Photo Business News & Forum

Nikon D4 - 5 Years in the Making

2012-01-08T14:45:00.005Z

As someone who has been a long time Nikon user, I have spent the last 5 years blissful in my use of the Nikon D3, and then, when I needed video, the D3s. I too have had (and still do) a line of Canon lenses and cameras for some time - which was my answer to the failings of the D2X until the D3 came out. I know that there have been some folks who felt a demand and desire for the larger D3x files, however, for my applications, the extra size wasn't critical for me.

I encourage you to take a read of Joe McNally's blog here, for his take on the amazement of the camera - I think he and I are on the same wavelength in that we both saw the D3 as the answer to our needs. The D4, seems to be the answer to our dreams. Rob Galbraith has an exhaustive review of the specs, and comparisons to the previous D3 line, which is well worth a read, here. And a head-to-head on the D3 v. EOS 1D X (interesting - the " " (space) otherwise defines the EOS 1D X against the old old Nikon 1DX. You'd have thought Canon would have thought about that) appears here. Nikon Rumors has a comparative spec sheet here.

Corey Rich put together a really exceptional video here:

Because of Vimeo compression has some purists asking questions, all of which are answered by the fact that Vimeo has compression limitations. Rich promises a behind-the-scenes video next month, and at some point the uncompressed version will be available that will put to rest the questions being asked.

We look forward to getting our hands on a D4 once there are more than 10 of them in the world (an interesting insight gleaned from Rich's comments on his video) and it can be used outside of a conference room (as indicated by the PDN blog post here).

(Continued after the Jump)

Here are a collection of videos we like that give you more insights into the camera. And, if you want to pre-order one online, you can sign up to be notified of it's availablity on Amazon here.

Nikon D4 Product Tour here:

Wireless shooting with iPad here:

Nikon Movie - I AM PUSHING THE LIMITS here:

Nikon D4 Menu Walk-Through here:

David Hobby, Mr. Strobist himself, has decided he is Bailing on the Nikon D4. He's gone, instead, going for a used medium format camera. He's spent $10k to make the leap, and for what it seems like from what he's described, it works for him.

One point that David made in his post was " If I were still shooting daily sports, I'd probably be lining up to preorder this camera just like everyone else." Frankly, there isn't so much of a market for this now, to be honest. Ask any sports photographer and they will tell you that there's no money in sports photography, thanks to the likes of US Presswire, Cal Sport Media, Icon, and so on. Unless, of course, you're staff somewhere, or just so happen to have a sweet contract with a major sports magazine. A freelancer who shoots sports will have to be selling internal organs to be able to afford this camera - not because the camera's too expensive - it's not - but because they just don't have the money. However, if you're staff, you'll just put in for your next camera to be a D4, and hope you have a friendly editor who will let it through - or orders you a D3 now while you can still get them.

For anyone who is in Nikon, the notion of switching to Canon is really now a non-starter, if they were thinking that. If you own a D3, you will eventually own the D4 if for no other reason than you'll need to upgrade your camera in a few years, and with a 5 year cycle for new bodies, the D5 won't be out when you need the D4. The multimedia, for so many reasons, does trump the Canon, and I am interested to try out all my Nikon primes on the D4.

Lastly, consider the cost-justification. If the life-cycle of the D4 is 5 years, that's 60 months. At $100 a month ($200 a month if you have a backup camera, which you should) if you can't justify a $100 a month expenditure for the primary tool you use to create your images, then are you really a professional? It's a tool, and if you need it, then buy it. If, however, you are considering it as just the latest and greatest toy, then don't. Thankfully, if you're a member of Nikon Professional Services, they were kind enough to send out an email to facilitate working professionals getting the camera before all the non-professionals.

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* Note - We have, in the past, been a sponsored speaker by Nikon through professional organizations.

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LicenseStream - Evaporating Into Thin Air?

2011-12-29T02:47:00.003Z

For several days recently, the LicenseStream website has been down. ImageSpan (Which changed it's name to LicenseStream in January of 2011), was the company behind LicenseStream, and billed the site as "the market-leading licensing and royalty payment automation platform for all media types and businesses." Yet, we have never really seen a functioning business model that we thought would work.

