PicScout - Rights, Wrongs, and Facts

What a difference a day makes makes in this 24-hour world. One day after we published, in a criticism of PicScout:

PicScout is supposed to be looking out for photographers, and previously, it seemed that they were putting their great technology to use for good. This blog post, full of misinformation about Orphan Works gives every indication that PicScout has re-charted their course into dangerous waters, and they are now intent upon lulling photographers into believing that the previous versions of Orphan Works bills would have been good for them. This is an unfortunate change of strategy at PicScout, and will harm, rather than help, individual photographers and the photography industry at large.

In response to negative reaction to their blog post on the orphan works act, PicScout has made two public statements on the issue. First, the same author who wrote the original piece we were critical of, PicScout's Vice President of Marketing, (Dan Heller Update..., 5/28/09), wrote "The OWA is not relevant to PicScout. PicScout has no financial or other interest in seeing OWA pass or fail. Am I back-peddling? Absolutely not.", and then, in a personnel matter in the same post, he writes, "On an entirely unrelated matter, here’s another bit of news. When I first started working with PicScout, it was on contract. Things evolved to a point where it seemed to make sense that I join the company. But as the weeks wore on, but the reality of day-to-day logistics such as split between the time zones, made it clear that there was too much to do under the unusual conditions of a small and innovative company. So we’ve decided to return our relationship back to the consulting role we originally had."

Then, later that same day, the CEO of PicScout put out a press release:

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"Earlier this month PicScout announced the appointment of Dan Heller as Vice President of Marketing. After several seeks together, Dan and I have concluded that the fit just isn’t right. So we’re starting fresh. Dan will return to consulting after a brief transition period."

"We wish Dan all the best, and we will continue to be in touch with him in his capacity as an industry analyst.

Offir Gutelzon,
CEO
PicScout

As was noted on the PDN blog (Dan Heller Goes Through Revolving Door at Picscout, 5/28/09), we too believe he meant to write "weeks" and not "seeks" in his press release.

Its hard to reconcile PicScout’s statements yesterday with the recent PicScout blog posts.

Yesterday, PicScout states that "The OWA is not relevant to PicScout. PicScout has no financial or other interest in seeing OWA pass or fail. Am I back-peddling? Absolutely not.”

But on the PicScout blog PicScout states that the outcome of the orphan works act will be “very very beneficial for copyright holders,” and that ” the opportunities for the creation of the OWA database far exceed the downsides,” and that “if people genuinely care about those billions of images, then supporting the OWA will get the database built.” PicScout has publically stated that the photography industry should support the orphan works act. Huh?

Then we see why. PicScout goes on to state that if the OWA passes, web crawlers (such as picscout) will mine” every record of the copyright office database, and that if an infringement case goes to court, the” judge then hears from the copyright holder who says, “Your honor, I simply used the PicScout search-once-takes-a-second engine I the image is right there.”

For a company focused on copyright protection and enforcement, PicScout is sadly misinformed about the orphan works act, copyright law and copyright office regulations. PicScout’s statements are so outlandish, so incorrect and so dangerous to rights holders that I don’t know what else to do, other than to let their statements and my brief replies speak for themselves:

PicScout:
“Once the Orphan Works bill passes, the Copyright Office will create a database so your works can be found”

Wrong. The copyright office has no intention of creating a database for use in finding works (as evidenced by our previous Q&A with them, which appeared in PicScout - Delusions of Grandeur?, 5/27/09), and the Orphan Works Act has no provision requiring that they do so. The copyright office would prefer not to be involved in the process of certification of third party databases, but would do so if required by law.

PicScout:
“ The CO will, as specified by the OWA, create a “certification process”, which means that it will create the specifications for one to be created. Third parties will apply for certification based on those specs. Contractors that are selected will be paid to create the database itself, at which point, the Copyright Office will put it into operation (including populating it with content and administering it).”

Wrong: The OWA has no provision requiring the CO to select contractors to create a database for the CO. The OWA provides that the CO will be a certifying authority for third party databases which will be operated independently of the copyright office, without further CO involvement, management or supervision. The CO will not operate, populate or administer a database under the OWA.

PicScout:
“If you register your works “there is no downside to the Orphan Work Act….If you never register your photos with the copyright office, then all this hoopla about the OWA is entirely irrelevant… The OWA only affects statutory damages, so only registered works are affected.”

Wrong. Under the proposed language of the OWA, whether you register or not, an infringer may use your work for any purpose without your prior knowledge, and if you ever happen to learn about the infringement, you have no right to stop the infringement, even if it conflicts with exclusive licenses that you have issued, and even if it is objectionable to you, and even if it harms or destroys the market for your image.

