ASMP Referendum - Check Your Mail

Previously, we wrote and encouraged you to learn about, and subsequently, to vote "no" on the referendum before you (that likely just arrived in your mailbox), as an ASMP member (and if you're NOT a member, click here to join) your voice should be heard.

I wrote extensively about this previously (read it here), so I won't rehash what I wrote then, but I WILL repost it weekly between now and March 15th. Let me make one thing clear about this referrendum - I am not on ASMP's board, I was not in the past, and I don't currently have any plans to be on the board. Further, ASMP has not asked me to take a position, I am doing so because I think that the referendum is ill-advised, and will be detrimental if passed.

Last night, in response to an ASMP seminar in New York, the leader of this referendum - Scott Highton - sent out a missive with criticisms of the messages that were put forth, and suggested that what the presenter said at that seminar was "flat out wrong" and that the presenter "should be ashamed of misleading members this way."

As Scott Highton suggested in his letter in criticism of the brief remarks that the presenter made, Highton reports that the presenter said "the current By-Law referendum, and claiming that if passed, it would prevent talks like this from being presented by ASMP in the future."

Actually, what the presenter said was, in point-of-fact, the truth.

That presenter, who is on the National board of ASMP, and is a leading expert on digital asset management for individual photographers, would not be in the financial position to be traveling the country away from his photography business giving those talks. Other national board members who are experts in fields like website search-engine-optimization, and so on, would have to choose between volunteering their time to serve the membership at a national level, and giving presentations. Thus, the cream that has risen to the top and are volunteering as leaders on the national board could not also serve as traveling presenters to chapters, and earn a token amount of money for their 2-3 day commitment they have for each of the cities they have to travel to, loosing money because they were not available for photo assignments for their clients, and giving great benefit to the members their programs touch. And, let me remind you - these token payments are coming from sponsors via ASMP, and not coming out of membership dues.

Further, this referendum would eliminate the token $15k payment to the President for what is essentially a 40-hour a week job for a year. Further, the Library of Congress project that came to ASMP was, in-point-of-fact, brought to ASMP by a board member - and, if this referendum were passed - that would not - in fact could not - happen in the future.

What Highton hasn't been so forthcoming about is the fact that he was on the national board at the time that it was voted that directors should be paid, and he voted in favor of the very thing he is now opposing so hard. Scott Highton could easily paraphrase John Kerry's famous flip-flop line about funding the war, and say "First I voted for paying directors for giving talks, and now I am opposing it." Nice flip-flop Scott. Good luck getting elected.

(Comments, if any, after the Jump)

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Extreme Skin-Flint

Sometimes you can't make this stuff up. Our "Skin-flint" for today is one spa in the Palm Springs area.

You must:
1) Shoot stills and some short video
2) Competing against another photographer, who is female for "a range of insight", on the same day, using the same models
3) Have "great eyes"
4) Willing to work in exchange for trade only
5) If male, cannot use the trade alone
6) Must shoot quickly

Oh, and "...the photographer is able to work nude or top free and sarong as this is A nude shoot and the staff of -X- is also all female,top free or nude etc and there are Never any single men on the property."

Again - You MUST work nude, or (and I am presuming this applies only to women) top free and a sarong.

The ad, and link, after the jump.

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Until such time as the fountain of humor (which would actually be funny if some of the postings they had weren't serious) that is Craigslist ceases to publish these things, we will continue to have a chuckle at the ends to which some clients will go (and, yes, likely, some photographers too) to get work for free and cheap.

Here's the listing (until someone flags it):

FEMALE PHOTOGRAPHER FOR spa resort shoot (palm springs)

Reply to: job--x-x-x-x--@craigslist.org [?]
Date: 2009-02-10, 12:01PM PST

The -X- awarded resort is seeking a female photographer for our annual spa resort shoot -This is going to be a Nude shoot !
This spa has many accolades and awards and is a nude spa hotel and club too-

There are never any single men on the property at sea mountain spa
The x-x-x-x-x-- inn is located in DHS minutes from Palm Springs California

If you know couples or models who want to be part of this let us know-! Their compensation is also $1200 in trade and use of photos.Let them know too

We seek updated images for our web site www.-x-x-x-x--.com and some short video for flash movie for smi resort www.-x-x-x-x--.com

You as the photographer, may also KEEP and Exploit the images that you take in any way you deem fit for the future-the photos should be not too posed although you as an artist may chose to pick some and make for creative cool art shots.
We are showing the resort as a Nude spa resort and club and also need shots of implied nudity too.We have a pool and spa and gardens and a 24 hour dance club and 4 star hotel rooms too that need to be shot.