More than one LicenseStream employee was on-site at PhotoPlus Expo back in October in New York City looking for a new place of employment, stating that the company only had enough money to last through the end of December, as they spoke to prospective employers. Oddly, as Digital Railroad ( the formal online portal for image archiving, marketing, and sales, as well as a client delivery platform) went down in flames several years ago, they shopped their company around and then, with no buyers, shuttered operations with little warning to clients. LicenseStream has, according to sources, not been doing so - at least not amongst prospective buyers that would make sense to take over operations that we checked with. Whispers of friendly staff telling image owners they had relationships with to backup their images & data have not been substantiated, however, with enough chatter on the subject, and the risks if the data isn't redundant, we strongly encourage you to have all your LicenseStream content archived, either way.

LicenseStream secured Series A funding back in February 2007 (here) and another $11,000,000 in June of 2008 as a part of a second round of funding (here). In April of 2010, a new CEO was brought in, and another round of financing, billed as "growth financing", with an unreported amount of additional funds (here).

In preparing for this posting, we checked one last time and found that the website, at least as of this publishing, was back up. Perhaps it was just a multi-day site crash over the holidays, or perhaps it was a harbinger of things to come.

(Comments, if any, after the Jump)

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Workflow Hardware Upgrade: Wiebetech Solution

2011-12-27T02:10:00.000Z

As technology changes, so do our needs as a photographer. This December, we've upgraded our boxes we use to store our images.

Here's our system:

When considering other solutions, we particularly do not like the Drobo boxes for several reasons, and want to caution you strongly before considering them. Problems abound, as reported all over the internet, however, I am sure that some people will sing their praises. Below are several problems - each in-and-of themselves would be a reason not to use the boxes. Together, they make a compelling argument to avoid Drobo. If you're not going to choose the system we're reviewing and reporting on today, then consider other solutions.

Here are some of the Drobo issues:

Proprietary file format. Thus, if you need to pull a drive from their box, you cannot plug it into a Mac or PC and browse/access the files. Further, unless you re-insert the drives with the exact same configuration as when the files were written, you have no access to the files.
The drives/boxes tend to be far too slow for drive-access intensive needs like opening, saving, and other file-releated needs.
A mirrored drive array is not a backup, just reliability protection. You'd need to run two Drobos to do have two backups, as whatever you do (or is erroneously affected on one drive) is immediately replicated on the second. So, you're protected from "drive failure", but not an accidental deletion, or file corruption which then corrupts the file on the mirrored drive. A backup would not only protect you from drive failure, but also those accidental deletions, accidental "save" when you meant "save as" file changes, and other unwanted file changes. Further, the Drobo isn't a true "mirror", it's an odd-flavor RAID 5.
An electrical fault that fries one drive likely will fry the other. You do truly need a dual drive system, with redundancy offline (and preferably off-site) in order to be properly protected. When we have both drives mounted (as explained in the video) it is for manual mirroring, then the backup copy of the primary drive goes offline (and, in a perfect world, off-site.) We try very hard to keep drives seperate to protect them, and thus, our images.
The Drobo does not check the integrity of the data. This is a problem from a data-integrity standpoint.

Upgrading and evolving your workflow - and the hardware solutions that you use to care for your images - is a critical component of your business.

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Colbert's MeReporters Underscores Absurdity of Working for Free

2011-11-29T16:29:00.001Z

Steven Colbert brings his satirical comedy to bear on the notion of "free reporters" who get paid nothing, like CNN's iReport, in the wake of the layoffs of 50 CNN photojournalists and other staff.

Colbert notes CNN also launched an "Assignment Desk" where you an actually go out and report on things that CNN wants, and then goes further, saying "iReporters do not get paid, they get something even better, badges, which, I assume, are redeemable for food and rent."

(Comments, if any, after the Jump)

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Groom Sues Photographer, Demands Re-Shoot

2011-11-06T22:38:00.000Z

It should be pretty clear by now that you can be sued for anything. Enter grudge-holding groom Todd Remis, who has decided to sue his wedding photographer 8 years after the wedding, and 3 years after the couple divorced, her whereabouts unknown. The New York Times reports on the whole fiasco here, where the ex-groom wants over $50k, which includes his money back plus the cost to fly his 40 or so guests back to recreate the wedding.

