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.
(Comments, if any, after the Jump)
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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.
The blogosphere is all aTwitter over the fact that a photographer on Haiti, seemingly without options for getting his remarkable images out, opted to use Twitter to do so. (PDNPulse - here).
When Agence France Presse (AFP) published those images, and, yes, profited from their distribution as did all their subscribers, the photographer got mad, because he was not profiting from the images, as he should have. Or should he?
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The Terms and Conditions for the use of Twitter grants Twitter the right to redistrubute without payments to the originating party, whatever passes through their system, but apparently the photographer didn't read the terms for the service he used? Instead, the photographer should have built up the necessary infrastructure and had it at the ready (Sat phone, anyone?). For example, I have the necessary equipment to traverse a blizzard, get around during the aftermath of a hurricane, and reduntant communications systems both in the office and on location in the event of system outages.
Arguments by the photographer that he didn't read the terms of service should fall on just as deaf a set of ears as the arguments that are made by clients who say they shouldn't be held to the terms of our delivery memos, contracts, or embedded-metadata restrictions on our images. "Officer, I didn't see the speed limit posted..." is not a valid excuse.
It's unfortunate here, but just as most photographers don't read the heinous wire-service contracts that freelancers are signing because they're non-negotiable, so too, are they making mistakes when posting images on free services with onerous terms and conditions. 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.
The good folks over at PDNPulse (here) wrote about the AP hiring out their staff photographers for freelance work.
From one point of view, it sounds like a good idea. From another, a bad one.
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On the good side - the AP invests a great deal of money, time, and infrastructure to have their cadre of staff photographers. However, in some instances, those photographers are idle, and/or not used to their fullest potential. Why not allow another news organization to book them for an assignment? It is a smart way to maximize their assets (yes, a photographer is an asset of an organization) to maximize revenue and yield.
On the bad side - once this program goes well (and it likely will), there is no reason that the AP cannot task a freelancer who earns $200 a day, and grants all rights to the AP, to an assignment that would be done for a corporate/commercial client for $2,000 or more. Heck, WireImage charges $5,000+ and hires a photographer for a few hundred dollars for the same deal and then post the images on their site, why not the AP? But, where's your piece of that higher dollar? Nowhere, if you signed their contract!
So, it's good, and it's bad, but in an era where every outlet is trying to stay profitable, I can't say it wasn't expected. .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.
When I first saw the iPad, I thought it was pretty cool, but essentially an oversized iPhone. It wasn't until I was chatting with a friend who was a bit in the know, that I realized that it could be used as a second screen with my laptop, on shoots in either the studio, or on location, and that sold me.
The application to use is iDisplay, which is pretty slick. Below is an example of how it can be used for wireless viewing by the client, while the laptop and camera are tethered
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Often I take the laptop digital workstation on shoots and have a 30" monitor next to the workstation but that means that the client is peering over my shoulder, or the shoulder of my digital tech. Instead, the client (and their client in many cases) can be away from the shoot, and watching the images as they are coming in.
The downside is that there is a bit of lag-time, but not too much. If you're shooting fast and furious, it may not be the best, but if you are shooting at a more deliberate pace, it would be no problem at all. The only other downside is that while the monitor is set to vertical only, the current version of the software doesn't allow you to rotate the iPad, so horizontal images are only viewable vertically, meaning they show up smaller (but still full image area), within the iPad when viewed vertically. The company tells me that the next version should allow you to hold the iPad horizontally to view horizontal images using the full screen of the iPad too. for $4.99 on iTunes, it's a small price to pay for this functionality! 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.
Paul Melcher, over at Thoughts of a Bohemian, writes about the salaries of staffers of Getty and Corbis in this article, and I strongly encourage you to read what your "support staff" is getting paid, if you work for one of those companies. Moreover, if the "support staff" for a photo organization gets paid over $100k, for example, shouldn't the talented photographers who are actually creating the stuff that is being sold (and thus, needs support!) should be getting paid more?!?!
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As of right now, there are 330 jobs listed on Monster.com for "photographer" here, including staff photographer jobs for Diapers.com (here), and Amazon.com (here), but what I just don't see is Monster.com (or any other service for that matter) listing photographer jobs for the staff positions at Getty and Corbis, because they likely pull from their contractors, or get photographers via world-of-mouth. Would it ever be that a support staffer for a major sports league get paid more than the players on the field that are in the game? Why isn't this same mentality applied to the creative talents of staffers at Getty and Corbis?
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.
"The American Society of Media Photographers (ASMP), joined by the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, Professional Photographers of America, photographers Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi and illustrators John Schmelzer and Simms Taback, has filed a class action copyright infringement suit against Google, Inc. in the U.S. District for the Southern District of New York", reads the first paragraph of the press release.
These organizations "decided to file the class action after the Court denied their request to join the currently pending $125 million class action that had previously been filed primarily on behalf of text authors in connection with the Google Library Project. The new class action goes beyond Google’s Library Project, and includes Google’s other systematic and pervasive infringements of the rights of photographers, illustrators and other visual artists."
