we parted ways for a few years. Then, after lackluster results, the organizers came back and I have again done their foot races with limited rights packages. I have done more than one foot race for more than one organizer over the years here, and we recognize the value of these images, and I want to encourage you to recognize it to, whether a foot race, or other event where you *think* the images have little value.

If you do, then think again.

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You Are What You Think

My issue of Picture Magazine arrived today, and at the end of the issue is a piece by consultant Selina Maitreya about affirmations, so I thought I'd take a minute to use the article as a jumping-off point to discuss the notion of affirmations as we depart 2008 and prepare for 2009.

The article cites Deepak Chopra (at right), who I've made a portrait of in the past. In it, Chopra is quoted "It is not 'you are what you eat', rather it is 'you are what you think'." (single quotations added). The article goes on to encourage you to use affirmations as a way of marketing yourself.

Huh?

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She's right. Affirmations put you in the frame of mind that you want your clients to think of you in. If you don't believe in yourself, how do you expect your clients to?

The critical key is that your affirmations must be positive ones, stated as if the situation already is. Maitreya notes "The word 'affirmation' is no accident. What you will be stating does exist in the potential of being. stating your affirmations simply brings your wish into your sphere."

You shouldn't be saying "I am not a crappy photographer". Instead, the affirmation should be "I am a talented, creative photographer who is an asset to my clients' project." Laura Bonicelli, a national agent based in the mid-west is cited using affirmations before pitching a photographer "John's style is a perfect fit for this particular project". (she's not referring to me, by the way.)

Everyone's affirmations are different. Some are about professional efforts, others about personal goals. Then, there's affirmations about balance in life between the two.

As you contemplate your 2009, take a few quiet moments to determine your own affirmation. Here are some photo business centric affirmations:

My creative talent is of value and I deliver it to clients who recognize that.

I am worthy of a $7,500 wedding booking.

I am a bargain at twice the price.

I am capable of booking 40 weddings this year.

My family portraits are moments in a family's life and will be a lifelong cherished heirloom.

These, and many others, are what will help you move forward in your career, and in your personal life. By reading these things - maybe printed out and posted next to your dresser, bathroom mirror, or bedside table, you will consciously - and subconsciously - see the message. The benefits of speaking it to yourself outloud increase the effectiveness.

Consider this - have you ever tried really hard to think of something, and couldn't, only to have the answer pop into your head a few minutes (hours, or days) later? When you stopped consciously thinking about it, your subconscious continued to work on it. That is a simple example of how powerful your subconscious is. Now harness it to change your life with positive thoughts - as affirmations.

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Talent On Loan From God

I listen to a great deal of radio, from NPR, to Bob Edwards, to Air America, to Rush Limbaugh and Howard Stern. I spend a lot of time driving around, and those are among the many things I listen to.

One of the things I chuckle about is when people get all up in arms when Rush Limbaugh says "talent on loan from God", which is one of his catch-phrases. "What do you mean - your talent is from God? How pompous!" Or some variation of that sentiment.

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Yet, when actresses, sports figures, or the like stand before a microphone, often times you hear "I'd like to thank God...", recognizing that their skills are a gift from God. When Limbaugh says it (usually with tounge-in-cheek bravado) he is actually acknowledging that whatever talent he has is God-given, and it's on-loan, so that whenever he dies, it returns to God.

I am often asked by liberals why I listen to Limbaugh. From conservatives - why I listen to Air America, and so forth. It's to see things from as many perspectives as possible.

I believe that all our talent is not only God-given, but also scheduled for a return at the right time. Some of us use our talent, hone and refine it, and others waste it away. Some make a difference with it, others use it for all the wrong reasons. All of it is on-loan therefore, and it is up to us to build upon it.

What are you doing with yours in 2009?

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Seasons Greetings from Photo Business News

Seasons Greetings from Photo Business News. May your new year be prosperous and full of joy.

(Comments, if any, after the Jump)

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"I Forgot" Is Not Acceptable

At the core of the housing crisis right now is one simple fact - people were buying houses they could not afford. Now, you can lay the blame on the banks who told people what they could afford, or the elected officials who bent the bank executives over and got them to loosen credit requirements, or you can lay the blame on the people themselves.

Consumerist (Former Treasury Secretary Says He "Forgot" That People Had To "Afford Their House", 12/22/06) cites the New York Times article:

“The Bush administration took a lot of pride that homeownership had reached historic highs,” Mr. Snow said in an interview. “But what we forgot in the process was that it has to be done in the context of people being able to afford their house. We now realize there was a high cost.”

