All over the place, all manner of "free" content is made available, provided - and this is the big caveat - that it's used for "non-commercial" use. However, at what point does a personal use become a non-commercial use, become a commercial use?
Over at "A Photo Attorney", attorney Carolyn Wright has a great explaination of the subject, in her article, entitled "Defining Non-Commercial Use" (5/22/10).
As with all advice from lawyers, be sure to check with your own for matters specific to your circumstances
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This is a remarkable way to reverse the way people look at publishing.
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Below is a painful video for ANY photographer to watch. I've known a few photographers whom have suffered this indignity.
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One thing that strikes me immediately is that, while the photographer clearly had two camera bodies, he unfortunately placed both of them at risk in this situation. Surely, we commend him for his focus on getting the shot, but not at the expense of his gear. And, does he now not have any gear to finish the wedding? He still has posed photos and the reception to cover.
In the end, this incident likely cost him when he has to replace both bodies and lenses. It appears that some tuxedo-clad attendant smartly grabs at the camera ASAP to minimize the effect, and it looks like the "write" light is still illuminated, so, well, who knows? Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.
Today, Creative Business Wire, launches, billing itself here as "Creative Business Wire is a digital imagery news service that specializes in business photography, and only business: the economy, Washington D.C., leaders, trends and other business related images are produced on a daily basis by our stable of acclaimed professional photographers." On the eve of their launch, with just about 8,000 images pre-populated on their site, we talked for some time with their President and co-owner, Sandy Huffaker.
In a wide-ranging interview, Huffaker seemed to come off as hoping for the best, while not really prepared for anything else. When asked about his photographers, he said "I've wanted to get a certain number of photographers on board, which as actually been kind of a challenge...it's been hard, because it's kind of a spec agency", which is understandable. Not that he's trying to do that, but that he's having a hard time because spec agencies/models are bad. We dovetailed that question into a question about how he intends to differentiate CBW from, say, a Bloomberg. "I'm trying to sign on really talented, high quality type photographers", I want to hire these documentary photographers... and have them go out and follow around a cobbler or a fisherman...really try to mix it up..." When we asked "so, it's kind of like assignment work on spec", he answered "exactly, exactly. And I'll plan to send out a needs list every night. It'll be a little bit of redundant work. There seems to be three to five business stories a day. I want the photographers to self-generate their own assignments."
This didn't sound like a promising idea, at all.
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Huffaker then offerred up David McNew, one of his primary contributors. "I have this guy, David McNew, who's a former Getty staffer, he got laid off, he's in LA, editors love him." So we asked, "So, if editors love him, why would David go out and churn images to be a part of a $100 a month online all you can use service? How is that economicaly viable for him?"
"I think he believes in it", Huffaker said. "He believes in the model where, say, you get 100 subscriptions at $300 a month, that's $30,000 a month, split between 10 photographers, I think that's real income." Then, it seemed, to a degree, he realized the challenge of his argument, then offered, "I'm not crazy about having such a low subscription rate for downloads, but in my research, seeing how Getty is offering $30 editorial images, it's kind of, it's the only way I can see to do it right now."
Since photographers now have a choice of shooting their own stock, and putting them onto a platform like PhotoShelter and marketing to a group of clients, picture stories, as produced, we asked him about this, "how do you see this as different than doing this themselves with PhotoShelter, and doing their own marketing?" He answered, "I think what's going to differentiate us is it's a very hand-picked select group of people. I'm really banking on some of our name recognition. A lot of our contributors work for the New York Times and Wall Street Journal...when I go to the New York Times tomorrow, 3 or 4 of us already work for them..."
When we brought to his attention that the New York Times has their own syndication deals for images, and there are a number of images on the CBW site that have as the byline "...for the New York Times", and that this could be a contractual problem there, and further, that the NYT's contract (at least the last one we saw some time ago) precluded photographers from using the New York Times' name to promote themselves, he responded "they've never expressed that to me...I better go back and look at that, because I haven't looked at that contract in awhile."