PicScout:
"copyright law currently states that no one whatsoever can access records within the copyright office without a specific court order"

Wrong. There is no provision in copyright law limiting access to records within the copyright office, and there is no court order required to access copyright office records. Section 705 of the Copyright Act states that all copyright office records including deposits, registrations, recordations and other actions, including copies of copyright deposits “shall be open for public inspection.” Section 201.2(b)1 of the Copyright Office Regulations further provides that the copyright office shall provide the public with access to registrations and deposits. There is no requirement for court orders or other qualifications.

PicScout:
“Fair use is hard to codify into exact language that everyone can agree on, but that hasn’t prevented it from being applied for decades."

There is unfortunately little similarity between the OWA and the Fair Use provisions of copyright law. Fair Use allows usage for very limited purposes (criticism of the work, comment on the work, news reporting on the work, teaching about the work, scholarship related to the work, or research on the work), and only where the use has no negative effect on the rights holders ability to profit from his work. In contrast, the OWA allows usage of the work for any purpose, even purposes that harm or entirely wipe out the owner’s ability to market for the photograph.

PicScout:
“ if there is a dispute about someone’s use of a work, and they happen to gamble on the bet that they can convince a judge that they did a “diligent search”, then like any other judge looking at facts and circumstances, he or she will assess whether it’s apropos…the onus of proof is on the defense, not the copyright holder. All a photographer has to do is come forward with a claim, and the defense has a big decision to make: will a judge really determine that his search was diligent? I would be hard-pressed to believe that any publisher is ever going to take that risk.”

Wrong. Under the OWA, the rights holder bears most or all of the risk when filing a claim of copyright infringement. With the determination of diligence left to the court, a photographer takes a huge risk in filing an infringement claim. In the event that the court finds that the search was diligent, the photographer’s damages will be limited to the fee that both the photographer and the infringer would have agreed upon before the infringement occurred. The fee could be quite low, if for example the infringer can demonstrate that he typically licenses microstock for $1 for unlimited worldwide usage. This would leave the photographer with $1 in damages and tens of thousands of dollars in court costs. An unacceptable risk for most photographers. Pursuing claims of copyright infringement will be nearly impossible under the OWA.

PicScout:
“If so, the OWA could affect some claims made by copyright holders. However, only a tiny fraction of image uses are ever directly linked to profits anyway.”

Wrong. Under existing copyright law, a photographer need only show evidence of the gross revenues of the infringer. The infringer must then prove to the court all revenues that are not attributable to their infringing use of the image. Any profits that the infringer can’t prove unattributable will be awarded to the photographer. The burden of proof is on the infringer, no the photographer, and profits can be directly or indirectly attributable to the use of the image.

PicScout:
“Since the only images that are affected by provisions of the OWA are registered works, then one or both of these will be true: (1) all databases will have a complete set of CO records, and/or (2) web crawlers (such as picscout) will mine every single one of them, fingerprint the images, and still provide the same search-once-takes-a-second methodology.

Wrong, wrong and wrong. Both registered and unregistered works would be significantly impacted by the OWA. There are no plans to allow third parties to mine the CO database.

PicScout:
“The only people who would truly be protected are certain kinds of non-profit educational institutions and uses that are considered education or for the public interest.”

Wrong: the OWA is structured to provide comprehensive legal shelter from copyright infringement remedies for anyone who wishes to use a photograph but can’t find the owner. Not just non-profits, but also publishers, ad agencies, design firms, special interest groups --- anyone. Provided that they complete a diligent search and fail to find the owner, the infringer may use the photograph for any purpose without permission of the owner, and is only liable for a fee that the infringer agrees is reasonable. Further, the owner has no right to stop an infringement once it begins, even if the owner surfaces and objects to the usage because it competes directly with the owner, or because it is otherwise objectionable to the owner.

PicScout:
“No matter how you look at this, the mere existence of a database is a good thing.

I must point out that we can enjoy the benefit of databases without the horror of the orphan works amendments as they were proposed in the last session of Congress, and which will be a likely starting point whenever they return to the legislative scene.

I have so much respect for the fireman who comes to the rescue and saves people from a burning building. I have contempt for the fireman who hopes for a fire so he can come to my rescue. Prior to PicScout telling everyone to "Relax" and misinforming everyone with "If you never register your photos...You already have very little protection (or recourse) against infringers, and OWA doesn’t make it worse..." I saw PicScout as that former fireman who was coming to the rescue of a lot of photographers and doing good. When PicScout took the relax, don't worry position, when every photo trade organization has said OWA is bad for photographers in one way or another, that was a cause for alarm and concern that they might have been the latter fireman.

