Lifetime Revenue Streams

Rob Haggert, over at A Photo Editor, has a great article up, entitled "Why Would You Quit Working with a Freelancer", that I posted a lengthy comment on, and the thread and comments are well worth a read. That said, what I wrote is a good standalone piece, so I've re-edited it, and am posting the thoughts here as well, since several projects have kept me tied up these past two weeks and have precluded me from having the bandwidth to write much of late.

So, enjoy, and I hope you make it over to Rob's blog to read more.

(Continued after the Jump)

There is an expectation is that our success rate must be greater than that of a surgeon in order to remain in business. There is no margin for error, even though a life is not on the line, just a blank space on a page in a publication.

I strive to meet - and exceed - client expectations, whether it is an editorial client or a corporate client. Often the "one for thee, one for me" approach caused the "one for me" to be the better image that the client used, even though it was not the assignment. Note - the "one for thee" comes first, then you can experiment.

Doug Menuez's recounting of the Business Week panel comments also is spot on. A photo editor only gets so many "the shoot didn't turn out" excuses before their judgement about what makes a good photographer gets called into question, and they are soon sidelined, or let go.

What makes a good photographer, first, and foremost, from a clients' perspective is one that can produce AN image, on time, and for the agreed upon budget. When that image meets basic quality standards, they might get a call again. When that image is better than average, they float to the top of the call sheet, and when that image is exceptional, they not only are the first to get calls all the time, they get flown around because there is significant value in a guarantee (or as close as you can get to one) of a great image regardless of the circumstances you throw at the photographer.

Case in point - I have one editorial client who is always calling me to make images that are a huge challenge. Small cubicles, mini offices with no decor and white walls, people in basement office space, and so on - you get the idea. Often they are cover images, but sometimes, inside ones. Every so often, I kid her and say "geez, when am I going to get an easy assignment", and her response is usually something akin to "I give you the hard ones because I know I will get good photos...", and while I certainly appreciate the vote of confidence, sometimes I think I might just like to walk in and knock it out, but, in the end, pushing those limits, and creating a silk purse out of a sows' ear is appreciated by this photo editor, and, in the end, keeps me working.

One of the messages I try to convey to colleagues is the lost revenue stick (carrot?) regarding a lost assignment:

1) You spend a great deal of effort making a prospective client aware of your work

2) You convince a prospective client to hire you for an assignment

3) You do a great job, and earn $2k for the shoot

4) Client calls you next month. you earn $1,500k or $2,500k on that job.

5) Over the life of this ONE client, you can earn tens of thousands of dollars, just from one consistently satisfied client.

6) One consistently satisfied client will recommend you to several other people over the course of their career, thus, one client can be the root cause of upwards of $100k in revenue, over your photographic career.

Now, if I told you that any given job that you would do for that client would cause that client to (at first) think twice about hiring you or (after a second screw up) not hire you, and thus, that single $2k assignment wasn't actually a $2k assignment, but rather a $100k lifetime revenue stream, how seriously would you take the assignment? Would you take extra cameras and lighting equipment "just in case"? Would you have a backup laptop? How many safeguards would you put in place to ensure that each and EVERY assignment went off without a hitch?

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The Associated Press and the NFL

It's official. The NFL sent out a message to the 32 club owners' Public Relations Departments, announcing the change. A particularly interesting passage from the memo that went out reads:

In addition to covering every NFL game and numerous other NFL events, AP will provide the league and its 32 clubs with full use of all AP NFL photos for editorial, marketing, and charitable use free of charge. AP also will coordinate the annual team headshot process.

Clubs will need to credential AP in a manner similar to Getty in years past.

So, AP will be getting more, (and presumably better) credentials, no doubt. This will give them (potentially) better access and a leg up on competition with Reuters, Agence France Presse, and so on. But, at what price? How much editorial integrity will be sacrificed by the AP in exchange for this commercial deal?

As we noted previously (NFL and the Wayward Getty Images, 4/9/09) , the AP carried images of the NBA brawl, but Getty's site, which originally had similar coverage up, were instructed (asked?) to remove them by the NBA. How will the future "black eyes" on the NFL be covered by the (now supposedly?) independent press that is the AP? The next "Michael Vick incident"? Another "wardrobe malfunction?" And what will happen to the AP guarantees if the players get locked out in two years for contractual reasons?

There is a lot to ponder in this new deal, and I surely expect much more to come. The full memo is after the jump, less the redacted e-mails and names.

(Continued after the Jump)

MEMORANDUM

TO: Club Public Relations Directors, Club Internet Directors

FROM: XXXXX, XXXXX

DATE: April 15, 2009

SUBJECT: NFL / Associated Press Agreement

We are pleased to report that the NFL has entered into an exclusive new commercial licensing agreement with The Associated Press for all NFL photos. Beginning this month and continuing through at least the 2011 season, AP will provide the services previously handled by Getty Images.

AP will serve as the NFL’s exclusive commercial photo distributor – the only entity authorized to sell NFL photos to NFL business partners and licensees. AP also will have the exclusive right to license NFL-owned historical photos for commercial use. AP is also willing to manage and license images owned by individual photographers, but it will be the decision of the individual photographer who owns the copyright on whether to work with AP. (AP will continue to license NFL editorial photos non-exclusively as it has in the past).

