Friend or Foe? Social Networks and Your Image Rights

Which of the well-known social media websites - Facebook, Instagram, or Twitter, take a perpetual license to your images? By now, you should already know the answer - all of them, to varying degrees.

I would like to suggest to you that you should stay off Facebook, but that would be all but impossible. What I will tell you is that you should never post images from a shoot where not only could your client see the images (unless, of course, a part of your obligation to your client is to promote the results of your shoot via social media) but also, where the simple fact that you are granting the social media website rights to the image would violate the terms of the agreement you have with your client to the resulting images. It would be very easy for a client to cite this as a reason to not pay you, and otherwise to pursue you in court as well. To that end be absolutely certain you have the right to do that in writing.

Because social media has reached a critical mass, and it is difficult to ignore from a professional standpoint, where in many cases marketing your work is done via the social networking of today.  So, to that end, how do you make the sacrifices that their rights grabs call for while preserving your rights or at least understanding the value of the rights you are granting to them. Colby Brown (here) does a great job of breaking down many of the different social media issues. The bottom line is that most photographers that shoot weddings, rights of passage events like Bar Mitzvahs, and family portraits, will find a solid prospective client base on Facebook.  However, a commercial photographer could well be followed, and thus seen as actively out shooting projects, by art directors as well.

The American Society of Media Photographers (ASMP) has done an exceptional job of detailing what the latest Terms of Service means to you, the photographer. Visit this link to learn more, but here's one excerpt regarding the latest changes:

"These changes appear to allow Facebook to exploit your name, likeness, content, images, private information, and personal brand by using it in advertising and in commercial and sponsored content — without any compensation to you. Facebook claims the right to monetize, not just your images, but a sizable portion of your entire online identity."

My first recommendation, then, is to NOT upload a high resolution image to Facebook (I realize that suggesting you don't upload any images isn't likely going to be a viable option). There's no reason to do that. Of course, a sizable online image can easily be repurposed by those with nefarious intent, especially when they have online intentions for the work they'll infringe of yours, so a watermark is always important. More on that later. Many photographers are uploading 720 pixel images on the long side, and certainly no more than 1,000 pixels.

How might you upload images in a respectable workflow to Facebook and Twitter then?

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We use a workflow we recently expanded to include an service called ProPic. Before that, we would capture, enhance/adjust, watermark, and then upload. We've changed our "enhance/adjust" application to be Process instead of Snapseed. Neither one does watermarking, but there's more to that within the Process/ProPic workflow. Here's how we do it:

	Capture the image as you normally would, and the images are stored in the devices Camera Roll. We continue to use the default iPhone app because it is the only one accessible from the Lock screen, and also, allows for the switch between the still camera and the video camera. Until we can re-assign the icon there to a different app, we're sticking with this.
	From within Camera Roll, identify the best image you want to share. One of the problems with capturing and processing images within a different app, like using Process, which can capture the image, is we often will shoot more than one, so we just want to select and process the best image.
	Open up the Process App, and process as you see fit.  The app is not free, currently it's $14.99, and well worth it. I used to use Snapseed, and while I like that, integrating the ProPic capability alone is worth paying for this app. This app is not associated with ProPic other than it being able to upload to ProPic.
	Click the “share” icon, which is located in the upper right corner
	When the "share" window appears, instead of choosing Mail or Twitter, choose instead ProPic. You may also want to choose "Save Image" at the left, as Process won't save the finished file to your Camera Roll unless you ask it to. Select the ProPic icon(you should already have a ProPic account set up)
	Type in a caption or other description to accompany the photo. Select to additionally post it to Facebook and Twitter at the same time using the two switches, then click Send.
	The resulting image sent has a Copyright Notice added alongwith a thin black border. The image resides in your ProPic web account, which you can access at www.ProPic.com. The same image is posted to Twitter as well as to your Facebook account. If you want a larger watermark or copyright notice, then before entering Process, use an application like Marksta, or the one we prefer, iWatermark, to add in a larger watermark.