Despite billing CBW as "specializes in business photography, and only business: the economy, Washington D.C., leaders,", and co-founder Robert Benson over on the Lightstalkers forum (here) writing "We are looking for photographers in NYC and Washington DC" for "a very specific type of imagery: business photos (economy, transportation, green, economy, jobs, energy, washington, etc)" Huffaker said of DC and political imagery "I'm not going to focus as much on the politics, you know, Washington, you know, AP, Getty, they all have full time staffers doing that. Another thing, I know if it was me, I wouldn't want to shoot that stuff on Spec...". yet CBW is asking just that of DC photographers, and marketing that as the objective on Lightstalkers.
As to overhead, Huffaker said "I don't have CEOs, no office, basically, you can do this from a computer. It was incredibly cheap to start this thing. I went through Photocore, which, they did US Presswire. It was basically $1,000, and about $150 a month to rent the storage.So, it's very cheap to start up."
When we asked "have you run any projections as far as numbers", he responded, "I think our yearly goal for the first year is 40 subscriptions, I think 100 would be great. We need to be able to produce 3-5 of these daily stories, I think, to survive."
We presented a scenario to him, off the cuff. Since it's not our role to be his accountant, we didn't have a definitive set of numbers, so we tossed out a few examples. He had said he would have two of his 10 photographers in New York City. So, we asked, keeping in mind his goal of 3-5 stories a day, and that at least one of those each day would come from NYC. So, with his two NYC photographers, that equates to 2.5 stories a week, or 10 a month. We then suggested that if they were to go the route of shooting those assignments for the AP, they'd get $2,000 a month from the AP. How much would CBW have to produce for them to get the same amount from CBW? We even walked him through the numbers:
You would have had to have sold about $5,000 of their images for them to get $3,500. That means CBW would have to generate $50,000 a month for each of the 10 photographers to see a gross revenue of $5,000, which they would then get their $3,500 from. Thus, since their model ranges from $100 to $300, a mid-point of $200 per subscriber would be reasonable for the purposes of this scenario. So, in order to get $50,000, CBW needs 250 subscribers, so each photographer can get their $3,500. When we then suggested that 250 subscribers is more than double the 100 he considered "great", that presents a problem. If 250 subscribers earns each of the 10 photographers a net of $3,500 for the month, then 100 would earn $1,40 a month ($140 an assignment), and, with an annual goal for the first year of 40 subscribers, that's $560 a month, to do 10 assignments, or $56 an assignment. It's important to note - the photographer contributing in NYC would have to do all 10 assignments, and hope that they had enough subscribers.
When we presented this scenario, and asked him if he had run the numbers in some similar type of scenario, he said: " I haven't done kind of the math as you just did...I am so in the dark right now. I think we could get anywhere between 40 and 250. I'm feeling it's almost a shoe-in we can get, we have a list of over 4,000 publications, and we have a full-time salesman who's going to be on this." He then went on, "You know I don't know if it's proven or not, we worked hours on just trying to find some kind of formula ...I have to be honest, this model isn't proven...I'm not super experienced when it comes to the numbers stuff." Well, that's certainly a vote of self-confidence, in the eve of the companys' launch.
When we asked Huffaker who would be doing sales, he responded "A photographer who's worked for Zuma, he's been in their system awhile, so I can be out shooting. His name is Jerod Harris. He's kinda new, he's done some entertainment, so I am monitoring his shooting, he's very driven. " When we asked about him being full time sales, or part times sales part time shooting, since he has images on the site himself, he said "he's going to be fulltime sales....I'll let him go out and shoot the brands, you know, we have this brands link..." So, he's going to be doing both, it seems. Certainly, from the images on the site, he's got a lot there.