In addition to covering every NFL game and numerous other NFL events, AP will provide the league and its 32 clubs with full use of all AP NFL photos for editorial, marketing, and charitable use free of charge. AP also will coordinate the annual team headshot process.

Clubs will need to credential AP in a manner similar to Getty in years past. A recommendation with regard to specific numbers will be communicated in the months ahead.

The AP is one of the preeminent global news gathering organizations in the world and we believe that the services provided to clubs and the league will be outstanding. We appreciate the work that Getty did these last five seasons and we are confident that AP will service the clubs in a first-class manner going forward.

You will receive an e-mail shortly from AP with login information for its web site where you will be able to download photos. The e-mail will include instructions you can send to other members of your staff that also require access to AP’s web site.
We will follow up with Public Relations directors in the days ahead to provide additional information regarding specifications for headshots (the process will be similar to the one used in previous years).

To the extent that your team photographer is currently a Getty contributing photographer or if you receive questions from other contributing photographers, please have them contact XXXXX at AP (XXXXX@ap.org) for information about becoming an AP contributing photographer.

If you have any questions, please contact XXXXXXXX (PR), XXXXXXXX (Digital Media), or XXXXXX (AP –XXXXXX@ap.org).

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NFL and the Wayward Getty Images

Getty images has made what can only be a colossal blunder in losing the NFL's commercial licensing deal to the Associated Press. Sources close to both parties reveal that this is a done deal, minus official announcements, Photo Business News has learned. As an interesting side note, it is unclear how the AP would have noted in their annual meeting in San Diego recently that the deal is done, prior to the NFL actually announcing it.

So, what does this portend for the actual people making images under Getty's contract?

The problem is multi-fold.

• Getty loses what amounts to the cash cow with a large portion of all their commercial sports sales, according to sources.
  
• Getty loses what is seen by many as their most prestigious sports relationship
  
• Getty likely loses what is arguably the most prestigious group of sports photographers to the AP
• Getty could find themselves in legal trouble if they preclude "their photographers" (that is, contractors) from doing other work for another media organization, forcing photographers to choose between leagues.

(Continued after the Jump)

Getty's Commercial Cash Cow

With the stock licensing image revenue streams in freefall, commercial sales have remained profitable for photographers, especially Getty. The deal that was in place is an estimated guarantee of $400,000 in revenue to the NFL, and one rumor has the guarantee of revenue from their new partner, the AP, in the $700k-$800k range, and possibly $1m or more.

Further, one photographer we spoke with who migrated from Wire Image to Getty reported to us that in addition to being staff, he also earned a percentage of sales as well. Another source reports that this is one carrot that has kept select Getty staff photographers happy, so this could also mean a huge slash in revenue for Getty photographers that "stay behind" and don't follow the NFL deal.

The NFL, likely frustrated with seeing Getty paying upwards of $200M to acquire Wire Image, wanted a piece of that figure, according to some, relative to seeing a paltry sub-million-dollar figure being paid/guaranteed, so when the contract came back up for renewal, even in this troubling economy, it was the NFL's turn to exact a more lucrative deal.

Another issue, is the ill-conceived premium access revenue model Getty began pushing recently, which has further eroded photographer's editorial revenue streams in the last 6 months, and will likely cause even lower sales figures in the coming months.

Lastly, this deal was worth millions in revenue, not just to Getty, but also a great deal for the NFL (from revenue to servicing their corporate partners), and was a decent source of revenue to those staffers and contributors partaking in resales percentages, and an even larger portion of revenue to contributors. With $4m-$5m in gross sales from the editorial and commercial sales combined, this should have been a lot of money, but perhaps, to a company focused on a breakup, not so much?

Getty Loses Prestigious Business Relationship

Arguably, the NFL was Getty's crown jewel in their sports photography division. All other sports leagues have followed the NFL's lead on everything from merchandising to television rights deals, and so on. The NFL deal not only solidified Getty's place as the sports imaging leader, but as noted above, was their main sports cash source as well. Getting this deal for Getty (via the Wire Image acqusition) was akin to the billion-dollar deal the the NFL signed with Fox and CBS back in the 90's. In that situation, The previous deal being for much less a year, and the NFL cut a deal which, combined, was worth $2.2B (that's billion!) a year over eight years . Getty became a real player when they got this deal, as did the, at the time, largely non-existent Fox Sports division.

The AP on the other hand, really is not equipped to handle or manage a Getty-like service, and the NFL may, unless the AP overstaffs with photographers, editors, not be as prepared as they should be. The problem is, AP staff photographers are already grumbling about having to file their outtakes (known as OTK's) in the day(s) following an assignment, during down time. The time commitment to the AP/NFL deal will tax the AP's photographers even more, as they look to bulk up their image archive to squeeze every dime of sales. For example, the AP is now encouraging staff photographers to file vacation, and off-hours photography to them, offering a paltry 30% on the sales of those images, but here's the kicker - when that staffer dies, neither their spouse, nor heirs, will continue to get that revenue, and that's just plain wrong.

Further, AP staff photographers have a limited knowledgebase when it comes to commercial keywording, and how to maximize revenue in that manner, so there will also be a serious learning curve on that front.

Look next, for the other leagues to re-evaluate their Getty contracts as they come up for renewal. When you are the sole source for commercial licensing of sports images, you can set your own prices without competitive downward pressure on pricing, and now Getty has lost that, and will likely lose others. While the AP had bid on, and lost the MLB contract a few years back, they are now distributing the the NCAA images from Rich Clarkson's deal with them (Getty had also tried to secure that deal), so this is the next step for the AP in their evolution towards more sports imagery.