There will be other female photographer on the property on that day as we seek a range of insight -The images you take are yours too for your sales or portfolio. The models are also keeping photos too

The spa hotel is also offering to YOU $1200 of spa trade which is two midweek VIP nights food and drinks too for two persons and two day spas eve spas any time in exchange for the shooting of these images for us and delivery of photos. We will have open model releases of all models.The trade is worth more then $1200

We should have at least 10 to 15 couples and mostly females available for the shoot that day -We do need to shoot quickly as there cannot be other hotel guests on the property and are shooting for the 8 am Monday March 2-SO the shoot might be 2 hour MAX- march 2 monday at 8 am shoot


There may be room at the hotel the night prior if you are coming from a distance and should know more about this soon too.

We are seeking Great eyes- We also ,since we are a nude resort need to know the photographer is able to work nude or top free and sarong as this is A nude shoot and the staff of SMI is also all female,top free or nude etc and there are Never any single men on the property. -X- is for couples and women only no single men -

It's the vibe thing as we want to photographer to blend with all of this . Thus the photographer must be comfortable with this -

This is in NO way a sex shoot! look at our site for samples and accolades asap!

www.-x-x-x-x--.com
send link to your work your resume photo etc.

Thank You

-x-x-x-x-- spas

This is here in large part for your humorous consumption. Yet, the sad reality is that SOMEONE will likely do this.

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Greed, Capitalism, and Free Markets

Is greed good? Were I to quote a Hollywood icon from the movie Wall Street, the words "Greed is Good", I would be showered by many with criticism. It's all about altruism, peace, love, and free stuff, right? So, instead, I will point you to several insights about greed, and suggest that, perhpas, the word "greed" has been made out to be a villain.

Greed is one of the seven deadly sins. Wikipedia has:

Greed is the selfish desire for the pursuit of money, wealth, power, food, or other possessions, especially when this denies the same goods to others. It is generally considered a vice, and is one of the seven deadly sins in Catholicism.

Yet, I believe that to apply the extreme position that greed applies "...especially when this denies the same goods to others", is an editorialization on the definition.

Greed - the desire to have more than one needs - is relative. To suggest, for example, that a priest or monk only has what they need, and nothing more, is to then suggest that anyone not "of the cloth", is therefore greedy.

If I, for example, have a two bedroom house, and three children, some may say that all I need is a roof over my head. I, on the other hand, would want a bedroom for me and my wife, and one for each of my children. Is that greedy? Do I need a bedroom for each child? That's relative to your perspective.

My city offers public schooling, but I am of the opinion that that education is poor, (and independant studies back me up on this), so I am sending my children to private school, and paying for that. Is that greedy? Here is something free, but I want something better. Some one argue I don't need that.

Where do we draw the line?

How often do I need a new car? New clothes? A new camera? New computers? How many assignments a month do I need, and how many do I want? Do I need to make a profit off of every shoot, or is it just that I want to?

The first video worth a listen to is from decades ago, with Nobel Prize winning economist Milton Friedman:


More videos after the jump.

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Next up: Milton Friedman on self-interest and the morality corporations pursuing profits.


Milton Friedman debates Naomi Klein (by creative editing):


Charlie Rose takes this look at Friedman for almost an hour:


And finally, a bit of hollywood's take on Greed, thanks to Michael Douglas:

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The Northern Short Course - Approaching Fast

Each year for almost a decade now, I have cleared my calendar mid-March and made my way to wherever the NPPA's Northern Short Course is being held to volunteer and make my presentations on the business of photography, and I've done so pre-dating my book's publication. This year, it's in my own back-yard, just a few miles from home, March 19th, 20th, and 21st, in McLean Virginia (map).