He then went on about the number of photographers, "right at this minute we have five really commited people." He then pointed out "I've officially stopped accepting new photographers". Whew, I'll take that as a sign that no one else out there is going to be subjected to this bad deal. He said he cautioned everyone he's signed already, "this is something on the side of your daily assignments...don't quit your day job...I have no idea if it's going to fly or not."
I do. It's not.
Near the end of our conversation, he offerred, "Come back in a month and we'll see if this thing is going to fly or not." Ok, I'll start with your website in a month, to see if anyone other than you, McNew, and Robert Benson, are still contributing images. When Huffaker said "Im a little inexperienced, to be honest, with this", and coupled that with a comment early on in our conversation he made - "my biggest fear is dicking over photographers", I say, stop now. Do not pass go, do not collect $200 from even a single client. Use the platform to license stock on an image-by-image basis, as the subscription model only profits the agency, not the photographer. Oh, but you just opened an agency, and are also one of the photographers too. Now I see. Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.
In New York City, the government entity that is charged with managing the city's assets on behalf of the people of New York, so that the city gets its' due for the use of city assets, and does not interfere (or if it does, you may more) with the comings-and-goings of New Yorkers, is looking to implement a fee of $300 when you are exploiting the city assets beyond what every other citizen is doing (i.e. walking around enjoying them.) This isn't some restriction on your movements, it's business, and you should get over it as some personal affront, and pony up (which you're passing on to your clients anyway!)
While $300 per shoot may be a bit excessive, and perhaps a $300 annual permit with, say, a $25-$50 per shoot application processing fee may be more appropriate, especially for the level of production that most still photographers bring to the assignment, production in the city puts a burden on the local government, and photographers should step up and recognize their responsibility to chip in. So, if you're an out-of-town photographer coming into the city and shooting on city property, you should pony up that $300 annual fee plus a the nominal shoot fee, and New York based photographers would be paying it once a year plus the per-shoot fees.
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Permits and permitting fees are nothing new. They are a form of a property release for the location you are working in, along with being an indicator that someone in authority has reviewed your stated intentions for doing what you propose, and acknowledges that what you are doing is proper, and does not leave it to the beat cop who nows little about what's happening, or why.
"But I pay taxes, this is my property too, why should I have to pay to use it?" This argument is about as productive as saying to a cop who pulled you over for speeding "hey buddy, I pay your salary...", to which more than one cop has pulled out a shiny penny, handed it to the driver with the issued citation, and said something along the lines of "here's your portion back." Your right to use collectively owned resources is subject to the approval of the others who also own it. It's like a restaurant deciding to use city sidewalks to make money by adding a few more tables.
What does a permit get you? In many cases, exclusive use of that space, and on larger productions, you can have a security guard (often in the form of a uniformed off duty police officer) direct your fellow citizens around the shoot area so they're not in your background, or tripping over cords. In some instances, exclusive use permits may cost more than ones that just validate what you're doing is ok.
The National Park Service has been charging for permits for several years now, and that makes sense. While it is hard to differentiate the avid hobbiest who takes his camera, tripod and long lens into a remote park to try to photograph some elusive animal, versus the photographer with a tripod who is making a living shooting stock of the same animals in the same way, so too is it difficult to differentiate the "family friend" amateur photographer who is doing bridal portraits at the Lincoln Memorial versus the $10,000 wedding photographer doing the same thing. Yet, the differentiation must be drawn when you are operating a portion of your commercial business on public property. Think about it this way - if you earn $5,000 a wedding, and do 20 weddings a year, that's $100,000. If out of an eight-hour wedding day, you shoot at the various monuments in DC for one hour, 12.5% of the time you are earning money each day you are doing so on publicly owned property. So, how much of that $12,500 in gross revenue should the government be entitled to? Well, at 2% the fee would be $250.