Getty's Talented Team of Sports Photographers

En masse, Getty's sports photography team is probably the most talented sports photography department in the country. While Sports Illustrated may have a dozen amazingly talented (and some might say more talented) sports photographers, the 30+ team that Getty has assembled to serve not just the NFL, but the other leagues year round was a can't-be-beat team, especially in serving the commercial marketplace. The mindset is not just editorial, but also very commercial in nature.

Many members of that team had come from the NFL shop when the NFL essentially outsourced the photography so that they could use those bodies on the West Coast to boost the NFL Television division. Many of these are not actually employees, and are covered under contracts that have them as independent contractors, and this is where the devil is in the details. Somewhere around 65%-70% of all NFL sales by Getty have come from the freelancers or contributing photographers, with the remaining amount generating wholly-owned content and a the larger percentage of the sales.

That said, the AP is going to have to develop a far more fair contract than a work-for-hire one-size-fits-all arrangement that they currently have now, or the talented Getty team will likely not move an inch, nor should they. Some photographers, however, at Getty, were (rightly so) grumbling about the NFL split, with 40% going to Getty, 40% to the photographer, and 20% to the NFL, when the NFL requirement was, according to one source, 10%, so the question is - why was Getty offering an additional 10% to the NFL, and shouldn't that 10% the NFL wanted have come out of the Getty portion?

From a stylistic standpoint, shooting "AP-style" is far and away different than shooting for stock/stories/commercially, as the Getty team has honed their skills in doing. Filing your OTK's from images you just so happen to have taken, is not the same as having the mindset to capture those iconic images as well as telling the stories that the Getty photographers have fine-tuned their abilities to do.

In the end, whichever photographers don't go to the AP, will, frankly, see less revenue and less work as compared to those that do work in the more lucrative commercial sales market. Those that stay with Getty being left in the editorial dust of low end revenue.

Getty's Potential Legal Troubles

There are several tests that the IRS applies to determine if you are an employee, or a contractor. If Getty started to preclude these photographers from, say, working for Getty for the NBA, NHL, and MLB because they stuck with the NFL deal and migrated to serve another client (in the form of the AP, who will undoubtedly need to bulk up photographers ASAP) this would be a big problem for Getty.

When Getty senior staff were asked about, say, filing images with Getty for editorial sales, and the AP, for commercial sales, Getty demured, and gave what amounts to a non-answer, during a conference call three days ago. Suggesting to the photographers that they can't cover both is akin to the Getty photographers being school-teachers, seasonal workers, and idle the rest of the time.

One problem for the current contracted team of photographers, is that they may be contractually required to stay, since nothing in their contract said anything to the effect of "if Getty Images loses the NFL deal, photographer can, at their sole discretion, terminate this contract..." so Getty may try this heavy-handed tactic to keep this stable of photographers.

Other Complications

One of the issues at hand is the "Iron Mountain" collection of upwards of 2M analog images. While there are hundreds of thousands of contributors' digital images on the Getty site, and even more when you count the former Wire Image photographers, the analog history of the NFL sits in cold storage, and the expectation is that the management of those images would go to the AP, but that issue seems to be a bit of an unknown. NFL team owners recently learned of what is literally the history of their teams being inaccessible or otherwise potentially in jeopardy, and are now moving the status of the analog collection to the fore so that these images can be accessible, but the ability to monetize that collection may be questionable, and moreover, personal feelings may be clouding business judgement, but the costs to do the digitization may now move to the AP ledger.

In addition, Getty was trying to charge each team a reported $30,000 each year to maintain the image archives for each team, hoping to recoup as much as $960,000 in the process. Will the AP try to do this too, and were they saavy enough to have included these types of a la carte services with thoughtful pricing in their contracts?

How Did This Happen?

When Getty was negotiating this deal, they were at a strict disadvantage, because of the sentiments surrounding how much Getty paid for Wire Image. Signs point to the real possibility that Heller & Friedman, focused on the breakup of the company, saw the sports market as a distraction, and not a division that met their profits-to-expenses ratio, so it was not so difficult to let go, not to mention the likely reality that they didn't want to be "re-investing" (dumping?) $1m into the contract, and the NFL percentage may have been migrating upwards.

As a final question - the AP is supposed to be in the business of gathering and reporting on the news, and while the sports leagues have argued for years that they are entertainment, and not news, the impartiality of the AP certainly will be called into question as issues like athletes taking banned substances comes up, as well as other sports controversies. For example, would the AP have been as aggressive in covering the Michael Vick story - a taint on the NFL's image, had they been "in bed" together last year? Getty's "editorial integrity" was called into question following the NBA's brawl last year, and the void of coverage and available images after that event. Censorship clearly took place then, with images being pulled from Getty's site at the request of the NBA. Will the AP allow this?

This question will continue to linger, and ad to the AP's struggle to serve the news and new commercial market that they have carved out.

Final Lesson: Photography, properly managed, with rights, licensing, and so on, can be a significant generator of revenue, and should not be sold out to the lowest bidder.

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The Glass is Half.....(what's your answer?)

Business is good? Business is bad? What's your answer?

There is a lot to look at these days, and to come up with an answer. Just as Chicago delivers its chosen son to become President, and one of its premier photographers to become official White House Photographer, both papers are joined in the pit of bankruptcy.