This would be where, if you were a wedding photographer, you should be calling your insurance company, and telling them "deal with this distraction, I have a business to run", and thaIt should be pretty clear by now that you can be sued for anything. Enter grudge-holding groom Todd Remis, who has decided to sue his wedding photographer 8 years after the wedding, and 3 years after the couple divorced, her whereabouts unknown. The New York Times reports on the whole fiasco here, where the ex-groom wants over $50k, which includes his money back plus the cost to fly his 40 or so guests back to recreate the wedding.

This would be where, if you were a wedding photographer, you should be calling your insurance company, and telling them "deal with this distraction, I have a business to run", and that's what they would do. What policy type would cover this? According to Renee Green (email), of the Hays Group, who handles insurance for many NPPA members, this would likely have been covered by either a general liability clause, or an errors & ommissions clause, depending upon the exact nature of the claim, and, of course, provided that the claim was made while the insurance was in effect. If, however, you had a claim made against you for work done years ago, and only got insurance this year, you wouldn't be covered. All the more reason to have insurance always, and ongoing.

Further, the Professional Photographers of America has sample wedding contracts (login required, here) that include a limitation of liability clause:

If the Studio/Photographer cannot perform this Contract due to fire or other casualty, strike, act of God, or other cause beyond the control of the parties, or due to Photographer’s illness or emergency, then the Photographer shall return the deposit to the Client but shall have no further liability with respect to the Contract. This limitation on liability shall also apply in the event that photographic materials are damaged in processing, lost through camera or other media malfunction, lost in the mail, or otherwise lost or damaged without fault on the part of the Photographer. In the event the Studio/Photographer fails to perform for any other reason, the Studio/Photographer shall not be liable for any amount in excess of all monies paid.

I'm sure that some variation of that clause existed in the defendant's contract.

It's business people, and when the paperwork gets in the way of the creative stuff, you'd better make sure your paperwork is in order, and you're protected. Otherwise, you'll spend all sorts of time dealing with the unpleasantries, and it could even cost your your house.

(Comments, if any, after the Jump)

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.at's what they would do. Further, the Professional Photographers of America has sample wedding contracts (login required, here) that include a limitation of liability clause:

If the Studio/Photographer cannot perform this Contract due to fire or other casualty, strike, act of God, or other cause beyond the control of the parties, or due to Photographer’s illness or emergency, then the Photographer shall return the deposit to the Client but shall have no further liability with respect to the Contract. This limitation on liability shall also apply in the event that photographic materials are damaged in processing, lost through camera or other media malfunction, lost in the mail, or otherwise lost or damaged without fault on the part of the Photographer. In the event the Studio/Photographer fails to perform for any other reason, the Studio/Photographer shall not be liable for any amount in excess of all monies paid.

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PhotoPlus Re-cap: Seminars & Tech

2011-11-01T04:52:00.000Z

PhotoPlus Expo was enlightening this year, for a number of reasons. Among them, a big hit at the show when it comes to continuous-light sources, but more on that in a minute. American Photographic Artists (Yes, that's the new name for what used to be referred to as Advertising Photographers of America, or APA) brought myself and Michael Grecco in for a rousing discussion about the value in licensing, and how to generate revenue over the life of your image's viable (and valuable) time. PDNPulse did a very nice write-up on it here -
PhotoPlus Panel: Why Licensing Matters (10/31/11) so I won't recap their piece except to encourage you to read the review and learn a few of the tidbits that you missed if you weren't in attendance.) PhotoPlus Panel: Why Licensing Matters, summarizing the presentation by saying "making extra money on photographs you’ve already taken, that’s just a smarter way to do business."

On the technology side, several companies caught our attention.

