The SEC, The AP, and Gannett Clash Over Rights

The Southeastern Conference (SEC) is in a clash with the Associated Press and Gannett over the rights to images and narratives of their sporting events. Lets start out with a few things first - The SEC is a collegiate athletic league that holds sporting events on their campus, usually in closed arenas or stadiums, where a price is paid for admission to what is easily argued is "entertainment". The Associated Press is a newsgathering cooperative that works for its members to cover the world, spreading the cost of that coverage over the multiple members who get images and text that they can then publish in their papers, drawing readers. Gannett is a for-profit corporation that does the same thing for each of its individual papers.

Each entity has a profit motive. While the AP's profits may be returned to the company to cover other costs, the member schools of the SEC are looking to grow revenue for their own betterment, and Gannett is looking to grow revenue to inflate their profits.

The problem is, as outlined (here) at Editor & Publisher, is that the AP and Gannett don't like being told what/where/how/when and why they can, and can't sell pictorial depictions or narrative descriptions of the SEC entertainment events. This is not the first time that sports entertainment entities have clashed with media conglomerates and cooperatives over profit-making masquerading as entitlement "news coverage" of these entertainment events.

What, though, should a photographer learn, or take away, from this clash?

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The individual photographer should realize that if reuse/resale/repurposing rights weren't of value to these outlets, they wouldn't be insisting that the individual photographers give them away for every assignment, and they wouldn't be fighting so hard to keep them so they can resell them at a later date.

In the runup to this seasons' college football season, The SEC has imposed new rules on the use of content that covering media conglomerates may make for free. Let's get one thing really clear here - the AP and Gannett (and others) are paying zero dollars to the SEC to cover these events, from pre-game to post-game. In an era when there was no cable television, and all sports scores and highlights came from the newspaper, all sports entertainment had to give a free pass to those who were making pictures and writing stories. That era is over.

In August of 2008, ESPN paid $2.25 Billion for whatever TV rights CBS did not already have, for 15 years. Just prior to that, CBS paid $800 million for a 15 year deal. $3 billion dollars for 15 years equates to $200,000,000 per year in valuation, much of which is attributable to the SEC football valuation.

Thus, when you're paying $200M per year, it would stand to reason that you would object to a newspaper posting their own video and audio game highlights on their own websites, especially when those websites make it less likely for a fans eyeballs to visit the ESPN or CBS websites. It would also stand to reason that you would be objecting when newspaper reporters are liveblogging the game, which would also diminish the likelihood of people listening to CBS or ESPN radio, or getting their own ad-driven blog feeds.

Further, photographs are being restricted from being sold beyond day-to-day coverage needs. In other words, covering media conglomerates can send a photographer, and provide those images to their papers, subscribers, or member newspapers regarding coverage of that game. However, these same conglomerates can't cut into the control and resale possibilities that the SEC would have of images from a particular game by selling images or stories themselves.

Another interesting point is that, in exchange for the AP/et al getting free access to generate intellectual property (i.e. images) for distribution to their members, the SEC need not fully employ a photo staff to cover each game since they are requiring the rights to use the images from all covering entities (AP/Gannett/etc) for whatever they want. Thus, if you are an SEC school photographer, you will likely not need to travel with the team as much, since every photographer/organization who signs the contract will be the reason you aren't going.

Once again, let's return to the freelance photographer. I want to make sure you get this point - when you're covering any assignment, and you justify to yourself why you signed away all your rights to images from the assignment, remember that when the AP was told that they could cover and use the images the next day for stories on the game, but that they could not resell as stock those same images you made for them and gave them the rights to, they said no. They objected, because they know that your images you gave them are valuable to resell and repurpose.

What about audio and video value? I know of many a colleague who has been asked by publications across the country "hey, can you get me some audio when you're not shooting, and also, since you have that camera that can shoot video, please shoot me some wide stadium video too." And then when you ask for additional compensation for that, they say "hey, it's just audio for the slideshow online..." or "we just need some video for the opener of your still gallery" and then suggest that they are already paying you, and thus it's really not worth any more, that, maybe, it actually IS worth more. Heck, it makes the galleries more engaging. Oh, it makes you feel like you were there! Hey! Isn't that what ESPN and CBS paid $3,000,000,000 for?