Life Magazine has, as Daryl Lang so rightly points out, devastated the value of a wide swatch of photographic imagery. I can hear the mantra now "heck, Life Magazine published the best images of the 20th Century, and if they are free for me to use, why should I pay for others?" (And, as someone who has been published in that magazine - one caution - I registered the work with the Copyright Office, so I await the infringers mis-step.)

a lack of money will eventually doom C-Registry as the roadkill of the Web 2.0 era.

Speaking of Copyrights, the C-Registry continues to hawk it's mea culpa to anyone who will listen. The problem is, they just were not transparent about the process, nor are they about their future intentions once they reach a critical mass, and they have been given many opportunities to dispel these concerns, and the silence is deafening. I predict that, just as with Digital Railroad, who promised they would never get into stock licensing, so too, debt and a lack of money will eventually doom C-Registry as the roadkill of the Web 2.0 era.

April 15th is just around the corner. Yes, friends, the tax man cometh. How many of you are sitting down right now and realizing that 50% of your profits are going to the government, and realizing that you didn't save anything to pay Uncle Sam, and are now wondering where you're going to come up with the money you owe?

(Comments, if any, after the Jump)

To comment on another piece by PDN's Lang, it was written about the demise of Studio Photography magazine (that I will miss from my mailbox) that "The industry is shifting away from a business-to-business segment and more toward business-to-consumer, spokesperson Kathy Scott said in an e-mail." Hogwash I say. While B2C, in the form of weddings, senior portraits, family portraits, and so on, will remain steady and consistent, B2B continues, from this independent photographers' standpoint, to be a growth area. The higher likelihood is that their titles were not seeing the ad revenue necessary to sustain it, in print form. Photographers are getting their information from broader sources, much of it online. Previously, the print platforms were the gatekeepers of insights and knowledge, and now, as a critical mass (AC Nielsen reports Sixty-four percent of Americans age 12 or older have used the Internet in the past year...Almost half of these Internet users (31 percent of all US residents age 12 or over) report going online everyday) is achieved, sources for trusted and thorough knowledge are available to the masses with a few mouse clicks.

Two weeks ago, against the advice of my investment advisor, I took I bet out on a banking stock that was at $1, and now I have tripled that investment - because I was in a cash position to make (and, yes, possibly lose) that investment. If that investment (bet) had tanked, I would have been just fine, so it was as safe a bet as I felt I could make, with a significant potential upside.

Despite concerns in Q4 of 2008, we have staffing levels that we have not had to diminish, so as the calls are coming in for work, we have the post production capacity and logistical support to prepare estimates and collect on invoices.

It has been suggested that this blog is about hits and traffic, and as anyone who actually reads this knows, thats never been the case. The purpose for this blog is to give insights and analysis on the business of photography. Sometimes instructional, sometimes informative, and, yes, often critical. When we see bad moves by players in the industry, we call them out on it. Whether it was Xerox, PDN, Getty, Icon, Nat Geo, USPW, ASMP, AP, PACA, Conde Nast, DRR, Microsoft, or any of the other players regular readers have come to know more about. When these players try to slip a mickey to photographers, we try to be the antidote.

When the economy is down, as the saying goes, cash is king. The time to buy is in a depressed market - if you can. When you have no ulterior motive, the people standing around trying to figure out what your motives are for doing the right thing often would benefit from a bit of self-examination. As Ice Cube says (here), "check yo self before you wreck yo self."

Friends, the glass is what you make it out to be. From my perspective, the future is bright, and, for some, as they say, it is darkest before the dawn. For others, it's always darkest before it's pitch black. Go figure.

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World Picture Network - Shuttering Assignment Desk

With "hundreds of photographers in over 70 countries whose experience covers the spectrum of editorial and commercial photography, including conflict coverage, news, sports, entertainment, science, technology, fashion, lifestyle, portraiture and documentary photography" benefiting from assignments, The shuttering of the World Picture Network's assignment desk, this should have a bit of an impact.

The agency was founded in 2001, and grew to a point where a move to New York City in 2004 was in order.

In a letter to contributors, Brian J Miller, CEO, wrote "WpN is another victim of the severe economic downturn, along with most of our clients and many of you. Our assignment revenue has dropped dramatically in the last five months and it simply does not make financial sense to continue supporting the losses we are sustaining with no improvement in sight. "

(Full text of e-mail, after the Jump)

Dear WpN Photographers,

I am writing to alert you that WpN will stop taking on new assignments in the next few weeks. Beginning today, we are telling clients that they should contact you directly for all assignments to be shot after April 17th.

WpN is another victim of the severe economic downturn, along with most of our clients and many of you. Our assignment revenue has dropped dramatically in the last five months and it simply does not make financial sense to continue supporting the losses we are sustaining with no improvement in sight.

I should note that image sales from our archive, both direct sales and those through our Network Partners, have been less impacted by our clients’ budget constraints. I would encourage you to leave your images with us on a non-exclusive basis. I have always felt that “more eyeballs means more sales,” and many customers know to come to our website or to our Network Partners for your images. The amounts may not be life-changing, but any sales that result are found money for you.

Rest assured that you will be paid on all completed assignments as clients pay us, and you will continue to be paid on all image sales on the same basis.

I do not know what the future will bring for any of us individually or for our industry, but I wish you all the best. I hope you are able to weather the storm and continue to use your considerable talents successfully for many years to come.