(Continued after the Jump)

First up, is the company ikan, which has an amazing array of CLS lighting. Just when you thought you had every strobe you needed, all of a sudden you're now "shooting just a little bit of video" for that still client (or branching into multimedia all-together) and realize that strobes just don't do it for your video needs. Enter CLS, and ikan, with amazingly reasonable prices on their lighting products with blindingly bright LED units that are small and mount on camera, to 1' x 1' units that seem like they could burn out your retinas. Sure, they also sell camera cradles, bags, and countless other production tools (all with a craftsman's approach to quality), but the lighting, that's worth a long look, because you'll never have to suffer under "hot lights" again if you go this route, not to mention these LED's are battery-powered and highly efficient, so that means no blown circuits with a few hot lights plugged in! Our go-to source for these units is Mac Business Solutions, which is a top-end boutique for all things mac (from computers to still gear to video, to, yes, even high end printers). Be sure to ask for Sonny, the owner, when you call.

Next was GoalZero which has some amazing portable battery power. We picked up a set of these packs, and have used them to power dying laptops, and hope to use them to power our ikan lights when they arrive! Not only can they provide a wide range of power, but they also have portable, small, and efficient solar panels to recharge your kit. No more looking for a shack with a bunch of car batteries when you're in the middle of nowhere to charge your gear. These babies do the trick.

Our last tech company that peaked our interest that we're featuring (trust us, there were many), is onOne Software. They launched Perfect Suite 6 on October 25, right before the show, and Brian Kraft, VP of Sales talked about how advanced this new version is, and we're a believer. The resizing, focal point features, and the portrait retouching capabilities make this thing a dream for those looking to save time. Further, there are plug-ins for both Lightroom and Aperture, so check the specs to see how these can integrate into working where you do, or, if you prefer, as a standalone application (or module of all of them combined.)

A worthwhile presentation was the always enlightening Sam Abell, who spoke at the Canon booth. If you missed (or didn't want to pay for the 3 hour seminar (which you should have if you'd have had the option), Sam Spoke for a brief period of time at the Canon stage, and if you couldn't make it to NYC, Canon was saavy enough to live-stream it. Suffice to say, I'm biased when it comes to Sam, but his stories are always so engaging and inspiring. Rumor has it he's in the Amazon working on a book project, so stay tuned.

All in all, I was impressed with the integration of the WPPI portion of the show, following the merger (or aquisition?) of WPPI by Neilsen/PDN, which was announced at the 2010 show. Well done, integrators. The show was, as always, not to be missed. If you did, don't miss it next year.

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Contract Analysis: Gannett/US Presswire

2011-10-11T01:47:00.004+01:00

Photo Business News has written extensively about the acquisition of US Presswire by Gannett. Recently, Photo Business News was provided this contract that outlines the proposed new contract between US Presswire and their contract photographers. Below is a review and analysis of the contract, as someone who is very familiar with contract language for photographers. As the laws in every state are different, and more importantly, as I am not a lawyer, the analysis and commentary below should not be construed as legal advice, and you should seek competent legal counsel should you need such to consider this contract before signing it.

(Commentary and analysis after the Jump)

This Active Photographer Agreement (“Agreement”) is made effective as of September 1, 2011, by and between US PRESSWIRE, LLC, having offices at 1230 Peachtree Street NE, Suite 1900, Atlanta, Georgia 30309 (on behalf of itself and its affiliates, “Agency”), and {Photographer Name}, a photographer having an address of "{photographer’s address} (“Photographer”).

COMMENTARY & ANALYSIS: This is a standard clause, which sets forth who is actually entering into the contract.

W I T N E S S E T H:

WHEREAS, Agency is in the business of creating, distributing, delivering and licensing the use of photographic images and video images or footage, primarily through its website, www.uspresswire.com, and through various other internet or electronic means;

COMMENTARY & ANALYSIS: While this is a common term, there are several points worth addressing in this clause. The first is that this is not a typical “agency” relationship. They are not “representing” you as much as they are themselves. They are using “Agency” because it has entered into the common parlance as they, and Getty have. However, they are not looking out for your own interests first and benefiting at a percentage, they are looking out for themselves first, with your images (and video) as the value, and you get a percentage. That brings up the next point – they are allowing for the distribution of your video as well, which is new. I would suspect that an organization that is now in the business of licensing video will raise a few eyebrows with the TV rights-holders. Further, they say “through various other internet or electronic means”, which likely refers to a Gannett branded service, or their own proprietary network not accessible to the general public.