It's an amazing three days, and this year, Adobe guru Julieanne Kost (at left) will be giving two presentations - one on Lightroom (info here) and one on Photoshop (info here).

I have a presentation that is the same on Thursday and Friday (info here) on business and negotiating, and my friend and colleague Bill Foster is giving two talks (#1 here, #2 here) on getting your web pages ranked (a.k.a. search-engine-optimization) which will be well worth attending. I am eager to check out the video presentations, too.

Register Today. Register Now.

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In addition, Friday I will be moderating a panel on what to do if you've been laid-off or have taken a buy-out, with several people with different experiences participating, so that should be interesting.

Saturday will showcase several notable photographers - Melissa Lyttle (photographer and blogger - A Photo A Day), Brenda Ann Kenneally (Pulitzer nominee), Stephen Katz (2008 Photographer of the Year), and Scott Anger (25-year veteran photographer and Director of Video for the LA Times).


Register Today. Register Now.

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Keep 'HOPE' Alive - Fairey Sues AP, Garcia a Writer?

Bloomberg News is reporting that Shepard Fairey is suing the Associated Press. Fairey has gone to court - Fairey v. The Associated Press, 09-cv-01123 - which was filed in United States District Court for the Southern District of New York.

In this filing, according to Bloomberg - "Fairey seeks a court order that the image, created in January 2008, doesn’t violate AP’s copyright. According to the complaint, Fairey’s work is protected by the Fair Use statute, which allows limited use of copyrighted material to make original works of art."

On the other side of the aisle, there seems to also be a flurry of activity with the AP working behind the scenes to file their own lawsuit against Fairey in New York as well.

Meanwhile, back in DC, Mannie Garcia shared with us the first two sentences of the contract that he did sign with the AP, on March 1, 2006:

"The Associated Press appreciates the services provided by independent freelance writers. Clarity about the professional relationship between the AP and each freelancer is essential."

Writer? Seriously? I mean, I know Mannie can write a clear and concise caption, but a writer produces text, a photographer, well, not so much. So much for clarity.

The plot thickens.

(Comments, if any, after the Jump)

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The Inauguration of Barack Obama: Logistics & Perspectives

The inauguration of Barack Obama meant a great deal to the nation. To the photographers covering it, while it's historic, it is also familiar. Yet, everyone has their own perspective and approach.

For those coming from outside of Washington, or who are here in DC and covering this big event for the first time, we produced the "Inaugural 'Pre-Game' Behind-The-Scenes Video" to let you know as much as we could about how the "big day" was going to shape up. Following that, preparation continued.

We taped off a 30" x 5' section on the floor of our office (if you look closely, you'll see the tape on the carpet early in the video at the end of this post), and set up our most sturdy tripod.

We next turned to the duration of the pinacle of the day - the actual swearing in ceremony. We recounted our testing of the cameras, and CF card speeds in this video - 30 Seconds and counting - where we learned the best solutions for achieving the maximum number of images. While we had two cameras set up to be triggered remotely (as noted below), we also took a minute to talk to our colleague Scott Andrews of Canon - Scott Andrews, Remote Cameras, and the inauguration - about his perspective from the center stand.

(Continued after the Jump)

Once we were content with our tripod's rigidity, we attached to the top of the tripod the lynchpin of the setup - a Bogen 131D lateral Side Arm, which allowed for two Bogen 410 geared head with quick release tripod heads, as well as two other Bogen heads to be attached with Bogen super clamps in the middle. Attached to the legs are two Bogen magic arm, camera platform, and super clamps holding the D300 and D700 as well.


Below is the camera setup as seen from my standing position. The Tripod was leveled first, then the Bogen 131D arm attached. Then each of the end heads attached. Following that, the super clamps in the center, each with a head holding a 300mm and 500mm lens respectively (click the image to see it larger).


Below is the setup, as seen from above looking down on it. In this image, you can better see the D300 in the front. You'll also note that while I am making this image with the missing D3, all the other cameras are triggered by the D3, which is the only one I will be looking through. Every other camera has been prepositioned and pre-focused and locked down.(click the image to see it larger).