If you have any questions or concerns, fee free to call or email:

Brian (646-XXX-XXXX) Xxxxx.Xxxx@worldpicturenews.com

Todd (646-XXX-XXXX) Xxxxx.Xxxx@worldpicturenews.com

Alden (646-XXX-XXXX) Xxxxx.Xxxx@worldpicturenews.com

Brian J. Miller, CEO
World Picture Network LLC
62 White Street, #3W
New York NY 10013
(P) 212-XXX-XXXX

Yes, indeed, this is one more case of a good organization suffering because of the economy. Perhaps this will change, since WpN is not closing up the entire operation, but just the assignments division. Only time will tell.

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C-Registry - The Discourse Continues

If readers of this blog found me promoting (or having) a photo contest, and in the T&C was language akin to "you grant perpetually all rights for free when you enter..." or some variation thereof, not a single person would believe me if my excuse was "oh, the lawyers wrote that up, I didn't see it, I'll change it now...". And, you should fully doubt that mea culpa. Why? Because rights and contracts and the analysis thereof is what I do when I am not making pictures.

On a comparative note, if someone were a chronic car thief, should we applaud when he just steals from department stores? The argument would be "oh, but he's so much better now..." when what he is doing is still theft.

So, it is with the perspective of the above to scenarios that the changes that C-Registry has made are dubious. The people who run C-Registry have been around a long time in this business. A LONG TIME. The notion that they didn't know what they were doing or, as they note in their own words as citied in an AMSP Member Update - "In retrospect, we were overly zealous with our marketing language" is just not passing muster. I submit that they knew EXACTLY what they were doing with that language, and are only now pulling back because they were called out on it. Further, it has been suggested that they have made changes to their offering to answer the concerns put forth, yet there are many other points of serious concern that remain.

So, let's continue the discourse. If C-Registry is truly committed to helping photographers, rather than lining their own pockets, straight-forward and complete answers to the following questions need to be answered.

Question 1

Until recently, your terms and conditions included express provisions allowing you to license registered images at your discretion. You have explained elsewhere that this was a mistake and that you regret including those provisions. You have removed the provisions but left in provisions that allow you to add those terms back into your terms & conditions and any other terms at any time, at your sole discretion. Setting that aside, please explain the intended purpose of those licensing provisions clearly and succinctly.

(Continued after the Jump)

Question 2

Just to set the record straight, please answer these yes or no. After answering each of the questions yes or no, you can provide as much detail as you wish.

In the event that c-registry identifies an instance of a registered photograph appearing on a web site, are there any circumstances under which c-registry would require a fee, royalty, special paid subscription/membership level or other compensation to c-registry for:

1. The act of discovering the use? Yes or No.
2. The act of informing the rights holder of any of the details of the use? Yes or no.
   
3. The act of mediating a dispute between the rights holder and the image user. Yes or No.
   
4. The act of billing or invoicing for the image user a fee or other payment related to the use of the image. Yes or No.
   
5. The act of facilitating a grant of license between the rights holder and the image user. Yes or No.
6. The granting of a license on behalf of the rights holder? Yes or No.

If you answered yes to any of the above, please describe.

Question 3

While there is currently no mention of image licensing on your site, are there any circumstances under which you might later solicit registered photographers to offer their work for stock licensing via any stock licensing platform or site? If so, describe.

Question 4

After editing the copy of your site recently, all of the references to “orphan work” were changed to “work of unknown origin.” As of today, c-registry is advising image users that “If an author has not claimed copyright for that work and is unknown by any other means, it could be considered “A Work Of Unknown Origin” at that moment in time. In this circumstance, you can and should create a verifiable, trackable report indicating that the work in question was “unclaimed in The Copyright Registry” at the time.”

1. What is the meaning of “work of unknown origin?”
2. Does the designation of “work of unknown origin” have any bearing on a user’s ability to proceed with usage of an image?
3. C-registry is soliciting image users to buy certificates that a photograph is a work of unknown origin because it is not registered on c-registry. What possible purpose might such a certificate serve as of today?

Question 5

In your revised terms & conditions, c-registry requires that image users agree to the following terms: “In the event that the copyright owner or creator of CONTENT are unknown or are known but can't be found an “A Work Of Unknown Origin,” YOU agree that: YOU will pay a reasonable licensing fee for your use or publication of A Work Of Unknown Origin, negotiated in good faith, should the rightsholder of that CONTENT become known to you during or after use or publication, and…” If the CONTENT is A Work Of Unknown Origin used editorially, use or publication should bear a credit line that indicates the creator name if reasonably known or source of the CONTENT if reasonably known.” While the terms also require that users obey the law,

1. Why do you include this provision at this time? It leaves infringers with the impression that they may proceed to use work provided that if the rights holder appears, the infringer will negotiate in good faith. Isn’t it illegal to proceed with the use of a work without the rights holder’s permission, even after a failed search at c-registry?
2. What is the purpose of requiring that infringers print a credit line that informs others where the work can be found?

On "Reclaiming"
On the C-Registry home page, after all the edits, their marketing language remains alarmist, and misleading, when they write - "Reclaiming your works online is critical...Take action today and begin reclaiming your works."

Reclaiming? Dictionary.com defines "reclaim" as:

Reclaim: to claim or demand the return or restoration of, as a right, possession, etc.