WHEREAS, Photographer is in the business of creating photographic images and/or video images or footage; and

COMMENTARY & ANALYSIS: Actually, We are in the business of licensing, not creating. We create in order to license. That said, while this too is a standard clause, again, it includes video. It will only take a few photographers to post video clips from the sidelines of a major league sporting event before the networks take issue. Further, this contract now will preclude you from doing anything with video outside of this contract that might compete with USPW.

WHEREAS, Photographer desires to engage Agency to represent Photographer with respect to certain photographic images owned by Photographer, and Photographer desires to photograph certain events for Agency, all in accordance with the terms and conditions set forth in this Agreement.

COMMENTARY & ANALYSIS: “represent Photographer” here seems to be a perversion of the concept. The Agency is the sole arbiter, and you (and your images) are along for the ride.

NOW, THEREFORE, in consideration of the foregoing premises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

COMMENTARY & ANALYSIS: This clause, while standard, essentially causes you to acknowledge that the rates that USPW/Gannett are paying are “good and valuable”, and they meet a “sufficiency” test, neither of which are, in reality and fairness, true. However, this clause will preclude you down the line from bringing a suit with much likeliness of success, with the claim of unreasonable compensation.

1) Grant of Authority. Photographer hereby grants to Agency the exclusive worldwide right to use, copy, perform, display, market, distribute, license, sub-license and negotiate the production rights of all photographic images, digital files, video images or footage and all other photographic materials that are delivered to Agency by Photographer (including Stock Images (as defined below), collectively the “Images”), in any and all media, now known or hereafter developed, whether such Images are created by Photographer while working under credentials issued from or through Agency or otherwise. Notwithstanding the foregoing, Photographer shall retain the copyright to the Images and Photographer shall have a limited right to license the Images to Photographer’s own editorial clients provided that:

COMMENTARY & ANALYSIS: In this clause there seems to be a problem, because you are granting “the exclusive worldwide right”, which means that everything they get from you can’t be used anywhere else in the world, except for where they permit you to do so. Further, this clause forces you to accept whatever fees they deem appropriate, from free, to, frankly, a situation where you pay to have your work placed somewhere. In other words, if they deem that it’s worthwhile to USPW to pay $100 to have your photo used somewhere, then they could legitimately debit your account that amount, and you would have no recourse. Further, this clause encumbers all of your “stock images” too under this same agreement. They acknowledge the obvious, telling you that you retain copyright, however, they then begin to set forth a very narrow window that you can service only “editorial” clients. So, if you are on the sidelines, and decide to make an image of the goal line marker because it could be used as a nice stock image for advertisers, despite the fact that there are no NFL markers or other branding on it, you can’t do anything with it. A photo of a fan that gets your card and wants to order a print from you? Nope – that’s not editorial, so you can’t do that either.

a. such editorial clients do not compete with the Agency or its customers;

COMMENTARY & ANALYSIS: There are essentially no editorial clients that don’t compete with USPW/Gannett, because both are in the business of licensing stock images, so this essentially kills all editorial clients

b. the Images do not violate the issuer’s credential language or policies or infringe upon the intellectual property rights of any third party;

COMMENTARY & ANALYSIS: This is a reasonable clause, but since your credential was issued to USPW/Gannett, any use by you likely would violate credential language.

c. the Images shall not be distributed on any website, including but not limited to competitors, agencies, photoshelter (where any image can be made for sale) or any other photo service website worldwide;

COMMENTARY & ANALYSIS: With almost all images being displayed on websites, this makes your use of the internet unacceptable to USPW. It’s interesting that they particularly single out Photoshelter. Of specific curiosity is the fact that the business “Photoshelter” (with a capital “P”) is identified as “photoshelter” (with a lower case “p”) and that is either a typographical error, or there was an intention to do so for legal reasons.

d. Photographer has secured all intellectual property rights and clearances to the Images; and

COMMENTARY & ANALYSIS: This is a necessary clause to protect USPW, however, it is fraught with hurdles that make it all but never likely you’ll get past them.

e. Photographer notifies Agency in writing of any intent to license the Images to Photographer’s own editorial clients.

