iStockphoto Indemnifies Clients Up to $250k

iStockphoto has stepped up their efforts to woo wary would-be clients by indemnifying them in the event the client gets sued, according to this report by Cnet - iStockphoto seeks profit from others' legal worries - 9/15/09.

The free-wheeling days of free advertising photos being sourced from the likes of Flickr were brought back down to reality after the highly publicized case of Virgin Mobile being sued after they used a photograph of a young girl in their ads without a model release. ( MSNBC - Virgin Mobile sued over Flickr image used in ad, 9/20/07) Further complicating the matter, the photographer, who assigned a Creative Commons Attribution license, sued Creative Commons, because, as this article points out (Flickr User Sues Creative Commons Over License, 10/4/07) "According to the photographer, he didn't realize that by licensing his photos Attribution Only, he was agreeing to commercial uses like advertising....they [Creative Commons] were explicitly targeting non-legally-sophisticated users (i.e., separating their licenses into Human Readable and Legalese) and urging them to use CC's form licenses." The Virgin Mobile case is just one of many lawsuits that have caused a chilling effect for major corporations' willingness to use Flickr/et al images to save a few dollars on the front end only to be hit with big dollar settlement amounts in the end. The AP/Shepard Fairey case (The Associated Press v. Shepard Fairey, 2/4/09), is among others.

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In one report on a now locked iStockphoto forum thread by Craig Swatton reveals "I was speaking to someone who works in London for a major global firm and on my suggestion they were going to come here for images to put into a presentation but it turns out the firm's global policy explicitly bans istock (along with one of the other main competitor)."

In the iStockPhoto licensing agreement, as of September 15, 2009, it states, in part:

7. Limited Representations and Warranties

(a) The Site acts as an exchange of Content between those who provide Content to the Site and those who wish to use such Content. iStockphoto grants no rights and makes no warranties regarding the use of names, people, trademarks, trade dress, patented or copyrighted designs or works of art or architecture or other forms of intellectual property represented in any Content. While we have made reasonable efforts to correctly categorize and keyword the Content, iStockphoto does not warrant the accuracy of such information.

(b) THE CONTENT IS PROVIDED “AS IS” WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ISTOCKPHOTO DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT ISTOCKPHOTO) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.

IN PARTICULAR AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IF YOU ARE DOWNLOADING CONTENT THAT IS IN A FLASH FORMAT OR FILE (WHETHER .SWF OR OTHERWISE) ISTOCKPHOTO MAKES NO REPRESENTATION OR WARRANTY RESPECTING SUCH CONTENT WHATSOEVER, WHETHER AS TO OWNERSHIP, TECHNICAL OR LEGAL COMPLIANCE, OR OTHERWISE.

9. Indemnification

You agree to indemnify, defend and hold iStockphoto, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “iStockphoto Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any iStockphoto Party as a result of or in connection with any breach by you or anyone acting on your behalf of any of the terms of this Agreement.

Clearly, some actuary did the math and concluded that the likelihood of an image being used and then a lawsuit being brought was sufficient that they could include, as a part of your $1.00 license to use a photo, atleast $10,000 in insurance, and as much as $250,000 if you are a frequent user of iStockphoto. Likely, iStockphoto is not self-insuring against this, but rather has a specific policy to protect them in these cases.

Interesting, since the v1.2(d) edition of the Flickr/Getty contract, clause 5 says that the contributor:

"Each party represents and warrants to each other that it has the full power, authority, legal capacity and is of sufficient age to enter into the Agreement and perform its obligations hereunder...content will not infringe the copyright of any third party, and will not contain any subject matter which violates any applicable law or regulation and, if released, will not defame, violate the right of privacy or publicity, or infringe the trademark or other personal or property interests of the parties..."

The contract goes on, stipulating that

"Each Party (an "indemnitor") agrees to defend, indemnify, and hold harmless the other Party..." and then goes on "Getty Images shall not be liable for any punitive...damages...you shall bear sole responsibility for obtaining and maintaining adequate insurance for protection of Content. If, despite the above limitations, liability is imposed on Getty Images for any of these reasons, in not event shall Getty Images' liability exceed US$10,000 in the aggregate."

Thus, iStockphoto/Getty/et al are protected because once the end client says "hey, I just got sued for using one of your photos..." Getty will offer to settle up to $250k, and then, in turn, has every right to sue the hobbiest/soccer mom/amateur for whatever they had to spend, plus all their attributable legal fees for handling this. These issues will also likely be reasons for photos getting rejected because of trademarks in the content.

As more lawsuits are filed from Flickr/Creative Commons/Royalty-Free uses of photography, those willing to spend high dollars for pictures will continue to turn away more and more from the penny-stocks, with these tens of millions of images being relegated to school reports and uninformed mom-and-pop shops who don't know what they are - and are not - getting. Atleast they're getting insurance, for the time being.