I will say that I was concerned that photographers had been excluded from the class action suit in connection with the Google Library Project, but at the same time, I am glad that the photo trade organizations have the wherewithal and mettle to pursue this, since nothing less than the future of image valuation is at stake. Further, this suit can learn from the mistakes (if any) from the first class action suit, and also possibly ride on the coattails of that decision.
I commend these trade organizations for taking a stand on this important issue. Yahoo News reports on it here, and we reported on the book scanning technology that is being used here, which included a number of links to Google's patents and other related stories on this subject.
(The full release, after the Jump)
The full release:
The American Society of Media Photographers (ASMP), joined by the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, Professional Photographers of America, photographers Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi and illustrators John Schmelzer and Simms Taback, has filed a class action copyright infringement suit against Google, Inc. in the U.S. District for the Southern District of New York. The suit, which was filed by Mishcon de Reya New York LLP, relates to Google’s illegal scanning of millions of books and other publications containing copyrighted images and displaying them to the public without regard to the rights of the visual creators. ASMP and the other trade associations, representing thousands of members, decided to file the class action after the Court denied their request to join the currently pending $125 million class action that had previously been filed primarily on behalf of text authors in connection with the Google Library Project. The new class action goes beyond Google’s Library Project, and includes Google’s other systematic and pervasive infringements of the rights of photographers, illustrators and other visual artists.
This action by ASMP and its sister organizations was taken in order to protect the interests of owners of copyrights in visual works from the massive and organized copying and public display of their images without regard to their contributions and rights to fair compensation. According to ASMP Executive Director Eugene Mopsik, “Through this suit, we are fulfilling the missions of our organizations and standing up for the rights of photographers and other visual artists who have been excluded from the process up to now. We strongly believe that our members and those of other organizations, whose livelihoods are significantly and negatively impacted, deserve to have representation in this landmark issue.” ASMP General Counsel Victor Perlman said, “We are seeking justice and fair compensation for visual artists whose work appears in the twelve million books and other publications Google has illegally scanned to date. In doing so, we are giving voice to thousands of disenfranchised creators of visual artworks whose rights we hope to enforce through this class action.”
Founded in 1944, ASMP is the premier trade association for the world’s most respected photographers. ASMP is the leader in promoting photographers’ rights, providing education in better business practices, producing business publications for photographers, and helping to connect purchasers with professional photographers. ASMP has 39 chapters across the country and its 7,000 members include many of the world’s foremost photographers. More information is available at http://asmp.org.
The Graphic Artists Guild is a national artists union that embraces creators at all levels of skill and expertise, who create art intended for presentation as originals or reproductions. The mission of the Guild is to promote and protect the economic interests of its members, to improve conditions for all creators, and to raise standards for the entire industry. Its core purpose is to be a strong community that empowers and enriches its members through collective action. More information at http://www.graphicartistsguild.org.
Founded in 1951, PACA, the Picture Archive Council of America, represents the vital interests of image archives of every size, from individual photographers to large corporations, who license images for commercial reproduction. PACA leads advocacy, education, and communication efforts on copyright and standard business practices that affect the image licensing industry. More information at http://www.pacaoffice.org.
NANPA, the North American Nature Photography Association, is the first and premiere association in North America committed solely to serving the field of nature photography. More information at http://www.nanpa.org.
PPA, the Professional Photographers of America is the world’s largest not-for-profit association for professional photographers, with more than 20,000 members in 54 countries. The association seeks to increase its members’ business savvy as well as broaden their creative scope and is a leader in the dissemination of knowledge in the areas of professional business practices and creative image-making. More information at http://www.ppa.com.
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So it seems, somehow, Photo Business News in the last 24 hours or so, got hacked. I am seeing it fine here on my end, and others are as well - so perhaps the cached version of the hacker site is de-populating from servers around the world - I apologize for the hack and the good folks at Google have graciously agreed to look into what happened.
Stay tuned!
(Comments, if any, after the Jump)
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As someone who has been overseas (albeit not in a bonafide war zone) and had my life at risk by thugs at gunpoint (once), seeing video of the actual death of a photographer turns my stomach and should make you realize just how dangerous being a photojournalist is these days.
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Photojournalists risk their lives everyday, around the world, to bring back the news. When they are employees of a company, they have the full support of the organization they work for, including medical, (sometimes mental health coverage), disability, and life insurance, not to mention coverage for all their equipment.
When a news organization hires a freelancer, and pays them a few hundred dollars for the day (usually not enough to cover the rental charges on the gear they would bring to an assignment, let alone their talent) the freelancer is responsible for their health, disability, and life insurance protections. According to WikiLeaks who broke this story (and PDN here), the photographer and driver were Reuters employees.
As a freelance photographer, whomever you work for, make damn sure that you have full medical/disability/life insurances, because while you are likely to not be shot from a helicopter, you could crash on the interstate, and you need to be able to get on with your life - and value it.
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