The networks make money off the commercials, just as the newspapers make money off the ads that are adjacent to the sports photos. The fact that newspapers got a free ride for this long is remarkable. The SEC (and every other sports league) has put up with free "news coverage" for as long as it suited their needs for free publicity. Now, they are not beholden to the AP/Gannett/et al, and media conglomerates are paying for the right to distribute the content that is created at these events.

Let me be very clear here though, I am not saying that anyone should sign away what the SEC is demanding. No organization should give away the intellectual property they create at these events any more than the individual freelance photographer should sign away their intellectual property rights when working for these organizations. Just as I would suggest to a freelance photographer that they not sign these bad deals and walk away, so should these organizations. Or, perhaps these organizations could enter into a licensing deal with the SEC to share a portion of the resale proceeds, just as they should fairly do for their freelancers. What's good for the goose is good for the gander. Any organization that demands all rights/work-for-hire from its' independent contractors with the intent of repurposing/profiting from the content produced, shouldn't be so surprised when other entities insist on the same from them.

At a time when the AP is not completely prepared or ready to take over the NFL contract from Getty Images, this could actually work out to their advantage. They were already going to be understaffing the NFL games, so perhaps the planned cadre of SEC photographers can be dispatched to the NFL? For AP photo-wise, this could be a good thing.

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No, You're Not Entitled To Anything

As my mother used to say, there are no guarantees in life, except death and taxes .A subset of those non-guarantees, is "nobody owes you anything, and you're not entitled to anything either."

Generally speaking, I think the last generation that thought they had to actually earn something is generation X. Generation Y, The millennials, and the youth of today, believe that everybody should get a ribbon, there are no winners and no losers, and you're owed a job once you graduate.

There are a few universal truths, so let's enumerate a few:

1) There will always be winners and losers. Period

2) Graduation from school prooves one thing - you can finish something you started. Beyond that, you'll have to demonstrate hard work, commitment, and a willingness to pay your dues.

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I don't care if you're God's gift to landscape artistry, sports, fashion, or news photography, or somehow have a perspective no one has ever seen before. You still must pay your dues. You still must do hard work.

If you somehow have a reflex that puts you next in line to take Nemo's place in the Matrix, and you apply that to your trigger finger and focus ring to minimize lag time to take the best ball-on-bat/puck-in-frame/etc images, you don't just get called up to the majors right away. You have to prove you can do all of the other things related to it, like writing a solid caption, knowing the game and all the players, and being able to transmit on deadlines that are often unreasonable. That means starting in the bush league, youth sports, and so on.

If you have a nose for news, and somehow put yourself where the news is about to happen (no arsonists need apply) you might get some attention if you always have the flames licking up the side of a building when the rest of the photo dogs turn up and capture just the smouldering embers. If you can listen to a police scanner and know what's happening in real time, and not have any other assignments to get to before the perp walk, you might make a few good images. That said, even if the paper publishes your work from these spot news "gets", they don't owe you a staff job, or anything other than fair compensation for your images. They have no idea how you'd work on other assignments, or if you can be the generalist they need in addition to being Johnny-on-the-spot.

Fashion is it's own world, and to quote Heidi Klum, "you're either in, or you're out." Fashion is a fickle bird, and not even the best designers survive year to year. One year your work is all over Saks Fifth Avenue, the next, it's crowding the floors at Off Saks. Same for fashion photography. Everyone thinks it's glamorous, and everyone wants to photograph the pretty girls. However, who's photographing the handsome men? There's about a 50/50 split in the population, but you don't see any "will do trade-for-print with male models" ads. All of the ads for products I saw when I just read the latest issue of a photo trade magazine showed women as models - faces painted sliver/gold/bright colors. Yes, I know that sells cars, tools, and (atleast for men) makes the world go 'round and has started more than one war. However, you should not only be able to demonstrate good female model photography, but also male model photography. More importantly, though, is your ability to actually handle a shoot where models are present and being paid. (Models getting paid for modeling, is, after all, their ultimate goal - then you can call yourself a professional model.) Managing the catering, wardrobe, lighting assistants, props, and so on (not to mention the on-set client) takes time and a completely different skill set than knowing how a model (male or female) looks their sexiest. Annie Liebovitz, interviewed recently for Time (here) said "if something goes wrong with a photo shoot, it's my fault. It's up to me, it's my responsibility...if I don't get a good picture, I don't blame my subject, I blame me." Don't look at fashion photographs and in a smart-alecy way suggest that somehow you could do it better. Yes, I know that the proof is in the photograph, but managing everything that it takes to get to the point of that photograph as a final result is almost always a bigger part than closing the shutter at the right time.