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NYC Presentation Next Week: The Art of the Deal

Interested in knowing more about how to negotiate with your clients? How to more clearly license your work? Next Tuesday, 9/22, in the evening, I am presenting The Art of the Deal at Adorama, Sponsored by Nikon.

Here are the details:

The Adorama Building
42 West 18th Street - Between 5th and 6th Avenues
5th floor
New York, N.Y. 10011

Event Description:
Join John Harrington, author of the best-selling ‘Best Business Practices for Photographers’, for an insightful and solutions-oriented presentation on how to generate more revenue from the assignments, through pricing examples and discussion, negotiation strategies, and demystifying licensing of your work.

Unlock the mysteries surrounding how to price your work, and learn ways to negotiate from a position of strength. When it comes to licensing, how do you write a license that gives the client the permissions they paid for, without leaving loopholes you could drive a truck through?

Through a series of actual negotiated assignments, we will break down the negotiation and explain how to plan for the questions you'll get, and to know the best ways to answer them. When it comes to pricing, there seems to be a world of secrecy around rates. We will discuss solutions for stock and assignment pricing, as well as discuss tools for you to establish your own. When it comes to licensing, we'll discuss and explain the standardized licensing solution that is the Picture Universal Licensing System (or PLUS), and how to write a license, where to put the licensing language, and what the best format will be.Throughout the program, all of these elements will be integrated into each assignment discussed.

To attend or learn more, click here.

(Comments, if any, after the Jump)

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Google Analytics 'Missing Manual'

Google Analytics is one of the best things since sliced bread. What if, though, you could see that bread through the plastic wrap, but could only get at a few morsels simply because you couldn't figure out the twist-tie? The folks at PhotoShelter have unlocked the secrets of Google Analytics - for the first time that we know of - with their free eBook explaining how to maximize the GA tools at your disposal.

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While the PS guide was written after months of research, and follows on their leading role in search engine optimization for the content they host for photographers, the tools and explanations are easily translated to most anyone using GA.

Almost 50 pages of content in total, spread across 3 files that comprise the e-Book, they break down and explain, in easy to understand terms, just how to maximize Google's free analytics tool. Not enough? PhotoShelter CEO Allen Murabayashi is doing a series of free webinars about their efforts and results.

How do you get the free Google Analytics for Photographers e-Book? Click here and enter your e-mail address. I promise it will be worth it!

What is Google Analytics? PhotoShelter CEO Allen Murabayashi explains it best "Smart photographers are realizing that a website is much more than just a digital portfolio where you show pretty pictures, but rather a powerful marketing tool that requires constant optimization,” he explains. “When a photographer adds Google Analytics, they gain the same type of data that the world’s greatest marketing organizations are using to make their websites more effective.” The PhotoShelter press release gives you more information - "With the insights from Google Analytics, photographers can easily determine the best sources of website traffic, top performing marketing investments, search keywords used by visitors, most engaging content, why visitors are leaving, and more. Used properly, Google Analytics data can help photographers dramatically improve their website performance and make critical decisions that grow their businesses."

Thus, in a nutshell, a website without Googles' free Analytics is like making pictures and guessing if the focusing ring is in the right place or not. Not partaking in this, and the rest of the free photoshelter research would be a fireable offense if you weren't self-employed.

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Associated Press and PictureGroup Form Distribution Alliance

September 10, 2009 the AP places another feather in their cap as they sign a distribution deal with one of the leading music and entertainment photographers – Frank Micelotta – as he formally launches PictureGroup. AP is just ramping up their NFL deal that they spirited away from Getty Images (The Associated Press and the NFL, 4/15/09), as Micelotta, who left Getty back in January, now has launched PictureGroup with an AP Images distribution deal.

Micelotta brings not just his decades of talent and connections to PictureGroup as CEO and Chief Photographer, but he brings together decades of talent from across the country under one umbrella in PictureGroup.

It has been said by many industry leaders that Photo Business News has talked to about this, that Getty Images has such penetration into the marketplace because of distribution, that they would seem to be hard to beat., and PictureGroup would have an uphill battle in gaining traction.

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Micelotta, despite having many marquee companies and organizations like MTV, BET, Comedy Central, FOX, MySpace, Columbia Records, Jive Label Group, RCA Records and EMI, would have to convince the prospective buyer to actively visit the PictureGroup site in order to license material. Getty benefits from people already being on their site and performing searches, and while Getty is a known entity and image resource, PictureGroup is not. As such, the concern is that, for example, MTV might benefit from people looking for images specifically from one of their events, but could lose out on the exposure from an MTV image fitting the bill when a search is performed for a celebrity where the event didn’t matter. These searches can reasonably be called unintended-but-beneficial results.This is where the AP distribution deal is remarkably genius.