Well, it seems, PicScout has heard the alarm, and reacted to the smoke in their own firehouse. Let's hope they don't make another mistake, because, frankly, when OWA passes, PicScout, Idee's TinEye, Digimarc, and others yet unannounced, will likely be, in one form or another, parts of the solution. I just don't want them cheering for photographers to need them like that, it's bad karma, if nothing else.

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An Unfair Advantage

If you're a photographer who shoots on white seamless, what's wrong with using someone elses' work to sell yourself on a website? Heck, why not grab some of Avedon's works to show what your work would look like, since he's no longer making photos. The clients won't know they're not your photos. What's the harm? Well, in a nutshell, you are stealing someone elses' work in order to make you look better, more capable, or otherwise promote you.

What about the use of music on your website?

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If I am a wedding photographer, and I am using tracks from Triple Scoop Music, or Broken Joey Records, is it fair to compete against a local photographer who is using U2's "Beautiful Day" on their website as an audio track to their wedding portfolio slideshow? Setting aside that most consultants recommend against music on websites (the bride and/or groom are likely looking for a photographer in their cubicle in their office, after all), the other photographer is taking an unfair illegal advantage when doing things like this.

I previously wrote about photographers stealing other photographers' work (The Curious Case of Fink Photography, 12/10/08), and I've also written about photographers infringing on other creatives works (© Infringements - Don't be a Hypocrite, 3/23/08), so here's a solution. If you run across someone infringing on the copyright of musical recording, you can either report it because it's the right thing to do, or you can report it because it will eliminate an unfair advantage your competition has. Whatever your motivation, just submit the URL to this link: report piracy. Wouldn't you want someone to report to you that your work was stolen and being used by someone else for their benefit? Not only would I, I have benefited from the kindness of another photographer bringing to my attention the infringing uses of my work.

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PicScout - Delusions of Grandeur?

PicScout, one of several image search solutions, has been mis-informing people of late, and it's not sitting well with me. In their latest blog entry, dated May 25th, they have made several statements that are factually inaccurate at best, and misleading at a minimum.

PicScout suggested:

if you don’t register your photos with the US copyright office, your claim against any infringer–with or without the OWA–would be based on calculations that are unaffected by OWA.

This statement is factually inaccurate. Whether or not you registered your images, you can file a Digital Millenium Copyright Act takedown claim and get someone to stop using them if you find out. Under past OWA proposals, you cannot prevent someone from continuing to use the image they found. OWA would severely affect copyright owners regardless of registration, or a desire for money. Further, there is a huge difference between the amount that the rights-holder and infringer would reasonably agree upon (as required in past version of the OWA) as compared to what a rights-holder could have reasonably requested. When an infinger can point to tens of thousands of images selling for $1, when I suggest that I would not have licensed the image that was infringed for less than $1,000, or even $250, my position will appear unreasonable, even were I to be able to point to a history of licensing at those levels.

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PicScout suggested:

we start with the most specific item: the text of the bill says that if the publisher of the work has done a “diligent search,” then the OWA would provide protection from statutory damages in an infringement claim.

Here's the actual text from the House bill:

"an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work."

In point-of-fact, the infringers protection would be much more than just statutory damages as previously proposed.

PicScout suggested:

since only about 5% of pro photographers or stock photo agencies bother to register their works with the US copyright office, 95% of the photo industry would be almost entirely unaffected by OWA.

There is so much wrong with this statement -- it is so fundamentally inaccurate I don't know where to begin. Suppose you never registered your work, yet you licensed exclusivity to a client who published your work in an ad. Someone scanned that image in, and posted it on the internet, and someone else finds it and wants to use it for an ad. They do so, and you find out about it from an irrate client who thinks you licensed the image to their competition. You contact the infringer, only to find out that they couldn't find your image on a "diligent search", and as such, used it, and now, will pay you a nominal amount which you are required to take. Your acceptance of this income places you in contractual violation with the commissioning client, and they will sue you.'

Currently, whether or not a rights-holder has registered their work before an infringement occurs, the rights-holder may recieve actual damages, disgorged profits, and may force the infringer to halt the infringing activity. Actual damages include not only the fee that the owner could have reasonably required of the infringer, but also compensation for any other damge to the owner's ability to market the work. Many rights holders who have registered their work opt to forfeit statutory damages in favor of actual damages, which would have been an available remedy even if the owner had not registered the work.