As someone who spent more of my formative years than I had planned living in the wilderness of Alaska, I earned the hat I am wearing, and it is keeping my head very warm indeed, and I've worn it for several of the last inaugurals. In the foreground of this image is the Canon XHA1 video camera that we used to do all the interviews in the video at the bottom. (click the image to see it larger).


Final preparations and packing took place on Monday, January 19th in the afternoon, as I had an assignment that would keep my busy until 1am Monday night. By the time I got back to the office it was 2am, and 30 minutes later I was asleep. The video below picks up two hours later, at 4:30 am.

In a bit of a departure from our normal videos, we've started with the departure from the office, then the journey to the Capitol, and we then turn our attention to interviewing several of my colleagues - Dudley Brooks of Ebony/Jet Magazines, Dirk Halstead of the Digital Journalist (read more of his thoughts here), David Burnett of Contact Press, Vincent Laforet of Time/Laforet Visuals, Chuck Kennedy of McClatchy Newspapers, and Paul Morse, working for the Official Inaugural Book Project.


(to view the video on Viddler with a lower bandwidth connection, click here, and if you have more bandwidth, and want to watch it FULL SCREEN, click above on the lower right corner of the screen, or click here to watch it at Viddler.)

To answer the obvious question - yes, each camera made exactly the image I had planned. All were just focused as planned, and I have multiple perspectives to consider, as do those looking to license an image I produced. The payoff was that all the planning and attention to detail resulted in a smooth execution without any significant problems.

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Shepard Fairey's Talk on the Obama Image

Shepard Fairey, interviewed on Monday, February 2nd, by Charlie Rose, is embedded below.

While Fairey's talk and perspective is interesting and worth a watch, specific to photography, rights, and business, at about 7:05, Fairey recites a conversation he had with the Obama campaign, regarding how much the image Fairey created is resonating with the campaign staff. Fairey cites the unnamed campaign staffer calling him "would you be willing to do a portrait from a photo that we have the rights to for a poster that we can use both to raise money and to use as a promotional tool. And so I donated an illustration to them. And they, they quickly caught on to the idea of this this look being a very useful look for their brand, augmenting what they already established."

(Continued after the Jump)

This is reasonable, then, to suggest that Fairey might have been aware that he needed to have rights for a photo that is the basis for his artwork, and that a "fair use" argument might not be as strong as they were initially arguing.

Surprisingly, while Fairey's gallery called the source of the image, Mannie Garcia, as we reported on yesterday - 10 Questions for Mannie Garcia - on January 21st, 12 days prior, Fairey does not acknowledge Garcia's AP image as the basis for his HOPE image. It comes across as if Garcia's image never existed.

In a letter to Fairey (Wiki:Shepard Fairey), a citation from Obama's letter reads:

I would like to thank you for using your talent in support of my campaign. The political messages involved in your work have encouraged Americans to believe they can change the status-quo.

Your images have a profound effect on people, whether seen in a gallery or on a stop sign. I am privileged to be a part of your artwork and proud to have your support. - Barack Obama, February 22, 2008

Where is Garcia's letter?

Fairey certainly made money off the image, despite suggestions to the contrary. An interview cited on Wikipedia, reveals:

Fairey distributed a staggering 300,000 stickers and 500,000 posters during the election campaign, funding his grassroots electioneering through poster and fine art sales."I just put all that money back into making more stuff, so I didn't keep any of the Obama money," said Fairey in a December 2008 interview.

So, how much does it cost to produce that many stickers and posters? Copyright judgments are often based upon the transfer of gross profits that the infringer made to the copyright holder. It does not matter that the infringer spent all those profits, or that they "put all the money back into making more stuff...", since that is a decision they made, it does not dismiss the notion that those profits are due the copyright holder. That's like not making a bank robber pay back the spoils of a heist because he spent it all. It does not matter that he spent it on an orphanage's roof (a la Robin Hood), it still must be repaid.

Fairey, in another interview on the subject of images, is reported to have said:

...the image that I continued to put out there myself, they [the Obama campaign] couldn't have any affiliation with it because it was being perpetuated illegally in a lot of ways, and so I just continued to do that on my own without any coordination with them, and that was the "Hope" image.