For more information on the importance of watermarking, and how you can use the Digital Millennium Copyright Act to pursue copyright infringements (even without registering your copyright with the copyright office) check the blog here for this law firm.


Here is the resulting image as would then appear on Facebook:


It's important to note that while ProPic does not take any of your rights like Facebook and Twitter do, whatever the current rights position is on those social media websites still remains.

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TIPS60 - How to partner with friends without making enemies

Here is another of our videos offering tips and inisights into the business of photography. a transcript of the video is included after the jump.

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TRANSCRIPT:Here are a few thoughts on opening up a business with a friend or partner. I'm John Harrington. When you open up a business with a friend or partner and you're starting out, let's say you're doing wedding photography and both of you are going out and building up a clientele where you're both shooting weddings together, it's really important that you have a contract that establishes that business. Now, if you're married that's one thing, or if you're in a partnership and the dissolution of that business would end up being handled if you both got a divorce completely differently than if you were just two friends, but if you're just two friends, growing a business together you want to make certain that down the line you understand that if that partnership does sour or that friendship does sour and you decide to go your separate ways, so let's say your friend decides to move to another state and wants you to buy them out, there needs to be an understanding about what assets are owned by the company, what assets are owned personally or individually and also who gets what and who has to buy whom out of what, and if there's a disagreement, who makes the decisions in the business. So it's really important that you write a contract that really takes care of all of these things, you might want to work with a lawyer.

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TIPS60 - Whatever you charge, to someone, it will be too much!

Here is another of our videos offering tips and inisights into the business of photography. a transcript of the video is included after the jump.

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TRANSCRIPT:Here are a few thoughts on pricing models. I'm John Harrington. No matter what you charge for the photography services you provide, for somebody, is going to be too much. Maybe someone was thinking of spending $50 or $100 on a portrait and your portraits are $750 or $1,500. Maybe someone was thinking about spending $500 and your portraits are $2,500. No matter what, however much you charge, it's going to be too expensive for someone. I strongly encourage you to not be discouraged by this, but in fact recognize that just as there are those people who buy a t-shirt say at Kmart or Wal-mart, there are also people who buy t-shirts at Nordstroms and Saks Fifth Avenue. The clients that you want are the clients who are willing to pay a premium for the value and the quality of services you bring and the level of customer service you provide. So don't be discouraged because, as I said, you will always be too expensive for someone.

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TIPS60 - On Errors & Omissions Insurance

Here is another of our videos offering tips and inisights into the business of photography. a transcript of the video is included after the jump.

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TRANSCRIPT:Here are a few thoughts on E and O insurance. I'm John Harrington. E and O insurance, or errors and omissions insurance is a really valuable insurance offering that extends the benefits of your general liability insurance to cover claims by a client of neglect or inadequate services. It will pay for your attorney costs any settlement costs it's really a nominal amount of money in addition to your general liability insurance and is well worth it. Look in to various E and O riders that might be available from your insurance provider to have that extra amount of coverage. I would strongly encourage you to consider errors and omissions insurance because, if someone suggests to you, ""Well, Oh, you didn't do a good job"" or didn't do a good enough job, you didn't turn up, any variety of things that could go wrong errors and omissions insurance will cover you. It's worth looking into.

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TIPS60 - The benefits of raising your rates (besides the obvious!)

Here is another of our videos offering tips and inisights into the business of photography. a transcript of the video is included after the jump.

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TRANSCRIPT:Here are a few thoughts and moving up to the next caliber of client. I'm John Harrington. Clients come in all shapes and sizes. They could be mom and pop corner store down the street, it could be the local grocery store, could be the local store that sells clothing and apparel, it could be a national chain, it can be an international chain. All of them are in kind of a hierarchical scale, not just the in the level and quality of work that you're doing for them, but also in the economic sphere. Whether the mom and pop store might consider $200, $300, $400 to be the most they should pay for photography, whereas an international apparel company recognizes the hundreds of thousands of dollars necessary to pull off a shoot that showcases their entire line. It's really important for you to understand the escalation from one tier to another and understand that your rates are going to raise as you're going up. So think about that. Think about raising your rates to increase yourself from one tier of client to the next.