Then there is the fact that the proposed OWA would allow anyone to use any image for any purpose, including purposes that are morally or commercially objectionable to the rights-holder, such as advertisements for certain causes, or usages that directly conflict with existing exclusive licenses issued by the rights-holder, or usages that will prevent the rights-holder from monetizing their image in the future. For example, an infringer could use an image on a book cover. This would immediately destroy the rights-holder's ability to license book cover use for that image, and the rights-holder would have no right to stop the infringing activity, even after it is discovered. This is very different from the pre-OWA world, in which every rights-holder is able to prevent and stop objectionable uses of their images.

PicScout suggested:

But this confusion is because they are reading that line by itself. You can’t do that. It’s tied directly to a part of the bill that requires the copyright office to create a “certification process for the establishment of an electronic database to facilitate the search for pictorial … works that are subject to copyright protection under title 17, United States Code....there is only ONE such database!...Some have created a myth that there will be many registries and databases, each containing some subset of copyrighted works."

You're right PicScout, you can't pick and choose which lines you read, and which you ignore. H.R. 5889 includes this language:

(a) ESTABLISHMENT OF DATABASE.— (1) IN GENERAL.—The Register of Copyrights shall undertake a certification process for the establishment of an electronic database to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code.

S. 2913, which was approved by the Senate, had this language:

SEC. 3. DATABASES OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.
The Register of Copyrights shall undertake a process to certify that there exist and are available databases that facilitate a user’s search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code. The Register shall only certify that databases are available under this section if such databases are determined to be effective and not prohibitively expensive...

Thus, they are undertaking a "certification process" (House version), and "a process to certify" (Senate version), NOT establishing their own, and this has been stated;

HOUSE VERSION:

(b) PUBLIC AVAILABILITY.—The Register of Copyrights— (1) shall make available to the public through the Internet a list of all electronic databases that are certified in accordance with this section; and (2) may include any database so certified in a statement of best practices established under section 514(b)(5)(B) of title 17, United States Code.

HOUSE VERSION:

SEC. 4. EFFECTIVE DATE. (b) PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.—With respect to pictorial, graphic, and sculptural works, the amendments made by section 2 shall— (1) take effect on the earlier of—(A) the date on which the Copyright Office certifies under section 3 at least 2 separate and independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet; or (B) January 1, 2013; and (2) apply to infringing uses that commence on or after that effective date.

SENATE VERSION:

(c) Effective Date- (1) IN GENERAL- The amendments made by this section shall--(A) take effect on the later of--
(i) January 1, 2009; or
(ii) the date which is the earlier of--
(I) 30 days after the date on which the Copyright Office publishes notice in the Federal Register that it has certified under section 3 that there exist and are available at least 2 separate and independent searchable, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public; or
(II) January 1, 2013;

What part of that language in either the House or the Senate versions, that suggests there will be fewer than TWO? In point-of-fact, the bill would go into effect once " at least 2 separate and independent searchable, comprehensive, electronic databases" or, the "later of" the above (as cited from the Senate version). Let's highlight the word "at least", since PicScout seems to think that it is "a myth that there will be many registries and databases".

However, perhaps I, and everyone else I know who knows what they're talking about on this got it wrong, and PicScout got it right. So, we put the following questions to Maria Pallante, Associate Register, Policy and International Affairs, for the Copyright Office today, and she stipulates "our answers relate to the language that passed the Senate in 2008." (As you can see above, the language on this issue between the House and Senate versions is essentially identical.)

Q: Does the Copyright Office intend, or are they planning, to create, establish, run, or manage, either internally, or with oversight by any contractor, a single database to facilitate searches for pictorial images, in the event that Orphan Works legislation is enacted?

M.P.: "No."

Q: Does the Copyright Office intend to certify more than one electronic database for searches of copyrighted works that contain pictorial images?

M.P.: "we either have to certify two databases or no databases. In other words, the legislation either becomes effective by a date certain or it becomes effective earlier than the date certain because we have certified that the defined databases exist. The certification process is linked only to the effective date. It is not a separate or ongoing function."

That's pretty clear.  

Thus, in order to make the legislation active prior to the start date they would have to certify a minimum of two, however, the Copyright Office could and likely will certify dozens or even hundreds of databases before the start date, not just two. Further, PicScout's assertion that "contractors that are selected will be paid to create the database itself, at which point, the Copyright Office will put it into operation (including populating it with content and administering it)" is misinformed - if we are to believe the Associate Register for Policy and International Affairs, and I would believe her over the hopes-stated-in-the-form-of-expectation from a potential contractor candidate like PicScout.