What is meant by that? Perpetuated illegally, as in, posted on places with "Post No Bills" notices? Plastered on bus shelters without permission? Or, was he speaking of the source of the image as being obtained without a license?

I think that one reasonable solution, moving forward, would be that in the same breath that Fairey speaks of the art, when he says "the HOPE image I created", he should instead be saying "The HOPE image I created, based upon a Mannie Garcia photograph...". Most people know that Alberto Korda was the photographer who made the iconic image of Che Guevara, even as that image was turned into artwork by artist Jim Fitzpatrick. So too, should people be aware of Garcia's contribution to Fairey's artwork. It's only fair.

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Related Articles:

• Photo Business News - Shepard Fairey's Talk on the Obama Image
• Photo Business News - The Associated Press v. Shepard Fairey
• Photo Business News - Derivative-Work Liability - Copyright Infringement?
• PDN Online - AP Claims Shepard Fairey's Obama Poster Infringes on Copyright
• LA Times blog - AP now Hopes for $/credit for Fairey's iconic Obama poster
• Huffington Post - AP Accuses Obama Artist Shepard Fairey Of Copyright Infringement

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10 Questions for Mannie Garcia

Mannie Garcia has been identified as the photographer who produced the now iconic American image of Barack Obama. The image, taken at the National Press Club in 2006 of then junior Senator Barack Obama, was a part of work he was doing with the Associated Press. The image, at right, and with the inset poster of the image as it was used for both the HOPE and PROGRESS posters. This image, that Shepard Fairey used as the basis for his artwork which has generated hundreds of thousands of dollars in revenue for Fairey, and others. So, we wanted to know from Garcia directly, what was going on for him.

Since I have known Mannie for probably 20 years (that's him at left, in the desert on assignment - used with his permission!), I thought I'd get in touch with him following the previous article, to see how things were going. Mannie has been freelancing with Washington DC as his common ground for almost 30 years, and he's travelled the globe on assignments for a wide range of clients, causes, and so on.

As such, we've gotten him to give us time to answer 10 questions. Here they are.

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1) Is the now famous photograph used as the basis for the Shepard Fairey artwork, in fact, taken by you?

Yes. it is. I was informed by James Danziger who represents the art gallery that represents James Fairey on January 21, 2009, while I was on White House Duty, that the photograph used by Mr. Fairey was in fact, based upon a photograph I made in April of 2006.

2) Where you either an employee, or a freelance photographer, as defined by their contract, for the AP when you took this image?

I was a temporary hire, filling in for a staffer at the AP. It is my understanding that I was neither a freelancer nor a staffer, but rather a temporary hire. I have never been an AP staff employee, and no, I have never signed an AP contract.

3) So, you own the copyright to the image?

The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.

4) Are you interested in precluding further use of your photograph in this manner?

That's a hard one. I'm concerned about the usage of the photograph in a number of commercial ways that I've seen it on the street here in Washington DC. I don't know how it's being used in other parts of the country, or the world. I'd like to talk to the people responsible for putting it out.

5) In the future, artwork carrying your signature along with that of Fairey could be very valuable. What are your thoughts on this? Any plans?

I realize, based upon conversations I've had with people at the AP and Danziger studio, that the photograph that I made of then Junior Senator from Illinois Barack Obama, that it has significant value with my signature. Now, monies - monies that might be made by me signing my photograph. I am concerned, that the image out there - I would like very much to figure out a way that my signature on a photograph that I made of then Senator now President Obama, that maybe the monies = most of it - could be donated to the American Red Cross, children's cancer research, and women's breast cancer research. This is not about me making money off this, it's about recognition. I made the most iconic image of our time, and I'd like it to make a difference, not make me money. I'm a blue collar photographer - I am out there on the grind every day. I spend more energy looking for work than doing work. I just want Shepard Fairey to say "alright, you're the guy. Thank you."

6) I've known you for many years, and this is consistent with who I know you to be, karmically speaking. Talk a bit more about your efforts to make a difference through your photography?