How does this apply to photography?

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Before you can know what to charge, you must know what it costs to be in business. If you are charging $X and you don't factor in costs like depreciation, or the fact that you will be paying between 40 and 50% of your profits to the government, the sentence "I forgot to include the cost of my cameras in my cost of doing business", or "I spent all the money that came in. I forgot that I had to pay half that to the government."

Forgetting these things is unacceptable. Here's a re-wording of the quote above:

“John Doe Photography took a lot of pride in his photography and how so many people were hiring him for assignments,” Mr. Doe said while in line for his welfare check. “But what I forgot in the process was that the business of being a full-time photographer has to be done in the context of charging more than it costs to be in business. I now realize there was a high cost that wasn't reflected in what I charged my clients.”

Do not be like a starry-eyed Doe in the headlights. Determine what it truly costs for you to be in business, and take that into consideration when setting your rates. Check out the NPPA Cost of Doing Business (CDB) Calculator to get a start.

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When It Gets Slow

I spent a good portion of November being much slower than I wanted. In fact, I panicked a bit. Not the January/August panic that happens despite almost 20 years of photography that tells me that those are my slow months. It was a "oh my God the phone isn't ringing, I need new clients" panic. A scheduled rate increase set for January I was rethinking, and I gave serious thoughts to accepting lower paying assignments, and, I looked at my bank account to see how much longer the business would run if the phone didn't ring again.

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I started with an aggressive marketing campaign, directed at both short-term clients, as well as long term ones. I did A LOT of research (with all my spare time) on exactly the clients that fit those descriptions, and I began a targeted campaign to these prospects. (I have been espousing this solution at each of the places I have given presentations over the past few years). One of the things I haven't done a lot of in recent years is marketing, because we are at and exceeding our capacity to service our existing client base via word-of-mouth referrals.

One of the things that people in the know in marketing will tell you is that you should always be marketing, and I was concerned I'd fallen into that trap. Yet getting "cold" clients has a significant curve to it. Teaching the clients why you're worth what you are, explaining the rights issues, and otherwise just prooving yourself means a lot of effort for a potentially diminished return. This is why, for example, I wouldn't put myself in a pool of 10+ photographers a bride is considering, and when I get a client who wants me to do a site visit to the National Press Club days before the event (I have done hundreds of events there) I give pause to that assignment. These are among the downsides to "cold" clients. When you come via word-of-mouth, you're their photographer, if you're available, and when I get to an "exceeds capacity" situation, then that's not good.

As late November rolled around, a few calls came in for December, and now December assignments this year exceed our average, and last year as well. Further, January is booking up - unusual for a clientele that, 90% of the time, books a week or so out.

What I concluded as I considered why this happened, was that it was all about the election. No one wanted to do anything in DC until they knew what was happening, and the election din had died down a bit. I had thought of that when doing my research, and I looked back at the assignment data from 2000, and realized that that was bad data because that was right around when the dot-com crash was, so it wasn't really useful.

We are now back on track for a normal 2008 (overall), and, armed with many many prospects for 2009, I expect we will be growing our business once again, and we'll maintain the marketing outreach as well. Our rate increase is no longer a question mark, and January is filling up.

I know that people get this idea that doing it free or slashing rates is a solution, but I did not succumb to that. In looking at the bank account I concluded I had 3-4 months worth of operating revenue to sustain the business even if the phones never rang again, and that was before considering things like selling gear, getting a loan, or any of the other solutions. I was committed to maintaining my rates (which are a fair value) up until I shuttered the business. If you're a restaurant and you've determined that it costs $10 to make a dish that you serve for $16, just because you're slow you don't slash the price of the dish to $8 in order to get business. Doing so attracts the wrong clientele (i.e. a non-sustaining one) and then when it gets busy you can't raise your rates back to where they were. The old adage "we lose a little on each sale but make it up on volume" doesn't work for them, and it won't work for you.

One of the clients that came on during the pause was one who, for them, price wasn't a deciding factor, it was just a detail. They booked coverage of a one-hour press conference, wanted rush services and duplicate CD's and proofs, and the entire estimate exceeded $2k. Then, they added on a separate portrait session with lights for $2k+. There wasn't any debate about if the price was too high. When the call for that assignment came in, it was slow, and I thought about reducing the estimate, but I did not, thankfully.

Resist sliding backwards to a client base you might of once had but have now migrated upwards (price-wise) from. Re-group and re-think your marketing outreach. Reduce operating costs, and remain focused. Your business isn't a sprint, it's a marathon. Think long term.

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