Further, the legislation does not place any caps on the number of databases that can be certified. So, if a bill passes the Senate (again) with the same, or similar language, these certified databases -  databases that satisfy the requirements set forth by the Copyright Office - will be approved. Further, once certified, there is no language that requires that any particular database, or a set number of databases, must be included in a diligent search. Thus, an infringer would be able to pick and choose the databases that they wish to search as a part of a diligent search, resulting in rights-holders in effect having to register with every database, since they must, as the Senate legislation stipulated be "independent." Further, since the statutory requirement would be to have two, it would be reasonable, at least at the outset could include only those two databases. While there has been discussion of allowing trade associations and others to create "guidelines" for diligent search, these would at most be guidelines, not legal requirements for a diligent search.

Thus, with a high degree of likelihood, as the number of certified databases grow,  infringers will search the least populated, most poorly designed - yet certified - databases to "complete" their diligent search, and thus be allowed to infringe with immunity under the OWA. Further, I have heard of plans for "themed" databases and databases pertaining only to certain categories of works. The Senate and House versions of the bill both allowed for infringements to begin after only two databases were approved, without any consideration as to whether those databases were photography, film, sculpture, painting, poetry, etc. So, for example, even if there were no approved photography databases, if a sculpture and film database were to be approved, the minimum quantity of 2 would be satisfied, and the infringement floodgates would open.

PicScout suggested:

Relax. The bill doesn’t define a “diligent search” because it doesn’t need to: There is only one copyright database. You only need to search “the one.”

This is like the musicians playing on the deck of the Titanic - lulling people into a false sense that all will be okay. There will not be "only one", there will be "atleast two", and almost certainly dozens of certified databases.

PicScout suggested:

The elephant in the middle of the room is, “Who’s going to index the copyright office’s database?” Since it’d be public, anyone could. And obviously, PicScout could.

Fortunately, the OW bill from last session includes this language:

"...security measures that reasonably protect against unauthorized access to, or copying of, the information and content of the electronic database."

So, technically, if the Copyright Office had a database (which they state above they would not), then perhaps they might employ, say, a contractor to do it? Again, fortunately, when asked if that would be happening, they said "no." It seems, perhaps, that PicScout would like to be that contractor (the one that won't exist), and be awarded a contract that would grant them the right to index all of the content that might be in the hands of the Copyright Office?

Is it possible, that the Congress, or the Copyright Office, would require the company that was awarded that contract to be, say, American? That would certainly put PicScout, and Israeli company and Idee, a Canadian company out of the running. Digimarc is a possible solution and is US-headquartered, and Google, which currently has the ability to search for content by typing, say "bicycle" into a search and finding images with that in them, likely also has comparable (or better) image-matching capabilities they just need to flip the switch on, and they too, are not only US-headquartered, but they also have existing relationships with the Library of Congress, even being a presenter at a technology expo (across the room from PicScout) that took place on Capitol Hill a year or so ago. While this type of protectionist approach to being awarded the contract to index all of the CD's and DVD's (and analog content) that is in the hands of the Copyright Office isn't fair, it was done for the steel industry in the economic recovery act, and other examples abound.

PicScout Suggested:

Once online, your photos can exist anywhere and everywhere in the whole big, fat, wide world. And if someone gets their hands on one, and wants to publish it in a way that would require paying you a license fee, the OWA would compel them to do a “diligent search,” which would instantly lead them directly to you - swoosh! Took all of one second....Big money comes your way.

I return to my previous quote:

"an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work."

Where in there do you see "big money." In point-of-fact, "big money" and "reasonable compensation" are not even close to one another. In an era of $1 microstock, what judge is going to award much more than that, when the infringer can point to tens of thousands of images available for unlimited use for $1. This, even when that rights-holder could demonstrate that typically license similar uses for $10,000. The OWA contained no mechanism for arriving at the reasonable compensation. As such, you can expect a deadlock in almost every instance, and if the infringer delivers what they believe to be a reasonable payment, the infringer wins because the owner is prevented by law and by circumstance from pursuing the infringement.

Further, PicScout, you left out the part where you are responsible for posting all of your images into these databases if they are not registered - in effect, having to "re-register" your images a second time for ALL your past registrations.

PicScout is supposed to be looking out for photographers, and previously, it seemed that they were putting their great technology to use for good. This blog post, full of misinformation about Orphan Works gives every indication that PicScout has re-charted their course into dangerous waters, and they are now intent upon lulling photographers into believing that the previous versions of Orphan Works bills would have been good for them. This is an unfortunate change of strategy at PicScout, and will harm, rather than help, individual photographers and the photography industry at large.