I'm a buddhist, and I believe in compassion, and the suffering of sentient beings, my teacher Holiness Penor Rinpoche. I asked him once when I was in India talking to him - "I make some pretty ugly pictures - they're brutal, they're ugly. People suffering. I don't want to make these images anymore." he said "you need to make these images. You need to make people in the world see this, so they will help in some way. I want you to continue doing what you're doing. Recording the suffering, the misery - we, in the world, will all benefit, hopefully in a positive way." That way - I don't want this to sound totally weird, but, basically, my teacher has said "keep doing what you're doing." People are reacting based upon those images. It's a strange dichotomy there.

7) It sounds like the AP has been receptive to you and this issue.

The AP has been receptive to me and this issue. I've received assurances from two people at AP higher up, that said they would "take care of me", and I have no reason to doubt them. I've had conversations with both of these individuals and I have no reason to doubt tha this is accurate and true.

8) This seems like it is a pleasant situation, where the AP has previously come across as hard-nosed. Is this the newer more friendly AP?

I don't know if this is the newer and friendlier AP. I believe this is a unique situation. It's a one-fer. It's not a two-fer. It's a unique situation, and it calls for some very unique solution to the problem that we're facing. Certainly it's going to raise some eyebrows here and there. This is unique. This is not typical. This is different, and it has to be treated in a unique way. you can't treat this generically, maybe as the AP has treated things in the past. This is very unique.

9) So you are pleased with how things are going?

Honestly, no I am not pleased with how things are going. I think things could be going in a more positive way. Meaning, I want to be kept more in the loop with things. I know AP management is keeping me in the loop, so sometimes I have to ask questions more than once to get an answer. I honestly believe that AP is doing it's best to resolve this situation in a fair way. I mean fair with Mannie Garcia, fair with Shepard Fairey, and all of that. Basically, I hope that all turns out well with all parties concerned.

10) So are you interested in being a part of the historic team documenting the President or Vice President in this new administration?

Yes, I am. And yes, I applied. I applied well before I knew about any of this - the revelations about the Fairey poster. I would be honored to be a part of the White House photographic team. Especially if I were a part of the team documenting Vice President Joe Biden. He is going to be so cool to cover. I think this administration is going to do so much, so yes, I would be honored if that happened.

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Related Articles:

• Photo Business News - Shepard Fairey's Talk on the Obama Image
• Photo Business News - The Associated Press v. Shepard Fairey
• Photo Business News - Derivative-Work Liability - Copyright Infringement?
• PDN Online - AP Claims Shepard Fairey's Obama Poster Infringes on Copyright
• LA Times blog - AP now Hopes for $/credit for Fairey's iconic Obama poster
• Huffington Post - AP Accuses Obama Artist Shepard Fairey Of Copyright Infringement

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The Associated Press v. Shepard Fairey

Saying that the photograph by Mannie Garcia, working with the AP, is "alledgedly" an infringement when it was used as the basis for Shepard Fairey's now famous posters of Barack Obama, is like saying (prior to the civil verdict) OJ Simpson alledgedly killed Nicole. Yes, we must say "alledgedly" only because a court of law has not issued a judgement, and, so be it. Yes, I will concede that we reported and wrote about the issue and referenced another photographer as the photographer, however, as Fairey has been clear that the basis for his piece was a photograph, unless it was a photograph he took, or one which he had a license to create a derivitive work from, he isn't alledgedly anything. He is infringing.

How?

(Continued after the Jump)

Fairey claims "Fair use", however, a fair use claim is an 'affirmative defense' that can overcome an infringement claim, not an assertion that the use didn't violate copyright. So, let's be clear - Fairey DID infringe. Whether the AP or Garcia is entitled to any revenue, or an injunction is the question on the table.

On the injunction question - certainly, the AP makes every effort to maintain a neutrality on a for/against stance on Obama. So, the use of an AP image to promote Obama diminishes that effort. In point-of-fact, it is highly unlikely that the AP would have allowed their image to be used in a commercial manner such as this, because it could give the appearance of an endorsement, so there is a clear case for an injunction.