Under the deal with the AP, Micelotta says “I am also thrilled to be partnering with the world’s largest and preeminent news organization, the Associated Press, and believe that this alliance allows PictureGroup to provide a unique offering to the entertainment industry.” And the AP is equally effusive, “We look forward to working with all of PictureGroup’s photographers to expand AP’s entertainment content, while furthering the evolution of AP Images into a dominant provider of commercial entertainment assignment services,” said Dan Becker, AP’s Director of Entertainment Content.

In one fell swoop, concerns about the count of eyeballs on images vanishes. More than Getty Images, the AP’s AP Images platform has more searches performed, which will lead to more of those unintended-but-beneficial results for picutureGroup and the AP.

Micelotta is not alone in leading this endeavor. He will run PictureGroup with Paul Melcher, who, aside from most recently being the CEO of REX USA, was also was Director of North American Operations and Sales for Hachette Filipacchi Photo Group. Melcher will likely continue to pen his Melcher System blog with his candid thoughts about the industry, and we look forward to those insights.

Micelotta adds “one of the reasons I am doing this is that there is an opportunity in the marketplace that wasn’t being filled, and I was hearing that from my clients. I think it’s really nice that we can start a company like PictureGroup, and hopefully empower photographers a little bit more to be able to run their businesses as photographers again, and have a company that will support them. We plan on supporting our photographers with technology, and we plan on supporting their clients, all the while letting them still work with their clients. I think we have a little bit of a different approach.”

Look to PictureGroup to be a most formidable opponent in the entertainment images arena.

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Related:
10 Questions for Frank Micelotta, 9/11/09

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Ten Questions for Frank Micelotta

Frank Micelotta ranks among the legends of the entertainment photography community. After founding ImageDirect and selling it to Getty Images in 2003, Micelotta served as their Director of Entertainment, before leaving to launch PictureGroup, along with another industry veteran, Paul Melcher. In the late hours of September 10th, hours after the launch was announced on Variety (Micelotta Forms PictureGroup), Micelotta took the time to answer our 10 Questions.

1. How will you compensate photographers at PictureGroup? In the past, Getty Images required a copyright transfer/work-for-hire in order to earn an assignment fee, otherwise the assignments generally were on spec. So is PictureGroup going to follow that model, or return to a model where photographers keep their rights, earn their percentage of resales, and earn an assignment fee, which is much more akin to an agent/photographer relationship?

Yeah, well, that’s exactly the point. I think that luckily for us, I think that about 90% of the assignment work we do – the photographer still gets royalties. They get a share of the assignment fee and they also get royalties when the image is licensed. I think that we are making it an attractive place for photographers to work and I think that we’ll attract some really quality photographers. We also have a lot of announcements we’ll make between now and the end of the year.

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2. Getty images has certainly changed since they acquired ImageDirect from you back in 2003. What two or three changes are the most pronounced (or, alternatively, bad), since you came on board?

I think that not all the changes are bad. I think that they certainly increased their coverage and focus on entertainment. When I joined the company, it was certainly sports and news and entertainment was given very little focus. I think they’ve paid more attention to entertainment because that is where the money is. Conversely, I think that they’ve driven the prices down because of the premium access subscriptions, which I think are just not a good thing, and I think you’ve taken the one part of the editorial market that was still healthy, and I think damaged it by really lowering prices significantly. I think the other problem is that – you know they did the acquisition of ImageDirect, and later on WireImage and FilmMagic – I think they just have too much content. Too much content, too many photographers, and I think that’s a problem. I think it’s a problem for clients not wanting to see that much stuff. I think it’s just a little bit overwhelming.

3. Many of the talented team of photographers you had brought to Getty, I am hearing from them, and they are saying that Getty was trying to force on them a work-for-hire contract, when the contract you had with them was much more fair, with reasonable pay rates and 60/40 or 50/50 revenue sharing. Was Getty doing this, and if so, how did you, and your photographers handle this?

In our previous company, we really didn’t do work-for-hire, unless it was something the client wanted, and was paying for. In our current company, in PictureGroup, it’s the same way. We’ll do work-for-hire, but in a case where the client is paying a premium for that and usually even if it is a work-for-hire we’ll get – we’ll maintain – the editorial rights, which I think is really nice. I think that Getty does do work-for-hire with the majority of their assignments, and that’s their take on where they need to be with the business now. You know, they have a much bigger business to support than I do, so I think that at PictureGroup we can be a little bit more fair to photographers and if the client is hiring us and then it’s not a work-for-hire I think we can just pass that along to our photographer and share the revenue on the assignment with them, and then share the licensing or royalties with them.

4. A contact of mine at a major womens' beauty products corporation shared with me that when they hire a photographer to come cover a red carpet event, or inside, for a few hours, they are paying between $5,000 and $6,000 to WireImage/Getty, yet the photo editors are telling the photographers they only have $200-$250 to pay, and all the rights (including copyright) are a part of that fee. Can you explain how Getty/et al thinks this is fair, and why any photographer would accept such a deal?