What about the insurance requirement that people are complaining about? Frankly, it is irresponsible for any photo editor/art director to allow a shoot to commence at their assigning without knowing that the business that employs them is protected from the accidents or errors that occur under the direction and control of the photographer they assigned. I know I can't walk into the Four Seasons Hotel, for example, to shoot a wedding reception without having provided them with a certificate of insurance proving I have coverage, nor can I do a photo shoot in the DC metrorail system without doing the same. Further, it's absolutely a poor business practice to not carry that insurance to cover yourself.
There are, however, challenges to this permiting issue. Is this effort a deceptive way to rid the streets of the paparazzi? As written, I can see that a paparazzi is engaged in a shoot for commercial gain, and thus, could they could be eradicated from the streets around celebrity apartments for not having a permit. What about news gathering? For all the altruistic statements about it, news gathering is a commercial endeavor, and thus, would news photographers be required to get a permit to cover breaking news? I know that a phlanx of 6 photographers back-walking someone in the news, or a horde of 15 still and videographers back-walking, say, Bernie Maddoff can run into granny on the street and knock her down and cause injury.
In the end, the fee is going to be imposed by New York City, and soon, other jurisdictions as well. Miami has permits and fees for the shoots that take place on public beaches too, so this is all the more reason why you should be passing along these expenses to your clients, and not complaining that it's coming out of your profits, because it shouldn't be in the fist place.
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Sygma, purchased by Bill Gates' wholly owned and privately held company Corbis back in 1999, has filed for bankruptcy protection according to a report in the French press here (via Thoughts of a Bohemian, 5/21/10), with tax debts of approximately 73 million euros.
As Paul Melcher at Thoughts of a Bohemian wisely surmises, French laws are remarkably more pro photographer than if this were a case in the U.S., and further, whatever court would take on this case could also be affected by anti-American/anti-big-business sentiments.
With a pro-photographer leaning in French law, Sygma was found liable for the loss of photographer Dominique Aubert's images, with a judgement of 1,500,000 euros. Following this, property and assets owned by Sygma were seized, and the game was essentially over.
Likely many of the Sygma photographers, with digital assets already in Corbis' asset system, will migrate to Corbis proper. In the end, as someone who knew of Sygma and worked alongside their photographers in it's heyday, it is sad to see the name disappear from the bylines, but, well, business is business, and so it goes.
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MediaStorm is the preeminent outlet for multimedia stories by photojournalists that incorporate still images, with intermittent video, and incredible audio to tell a story in an increidbly immersive way. Brian Storm, who founded the company, has been a leader in the industry for a very long time, and also spends a great deal of time getting things right.
One of the challenges for still photographers migrating to video is how to properly prepare the final package for publication/broadcast/posting in the many different arenas. To bring understanding to what can only be descibed as a Tower of Babel when it comes to the proper settings, MediaStorm has put together MediaStorm’s Guide to iPad Compression for the Web (5/17/10) which is well worth the read. In fact, Storm's entire blog should be on your daily (ok, maybe weekly) list of blogs to check out.
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Everything is about business. Plain, and simple. Getty Images continues to travel on its path of corporate suicide with their latest - slashing non-exclusive stock images to what amounts to a flat rate of $50. Yes, this is somewhat of an oversimplification of the deal, but for all intents and purposes, it's accurate.
The subsciption model isn't new, but it is what is causing so many of the image providers to become unsustainable properties. They only appear to be profitable, and while revenue does come in in the short-term, in the long-term it will not survive.
More than one photographer I've been in contact with raised the concern about this deal, that essentially includes Getty, AP, and Reuters, all agreeing to $50 images for Time Warner. If this is the case, could there be reasonable concerns about anti-trust issues? Indeed, it's worth someone looking into.
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In a stunning move, the US District Court for the Southern District of New York, in a lawsuit has found that not only is the methodology of how Corbis was registering the copyrights to images and their database flawed, but also the registration of images by Corbis, on behalf of photographers under its contract are invalid, in it's summary judgement grantied for the defendants, Houghton Mifflin Harcourt Publishing Company and R.R. Donnelley & Sons Company, in the case Meunch Photography Inc, v. Houghton Mifflin Harcourt Publishing Company and R.R. Donnelley & Sons Company (09-CV-2669) filed May 4, 2010.