It was once wisely said "luck is what happens when preparation meets opportunity."

Even the Declaration of Independence did not say you were entitled to happiness. It said it would protect your "pursuit of happiness".

One of the challenges that face "The Greatest Generation" and the Baby-Boomers is their belief that they are (or were, as it now known in most cases) entitled to a lifelong job. It was (mistakenly) assumed that, for example, if you went to work for IBM or the big bank on the corner, that you had a job for life. You'd work for a few decades, your commitment to them was reciprocated by their commitment to you, and you'd not get fired or laid off, save for gross incompetence. Today though, those companies are laying off the aging (and expensive) knowledgebase for cheaper workers. The problem is, those cheaper workers are coming with the baggage of an expectation of entitlement. They expect to be coddled and fawned over during their annual review, and told how great they are even when they're not.

Just because you read your the manual of your camera and know all its features and have all sorts of custom functions preset, or can follow-focus in manual down the playing field or up the catwalk, or even can light a subject like Rembrant, you're not entitled to have your images grace the covers of the world's greatest magazines. Heck, you're not even owed a drop of ink on the inside pages, or even guaranteed traffic to your online postings of said photos. Hey, you might get some "atta-boys" from the rest of the entitlement crowd that you convince to visit your corner of the internet, but then you're expected to go and hand out the same "awesome photo!" accolades to those, like a moebius strip of kudos, never ending, and never getting anywhere.

There are three podiums at the Olympics for each contest, and only one winner. Second and third are the runners-up, incase the first place winner cheated. The rest of the competitors don't get ribbons, and the only people who say they did a good job are their friends, family, and those that get paid to pay those type of compliments, lest they lose their job. These competitors know they must go back, and try again and try harder if they want to succeed.

From year to year, almost nobody remembers who won which Oscar, let alone who the losers were. Heck, even the presenters, admonished to say "and the Oscar goes to..." but more often than not say "and the winner is..." (belying how they really know things are) can't remember who won from year to year. Each year, the actors and actresses vying for the Oscar slog it out hoping to win once again, knowing that it's hard work acting, and if they want to keep doing it in the fickleness of Hollywood they better work at it.

The landscape is littered with the roadkill of those who think they are entitled or owed success in their chosen field. The sooner those with that attitude change, and really buckle down and do the hard work necessary to achieve success, the sooner they will achieve that success.

Success, real success, long-term sustainable success, is achieved by hard work day in, and day out. Don't rest on your laurels, lest they become the laurels of someone else. Sports legend Pat Riley once said "When a milestone is conquered, the subtle erosion called entitlement begins its consuming grind. The team regards its greatness as a trait and a right. Half hearted effort becomes habit and saps a champion.” What have you done today on your own personal road to become a champion in your field?

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eBay Unreasonably Exploits Your Photos To Sell Other Auctions

Say a year ago you were selling an XBox, a Dynalite pack, or an image of jesus in your chewing gum. eBay has those images stored on their servers (still), and unless you opt out by the end of August, your photo could be used to sell someone elses' widget.

In other words, all of the trouble you went through evenly lighting a subject, choosing the right point of focus, and so on, can be co-opted by eBay to sell someone elses' product. At first, you can expect eBay to do this for free, but over time, as with "enhanced listings", and so on, you'll likely have to pay a fee "for the convenience eBay is giving you of not having to take the photo..." or some other silly reason.

What do you, the photographer get, in exchange for their co-opting of your photo?