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Marketing with Twitter, Facebook, LinkedIn, & MySpace

You have a wide swath of options when it comes to getting your name out, creating a following, or otherwise marketing yourself. The problem is, you may not be marketing yourself in ways you want, or thought of, if you are not sensitive to the realities of todays' instant-access world. The key is to stay on the reservation - your reservation.

You are reading this blog, either on Blogspot, or via RSS, so you have a baseline of understanding. However, you may not be aware of how your presence on facebook, LinkedIn, MySpace, or your tweets on Twitter, could be having an adverse effect on you, and your business.

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Rob Haggert over at A Photo Editor wrote awhile back "Facebook and Twitter Lost Me an Advertising Shoot" (4/22/09), while on the other hand, six days later, Photo Focus wrote "How Photographers Can Use Twitter as a Marketing Tool" (4/28/09), which illustrates the yin and yang of social networking.

Recognizing that you are a business - whom would you allow your employees to "friend" if you had employees? If your full-time office manager lists your most aggressive competition in your area as a "friend", would you be concerned? Would you allow your post-production/retoucher to tweet out things like "OMG, I have this fattie to slim down 50 lbs from a portrait shoot my boss did today"? How about the assistant who, mid-shoot, tweets "I am on this shoot for XYZ Company, and the client is a PITA!" Consider that before the shoot ends, a Google Alert for XYZ Company likely went to the PR department, and you could get a call, or worse yet, fired from the shoot, thanks to your assistant.

Stories abound about people not getting jobs because of what they wrote or photos of them on facebook, or MySpace, just as much as they are out there for people getting fired for the same reason.

Just as you would be blindsided by the responses to the above tweets or facebook status updates, you need to be very conscious about your social-networking presence, and how it reflects on you and your business. Are you tweeting "a photo a day", or maybe sending out an inspirational message, or are you just recounting the trials and tribulations of the day?

If you feel you just have to speak your mind, and If you have an account for "john smith" on twitter and EVERYONE knows you there, try an account that is not connected to you like "js12345abc" which you share only with a few friends you want to be frank with. Also, don't mention business names or other identifiers in your tweets/messages that could get indexed by Google/et al and be sent to that company's PR department. Having a separate, anonymous, twitter account for your closest friends could allow you the ability to be "yourself" without ruining your online reputation as it relates to your business.

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iPhone Cover Art

The iPhone is a remarkable tool. Enter the latest incarnation of the technology's fruits, the cover of the New Yorker Magazine:

In this instance, it's not about the megapixels of the camera, because this was a piece of art created entirely in the iPhone's Brushes application, as reported here, and the New York Times wrote about it here. Yet one more example of why it's about the talent, not the tools.

(Comments, if any, after the Jump)

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FotoQuote 6: A Worthwhile Upgrade

Like fine wine, a new version of FotoQuote has been highly anticipated, but Cradoc, the programs' creator, on the verge of releasing the software last year, opted to do more research and has finally released the fruits of that labor, in FotoQuote 6. (Click images to see larger)

Now with 304 categories, meticulously researched, this software, that was the gold standard already, has reached a new level.

One of the criticisms of FotoQuote whenever someone recommends it is leveled by people who think the rates are too high (they are not), is that the figures in FotoQuote do not take into account the world of microstock pricing. The fact of the matter is, they have and they do.

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These days, I am seeing more and more inquiries about all manner of digital use. Not to worry - the new version has a huge category of TV variations, as well as the use of the images in e-mails and marketing.



Yes, I know they advertise on this blog, but I would be strongly recommending this software (or the upgrade if you already have it) whether or not that was the case.

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Pricing & Negotiating Photography - One Solution

When I find programs that I think are worthwhile, I send them your direction, and such is the case with Pricing and Negotiating, ASMP's program featuring Susan Carr on pricing, and Blake Discher on negotiating. While the schedule of where they will be can be found here, next weekend - May 30th, they will be in Richmond Virginia giving a Saturday morning presentation. Here are the details for that:

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What Do I Charge?

Susan Carr presents a candid discussion on licensing and pricing your work.

Seminar topics:

• What you need to know about copyright.
• A real world look at how to license photography.
• Why are copyright, licensing and pricing connected?
• Pricing models.
• 
  Learn the steps to determining what to charge.
• Selling your price.

I Stink At Negotiating

Join Blake Discher for his highly acclaimed “Strictly Business 2” lecture on how to win jobs.

Seminar topics:

• Learn how to prepare for a negotiation.
• Researching the client.
• Increasing your clout.
• Listening skills.
• When is it time to walk away?
• The follow-up is critical.