The issue at hand is Corbis' methodology for registering images, which it has been handling the same way for almost every photographer, because the contractual language has been the same, for a very long time. The problem is, Corbis relied on direction not consistent with the statues and, it seems, in direct contradiction to the intent and spirit of the copyright registration procedures, when executing their registrations. Further, the US Copyright Office approved these flawed registrations, apparently, at the urging of Corbis.
Photographers contracts included the following language, as outlined on the court's order:
The agreements "grant to [Corbis] legal title in [Marc and David Muench's] images selected and digitized by Corbis and included in the Corbis digital collection solely for the purposes of copyright registration." Id. (emphasis in original).) After registration, Corbis agreed that it would "promptly reassign legal title to [Marc and David Muench] with respect to [their] registered original film images . . . "
If you are a Corbis contributor, and If that language looks familiar to you, then the court has also just set forth a path for every copyright registration that included your image(s) you submitted to Corbis to be invalidated. I first became aware of this issue when I viewed, first-hand, several Corbis registrations, which included images from hundreds of photographers, including the iconic black-and-white image of John F. Kennedy Jr saluting his fathers casket as it processed by, made back in 1963. I later learned from the Copyright Office that the justification for the inclusion of that image by Corbis was that it was an addition to a database, and that, further, certain things (retouching/dust-spotting/metadata/etc) were the justifications for the registration. From my perspective, these additions were deminimus to the creative content as a whole, and should not have been valid grounds for a registration, and I immediately was concerned for every Corbis photographer.
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We have been monitoring this case because of it's long-reaching impact on the field of photography and copyright registration, and was just able to download the file from a document filing service. In the court order, the court specifically addresses the copyright registration procedures, tries where it can to defer to the interpretations of the Copyright Office, but ultimately finds that Corbis was in the wrong. In the order, the court analyzed the facts thusly:
The Court is faced with the novel question of whether the registration of an automated database--here, a compilation of photographs by different photographers--by a third-party copyright claimant that has been assigned the rights to the individual works for the purposes of copyright registration registers the individual works thereby permitting the individual photographers to sue for copyright infringement.
The court, rather than trying to interpret certain issues at hand, among many other reasons for invalidating Corbis' methodology, notes that "A plain reading of § 409 of the Copyright Act mandates that the copyright registrations at issue here contain the names of all the authors of the work..." which Corbis did not do, among other things.
Then, in the court order, the court writes:
"The Court is not persuaded by MPI/s "doomsday scenario" that by granting Defendants motion millions of copyright registrations will be voided. Nothing could be further from the truth. Because Corbis is the author of the compilation the registration of the compilation remains valid. The individual works, however, are not registered."
The order goes on:
"The Court's ruling, although a seemingly harsh result for MPI, is guided by the clear language of the Copyright Act. The Court does not fault MPI for its failed forts to comply with the registration process. Indeed, from the record presented to the Court, it appears MPI's actions were completely appropriately sought the approval of the Copyright Office to ensure compliance with the statute. Unfortunately, MPI received poor advice and is now deprived, at least at this juncture, of the ability to seek statutory damages with respect to the Images not registered by MPI."
The conclusion of the court is that:
"For the foregoing reasons, Defendants' motion for summary judgment [dkt. no. 32] is GRANTED in part and DENIED in part. Defendants' motion is granted with respect to all of the Images except those Images registered by David Muench in January 1996."
Understand - this court order is a "summary judgement", in other words, the court didn't even begin to hear the cases of both sides - the argument by the defendant was so overwhelming, that there was no reason to actually move forward with the case.