COMMENTARY & ANALYSIS: This is untenable on it’s face that they are asking for this. This means you’ll notify them of EVERY potential licensing opportunity, which makes it easy for them to object to every sale, and then contact them with the same image and sell it themselves, take their cut, and then give you the fraction you are owed.

2) Images Created Under Agency Credentials. Photographer hereby covenants, acknowledges and agrees that with respect to all Images that are created by Photographer while working under credentials issued from or through Agency and while on assignment for Agency, including Images that are taken but not delivered to Agency by Photographer (“Outtakes”):

COMMENTARY & ANALYSIS: This clause closes a loophole that Photo Business News pointed out when analyzing the last USPW contract, whereby even outtakes are encumbered by USPW. In the past contract, anything not delivered to USPW wasn’t governed by the contract.

a. Photographer shall be prohibited from using such Images and Outtakes for any non-editorial and/or commercial purpose, exhibition, reproduction, display, performance, adaptation or publication of any kind (including, without limitation, advertising, sales, marketing, merchandising or resale purposes);

COMMENTARY & ANALYSIS: This means, among other things, that you can’t have a gallery showing, sell your work as art, and, really, as written, it’s confusing if you can even do an editorial sale at all. This clause essentially prohibits you from doing anything with your images not approved by USPW/Gannett.

b. Photographer shall be prohibited from selling or licensing such Images and Outtakes on any website; provided, however, Photographer may use such Images and Outtakes in accordance with the issuer's credential language or policies for self-promotion on Photographer’s personal website;

COMMENTARY & ANALYSIS: This reinforces you can’t do anything with the images, except self-promotion on a personal website. This differentiates from a “professional website”, which would be for your business, which might compete with theirs, and as such, wouldn’t be allowed.

c. Photographer shall not place any such Images and Outtakes on any social media network including, but not limited to Facebook, My Space, Twitter, Linked-In, etc.; provided, however, Photographer is permitted to post a link to the Images and Outtakes to the US PRESSWIRE.com website and/or Photographer’s personal website or blog and will be permitted to place the Images and Outtakes on Sportsshooter.com; provided further that Agency credit accompanies Photographer’s name; and

COMMENTARY & ANALYSIS: This clause will be a problem for many of the hobbyists who shoot for USPW for bragging rights amongst their friends. Again, it’s interesting to see that they’ve identified SportsShooter.com as a venue they want to place some restrictions on.

d. Photographer shall ensure all such Images and Outtakes shall be co-credited to Photographer and Agency when placed in any and all self-promotion campaign including, websites, blogs, print, brochures, galleries, photo contests, etc.

COMMENTARY & ANALYSIS: This clause really makes clear that they’re not your “agent”, and that whatever marketing or promotion you do for yourself (obviously at your expense) is also marketing for USPW/Gannett.

3) Representations of Photographer. Photographer hereby represents, warrants, covenants, acknowledges and agrees that:

a. Photographer is and shall at all times be the sole and exclusive owner of the Images, or if Photographer is not the owner of any Images, Photographer has the right to provide such Images to Agency, and Photographer will acquire the copyright owner's permission for Agency to use the Images;

COMMENTARY & ANALYSIS: While this is standard, it could create some problems. If you set up a remote, for example, and have an assistant trigger the camera, that’s could be a problem depending upon your contractual arrangement with the assistant. Further, as Photographer is warranting they are the sole and exclusive owner, and further, that this contract is an exclusive contract, whomever photographer gets the copyright owner’s permission from also is covered by all the restrictions of this contract.

b. The Images are original;

COMMENTARY & ANALYSIS: This is a normal clause.

c. The Images do not and will not infringe upon any copyright, trademark, right of privacy, right of publicity, proprietary right, intellectual property right or any other right of any third party anywhere in the world;

COMMENTARY & ANALYSIS: This is a wholly unworkable clause, as the infringing they are detailing often takes place in the final use of the photo. So, a photograph taken of an athlete wearing an NFL Jersey and a Nike swoosh could be used editorially and fit into this clause, however, if the image was used commercially, it could be a violation of this clause, and the photographer could be at fault for not securing those rights. Further, anyone in a photo could sue for any reason. Photographer's liability should be limited to providing model releases, and where they are absent, the agency takes the sole risk, and the photographer does not warrant anything.