I don’t know what – to be honest – I don’t know that much about that part of their business, only because when I was at Getty and had my assignment work going through Getty, I booked everything with the clients myself. So I never really had interactions with people – the sales people – that were handling that stuff. I don’t really know. I’ve heard the same thing, and I think if it’s true, then the photographers don’t really know about it. You know, unfortunately, when I started at Getty, there was a revenue share on assignments of 65/35 I believe, and it was my understanding that that was always the way it was. I don’t really know if – when there’s a policy in place now of just paying them as little as possible, or what. I just don’t know. If it is the case, you know, I don’t think it’s a very good deal for photographers, and I think they really should question it.

5. ImageDirect clearly was a profitable business before Getty bought it from you, and Getty primarily bought WireImage to keep them from impacting their bottom line (oh, and for the WireImage contracts) but now it appears, with the race to the bottom, that the market for celebrity images has been slashed to within an inch of it's life. Can you explain how this happened?

Yeah. I think there’s a lot of people that have participated in the race to the bottom for the editorial entertainment market. I think that everyone has their right to lower prices, but I t hink when you see companies – when you see agencies willing to give away photos fpr $5, for a photo for online use. I just think it’s a very bad strategy. Getty has premium access subscriptions that has lowered prices significantly, but there’s a lot of smaller agencies that I see and they’re either trying to match the prices or they’re just offering images at really – at rates that you cannot run a business on. So, I don’t know, I don’t see these businesses – I don’t see their pictures published that much, so I don’t know how much they’re making, but I think when you have a small agency, with just a few people running it sitting in an office, they’re just trying to sign as many deals as they can for $500 or $1,000 a month for unlimited use. I just think that’s a really short-sighted strategy. I wish they would think a little bit more about the long term, but I also think that these people are not going to be in the business long term, so maybe that’s why they just are trying to take the easy way out right now, and offer these really low rates. It’s not profitable and you can’t run a business on those rates, so I don’t really understand the continual lowering of prices.

6. It is remarkable to me that the editors at Getty think it's reasonable to pump out 3,000 images from an LA red carpet event, when prospective clients like US, Entertainment Weekly, AOL, etc, each will likely use 10 to 40 images, and usually very similar ones. Why do these editors think that forcing their clients to wade through the haystack to find the needed "needles", is making their clients happy? Or, is this a pump-and-churn mentality forced upon the editors by senior management?

I think there’s too much content coming from almost everybody. I don’t think – it’s easy to look at Getty because they have three brands and they have so many photographers. It’s easy to look at them and the amount of images they put out. At the same time, I think that in certain ways they are stuck with the situation where they have a lot of photographers that they have contracts with and they have to support all those photographers contractually. So, they’re stuck with a certain volume. I’m not sure they can really take their volume down very much even if they wanted to. Again, I think there are a lot of smaller agencies that are putting out a lot of photos just because it’s digital, and just because it’s easy, and doesn’t cost any more to send 1,000 photos, then to send 100. I think if it cost them money to send more photos, you’d see the amount of images drop drastically. So, I’m not saying that’s something that people should do, you know, charge for the amount of images we submit, but, I would say that a little bit of editing goes a long way. When we met with all the magazines, what we talked to them about was returning to a reasonable edit. So, do a job, do a reasonable edit, make sure the event was covered, and that everybody was represented, and all the good pictures made it to the site, and to the magazines.

7. So many people talk about how clients are requiring work-for-hire contracts, yet that's not really the case, is it? I mean, while a corporate music client may want an extremely broad span of rights, and you can't license commercial rights anyway without releases, you surely are able to continue to license your editorial rights forever, right?

Right. I mean, the way we deal with work-for-hire is – my main objective is that we have the editorial rights. If we have to give up some rights on the other end, we don’t usually have a problem with it. I understand the realities of business now and we do a lot of music. The record companies are having a tough time financially, so our rates for a lot of the record companies have come down a little bit, and they need to have ownership of certain things we do for them. But, if they want ownership, but will give up the editorial rights, then we’re fine with that. Really, the editorial rights are all we have anyway, unless we negotiate the commercial rights, but they still come back to us when they want to license a picture for a CD single, or some other use, other than publicity, which is what we’re hired for. So, there are ways around it. There are ways to make sure it’s still a good and profitable business for both parties.

8. Why do you think photographers are so willing to believe prospective clients when they force a work-for-hire contract on them, and pay them a pittance, when the work is really worth much more? I know that people might think that your opinion will be based upon the fact that you are at the top of your field, but what advice would you give aspiring photographers about keeping rights and about being paid equitably for assignments and earning resales down the line?