This will be four hours of packed information that will be well worth your while to attend. You can register by clicking here.

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Zackary Canepari - NYT Staged Photo Controversy

Zackary Canepari has a pretty big problem. At the ripe old age of 30 or so, he is likely now persona non-grata at the New York Times, and his journalistic ethics will also likely give other editorial publications pause to hire him.

PDNPulse first reported, in New York Times Withdraws Posed News Photo (5/19/08), about the photo above, and the Times' withdrawal of the photograph, including an apology that PDN ran.

What was this photographer thinking when he staged a news photo?

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While we have not spoken to Zack, his Lightstalkers page shows he's been in and out of India and the Middle East for almost two years, and according to Verve Photo, in this article Zack Canepari - The New Breed of Documentary Photographers (2/27/09), he's been a photographer since 2003. Canepari started doing portraits - making images happen, not standing back and waiting for them to happen.

Unfortunately, when publications pay a pittance for their photographers, and do not pay a living wage, the photographers with the integrity necessary to work for the top publications in the world do other things - their own projects, books, commercial work, and so on. Heck, even a few teach classes and workshops. Because the New York Times has not, well, pardon the pun, kept up with the times, in terms of pay, they have reapt what they have sown. I would not be surprised that there are others they didn't catch, and in an era where photographers are driven to compete, whether Zack's posed photo, which is over the line, to the Reuters photographer with the "enhanced" smoke , which is egregiously over the line, until photographers are paid fairly enough that they can do their jobs - and, it should be said, are staffers with job security, pressures like this will continue to errode the public's trust in journalistic works. The problem is, once people realize this and think about course-correcting, it will be too late, and visual journalism will have been dealt a mortal blow around the world.

If, as Verve Photo suggests, Zack is "the new breed of documentary photography", the world of photojournalism is in dire straits indeed.

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Smithsonian Folklife Festival Mis-Steps

The Smithsonian is responsible for a lot of amazing things. This year, they're responsible for one thing that is, frankly, an abomination - the devaluation of intellectual property - at the annual 2009 Folklife Festival.

A call when out recently, which read, in part:

We are specifically looking for volunteers with experience in audio, video, and photo documentation. As a documentation volunteer you will be asked to assist with recording performances, interviews, and presentations in different program areas. In addition, photography volunteers will be asked to take photos of specific subjects
along with general happenings at the festival.

Really?

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So, the Smithsonian is looking for a few good men...err....chumps? Rubes? It's one thing to ask a fan of golf who would have paid to attend a golf tournament as one of those guys that holds up the "Quiet" signs, since there are no professional sign holders like that. The Smithsonian has an amazing team of photographers that work diligently in their museums, and who not only look forward to getting outside during the festival, but no doubt also enjoy the overtime or comp-time they get from doing all that extra work. Further, they are professionals, who know what they're doing, and how to do it.

They've solicited for photographers on Craigslist, and overall are looking for people for a total of ten days worth of work. Who's going to screen these people for the right gear? The right skill-set? Who's going to manage the intake of all the images, with proper and accurate captions? What all-rights-in-perpetuity-without-pay contract will they be asked to sign?

Photographers....err...Documentation Aides, will be asked to attend a pre-production meeting volunteer orientation on Saturday during the late morning. Then, they will be assigned things and places to photograph. Yes, this is work.

James Smithson, who founded the Smithsonian, for the purposes of an "increase and diffusion of knowledge", is probably rolling over in his sarcophagus right now in the castle in DC. He died in 1829, and ten years later Daguerre made the first ever photo of a person, making his "daguerreotype" showing a city street with a man getting a shoe shine in Paris, and heck, France agreed to pay Daguerre a pension for his formula, provided he declare his discovery as being a gift to the World from France, which he happily did, in 1839. The Smithsonian Folklife Festival is clearly not honoring the French this year - they are honoring "The Power of Words in African American Culture"; "The Americas: A Musical World"; and "Wales Smithsonian Cymru highlights the creative culture of this dynamic country". Nothing like celebrating amazing creativity on one hand, while stamping on the value and intellectual property of the visual creative community with both feet, like so many fragile grapes, destined for a wine bottle. Yet, after the fact, the photographs, lack of solid captions, great-pictures-if-it-weren't-for-the-fact-that-it-was-shot-on-small-jpeg, and so many other professional-level services will be the swill that the organizers will be tasting. Sure, there will be a few gems - even a blind squirrel finds a nut once in awhile, but how many things that should have been documented, will be lost to the mis-steps of amateur hobbyists who will try to fill the shoes of professional photographers?