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TIPS60 - Why register copyright?

Here is another of our videos offering tips and inisights into the business of photography. a transcript of the video is included after the jump.

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TRANSCRIPT:Here are a few thoughts on the value of registering your copyright. I'm John Harrington. You can shoot all you want, make as many pictures as you want to and have your work stolen and deal with your clients without registering copyright if you want to, but ultimately registering your copyright with the United States Copyright Office is incredibly important because it allows for you to actually file a claim in federal court for copyright infringement. It also allows you to have statutory damages, which is basically a penalty or punishment for infringement of copyright and here's the big deal, it actually allows for you to have your lawyer's fees paid for by the people who stole your photography. It's very important you register copyright methodically and on a regular basis. It's something you can do every month, every two months and have a full force and effect of copyright registration as if you had done it the day that you took the picture. You have a 90 day window to register and still have full protection. So register your copyright all the time.

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Deception? Getty Images & The Pinterest Deal

The Carlyle Group owned Getty Images may be operating in a deceptive manner as it relates to the reporting of income, sales, and licensing of content under their recently announced deal with Pinterest. Under the now private ownership of The Carlysle Group, very little about the business dealings of Getty Images is available, but from time to time, interesting news can slip out.

Let's first look at Getty's blog post announcing the deal. Here are several relevant excerpts from the blog post about just what Pinterest is paying Getty for - Metadata only:

"Getty Images and Pinterest have struck a multi-year deal to drive a more visual world by combining our rich metadata and compelling content ..."

Metadata makes an appearance in the above quote, followed by an aggrandizing comment about the "fantastic Getty Images photographer..." and details on the information (that is, metadata) about the designer of the boots that appear in the photo:

"Let’s say you’re browsing Pinterest and see an image of Beyonce wearing totally fierce boots. But there’s no information about who designed them or where you can get them! It may also be hard to find out that a fantastic Getty Images photographer shot the picture."

Now, Getty makes it clear that the metadata is what's being sold/licensed, and that the photo then gets "photo credit" and a link.

"Our new partnership with Pinterest offers a solution....we’ll use our API, Connect, to provide relevant metadata to Pinterest – including Getty Images photo credits, where and when the image was shot and more. We’ll get a photo credit for our images on Pinterest’s site and a link back."

Here, Getty makes it clear that the payment is only for metadata. The below statement is as definitive as President Obama's statement regarding healthcare that if you like your doctor or health care plan, you can keep it. There's no question or equivication - Getty's getting paid "for this rich metadata":

"Pinterest will pay Getty Images a fee for this rich metadata, which we’ll share with contributors. "

If a photo licenses for $1.00, what do you suppose the metadata would license for? $0.01? $0.10? Certainly, the figure is a fraction of what the image would license for, and then, that fraction of the photo licensing income is shared at Getty's disproportionate percentage split in their favor.

Nowhere does Getty state that Pinterest is paying for an image license.

Why is it important then, that Getty make it crystal clear that the payment is for Metadata? Let's look closely at a few sections of Getty's contract with contributors.

First Getty details that the agreement is for "Accepted Content" and then defines what "Accepted Content" is:

"This Agreement applies to all Content (as the term is defined in Section 1.2) that you have previously submitted and, in the future, will submit, that is accepted for distribution by Getty Images (“Accepted Content”). "

"1.2 Types of Content: This Agreement will apply to the following types of content (the “Content”): (a) photographs, illustrations, or other still visual representations (“Still Image(s)”); (b) moving visual content in any form including, film, video tape, digital files, animation and clips (“Footage”); and (c) font, audio file and any other work protected by copyright, in all cases, generated by any means and in any format or medium, including any reproductions and any modifications and derivative works thereof. "