(Continued after the Jump)

PHOTO CREDIT, OF COURSE! eBay writes in response to the faq "Is there an advantage for me if my photos are chosen for the eBay product catalog?", answering "If we choose your photos to represent a product in the eBay product catalog, you'll get an attribution including your user ID and a link to your profile page whenever your photo is used on a product details page. This can give you extra exposure to a larger audience of shoppers."

Right.

So, I am B&H photo, selling a Nikon D3 kit, and I've paid my employee to photograph it. Now, some schmuck in nowheresville can use that image to sell their own D3. As I said before, eventually, for a fee you can expect. Just what B&H wants, people they're competing with using their own photos to sell against them.

Great.

What's worse, is that this is an "opt-out" scenario, meaning that unless you take action and opt-out of this, eBay gets to use them. Further, if you opt-out AFTER September 1, anything that was already selected they get to use. In other words, you may not take away the permission your inactions granted, ever.
To learn more, read here, and to opt-out, click here.

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Silly Rabbit - PicApp's Got Problems

PicApp, seen by some as a a solution to online revenue streams, just doesn't get it. Started by the same people that created PicScout (we wrote about PicScout here - Delusions of Grandeur, 5/27/09) - the model they're using of "free content that is ad supported" is a tried-and-true method of breaking into a crowded market. However, the next step is that once you have market share, then offering a "for a fee" version that does not have ads, and PicApp just seems to fail on several levels even in the initial offerings (which they will no doubt defend, since they are stating PicApp is still in "beta").

PicApp makes money off the photos by inserting ads into the image area. PicApp hold their application out as a legal way to post free photos from sources like Getty Images, Corbis, and Splash News, on personal blogs (Currently, you can't include your own images into PicApp to monetize them). Other images in thumbnail format are also overlaid on top of the main image, sometimes with problematic results (like the illustration above). They see hope to be able to then intersperse, overlay, or insert various ads into the window onto your blog where you can view the photo, and in turn, they earn a profit from those ads, presumably for more than it costs them for the license to show the image(s), with (or without) a split with the copyright owners. On the PicApp faq, one of the questions is "Can I take out the advertisement? " and the answer is "No. Please keep in mind, the advertisements are inserted so that we can continue providing you with such high-end, up-to-the-minute content."

The PicApp Terms & Conditions (here - terms and conditions), as Andy Beard (here) points out "that it is impossible to use these images and still syndicate your content within those terms and conditions", and further, it's a Javascript application, which means that it doesn't make it into RSS feeds.

A year ago, Getty alledgedly granted a blanket use of all the images in their library for PicApp's use, however this was supposed to be restricted to images that Getty "wholly owned", and not those of Getty contributors, where Getty would have to pay the contributors. Yet, that wasn't the case, and Getty images' non-wholly-owned images were making it into the PicApp application.

(Continued after the Jump)

Inquiries with sources familiar with the PicApp dealings suggest that perhaps they don't have the deals they say they do. For example, The PicApp service is supposedly to be used only on "personal blogs" so they are not allowed to use the PicApp capabillities on big media company websites or blogs, like MSNBC or CNN, because - surprise surprise, that would encroach on Getty/Corbis/etc deals where they are making money, and where PicApp would be a sort of iStockphoto canibalization of those revenue streams if they allowed PicApp onto those platforms.

Is, for example, this use on the "Chicago Now" website (here) a personal blog? Not hardly, since there are ads on it - yet on the PicApp faq, it says "Will the PicApp image work on a site with Google AdSense?" the answer is "Absolutely! The two are unrelated." Yet, there is a difference between "will it work" and "am I allowed to do it". One of the other faq questions is "Can I make money with PicApp?" and the answer is am ambiguous "Coming soon, so stay tuned! " However, a blog with ads, whether from Google AdSense, or any other money-making features, would likely be precluded from using PicApp, because it's not a personal blog. Both the Chicago Now blog, The Fox Atlanta channel (here), and MVN NBA Fantasy Sites (as shown here) illustrate just how horrible the PicApp thumbnails overlays are, interferring with the image content.

