TEDx - Not Playing Fair?

TED - the group behind the Technology, Entertainment, Design events, is massive in scope, and contribution to the collective genius and information sharing in a way that is here-to-fore unheard of.

To grow the TED initiative, a one-time funding effort apparently evolved to create TEDx events in communities around the country. The website suggests "TEDx was created in the spirit of TED's mission, "ideas worth spreading." The program is designed to give communities, organizations and individuals the opportunity to stimulate dialogue through TED-like experiences at the local level."

Even you can host a TEDx event, just check out the guidelines here. All of the messaging in the "how to host" section is all about volunteerism. As for speakers, TED advises "TED does not help TEDx partners identify and secure speakers. TED does not pay speakers and neither should you." Hmmm, okay. I can say I've given my fair share of free speaking engagements. There's a hint of brand-building, where also on the TEDx page, is says "As a TEDx licensee, you are vested with helping to grow the TEDx brand." So, we are talking business here, right? For larger events (defined as 50+), sponsorships could occur. In the responsibilities section, it suggests "Soliciting sponsorship (if needed): If you're holding a larger event, you may require financial support from sponsors."

Ahh, so there could be money involved, somewhere, somehow?

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Further, TEDx events require you to upload photos to Flickr tagged "TEDx." However, according to the site here:

"Before you upload anything, you must confirm that all the images, music and video clips used in your speakers' presentations are cleared for re-distribution on YouTube and TED.com. Getting the initial clearance is the responsibility of the speakers; collecting documentation of the licenses (and providing it to TED if necessary) is the responsibility of the host."

Ahh, yes, once again, the value of intellectual property and rights clearances arises. Nice of them to respect that.

As of right now, there are over 7,000 photos tagged on Flickr with TEDx, as seen here. So it is with these insights now shared, that I wanted to bring up that a colleague and friend of mine tweeted out a month or so ago that TEDx was coming to Baltimore to host a TEDxMidAtlantic event, and they were looking for volunteers. I challenged the notion of shooting the job for free, and my friends response? "The whole event is being done on a volunteer basis. They're not even charging admission." When I asked of the venue "Is the lighting tech or AV tech at MICA working for free? Is the security guard there working for free? Is the electric company donating the electricity to light/cool the building?" I was met with the response "Maybe people should just never volunteer for anything, ever again." Well, I have it on good authority that one group of people got paid - the three videographers working the gig.

Set aside the donation of the space by the Maryland Institute College of Art (MICA), the people organizing the event (a salaried employee of the Baltimore Sun by the way), and even the speakers, who all donated their time. Why is it that the videographers got paid a fair rate, and the still photographers had to do it for free? That just doesn't seem fair. Photographer Christiana Aretta uploaded 479 photographs from this event, engineering student Jeff Quinton uploaded 34, and student Seth Nenstiel uploaded 29. It looks, from my review of these three top image providers, that Aretta covered the event like an assignment, and surely, she should have been paid if her motion-picture-producing counterparts were paid. Why wasn't she?

In the end, I didn't see the benefits of providing to an organization intellectual property that would be disseminated far and wide long after the speakers left the stage, yet your images are part of the ongoing benefit enured to TED that requires that your images fulfills the obligation of the host who is "...vested with helping to grow the TEDx brand." It's now just salt in the wound that video apparently got paid, stills apparently did not. Aretta looked like she did a professional job, as did the video team, with 19 videos, as seen on YouTube here. I call shenanigans on the payment front.

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Wedding Photography Contracts - A Cautionary Tale

As PDNPulse recapped here a New York Post article here, a bride has filed a lawsuit in the Manhattan Supreme Court alleging she instructed her photographer, of the highly regarded wedding photography studio Christian Oth Photography, to refrain from taking photographs of her while getting ready, and in some degree of undress.

The suit also alledges that Oth posted the photographs, according to PDN for "all to see." So the question is - what are the photographers rights and obligations? Let's take a multi-facted look at the circumstances surrounding this issue.

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First - let's assume, just for the moment, that the allegation of the bride is true, in that photographs of the bride in some state of undress/preparation, are online and viewable to the public. Since Oth no doubt had the bride and groom sign a contract, the contract most likely includes the right granted to the studio for them to be able to use images from the wedding for promotional purposes. The sample contract made available by the Professional Photographers of America (here - membership required) to its' members, includes the clause:

"The Studio/Photographer reserves the right to use negatives and/or reproductions for advertising, display, publication or other purposes. Negatives and previews remain the exclusive property of this Studio/Photographer."

Thus, if the images appeared on Oth's website, and Oth used recommended contract language, they would be legally covered.

The second statement that the bride alledges, is that (according to PDN) the photographer was ordered "...to refrain from taking photos of her in a state of undress but that the photographer kept snapping away anyway." However, there are no stipulations in the contract for this to take place, if Oth used the standard PPA contract. Two terms would cover this:

"It is understood this Studio/Photographer is the exclusive official photographer retained to perform the photographic and/or video services requested on this Contract."

and this term:

This Contract incorporates the entire understanding of the parties. Any modifications of this Contract must be in writing and signed by both parties.

Thus, the bride could not modify the contract verbally with an "order", and this is again, assuming some variation of the PPA recommended contract was used.

Oth has responded to the PDNPulse article, with a statement (in PDF form) here, and makes the point that "We have never posted any images of Mrs. Bostwick on our public website or any other public venue. Client images, such as Mrs. Bostwick's, are posted on our proofing website and are always password protected." Some research shows that Oth uses Pictage, long considered a leader in providing online galleries and proofing/print ordering for wedding couples. Oth's studio page on Pictage is shown here. As someone who has in the past used Pictage for all manner of client deliverables (including weddings), I can say that the back-end ability to limit public viewing is very powerful.