I think that we have to look at the realities of the marketplace. That budgets have come down for quite a lot of work. I know it has for entertainment. It’s probably true for news and sports as well. I think if you have a combination of a reasonable rate for an assignment plus the ability to license it and generate royalties – I think you have to just balance it. Find a balance with your client that’s going to let you accept an assignment and feel good about it. I mean, we’ve very open with our clients. I’ll talk to them about things. Sure, we can shoot that for this rate, even though it’s lower than we would like, if we have the right to license the pictures and make up some of the difference. So, as long as they’re open to that, then we’re open to it too. I tend to not really want to walk away from an assignment – especially from a good established client – and if I have a relationship with a client for five years, or ten years, or, you know, 20 years, almost 25 years as is the case with MTV. When they need something, I’m going to take care of it. If the rate is down, or they’re at the end of their fiscal year, and they don’t have much money in the budget, I’m still going to take care of them because it’s in my own best long term interests. I think it’s a bit of a balancing act now. I think in particular, the way the economy is, the publishing market has been hit pretty badly. I think as photographers we need to look at that, and just be a little bit more intelligent about both the way we quote prices to our clients, and what we’re willing to accept from a client. I think a little bit of negotiating can go a long way.

9. Morale, from the people I am talking to, seems to be very low amongst the Getty editing staff. Do you think they are seeing the end-game, and realizing that their contributory role as "editor" in producing a quality product has become more of an image processor that is devoid of any real "editing"?

Well, I think that if you look at the way editing is done at big events, we’re all racing to move as many pictures as we can as quickly as we can. I think that for that reason, a lot of editors feel like they’re just pumping images out. Not really editing, as much as they are just being part of the workflow that moves images from the camera to a website. I think at some point that will have to scale back a little bit as well. These things are all connected. The amount of images, the amount of photographers, the larger file sizes coming out of the cameras all sort of command more work on the back end, so I think the business in general is stuck in a cycle where we’ve had to increase production on the back end due to all these other factors. It’s very costly to have editors, and we’ll have six editors at the video awards for MTV this Sunday, and that’s a pretty costly expense to have. I would like to be able to scale back on that as well, as I am sure others would. I’ve got to think that at some point we have to all find a more economical way of handling that workflow.

10. We have written separately - Associated Press and PictureGroup to Form Distribution Alliance – about your launch of PictureGroup and your distribution deal with the AP. What can you share with us that wasn’t in the press release?

I would say that we are working on a lot of other things both on the client side that will hopefully happen between now and the end of the year as well as on the photographer side. We have just begun this relationship with the AP, and we’re going to work very closely with them in the next few months to implement the workflow and make sure it works efficiently. I think probably the things I am most excited about are things that will happen in the next six months or so. We’re working on some deals that will be very big. Very good for Picture Group, and good for the photo industry as well.

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Related:
Associated Press and PictureGroup Form Distribution Alliance, 9/11/09

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Re-Stating The Value of Copyright

All too often I hear photographers justify giving away all the rights to their work, suggesting the images are worthless or next to worthless. Like grains of sand, over time, they can become a beach. How big of a beach? That depends.

Photo District News has done a great job of following Annie Liebovitz's trials and tribulations (Is the Leibovitz Archive Really Worth $50 Million?) and asked the question that a photographer who does not own their own images could never ask of themselves because the answer is obvious.

When you give up the copyright, or all the rights, the answer is $0. So, say you're not Annie, what is your work worth?

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Enter Manuello Paganelli. "Pag" spent many years in the Washington DC area before moving to Los Angeles to make his mark. Manuello has been a stalwart defender of photographers rights (and his own) for as long as I have known him. Manuello can take a great photo - he's a solid photographer to be sure. Pag isn't, however, Annie, Salgado, Avedon, or Newman. I'm not telling him anything he doesn't already know, but I am making the point that you Pag could be you.

He posted an interesting story about his experience generating $20,000 from images he made on assignment. The story is here - Done Deal Three Images Licensed for 20K, and is well worth the read, including checking out the photos, which he links to.

The point here - is that your archive - when you own all the rights to the work, is valuable. Just a few months ago, I did a portrait for a magazine, and the subjects' organization (a non-profit by the way) is looking to license the work - for the usage they are looking for, the fee that has been agreed to is $2k.

Copyright, and your ability to control what does - and does not - happen with your work is what separates you, the photographer, from a day-laborer. There's nothing wrong, of course, with being a day-laborer, unless you are creating images that other people are licensing and re-licensing and profiting from, and you are not a participant in that revenue stream.

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The Vendor-Client Relationship (Redux)

This video is worth watching frequently to remind you of how ridiculous it is when the client dictates the price and how much less than you quote the assignment for. (RSS readers click this link to view the video.)

(Comments, if any, after the Jump)

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Image Warehouse to Cease Operations September 30, 2009

Image Warehouse, started just over 2 years ago, by Carroll Seghers, is ceasing operations, effective September 30th. I was approached by Seghers following a presentation I made at the Professional Photographers of America in January 2007 about this idea. I knew then that the field had one too many players, and both Digital Railroad and PhotoShelter had premium products already in place. Last year, Digital Railroad failed in a massive flameout that left many photographers high-and-dry, some literally crying over lost images. It seems that Seghers is trying to give more notice, and be more responsible, in this letter that just went out to supporters and users of Image Warehouse:

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Dear Image Warehouse Supporter,

In mid – 2007 we went online offering our service as a favorable option for independent stock photographers who wanted to offer their images for use licensing to the global stock market. Uniquely positioned as a “full service agency”, we provided photographers with the ability to select images for sale, set the terms & prices and then publish the image into our online searchable database.

