Conan O'Brien: Transformed Background an Infringement?

Conan O'Brian, the new host of NBC's signature late night show, has transformed from Carson's curtain, to Leno's cityscape, to what truely looks like the other-worldly Mario Brothers:

The above background from NBC, with the overlay of Mario's kingdom by the good folks at Serious Lunch, (they have an animated gif there that is a challenge to watch for more than a few seconds), show that it's hard to dispute the two are the same. They also have a link to a much larger version for you to look at in more detail.

So, the question is:

Derivitive work?
Was the use transformative?
Did Conan/NBC need to license the scene?
If permission for a derivative work is required, but NBC did not seek it, would Nintendo likely sue?

I have my own opinions on this, but what say you?

(Comments, after the Jump)

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UPDATED: Gordon Ramsay on Photography & Laughter

Two days ago, we wrote about Gordon Ramsay in In Search of Excellence (6/1/09), which was very significantly commented on, with much color and entrenched opinon. As I am making my way through the series, he makes a point about photography, alongside the idiocy of the owner of a Los Angeles restaurant, who is not only a part time actor, but, apparently, thinking he also can take a photograph. He cannot.


and another one "with ghastly pictures":

Food photography belongs in magazines and cookbooks, it would seem, but definitely NOT on menus. I would humbly agree, unless, perhaps it's Denny's, IHOP, or that type of dining experience.

Next up, is laughter, and the place for it.

(Continued after the Jump)

I've addressed this issue before, as it relates to people in the background while you are on the phone with a client. If you have people in your office, pets, or children, they cannot be making a ruckus while you are on the phone. If you are conversing with a client, and they hear people hooting and hollering while you are carrying on an important conversation, the client will think you are just having a party and taking a few snaps in between beers, and god forbid the laugh in the background come at a pause in the conversation where your client says something that would never warrant a laugh at all.

Dogs barking, children screaming, and other distracting noises in your home office should be verboten during business hours, or at the very least, when you are on the phone. In the above clip, laughter is heard from the kitchen which doesn't make the restaurant come across as professional, or focused on getting the customers' food out in a timely manner.

Details, details details. Unlike the previous clips where many people missed the point and decided to focus on Gordon's language and so on, these clips don't have that.

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In Search of Excellence

Of late, one of the best shows about quality and service I have found is Gordon Ramsay's Kitchen Nightmares. The restaurant business can easily be compared to the photography business.

Food = Images
Kitchen = Darkroom/Post-Production space/Image Management
Decor = Photographer attire
Servers = level of service
Hostess stand = initial phone call
Roaming manager = follow-up after shoot

And so on. What I like so much about Ramsay is his commitment - and demand - for excellence. He demands excellence at every turn. Here is a clip from his show:

You must unequivocally be committed to the highest level of excellence as a photographer for every client for every shoot.

(Another video, after the Jump)

Here's another clip:


And one more:


Ramsay makes no excuses for his level of expectation, and neither should you.

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Selling Yourself Short

The refrain I hear from photographers often, when it comes to images they transfer copyright to is "what are the photos work anyway? They're just {insert justification here}...."

Often, photographers get assigned to cover a party of some sort or another. Then, the excuse is "they're just party pics, who would want them anyway?" Well, let's take a look:

(Continued after the Jump)

So, at about $20 an 8x10, after about 10 prints from a single event, the magazine has recouped the cost of the photographer, and the use of the photos in the magazine is now, essentially, free. And since the magazine - in this case Washington Life - owns the copyright to the photos as per their contract, the photographer is not entitled to a dime of that revenue.

"But it's just a few prints..." you say. Who cares, what does that matter? Well, aside from it being work you created and are entitled to income from (that is until you sold your copyright for a c-note or two), it's just plain wrong, and, it's not limited to prints.

Enter Niche Media. Niche Media publishes a number of magazines: Capitol File, Gotham, and Los Angeles Confidential, among many others. Clicking on those links doesn't take you to the magazine's website, they take you to search results where images from their assignments are being sold/relicensed by Wire Image, again, without the photographer getting paid for those resales. How many sales do you think it will take before the assignment becomes a profit center? One? Two?

NIche Media in their press releases often writes:

"About Niche Media Holdings: Niche Media, a subsidiary of Greenspun Media Group, was founded in 1992 and is the country’s preeminent regional magazine company with the largest network of city-specific luxury publications in the United States. Niche Media consistently delivers the finest editorial content and advertising to a controlled group of influencers with the highest disposable incomes in each city. Niche Media reaches readers who maintain annual household incomes of at least $200,000 and have liquid assets in excess of $1 million, making the pages of these glossies some of the most valuable real estate in Publishing."

Valuable, of course, except to the photographers who don't earn anything from the resale/relicensing of their works. You're a creator of some of "the finest editorial content" yet you don't participate in the fruits of that labor?

When people take your copyright, or require you to transfer all rights in your images to them, they're almost always doing it because those images have value. Just because you can't imagine what the resale/relicensing value is to an image doesn't mean that it doesn't have any.

Think twice before selling yourself short.

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