It's clear there, above, that the content is "photographs" - not metadata. Below, Getty first states what should be obvious - that you own the rights to your "Accepted Content", however, Getty then goes on to make it perfectly clear that "Getty Images will own all right, title and interest, including all copyrights that arise apart from the copyright in your Accepted Content, to all types of derivative works created by or for Getty Images that contain multiple items of Accepted Content and/or other Content:"

1.13 Copyright to Accepted Content and other Works. Subject to the rights granted in this Agreement, you will retain all right, title and interest, including copyright, in all Accepted Content including when it is incorporated in a derivative work created by others. Getty Images will own all right, title and interest, including all copyrights that arise apart from the copyright in your Accepted Content, to all types of derivative works created by or for Getty Images that contain multiple items of Accepted Content and/or other Content. Either you or Getty Images on behalf of you may register the copyright in any Accepted Content with the relevant copyright authority.

So, apart from the "photograph" part of "Accepted Content", Getty owns everything else - metadata, "and/or other Content".

Again, contributors are being compensated for a fraction of a metadata fee rather than a fraction of a photo licensing fee, because Getty has made it perfectly clear that they're only being paid for metadata.

Until yesterday.

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At a conference held here in the Washington DC area, the US Patent and Trademark Office held a conference - "Copyright Policy, Creativity, and Innovation in the Digital Economy" (details here) for a day-long conference. I watched the webcast, and participating in the conference was John Lapham, Senior Vice President and General Counsel for Getty Images.

Here's the video: If you scrub forward to about 19:10 in the video, the discourse on this subject begins.

Lapham first states regarding the Pinterest deal:

"....a healthy percentage of their content belonged to Getty Images contributors, and rather having a slap flight about what should and should not happen with pictures on their site, to say, as pictures are moved around, you lose the metadata, you lose the attribution. and instead of yelling at each other about whether or not you should be licensing pictures or not, let's reattach the metadata properly to those images, and let's have our contributors in turn receive the royalties that they are due for the use of their content. That was the goal in reaching that type of arrangement..."

The moderator Ann Chaitovitz, Attorney‐Advisor for Copyright, Office of Policy and International Affairs, USPTO, presses Lapham, because all of the previous statements by Getty have been that payment by Pinterest was for metadata only. So she re-asks:

"Thank you. umm, so can I, just to clarify my understanding, it was, metadata - you re-attach the metadata, was their also a kind of a payment, or was that for, they would be tagged for future uses they would have the metadata?"

Lapham responds:

"Uhh, the arrangement works so that, uh, as, we have a database, an imagery database, that contains, you know, tens of millions of pictures, not only of ours, but of competitors, of other companies, and we can match that database of images up against a website to find out what the matches are. And so using that image recognition technology, we can say, you know, we can say, looking at the USPTO website for instance, that you have 110,000 Getty Images photos on there, and those images no longer have their metadata, we'll re-attach that metadata and the fees that can be charged for that can be on a per image per month basis so that the individual who created that work is in turn being compensated back for that."

Lapham makes several points. In his initial statement:

"let's have our contributors in turn receive the royalties that they are due for the use of their content."

He then states in his follow up:

"we'll re-attach that metadata and the fees that can be charged for that can be on a per image per month basis so that the individual who created that work is in turn being compensated back for that."

So, the fee being charged is for re-attaching the metadata? When he says "the fees that can be charged for that", he's clearly referring to the action earlier in the sentence "we'll re-attach that metadata..." and then, does the "compensated back for that" at the end of the sentence - does the "that" refer to their being the one who "created that work" or the re-attaching?

Why is this important? Well, in the Getty Images contract, Contributors transfer their right to sue (and/or settle) an infringement claim:

1.11 Right to Control Claims. Getty Images shall have the right to determine, using its best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of Accepted Content. You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual property rights (“Claims”).

We're asking a nuanced - but very serious question here. Lapham makes it clear that a healthy percentage of images on Pinterest are Getty's contributor images. Up until the deal, the presence of those images were infringing on the copyright of the owners of the images. Getty stated they didn't want to get into a "slap fight" with Pinterest. We're talking about millions of images, and the difference between what a photographer would receive as a portion of metadata fee versus a portion of income from an image license could mean millions more dollars in Getty's coffers at the expense of the contributors, just because of how the agreements between Pinterest and Getty, and between Getty and it's contributors, are written.