By January 2008, we had attracted a good bit of support in the photographic community and were adding photographers and images quite rapidly. Unfortunately, we were well into 2009 before we realized that we had failed to anticipate the pervasiveness of the “annual subscription” pricing plans that had been put in place by the major stock agencies, which now control a substantial portion of the commercial advertising agency business.

This situation, along with the growing share of small-to-medium agency and editorial business being taken by royalty-free micro-payment stock agencies, means that the “available market” has been significantly eroded, due in large part to the recession’s overall impact on ad budgets.

We are therefore providing you with 30 Days Advance Notice of our intention to cease operations on September 30, 2009.

This is so everyone can easily initiate whatever actions they prefer regarding their existing accounts and image files.

Your options are:

1. Sign into your account, access your images and individually delete them (this could be tedious for those with many images)

2. Respond to this email requesting that we delete your images, which we can do in “bulk” process and close your account.

3. Download a copy of your files to your computer for future use, and then follow up with either #1 or #2 option.

4. Do Nothing – Which will lead to your account information and image files being deleted by us after we have ceased operations.

We greatly regret the need for this action, but believe that it is best to provide advance notice to all, with sufficient time to smoothly wind down our business operations. All monies due to photographers and other Image Warehouse suppliers will be paid through September 30, 2009.

We sincerely appreciate your past support and wish you continued success in your future endeavors.

Best regards,

Carroll C. Seghers

Image Warehouse LLC

7 Woodhollow Road, Suite 2G

Princeton Jct., NJ 08550-4907

Early on, Image Warehouse offered ASMP members discounts, and the ASMP website showed this information about the company:

Looking for a stock agency that is really an agent and works for you? that takes no more than an honest sales commission? that doesn’t demand exclusivity? that is photographer-friendly?

Take a look at Image Warehouse, a startup company run by ASMP member Carroll Seghers.

Image Warehouse, a photographer-driven image archiving and stock picture sales agency, provides standard agency representation for a fee of 15%, and it offers a one-way transparent email negotiating system. It also provides a customizable e-Postcard application that enables you to do unlimited free “broadcasts” of your latest and best money shot with personalized text & graphics, or email a LightBox-SlideShow with multiple shots. And there are more user-friendly promotion tools under development.

Seghers' LinkedIn profile describes his role at the company as:

Lead visionary and architect of a Web 2.0 digital image archive & stock photo sales agency that provides sale representation and other services to professional photographers & illustrators targeting the $2.5B U.S. market for their creative output.

Seghers had stints at Leica USA, Konica USA, and Nikon USA, and other marketing jobs, before starting Image Warehouse, according to LinkedIn, in October of 2005. A search of the ASMP membership database returns no members with Seghers as a last name, so either he is no longer a member, or he is not a member photographer.

More as we learn it.

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** UPDATED ** How to rip off 1,000 Photos

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UPDATE: Kathryn Ellison, who was the author of this book, writes in her comments below "...The book has been cancelled, the site has been taken down, all images have been deleted from the server...", and you can read more about her position on this blog posting in her comment. She has also deleted her authorship of this book from her LinkedIn profile.

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Rip Off: - noun. exploitation, esp. of those who cannot prevent or counter it.

If you wanted to get yourself 1,000 free photographs that are royalty free, and a printed catalog for ease of browsing, what would be the best way? Why, call it an "opportunity" to be published in a book, and pitch it to unsuspecting students. When submiting "up to five photos" to the proposed book "Stocked Up: 1,000 Royalty Free Photographs" you grant royalty-free rights for the "privilege" of being published. So goes the idea that author is proposing for a book being developed for How Books and Rotovision SA.

"if I could...would ya..." So begins the scam that began on used car lots and now reads like "if I could promise your photo would get published, would ya give me all rights to it....". Kristin Ellison (LinkedIn: Profile) essentially is making that offer, because she wants to sell a photography book. And, if you want to sell a photography book, what better way to maximize your sales than to give everyone who buys the book a free DVD with 1000 high resolution photographs, including an unlimited worldwide license to commercially exploit each photograph?