The problem is - there is nothing to "reclaim." While the copyright will always be yours unless you expressedly transfer it, no language in any version of the orphan works bills that have been proposed would allow a copyright holder, once a work has been deemed an "orphan", to stop the work from continuing to be used in whatever manner it was after it was deemed an "orphan." There is no mechanism to "demand the return or restoration of, as a right, possession". The use of the word "reclaim" is, at best, misleading.

Lastly....
One of the most important notes to make here, is that if C-Registry is a success and is purchased by a major stock agency or media company, the operation of the registry will fall under the control of a single stakeholder, and nothing in its charter or other language suggests that they would not do this, and that should scare people.

Your Turn
There are, no doubt, other questions out there that remain, so feel free to pose them in the comments below if I have missed something. I await full and complete answers to the above questions, without any spin.

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Related Stories:

• Photo Business News - C-Registry - The Discourse Continues, 3/28/09
• Photo Business News - What the....? C-Registry = Con Registry?, 3/24/09
• Photo District News - APA vs. ASMP Smackdown Over Copyright Registry, 3/27/09

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(Updated) If You Can't Make It Better, Make it Cheaper (Hint: Not A Good Idea)

“I’m just not cool enough to be a Mac person.”

So says Lauren, in one of Microsoft's latest commercials.

Now, I'm not saying Microsoft isn't cool. They have some awesome applications - like Expression Media, Sea Dragon, and so on, and they are spending much more time being photographer-centric. In fact, I run a HP Windows Home Server in my office with 7.5TB of storage space so I can access my archives from the road. However, Lauren IS suggesting she's not cool enough to be a mac person, and she's shopping price alone.
<br/><a href="http://video.msn.com/video.aspx?vid=0bb6a07c-c829-4562-8375-49e6693810c7" target="_new" title="Laptop Hunters $1000 - Lauren Gets an HP Pavilion">Video: Laptop Hunters $1000 - Lauren Gets an HP Pavilion</a>

We can presume Lauren is shopping features and quality, and she says something to the effect that "I got everything I want", but let's discuss price-shopping, since that is the point of this commercial.

*** UPDATE *** Gizmodo found Lauren, and she's an actress in LA - Someone Found Microsoft's Lauren! And She's an Actress.

(Continued after the Jump)

What Lauren has done is commoditize her laptop. What our clients sometimes try to do is commoditize photography, and the lowest price wins. Clients like this are not loyal. I know that the economy is down, but Nordstrom's fourth quarter sales which included the holiday shopping season showed profits up 22%, and fourth quarter sales increased by 15%. Nordtroms customers don't walk in and focus on price, they focus on the level of service. "Nordstrom thrives on providing legendary experiences through unbelievable customer service, which result in customer folklore and the most powerful word-of-mouth marketing possible", and other stories abound here on the subject.

On the photography business side of what we do, customer service is key. We deliver a premium product, and when, like yesterday, the client said "oh, we need to get 7 photos e-mailed to us today for distribution", my answer is the same as it ALWAYS IS. "That's no problem at all. There's a nominal additional charge for that, but we are happy to take care of it." The client today, asked, as about half of them do "ok, do you know about how much?" I responded "yes, as outlined in our paperwork, it's $65 per image we prepare and send out". The clients response? "Ok, that's fine." Later on that day, I conveyed to the client "A number of the people we've photographed have asked about being able to download images, would you like us to set up an online gallery where they can do that?" The clients response? "Yes, that's a good idea." In both cases, we solved the clients problems or needs, despite having several other things we had to tend to that day. This client was not a price shopper, they were a quality service shopper.

Almost all our clients are quality-and-service-first clients. But the question is, how do you get those clients? Easy - it takes patience.

The question often put to inexpensive photographers is - would you rather do 10 $1,000 weddings, or 1 $10,000 wedding? Well, the fact is - $1k weddings beget $1k weddings. The decor is usually minimal, and the scenery that makes for a potentially great wedding album (and thus, portfolio) isn't there. It may take more effort and time to book the one $10k wedding initially, but once you get the word-of-mouth ball rolling, booking $10k weddings is usually not much harder than booking a $1k wedding, relatively speaking.

We still do get calls from clients who want to pay a pittance, or want all rights. We treat them just like those who are not price shoppers or rights grabbers, up until they decide to use someone else, and 90% of the time that's the case, and that's ok. We move on. Over time, the 10% that go with us realize the value of what we offer, and are lifetime clients. Occasionally, they will stray, but usually they come back after a bad experience with another photographer.

However, statistics suggest that for 1 in 5 prospective clients, price is only a detail, not a deciding factor. Over time, "collecting" just the 1 in 5 clients that have this perspective, will yield a client base that is sustainable. This is what we have done. It's not rocket science. We never put ourselves in a position where we had to accept a bad deal. Thus, over time, fair deals with fair and reasonable clients, are what constitutes our client base.

Today, before I had arrived back to the office, I spoke with the client and she said she had raved to her boss back in the company headquarters in their home state about how great it was to work with us, and she made a point about asking for my card at the shoot. My Office Manager sent me an e-mail phone message quoting the client as telling her we had done ". . .a fantastic job. Just wonderful."