"Ahh, come on, it's just for a poster, there's no appearance of an endorsement", some might say. Ok, let's step back from all the blind-faith support of our new President, and look at the other side - the side of McCain/Palin. When background music from the band Heart was used at campaign stops to entertain (and warm up?) the crowds, Heart objected (People - Heart to Sarah Palin: Quit Playing 'Barracuda', 9/5/08), and I agree that McCain/Palin shouldn't have done that. McCain in February of 08 caught heat for other songs, and so too did Bush during his campaigns. All were "just for the assembled crowds to hear", but there was an implied endorsement. So again, the AP should be allowed to obtain an injunction on this.

What about additional revenue?

You bet. Fairey based his image on this photo, and without it, he would be forced to close his eyes, and THINK of an amalgamation of all of the times he's seen Obama, and draw from that. Or, perhaps, a recollection from meeting Obama. This poster is a derivative work. Yes, Fairey's work has significant originality, and thus, is copyrightable in its' own right, however, it is, in fact, based upon a photograph that, in and of itself, is copyrightable. Again, Fairey admits it is based on a photograph. In fact, according to Mannie's website - MannieGarcia.com:

The Danziger Gallery which represents the artistic works of Mr. Fairey contacted me on the 21st of January 2009 to inform me that my photograph was in fact the basis for the artwork that has become better known now as the “HOPE” and “PROGRESS” posters.

Ok, so whose photograph is no longer in question.

So, why isn't Garcia filing claim? Well, perhaps he is not the copyright holder. Since he was not an employee of the AP, he likely signed the AP contract. If he did, then he would have transferred copyright to the AP. If he did not, then he's in a unique position, because there are supposed to be only two types of photographers - staff, or freelance. Which one is it? Is it possible there's a third category? A temporary hire who is neither an employee, or a freelancer? If so, how would rights be handled? Absent a contract, the rights would likely go to Garcia. To comment on the possibility of freelance photographers and copyright, In the latest version, which we wrote about here, is similar to the previous one that existed in 2006. However, here's the comparable language from Section 4, Term 4.1 as it pertains to rights/Copyright:

"Freelance Photographer agrees that the Assignment Photos have been commissioned by AP, and each of the Assignment Photos is a "work for hire" under the Copyright Act; and to the extent that the Assignment Photos are not deemed to be a "work for hire" under the Copyright Act by a court of competent jurisdiction, Freelance Photographer hereby assigns all right, title and interest in and to the Assignment Photos to AP, including all copyrights and any other rights in law or equity (including but not limited to other derivative works of any kind, made by any method or technology known or invented hereafter, derived from the Assignment Photos) . Freelance Photographer agrees to assist AP, at no further cost to AP, in perfecting any such assignment, including executing any documents within a reasonable time period after AP provides them to Freelance Photographer."

So, if he did sign the AP contract, then the AP is the copyright holder, and thus the AP has the right to bring suit, seek monies, or preclude the use. If he did not, then Garcia owns the copyright, and Garcia has the right to make the claim.

Why bring this claim? Aren't we supposed to be united as one under our new President, with a message of openness and Perestroika? Because, if the AP owns the copyright, then they must be consistent and vigilant, lest this be example #1 in some other infringers' defense down the line. What if the tag line wasn't positive? Instead of "HOPE" or "PROGRESS", what if it was "VILLIAN" or "THIEF"? Heck, the red and blue-green color scheme could represent danger, or something. Then, how would you feel about the AP stopping this? Would your opinion about the use of the photo change if it was a message critical of Obama instead of positive?

The copyright holder, whether Garcia or the AP, certainly has a claim. The AP certainly has the where-with-all to back it up. The artists' gallery contacted Garcia likely thinking that he would just be so honored it was his photo that he'd give them a retroactive license, and everything would be ok. Instead, either the AP or Garcia is the owner, and they are defending their rights, as they should. Fairey made money on this art, why shouldn't the AP and/or Garcia?

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Related Articles:

• Photo Business News - Shepard Fairey's Talk on the Obama Image
• Photo Business News - The Associated Press v. Shepard Fairey
• Photo Business News - Derivative-Work Liability - Copyright Infringement?
• PDN Online - AP Claims Shepard Fairey's Obama Poster Infringes on Copyright
• LA Times blog - AP now Hopes for $/credit for Fairey's iconic Obama poster
• Huffington Post - AP Accuses Obama Artist Shepard Fairey Of Copyright Infringement

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Getty Flushes Scoopt

In what is likely the beginning of the privatized dissolution of Getty Images' underperforming assets, Getty today announced they were dumping Scoopt, in a letter to contributors. PDN's Daryl Lang nailed it in his piece - Getty Images's Scoopt Shuts Down. Here's Why It Failed - when he writes "To work, Scoopt had to be popular enough for the average person to know about it."