(Continued after the Jump)

Don’t have 1000 good photographs to include in your DVD giveaway? No problem. Just sucker a bunch of photo students into sending you their best images and granting you unlimited usage rights and sublicensing rights in exchange for “exposure” and a grand total of $0. At least, that’s the genius gameplan that “author” Kristin Ellison and her publisher How Books and Rotovision SA schemed up for their new book. Ellison, on behalf of How and Rotovision are canvassing the photo schools and encouraging photo students to submit their 5 best photographs for inclusion in the book and DVD. The sad part is, they will probably receive far more than 1000 submissions, from students who don’t yet understand that by granting unlimited rights to Rotovision, they are injecting their images into the global marketplace forever, and are forfeiting any possibility of issuing exclusive licenses in those images. Rotovision also requires that each contributor indemnifies Rotovision from any liability associated with the photographs. Meaning that if any one of the adults or children appearing in the photographs sees their likeness in an advertisement, or for example, on a Nazi web site, and sues Rotovision, the student photographer is solely liable to the models.

Further, the website that promotes this endeavor is misrepresenting things to the unsuspecting contributors. When they write

"Please note: Contributors maintain all rights to, and ownership of, all images submitted. Contributors are granting RotoVision the right to publish their images in the book and on the DVD to be used by readers in any manner they choose."

This is a definitive contradiction. You no longer own any exclusive rights to your work. You don't have the right to license exclusive use to any client, and you have no right to preclude someone from doing something objectionable with your work. The list goes on.

Here's the sales pitch, that went out to educators worldwide:

I am the author of the upcoming book “Stocked Up”, a collection of 1,000 photographs. The book will be published next year in the US by How Books, and in the UK and abroad by RotoVision SA. I am writing to you because I am in the process of soliciting images for inclusion from all types of photographers, but especially students. When I was a photography major I submitted my work to a contest and was featured in the resulting book. This was an extremely empowering event for me and gave me confidence in my work. It was a professor who let us know about the contest and made one of our term assignments be to shoot images for submission.

I would be thrilled if you would share this opportunity with your students. It is free to submit work and anyone may submit up to five images via my website www.stockedupbook.com. The website contains all the details and necessary forms, but if you have any questions please do not hesitate to contact me at any point.

Thank you so much for your time and consideration.

Sincerely,

Kristin

Kristin Ellison
Author
Stocked Up: 1,000 Rights-Free Photos
www.stockedupbook.com

So, who exactly is Rotovision, and How Books? It can't be that this is the same How Books that publishes The Photographers Market book each year, or The Graphic Artists Guild Handbook of Pricing & Ethical Guidelines, or The Designers Guide to Marketing and Pricing, can it? Rotovision SA also has published a number of respectable books too, so it is surprising that they would be involved in something like this.

The contract you are required to sign reads, in part:

1 - I hereby assign and grant RotoVision permission to reproduce at any size the image/s submitted by me for inclusion in the Work, in all editions, co-editions, revisions, and reprints of the Work...The sole consideration for granting these rights shall be the promotional benefit to me of inclusion in the Work.

2- Contributors will not recieve complimentary copies as a result of their images being included in the book.

3 - Rotovision will have no liability over users of the DVD...Rotovision can take no responsibility for any pirating and onward sales of the images...

This, and the rest of the contract, is just plain wrong. The home page pitches you thusly -

"Just think, your work could ultimately be featured in a magazine, in a work of art, or on a greeting card, the possibilities are endless!"

Actually, the one possibility that does not exist, is for you to actually get paid by someone who sees your image, because it will be free to them. So, when it comes to earning money, the possibilities actually end - the buck does not stop here.

Interestingly enough, give this idea they propose on the website some thought:

"The more images we get to chose from the better the book will be. A better book will mean greater publicity for it (and your work) and wider distribution around the world. So tell your friends about it and get them to submit work as well."

If you're not really thinking at all, you'll tell everyone, and that would be a consistent thought process with agreeing to do this in the first place. The fact is, for every person you tell, you diminish your chances of being in the book. The "author", Kristin Ellison, is also the Editorial Director of WOWIO, having left RotoVision as Executive Editor before even a years' time, only to take up the title "author" for the first time when she was successful in pitching "Stocked Up". Ellison remains also as Editorial Director at WOWIO, who's slogan is "Free Books Free Minds". Among the books they are offering for free reading online is Susan Sontag's On Photography; Aerial: The Art of Photography from the Sky, and several black and white books by Terry Hope. Outreach to some of the authors and publishers whose material is listed online for free have not yet been returned to confirm these free offerings are legitimate or not.

So, what to do about all this? Why, write to the author and publishers to voice your displeasure. The "Author", who is better ascribed the title of either editor, or, well, you pick a colorful title, is {redacted} . RotoVision's publisher, whose name is at the bottom of the contract you must sign is April Sankey (LinkedIn: Profile) can be reached at: {redacted} . Their Commissioning Editor Isheeta Mustafi (LinkedIn: Profile) can be e-mailed at {redacted} as well. HOW Books, is a part of F+W Media, so let's start at the top with them. David Nussbaum (LinkedIn: Profile), the Chairman and CEO can be reached at {redacted} . David Blansfield (LinkedIn: Profile), the President can be reached at {redacted} . Also listed as a President is Sara Domville (LinkedIn: Profile), who can be reached at {redacted} . Stacie Berger (LinkedIn: Profile) is their Director of Strategic Communications, and can be reached at {redacted} . While it looks like RotoVision will be doing the distribution outside of the US, HOW looks to be involved in the US, and you might want to let them know how you feel about this idea that HOW Books would promulgate such a bad idea upon under-educated and ill-advised students who are ripe to exploit and have few or no tools to counter such a bad idea. Pressure from the top down on whomever is in charge of the HOW Books division might change their minds.