On PicApps' own blog (here) one commenter writes "Can you guys have a smaller Google text link ad as opposed to the big honking ugly one?" Another blogger writes (here) "I was kinda shocked to see that it embedded an adsense ad right below the pic! I guess I wouldn’t have minded this – had I known in advance. But I hate things that are done “sneakily”, if you know what I mean. I can’t find any mention of the adsense ad anywhere on the PicApp site, and the plugin certainly does NOT say “ad supported”." Once these concerns were raised by the blogger, he suggested that the PicApp previews which were misleading, would be more clear in the future, and supposedly an "opt out" of the money-making side of things, but I've not seen that, to date. Further, with Google shutting down their Video AdSense program a few months ago (because of integration and disappointing results), so too is AdSense delivering lackluster results as webmasters are grumbling about revenues being down. More than one site has reported similar to this - Google cost per click declines (here) with a 13% decrease.

PicApp is poorly designed, with questionable licensing explanations vis-a-vis personal-versus-commercial blogs and sites, and is relying on AdSense to support this "free" application. Where is PicApp getting the money for such a large "blanket" agreement with Getty/Corbis/et al?

PicApp's sister company PicScout generates revenues from two sources - spidering the web looking for infringements and delivering to you those results, called Image Tracker. From their faq "How much does the Image Tracker service cost?", where they answer "Our pricing model is based on a number of different metrics. If you're goal is to monetize the images found (either by licensing or unauthorized use claims), we charge based on a percentage of the recovered revenues. If your objective is only for analytics, we charge based on each qualified match. We also charge a minimum fee in case the other revenue targets are not met. Most of the time, our prices are determined once we understand your business needs and the mutual opportunity. If you have more than 30,000 images and are interested in talking about what we can do for you, please contact us."

So, Getty/Corbis/et al fall into that 30k+ category as far as image count is concerned, but what about the percentage of recovered revenues? This is the second source of income for PicScout, with sources putting the percentage as high as 60% in some cases. So, if your image gets infringed, PicScout will pursue the claim and collect, say $10,000,and keep as much as $6,000. Clearly, Getty/et al don't need that aspect of the service, but they do have image assets that could be made available to populate PicApp. Could it be that PicScout gets to tout that they have Getty and Corbis as a client (thus enticing others by this endorsement by Getty/Corbis), Getty and Corbis get free tracking of uses and possible infringements, and PicApp gets access to all the images to populate and start up the service with AdSense revenues being split with the agencies? If this is the case, it's certainly appears very incestuous. Getty can ill afford the offspring of such a union gone bad.

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Enter The Efficiency Experts

More than one person has brought to our attention that Bain & Company has been hard at work at Getty Images. For the most of the world, Bain & Co is unknown, but in the financial and private equity world, calling in Bain & Co is like applying part nitros-oxide and part spoiler to your hoopty. In other words, for those along for the ride, it's part good, part bad.

Bain promotes on their website (here) that [they] "...help our clients...find new ways to lower costs..." and "Many media companies will need to make major organizational changes" (emphasis theirs) Their home page notes "We help management make the big decisions: on strategy, operations, mergers & acquisitions, technology and organization."

What does that mean for Getty?

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Well Bain consultants were looking over the shoulders and taking notes while Getty photographers and editors were busy covering the Teen Choice Awards last weekend. I can just imagine what the Bain consultants were writing. Maybe silly things like "...photographers in head on position must shoot fewer images..." or "...photographers in cutaway positions must focus more on audience reaction..." especially when there seems to be no images of Vanessa Hudgens reacting to Dane Cook's slight of her.

Bain's focus is on increasing the valuation of a company and there are a number of underperforming segments of the Getty operation. By doing so, Getty's owners, Heller & Friedman, will know which departments can be re-organized (meaning, staff reductions) and which should be closed altogether (ex: LA offices). Once the best performing divisions are identified (no surprise, iStockphoto will be among them) then H&F can begin shopping around those, and closing others.