Pictage recommends that the bride and groom be given "owner" status of their galleries. As such, the gallery would be transferred to the owner, and the owner in turn has the right to "make private" images they don't want their guests to see (yet they can still see.) As such, before the owner releases the images to friends and family to browse, they have had the ability to edit their gallery of images. At all times, owners, friends and family either have to log-in, or have a password to establish an account specific to that gallery and then log-in, before being able to see images. In the end, Pictage has the ability to protect client and end-client images very well. While it is possible for a Pictage user like Oth to have granted "public" access to a wedding, it is made very clear that you are choosing this option when you are setting up an account, so I would doubt that this was the case.

As someone who has photographed weddings, (and as a male), my discussions center around "the bride putting the final touches on her gown", which usually refers to primping and the affixing of the veil/train, just before dad comes in to see his daughter. This time is usually where a few candids of the bride with bridesmaids, and so on can be made, and those images are nice for the beginning of the album. For a female photographer (and I am guessing here), it might be normal/more comfortable for her to be in a bit earlier when there might be a bit more being revealed, as could have been the case given that the Oth photographer is Carolyn Monastra, almost certainly a woman.

So, with the assumptions regarding legalities and likelihoods out of the way, what remains? Reputation. The Knot has a forum post here with praise for Oth, but as this lawsuit makes the rounds, it could show up on the boards. With the article on the New York Post, it wouldn't surprise me if more than one bride/groom who was considering Oth has opted for another photographer. For those who have already signed a contract, they could well be contacting Oth for assurances, or making attempts to get out of their contracts. With Pictage listing Oth weddings in the $3,001-$5,000 range, this will likely have an economic impact on them even if the suit is dismissed in short order.

Could it be that the bride was unhappy with the results, or wants more for free? Of course - both of those things happen frequently. Thus, this could just be a way for an unhappy bride to get back at the photographer. We won't know, of course, until this is settled, one way or another.

In the end, it is imperative in this world where clients are expecting white-glove treatment at every turn, and reputations are on the line, that contracts clearly spell out what's allowed and what's expected. Further, with Oth, who was likely sub-contracting photographer Carolyn Monastra making sure that vendors are customer-service focused is key. It may be that Monastra and the bride were just being light-hearted about it, or perhaps all was well in the beginning and Monastra did not get direction as the bride suggested, but later the bride decided to revise history. Either way, it is imperative to listen to what the bride is - and is not - telling you. I submit that scantily-clad images of a bride are likely of little use for a wedding album that you'll be showing the parents/in-laws, and eventually your children, so don't bother shooting them until it's all about the "final touches" and the makeup check in the mirror.

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** UPDATED ** Newsweek, Sarah Palin, and Photographers Rights

There can be a lot of discussion about the appropriateness of Sarah Palin's appearance on the latest issue of Newsweek Magazine. It's possible to tie this cover to the photo editor Simon Barnett's departure, and select choice of words - “Pictures tend to be used as part of an overall design conceit" (as reported at PDNPulse here), although we have no idea if it was this cover, the loss of key staff, or a combination of both.

What's missing here, is a discussion of the business side of the photograph.

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Runners World commissioned photographer Brian Adams to shoot their cover, and the broader take can be seen at Rapport here, or you could check out Rapport Press' images of "Sarah Palin at home in Wasila" here, and frankly, if Newsweek wanted to choose a worse photo in terms of making Ms. Palin look bad, they could have. That of course, is not to say that I don't think the magazine had an agenda, I do. However, the important point is that photographer Adams had the right to re-license his work from Runners World, to Newsweek. Of value to note, is the obvious question when most people see the cover is "what was she thinking posing for this photo?" And Newsweek answers that question on the front cover when they write "A photo taken for Runner's World, June 2009."

If you as a photographer give publications the right to re-use, re-license - or even own all rights - you are losing out on significant income down the line. Be sure to present to prospective clients your contract, and negotiate on terms you are comfortable with. Also of note, is that PhotoShelter is the power behind the Rapport archive.

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*** UPDATE ***: Runners World has spoken out, on their website here, where they say of the photograph that, in part, "...it was provided to Newsweek by the photographer’s stock agency, without Runner’s World’s knowledge or permission."

As to Runner's World having to have "knowledge" about a re-use: Some contracts preclude images shot on assignment for one publication from ever appearing in their competition. For example, Time Magazine's contracts specify (or they did the last time I checked) that images shot for them are "OUT Newsweek/US News", meaning they can't appear in those publications, even down the line. If this type of clause isn't in their contracts, then likely they have no say in what re-uses there are. Further, there would be no need to notify Runner's World about this.

As to Runner's World granting permission: The only permission I can think of would be the need for the photographer to get permission from them because of an embargo. It's not uncommon for publications to have embargoes, precluding images produced on assignment from appearing anywhere before a) first publication in the assigning publication; b) 1 week after newsstand date; c) 30/60/90/180 days after newsstand date; and so on. Interestingly, the date on the cover of Newsweek says it was shot June 2009, which would, with a common 90-day embargo, give the photographer the right beyond the embargo to re-license. However, if the date is August 2009, then it is likely that a 90 day embargo would have ended at the end of November, and as such, there would be a problem.

In the end, if there was no embargo, then Runner's World was not entitled to any advance knowledge, and they would have no right to give (or refrain from giving) permission. The photographer created a compelling image for Runner's World, and was rewarded by a re-use from another publication because of his compelling images' residual value.

All of this said, it appears that the photographer, Brian Adams, has posted a brief note in the comments section. I have not spoken with him, and respect his desire to "stay out of this topic as much as possible". I am not personally aware of payment issues with Rapport Press, as commenter Melissa Golden has suggested, however she is not the only photographer who is reporting payment issues with Rapport.

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