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NOTE: We have redacted the e-mail addresses in this updated post for the author and publisher contacts, since the book has been officially canceled, and there is no longer a need to write to them.

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Getty Images Splitting Sales With Celebrity Subjects on the "DL"

It seems that Getty Images may be playing fast and loose with the ethics of photojournalism these days. Getty is sharing in the sales of images of certain celebrities with the celebrities themselves, for example, in a little-known maneuver where they just happen to be in the right place at the right tim to catch a celebrity doing something, paparazzi style. They are, unfortunately, doing this on the down-low, and that's where the ethical problem comes in.

Back in March, Photo Business News wrote - Getty Images And Paparazzi Pictures (March 9, 2009) where Getty is using different brands to distinguish between "respectable photography" and "paparazzi". Since Getty and WireImage are seen by most publicists as a "white hat" wire service, equal to the AP and Reuters, Getty/Wire doesn't want to sully their reputation with gotcha paparazzi photography so they use another of their brands to take the reputation hit.

When an image is provided to the Associated Press, for example, from someone other than their staffers or as the result of a freelance assignment, their caption is clear on the source "In this handout photo provided by AEG, pop star Michael Jackson..." begins the caption for this photo, because AEG provided to all news outlets that photograph (which, interestingly enough is also a Getty Images image but AEG had the right to distribute because they were one of the contracting parties) and they do the "in this handout photo..." all the time.

When a photographer starts a fire, and then, oh, just happens to be first on the scene to make great photos, that's called a crime. However, when a celebrity says something like 'I'll tell you where I will be so you can photograph me but you have to share all the money you get from the photos with me', and then does not disclose this arrangement in the course of their "reporting", that's bad ethics.

How is this happening?

(Continued after the Jump)

Getty LA Entertainment staff Photographer Frazer Harrison may well not be in on the game, but here's how it works. Harrison is a staff photographer, and the photo credit for a staff photographer is "Fazer Harrison/Getty Images" or "Fazer Harrison/WireImage". In this example "Kim Kardashian And Kourtney Kardashian Go Shopping", the credit reads "Frazer Harrison/KA/WireImage", where the "KA" is the change in the credit that makes it possible for Getty to track the sales properly so that Kim KArdashian gets paid. Further, she can see exactly where "her" images appeared since they will be specially credited. How do we know that this particular revenue sharing is with Kim, and not Kourtney?
Why, because Kourtney has her own revenue sharing code "KK", as shown here - Kourtney Kardashian And Scott Disick Go Baby Shopping. "But how can you be so sure?" you might ask? Because if you check this link, you'll see that before they headed off to be "surreptitiously" photographed by the photographer, they had a portrait session with him using the same "KK" code. Harrison's images, however, are not the only Getty content where this is happening. When Getty's Florida staffer, Gustavo Caballero just happened upon a "sighting" of Kourtney and Khloe, his credit has the same code "Gustavo Vaballero/KK/Wire Image" - Khloe Kardashian And Kourtney Kardashian Sighting In Miami - June 18, 2009, and in this case, further, this image is billed as an "**EXCLUSIVE**", and further notes "(EXCLUSIVE, Premium Rates Apply)". Clicking this link it looks like Gustavo had to spend the whole day with Kourtney and Khloe doing "sightings".

It's one thing, for example, for Brad Pitt to use Getty as the distribution channel where everyone knows that he's getting money from it (and best that he donates it to charity) when they are the first photographs of his child, however, for Getty to put these images in their "editorial" category is ethically dubious, at best, without disclosure of the deal.

Getty, however, knows how to do a proper credit. When they decided not to cover the 2009 International Indian Film Academy Awards, they used the same credit style as the AP does for the images that were essentially a promotion for that organization, with Getty serving as the conduit (and picking up all the licensing fees for the ones they distributed at the same time).

Is this phenomenon new? No. Do other celebrity photo organizations do it, sadly, yes. The key is to disclose these things and be up front about them. You might suggest that this isn't "photojournalism" so who cares? Well, when the subject is a politician (like the many Congressmen) or a businessman (like Maddoff) who is marched in and out of courtrooms and photographed on the streets, we call that photojournalism, but then when a celebrity is photographed on the street, it's not the same? They are the same, and they should be subject to the same ethical guidelines and disclosures. The only real difference is that when a politician or a businessman breaks the law, or a celebrity is out for the day on the town, it is a difference between "need to know," and "want to know."

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