Will Jill have a break/fix incident that requires her to ship her computer somewhere, or make a call to Bangalore where she gets further frustrated? Likely, Jill would opt out of the additional $250 3-year Applecare service contract that is regarded as a "must have" for a laptop purchase? Apple has such significant brand loyalty because of customer service, ease of use, and ease of troubleshooting. How many lost hours of productivity, or interruptions in a business day will Jill have that will end up costing her client revenue because she went with the cheap laptop? How much will Jill spend with break/fix incident calls when something isn't working? Consider that a Panasonic Toughbook, for example (yes - they run Windows!) is $5k or more. These machines are designed to take abuse, be on the road, and so on. Further, Panasonic's customer service for these machines is exceptional. With a $1k machine you're getting older/slower technology, and shaved corners on things like soldiering, or sub-standard CD drives.

Avoid being the cheapest. Strive for a clientele that pays you what you are asking. Like Nordstroms, during a downturn in the economy, it will be much easier to weather the storm if your clients are not so price-focused, and are more results and service oriented.

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Getty Makes More Cuts

Sources are telling Photo Business News that Getty Images has laid off their entire creative department in Los Angeles, although the LA office remains open - likely with editors, photographers, and sales people still hanging in there.

However, that was a part of a much more global round of layoffs. While we are prepared for this to be a typo, the layoffs in the Los Angeles office are a part of another global round of layoffs purported to be, once again, over 100. Just 10 days ago we reported (5% Of Our Workforce Will Be Asked to Leave Getty Images, 3/16/09), 110 layoffs, and it is unclear if the layoffs in LA were a formal "layoff" as opposed to the "asked to leave" approach. I can't believe that Getty would confirm 10 days ago that 110 people were being "asked to leave", only to follow 10 days later with actual layoffs of them, or, frankly, of another 100+. While we are working to confirm which way this wind is blowing, we will put it out to the masses for discussion since we can confirm the LA creative department layoffs for sure.

(Comments if any, after the Jump)

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What the....? C-Registry = Con Registry? (Updated)

This falls into the "what were they thinking?" category.

Would you agree to these terms, or are you contractually allowed to if you are already represented by a stock agency?

YOU authorize The COPYRIGHT REGISTRY to represent INFORMATION, YOU and your CONTENT in collective bargaining for use of CONTENT by third parties and to execute licenses on your behalf for collective uses of CONTENT on terms to be determined by The COPYRIGHT REGISTRY at its sole discretion.

Shrouded amidst the nice-sounding concept of helping you with copyright related issues, the C-Registry, which we reported on back in November at PhotoPlus Expo, is the above language, which is, at best, horrible.

There is a significant amount of mis-information on the C-Registry site (here are their legal terms and conditions), which seems to suggest that, in order for you to be protected by copyright, you must "claim your copyright". Let's get one thing perfectly clear - you do NOT need to "claim your copyright" in order to have copyright protection. You DO need to register your copyright with the Library of Congress' Copyright Office in order to have the broadest remedies available to you in the event of an infringement.

(Continued after the Jump)

According to c-registry, photographers who fail to “claim” their copyright at c-registry do so at their own peril. While you should register your copyright, this is alarmist marketing, but it gets worse.

Here are their instructions to infringers who find that a photographer has not “claimed copyright” by registering with c-registry:

1. If an author has not claimed copyright for that work, it is considered “orphaned” at that moment in time.

• In this circumstance, you can and should create a verifiable, trackable report indicating that the work in question was “orphaned” at the time. To create a report, click “Create Certified Report” in the menu on the right side.

In other words they are telling infringers that they are free to infringe any work that is not registered with c-registry, and they will give them a certificate to prove it.

They also instruct that photographers can designate a URL on the photographer’s website, and that all photographs uploaded to that particular URL will be registered automatically by c-Registry. This is an extremely dangerous scenario for photographers. If an infringer takes images from a photographer’s website, the photographer is only entitled to a single statutory award, for ALL images infringed, regardless of the number of images that the infringer takes and uses without permission. By encouraging photographers to dump their images onto web pages so that c-registry will automatically register those images, c-registry will cause those photographers to lose one of the primary protections afforded photographers under copyright law.

Further, the c-registry site suggests that there are 3 trillion images online, and then c-registry claims (here) that by registering with c-registry, photographers “will know when and where your content is published on the internet.”

Let's take a wild guess - If they have spidered 2 million images (and that is giving them a HUGE benefit of the doubt), and they assert that there are 3 trillion images out there, that leaves 299,999,998,0000 images that they have not yet checked for infringements and has no reasonable hope of checking. That’s not accounting for dynamic content and the requirement that they re-spider sites. And yet they claim to be capable of informing photographers “when and where your content appears on the internet.”

Further, throughout the site, they refer to the “orphan works act” as if it exists as law, rather than referring to the failed “bill”.

In a January 23, 2009 e-mail, ASMP endorsed the product, noting

"As promised last week, there are new membership benefits that ASMP has negotiated on your behalf", and then amidst the other 3 benefits they list, they advise ASMP members - "...the service could benefit you in two ways. First, it can help new clients find you from your images. Besides just being good business, this could become a useful defense against your online images being treated as orphans, if (or when) an Orphan Works law is passed. Second, it’s can help you find any unlicensed users so that you can encourage them to obtain a license."