As Corbis photographers, priority #1 right now should be to quantify which of your images were accepted by Corbis (and may now have invalid registrations) and begin the process of registering properly those images, as they are the most at risk of infringement right now, since it's open season on Corbis' images. If infringed, at any time in the past, and until you submit a new registration, you may find yourself without statutory damages and attorneys fees because of the Corbis error.
Priority #2 will be to quantify how much money you will have to spend to do this, and see if your contract allows you to recoup that money, or if the best course of action is a class action lawsuit (if it can be brought, subject to the terms of the contracts signed by the individual contributors, of course.)
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The President today, on World Press Freedom Day, said that "World Press Freedom Day is observed every year on May 3 to remind us of the critical importance of this core freedom...It is also a day for us to sound the alarm about restrictions on the media as well as the threats, violence or imprisonment of many of its members and their families because of their work."
Truer words on this subject cannot be spoken, yet before we encircle the world, we must mind the issues in our own backyard. Such is the case of Jonas Lara, a former Marine who served overseas, and returned to study photography, and who graduated with a degree. Lara, directed his considerable talents on documenting the underground world of graffiti artists, and has made some remarkable images during this ongoing project. (His blog can be found here).
After Lara had convinced the artists to allow him to photograph them (no small task), he recieved tips as to where they would be, and went there on his own to shoot it, in much the same way that, say, Mary Ellen Mark documented the prostitutes of Bombay (here), a photojournalist sometimes can find themselves present during illegal activities. In another example, just two weeks ago the RFK Center for Justice and Human Rights (info here) awarded Laura Bauer, Mike McGraw, and Mark Morris of the Kansas City Star an award for their piece "A New Slavery” Human Trafficking in America,”, a " revelatory series [that] exposes America’s weak enforcement system that fails to stop a modern day slave trade of thousands of victims of human trafficking." Simply being in the same place where a crime is being committed does not make everyone within a short measurable distance also guilty of that crime.
And to be perfectly clear - Jonas did not set up the shoot, did not encourage, the artists, did not paint. The artists would have been there with or without Jonas. Jonas merely documented the scene.
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Journalism is being redrawn before our very eyes, and simply because Lara was not working for a mainstream/well-known media conglomerate on a socially powerful human interest story (and some might suggest that the grafitti artist is a powerful human interest story anyway) doesn't mean that he's not worthy of protection as a member of a free press. Apparently, the police CONFISCATED AND searched his camera and used the images they saw to make further arrests and it seems they are suggesting that those images are evidence. I submit that those images were viewed and information obtained without a warrant, and in violation of Lara's First Amendment rights, and should not only be excluded as evidence, but (and I am not a lawyer here), but any arrests made by these "ill gotten gains" should be thrown out, as the evidence was not legitimately obtained.
Lara's public defender, David Gottesmann seems to be doing his client a disservice, if, as PDN reports (here) , "David Gottesmann, has so far refused to consider his rights as a photographer as part of the defense. “Every time I bring [photographer’s rights or First Amendment rights] up, he just laughs at me,” Lara says."
The NPPA, an organization that represents the rights of American press photographers, should be involved in this issue, for certain, as well as the Reporters Committee for Freedom of the Press. At a time when staff photographers are being let go left and right, freelance photographers working on stories on specific assignments (and accepting all liabilities for that assignment as per most contracts) or on projects that, when completed, they will propose to a media outlet or publish on their own, are the new lifeblood of the National Press Photographers Association, and as Lara is looking at a criminal conviction, someone of skill and talent defending the rights of photographers - again, especially freelancers - should be on this case, post haste.
The President closed his remarks saying "But for every media worker who has been targeted there are countless more who continue to inform their communities despite the risks of reprisal. On World Press Freedom Day, we honor those who carry out these vital tasks despite the many challenges and threats they face as well as the principle that a free and independent press is central to a vibrant and well-functioning democracy."
Amen. In the meantime, Jonas is inable to afford an attorney that doesn't laugh at his first amendment discussions or takes him seriously, so we should all step up and help him out. To do so, donate here. Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.
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