So, what was Scoopt really worth?

(Continued after the Jump)

When Getty aquired Scoopt, while they normally would have been required to disclose a purchase, because the purchase price was so insignificant (relatively speaking), it wasn't necessary. Our understanding is that the figure paid for Scoopt was significantly under $100,000. Essentially, with little to no revenue, Scoopt had built a brand on a URL with a few servers, and sold it to Getty for a tidy little profit. The founder, Kyle MacRae (LinkedIn: Profile), of the company was kept on as an employee (intereviewed here), and his new title "Director of Citizen Media" was not substantial either, and then, well, he was laid off in March of 2008.

To expand on Lang's point, citizen journalists knew about places like Fox's uReport, as well as CNN's iReport citizen journalism site and, to a lesser degree, others. Yet, they didn't know about Scoopt, but "picture-phoning" is popular, just check this link to learn more about it. Yet, if Scoopt had been saavy, they would have partnered with Fox/CNN/et al to be a distributor of submitted citizen journalist sites, even granting the originating network television exclusivity, but then licensing online and print versions, creating a revenue stream. Unfortunately, this, among a number of other ideas were put forth in a business plan that ended up being shelved, with Getty investing very little in the Scoopt brand.

Here is the letter that Scoopt sent out to contributors:

Dear Scoopt members,

I am sorry to inform you, as a member of Scoopt, that we have decided to close the business. We will not be taking in any more imagery after February 6, 2009 and will close the upload application. We will also cease licensing any imagery through Scoopt on that date.

Our experience with Scoopt has taught us some very valuable lessons. We remain convinced that there is a demand for this kind of material as part of an editorial product, but for the moment are choosing to focus our energies within Getty Images on our core products in news, sport and entertainment.

It has been a pleasure working with Scoopt, your pictures have provided a fascinating snapshot of the circumstances in which you find yourselves and have added valuable viewpoints to the news service we provide our customers on a daily basis.

A holding page will remain until March 6, 2009 but from February 6 we will not be accepting any new imagery and so the upload path will be closed, and the galleries shut down, at which point all rights over the photos revert to you, the copyright holders.

All Scoopt content that also appears on Getty Images will initially be reviewed and any Scoopt member that has photos deemed to have longer term value on Getty Images will be offered a separate contract. To be clear, on February 6, 2009 all Scoopt content will be taken down from the Getty Images website and only be reposted, once the relevant contractual relationship with individual photographers is in place.

If your material is selected for continued inclusion on Getty Images, you will be contacted directly. We will be posting some FAQ’s on the website to try to answer any questions you may have, so please do refer to this section.

Please note that we will be retaining your contact details in order to service any outstanding payments that are due and in case there should be need for a further communication update. If you would like your details removed from the database, please respond toenquiries@scoopt.com with the words Remove Details in the subject line, and citing your Scoopt member ID.

Please use the email enquiries@scoopt.com for all correspondence regarding the closure of Scoopt

Thank you for all your enthusiasm and support which have made Scoopt such an exciting place to work.

From the team at Scoopt

The problem is, Getty is a great integrator, but not an innovator. Getty has never invented anything. They did a roll-up of companies, and now they are jettisoning those that are impacting their bottom line. Makes sense, of course, and Scoopt likely contributed little to Getty's bottom line, and moreover, was likely a distraction from other more profitable ventures.

The big question is - what division is next? While the wire service end of things brings in between 1/4 to 1/3 of Getty's revenue, how much of it is consumed by the costs of production? In the short term, Getty has had some great successes with wire service coverage of the new administration, so news coverage in Washington as well as other hot spots could see a Q1 and Q2 uptick in revenues, but is that sustainable, and will the bean counters look at that revenue with a long view, or is it about short term spikes in net revenues to sell off the individual parts?

Time will tell.

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