It's one thing to ask people to send in their favorite photos, or even for the Smithsonian folks to browse Flickr looking for great folklife festivals, and then having the museum encapsulate them in some way, but to be looking for day-in and day-out volunteers to work (yes, Documentation Aide appears under "Work Descriptions" on the Volunteer Questionaire, so it will be work), is just plain wrong. It may be well-intentioned, but as my mom tells me - the road to hell is paved with good intentions. The Smithsonian Folklife Festival should utilize it's talented in-house team of photographers, and leave the one-chance-only documentation of this event to the professionals.

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Speedlinks & Commentary - 5/13/09

It's been some time since we've done Speedlinks, so I thought I'd compile several that I thought note-worthy, and I'll add in a bit of commentary to each, so, enjoy today's speedlinks.

• Awkward Family Photos - This site is not only good for a barrel full of laughs, it is also a variation on the website Photoshop Disasters, because it shows so many photos that are just plain bad. Take for example, this one - Mothers Day, and this one - Too Close for Comfort - which makes me think the photographer had a backdrop that was too small, and he kept telling the subjects to move closer together, then there's this one, and here are "The Cling-Ons", the over-use of white in Whiteout (I mean, doesn't that photographer understand that this is over-the-top, and borderline Stepford?), and as someone who is 6'7", this - Big Love - is just composed poorly, an over-use of a primary color in Into the Blue, and lastly, - Family Tree - that photographer just isn't right in the head. So, take a spin, laugh a little (ok, a lot!), but most importantly, learn a few lessons - the first one I'll suggest: 1) It takes actual talent to be a photographer, not any "Joe" can do it!
  
• Starting Over - As an Entrpreneur - Here is one more story that tells people that when they lose their job, being a freelance photographer is the solution. A few tips for the intrepid photographer who lost her PR agency job and decided to freelance - 1) Don't pose with an outdated film camera, and if you are going to, make it a Hasselblad and not a Mamiya 645 (yes, Mamiya fans, bring it on), 2) "faux borders" on images is so 2001, and 3) get a separate wedding site. Mixing commercial marketing and wedding work is not good for getting commercial work. You take a good picture Tarah, but your marketing plan needs some polishing - what did you learn at Mortar?

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• The Gravediggers of Photojournalism - Jahreszeiten publishing is using Stalinist tactics to try to force photographers to surrender a broad swath of photographers rights for next to no additional revenue while the "publisher Thomas Ganske professes to be a protector or champion of intellectual property rights. For instance, he was a prominent signatory of the so-called Heidelberg Appeal, according to which: “Authors and publishers reject all attempts and practices to undermine the fundamental intellectual property rights to literature, art and science, the fundamental right to freedom of research and teaching as well as freedom of the press and publication.” Hmmm, this sure sounds a lot like Conde Nast's attempts to secure, and I quote "All rights throughout the universe...". Where were all these photographers when ASMP and others were fighting the assinine Conde Nast(y) contracts? (Conde Nast Contact: Introduction, 5/26/08). There are over 3,000 signatures, which the publisher will laugh at unless they get an EP-like group to actually refuse to work under those conditions. That is, until the iStockphoto hobbyists, looking to get validated by being in these magazines, see Jahreszeiten as their own Mount Everest. Paging Seth Resnick and Paula Lerner....


• PDNPulse - Mrs. California Blames Photographer - I agree with Mrs. California - the photographer has released what really looks like outtakes that caught her either inbetween shots or otherwise affected by the wind. Further, since when do tasteful images of the human form raise legitimate objections? take a look back at the historical statues of nude women or famous paintings by all caliber of artists from the middle ages, where the nude female form was celebrated. Lastly, I am damn tired of people being chastised for their own personal opinions - especially when they are expressedly solicited. Her keeping her title is just, and just like I dislike celebrities using the Oscars for the espousing of anti-whatever sentiments when they should just be thanking people for their award, so too do I dislike it when someone hijacks an event for their own personal agenda. It doesn't help that he has no qualms about infringing on copyrights with reckless abandon (alledgedly), as detailed here.


• Alamy Mis-Steps - It seems that a bunch of Alamy contributors are (rightfully) upset about the agency mis-licensing RM photos at lowball rates to "preferred customers", with one person reporting a sale of $10 for an image that priced out at $600.00 using Alamy's own calculator. Seems something's afoot over at Alamy, and it might just be some smelly socks.

So, with all of the above feel free to fill the comments with all manner of opinion, just keep it civil, or you'll get deleted, and remember, my opinion or commentary doesn't have to match yours, but you should respect mine even if you don't agree with it, since you did choose to come here and read it of your own volition.

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