I strongly encourage ASMP to reconsider their endorsement of this service. Just last week, C-Registry used the ASMP name in a press release (here) touting it as a benefit, when, the APA noted in an APA Alert just yesterday, they are "concerned that this is an attempt to seed StockPhotoFinder.com with images for its stock business.", since StockPhotoFinder.com is the owner of the c-registry. Further, in the APA Alert, they cite this misleading statement:

"If an author has not claimed copyright for that work and is unknown by any other means, it could be considered "orphaned" at that moment in time. In this circumstance, you can and should create a verifiable, trackable report indicating that the work in question was "unclaimed in The Copyright Registry" at the time. To create a report, click "Create Certified Report" in the menu on the right side."

This is only the beginning of the scare tactics that commercial registries will employ to scare you regarding your copyright to your works. Yes, copyright is important, and yes, Orphan Works legislation is coming and is a threat to your creative works, but this, as they say, "if it walks like a duck, and quacks like a duck, then, it's a duck." This looks to be a scare-tactic ploy to get your images into StockPhotoFinder.com, among other things.

Further, here, C-Registry claims to have “relationships with the most prestigious trade associations that are proponents of copyright”, and here, C-registry lists APA among trade associations during registration, in the drop down menu at the top, and since APA has not only not endorsed them, they have come out with a red flag APA Alert, and this is positioned to possibly imply that those trade associations may endorse c-registry, This raises the question - how many on that list have endorsed them? How many don't know their name is being used here?

Be careful, and beware.

*** UPDATE ***

Well, it seems some fancy editing has taken place over at c-registry.us. A few examples of the edits:

Original:
CREDIT OF ORPHANED WORK
If the CONTENT is an Orphaned Work used editorially, use or publication should bear a credit line that indicates the source of the CONTENT.

Changed in the last day or so to:
CREDIT OF A WORK OF UNKNOWN ORIGIN
If the CONTENT is A Work Of Unknown Origin used editorially, use or publication should bear a credit line that indicates the creator name if reasonably known or source of the CONTENT if reasonably known

The entire paragraph:
COLLECTIVE REPRESENTATION
YOU authorize The COPYRIGHT REGISTRY to represent INFORMATION, YOU and your CONTENT in collective bargaining for use of CONTENT by third parties and to execute licenses on your behalf for collective uses of CONTENT on terms to be determined by The COPYRIGHT REGISTRY at its sole discretion.

That paragraph above has been removed. Interested to know how we know this? Ahh - the beauty of the GOOGLE cache! Try searching for this:

"YOU authorize" c-registry

Several entries down, you'll see the URL that ends "=47", and instead of clicking the link, click the "cached" link, and there it is. You might try clicking this link to take you to the cached entry, if Google didn't expire the cache link. Then compare it to this link, of the currently displayed page.

This is looking more and more nefarious. I wonder what else they have switched out.

Further, did anyone bother to check the Network Solutions "whois" database, to learn that StockPhotoFinder.com happens to ALSO own c-registry.com? (information here).

A hidden plan or agenda? the plot thickens.....

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Related Stories:

• Photo Business News - C-Registry - The Discourse Continues, 3/28/09
• Photo Business News - What the....? C-Registry = Con Registry?, 3/24/09
• Photo District News - APA vs. ASMP Smackdown Over Copyright Registry, 3/27/09

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Livingstone Out At Getty Images

Whenever you read "I want to leave to spend more time with my family", or some variation of that sentiment, almost always, that means the person was forced out. But, well, maybe that's not the case with the departure of Bruce Livingstone, the CEO of iStockphoto and also Senior Vice President of consumer markets for Getty Images. Maybe he was just sitting around keeping his seat warm?

Livingstone, whom we cited in a September 17, 2007 article, from an interview in Design Mentor Training, notably said of his career:

"...After deciding he was not going to make it in the traditional stock photography business, Bruce created a free Web site to share his images with a network of designer and photographer friends, and iStockphoto was born. Initially a trading site, iStockphoto introduced the micropayment model in 2000, where buyers purchase credits in blocks starting at $10 each."

I now might make a wild guess he's now not making it in the microstock business?

(Continued after the Jump)

A reasonable guess at his contract is that he won't run a competing business for a set period of time - usually 3 to 5 years, but this is for his possible job options post-employment with the company. How much do we think he's getting from Getty? Well, according to this February 9, 2006 article in the Puget Sound Business Journal, Getty "set aside $4.3 million in escrow that will be paid to key employees who held iStockphoto shares after they complete up to three years with Getty." Gosh! That three years was up just a month ago, so maybe he wants to spend his ill-gotten gains, earned at the alter of "deep-and-cheap" stock photography, on his private life? I'm guessing he is getting a good chunk of that $4.3m.

Daryl Lang over at PDNPulse is reporting in his coverage of this announcement that Getty says this was planned for some time. No doubt, that is the case - so Livingstone can cash out from the escrow account.

One thing is for certain - if Livingstone has a non-compete clause in it, we should thank our lucky stars that Getty insisted on that language, so he couldn't start up another stock photo business model that will continue the downward spiral of rates for photographers, at least not for a few years, anyway. But who these days would even put venture-capital money into an effort like that?

So, it can only be guessed that he will go off any take his "genius" to some other industry and wreak god-knows what havoc on their business models in other industries.

HIs handle on the iStockphoto forums was "bitter", originating, it has been said, because Livingstone was a bitter and disillusioned photographer who couldn't get anyone to take his images and sell them, so he started his own business to do just that - a sort of a stick-in-the-eye of those who had refused him before. One can only wonder, if the above is, in fact, true (or even a shade of the truth), what other industries he is bitter about? Where does he want to go and "work his magic" next?

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