It would seem to me that it's deceptive to announce a deal where income comes from metadata, but then to -- in a not-as-widely-distributed forum where the message isn't massaged by countless re-writes of a press release -- to get a different answer that Getty may well actually be getting paid image licenses, for which they would, in turn, owe contributors the higher figure. Clearly the moderator had a different understanding going into the question, and she's a well regarded attorney advising the government on intellectual property matters, so it's not an insignificant detail that she's confused by what Lapham said as incongruous with the previously announced deal.

So, the question on the table that Getty Images contributors are due an answer to is "Are we being compensated for our Accepted Content (i.e. photographs) or are we being compensated for the metadata?" Lapham made it clear that they are due their royalties for the use of their content.

The follow up question is - "How much is the gross income per photo licensed, and how much is the gross income for the metadata fee for re-attachment and display?"

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TIPS60 - Maximizing the Tax Deductibility of a Business Meal

Here is another of our videos offering tips and inisights into the business of photography. a transcript of the video is included after the jump.

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TRANSCRIPT:Here are a few thoughts on how to maximize the tax deductibility of a meal. I'm John Harrington. If you have a staff, if you have people working for you, when you're taking them out to a meal and you go to a restaurant and the bill is $100, you're actually only able to deduct about half of that. That being said, if you order carry out or take-out from that restaurant, bring that meal back to your office, the same exact meal, it becomes then an office meal, a meal taken in your office and as such is 100% deductible so that $100 charge you can deduct at $100 rather than $50. Now, I'm not an accountant, you just check with your accountant on this, but the benefit of having that meal in the office at 100% can be well worth getting in the car and bringing it back to the office and sitting around a table in the conference room, or otherwise just talking business in the office environment. So look into the tax deductibility of your meals and how to deduct them by maybe bringing them back to the office.

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TIPS60 - Staff2Freelance - Why and How to give out freelance business cards

Here is another of our videos offering tips and inisights into the business of photography. a transcript of the video is included after the jump.

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TRANSCRIPT:Here are a few thoughts on what you might want to be doing when you're thinking about the potential for transitioning from staff to freelance, either expectedly or unexpectedly, related to business cards. I'm John Harrington. Now you should always have your own set of business cards with your own cell phone number and your own contact information and you should be handing those things out when you're talking to PR people or editorial clients that you might be working with from time to time on the side, if you're allowed to work on the side with clients. Having your own personal business card, handing that business card out on a regular basis is a good thing because it gets your name out there. Obviously, you need to be sensitive to any restrictions that your company has about doing freelance work or handing out your personal business card, but you should always have one when the opportunity presents itself. Be giving that business card out, generating a collection of clients that are interested in you and your professional services as a photographer. And if you can't do the job, what you can do is take that phone call and refer it on to a friend or colleague who you think might deserve the work.

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TIPS60 - The importance of having disability insurance

Here is another of our videos offering tips and inisights into the business of photography. a transcript of the video is included after the jump.

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TRANSCRIPT:Here are a few thoughts on disability insurance. I'm John Harrington. Disability insurance both short-term disability and long-term disability is something that you should have as a part of your kind of business package of insurance as a photographer. Frankly, for any business where you have the option you should take disability insurance. Should you become disabled for three weeks, a month, six months, or a year, having disability insurance allows for you to have an ongoing stream of income from that insurance policy while you're recuperating, while you're recovering, so that you can get back to work. So that you don't have to actually sell-off assets in order to pay your bills and just generally lets you stay within the house that you have you know, other accommodations, things to provide for your family. Having disability insurance, comparable to long term care insurance, but just kind of a different flavor is something you should look into. Talk to your accountant about the tax deductability of it, but it's not that much and generally speaking it's less than $100 a month.

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