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Worth The Read: Mendelsohn's "The Lessons of Lindsay"

Supremely regarded photojournalist Matt Mendelsohn makes the push to get a story he's passionate about out, and it's well worth a read. The back story on this, is that it was scheduled to run in a national newspaper magazine, but did not because the paper was afraid it would scare advertisers away. During a time when there is so much discussion about Self Magazine (more here) photoshopping Kelly Clarkson thirty-pounds lighter, justified as (so what if we made her thin on the cover?; we're just trying to help Kelly Clarkson "be her best") this is a great rebuttal. These old pillars of publishing, which are now evidencing why they are losing readership, have been trumped by the online community (once again) with a thoughtful and well written piece by Matt - The Lessons of Lindsay.

It's too late for major traditional news media outlets to "get it", but for those committed to telling the story, there is a huge potential readership to be had, and this piece should go viral for so many reasons.

(Comments, if any, after the Jump)

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MacWorld Cover - From Start to Finish

What goes into a "simple" cover of two iPhones for MacWorld? Watch it here from start to finish:

(Comments, if any, after the Jump)

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** TIME SENSITIVE ** - Today, 4p East/1p West - Free Webinar on Trends of Successful Photographer Websites

Well well, the folks at PhotoShelter are at it again, with a free webinar, TODAY, 4pm EAST/1pm WEST. The link is here, and here are the details:

Emerging trends in successful photographer websites.

Build a website that photo buyers will love. PhotoShelter surveyed 550+ commercial and editorial photo buyers to get the scoop on what can make or break your photography website. Use the results to help you sell more photography. PhotoShelter co-founder Grover Sanschagrin will review the survey findings and discuss the designs and features that photobuyers care about most. Don't buy or design a website without this info!

So, if you want insights/guidance on how to do it, or get it done right, don't miss their presentation! Register here for free now.

(Comments, if any, after the Jump)

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Conveying Your Value to a Client

with client budgets tight these days what can you do to convince them that you are worth it? Lowering your prices is an Ill-advised plan because those clients will expect the lower rates when things get better.

Instead promote the VALUE you will bring to the assignment . By emphasizing value with phrases like " our approach to this assignment will bring real value to your customers' perception of your widget..." or "the value we will bring to this assignment will result in images that will make your prospective client more aware of the benefits of your service..."

(Continued after the Jump)

You can also emphasize the long term benefits of your work. Conveying to a client in your own words concepts like "long after the sweet fragarence of the floral arrangements had faded, photographs that stink will be a reminder of where costs should not be cut" or "four color press releases won't make up to photographs that miss the moment..."

Let me stress- these are phrases that illustrate concepts and using that language might come across with the unspoken perception of you being " how dare he tell me how to spend my money..."

In the end, you need to convey to your prospective client that you are the best choice for the assignment and right now in a cost-conscious economy, emphasizing your services as valuable will help them make the right choice-you.

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Obama Image Copyright Infringement Issues

To be blunt - NORML's use of the Lisa Jack image of Barack Obama is, in this author's opinion, plain and simple, copyright infringement. Photo District News did two great pieces on this - From Hope to Dope: Another Obama Poster Dispute and Getty: We'll Fight NORML's Copyright Infringement, so I won't re-hash what they wrote here.

What I will say about the image at right, is that the poster is an illustration SURROUNDING a photographic image. Unlike Shepard Fairey's claim of fair-use and derivative use, where (Fairey claims) the resulting image was so significantly different that other than angle of view expression/subject, the resulting work was not substantial enough that the original photographer has a claim (this is the inaccurate position of Shepard Fairey), this use has a hole in the center they filled with a photograph. Other than applying a green duotone tint to the original black and white, it's a photograph. They added in a swirl of smoke, but it's a photo, plain and simple.

(Continued after the Jump)

Since Getty is quoted in the PDN piece as saying "will aggressively pursue this matter as the copyright representative of the artist" the question at hand will be the soundness of Getty's copyright registration. If they simply included the Jack images in their own registration process, as a part of a "database addition" registration (which some agencies have done in the past), where they register multiple photographers' work in a single registration, that will be a big problem. If, however, Jack had registered the work herself, Getty will have substantial ground to stand on. The strength of this case will test Getty's (and other agencies) copyright registration procedures, if it goes to court, which is looks like it might. If Getty does go to court, and loses over a questionable registration, it could well signal open season on infringements on Getty and other agencies. Look to Getty to try very hard to settle this case quietly.

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