d. Agency reserves the right, in its sole and absolute discretion, to refuse to accept any Images;

COMMENTARY & ANALYSIS: This is, to a certain degree fair, however, if you have a body of work you wanted to submit, and an editor objected, you couldn’t submit it, and further, if you covered a game/event, and USPW/Gannett didn’t take the images, you couldn’t submit them to anyone else.

e. Photographer has the right to enter in this Agreement with Agency and to perform the obligations set forth herein;

COMMENTARY & ANALYSIS: Standard clause which sets forth that you aren’t encumbered by a contract with someone else

f. Photographer has the exclusive right, power and authority to make the grant of rights to Agency in this Agreement;

COMMENTARY & ANALYSIS: Standard clause which sets forth that you aren’t encumbered by a contract with someone else

g. Photographer shall obtain any and all releases necessary to allow Agency to license the Images;

COMMENTARY & ANALYSIS: This is a potentially huge problem – you’ll be required to get model releases – and as such compensate the persons you get releases from. This is because you are granting agency the right to license commercially, exclusively, and the way this clause is written it could be you that would be liable if an image of an athlete was licensed by USPW/Gannett for commercial purposes – the would merely point out that you were required to get the releases, and did not. If it said “….for any non-editorial uses…” but even still, you’re now the one required to chase down every recognizable subject, and every trademark holder, as this clause is written.

h. Images created by Photographer while working under credentials issued from or through Agency shall not be used by Photographer for any commercial purposes whatsoever anywhere in the world;

COMMENTARY & ANALYSIS: As such, even if a player saw an image you took and wanted to use the image on his sports drink line, you couldn’t do it. It is understandable that most credentials preclude commercial use, however, it could be argued that an Agency license is a commercial use, and it could also be argued that having a photo on a blog alongside ads is a commercial use.

i. While on assignment and working under credentials issued to Photographer by or through Agency, Photographer will conduct themselves in a professional manner at all times in accordance with the highest industry standards and code of ethics, within the rules set forth at any venue, league, team, sport, or any person or organization having authority and Photographer shall not violate the terms of the issuer's credential language or policies;

COMMENTARY & ANALYSIS: While it would seem obvious to some, this clause is important so that it is clear that photographers don’t, for example, decide it’s appropriate to clap/cheer and/or participate in the jubilation. The contents of this clause should go without saying, yet it’s being stipulated.

j. Photographer shall use all reasonable means to become familiar with the rules set forth by any organization, governing body, venue, sport, team, league, security personnel, etc., while on location working an event or assignment;

COMMENTARY & ANALYSIS: Reasonable given that there is a continually revolving door of photographers that are new to the profession and likely unaware of the rules and nuances of covering important sports events. This clause allows for USPW/Gannett to, for example, discontinue their relationship with a photographer that forgets (or never new) that they can’t click a shutter when a pro golfer is about to (or is in mid-) swing.

k. When Photographer accepts an event or assignment from Agency, Photographer shall photograph the event or assignment and transmit the Images either during or immediately after the event or assignment as specified by Agency in accordance with the policies in the stylebook guidelines or specified by Agency editors, managers or personnel. Images shall be fully captioned with Photographer's name in the caption field as set forth in Agency's guidelines for captioning and transmitting in the Agency stylebook;

COMMENTARY & ANALYSIS: This would be standard for any professional accepting an assignment. New photographers may not understand the timely nature of the news business, and may not recognize the importance of delivering images in a timely manner.

l. Photographer shall not cancel any accepted event or assignment within 72 hours (3 days) before the start time of the event or assignment provided such cancellation is not a medical, family, or other unforeseen emergency acceptable to Agency;

COMMENTARY & ANALYSIS: Interesting that the Agency deems itself the sole arbiter of the nature of an emergency, and not the person with the emergency.

m. Because Agency is a news organization, Photographer shall not crop, modify, alter or manipulate the Images in a manner that alters the fundamental nature of the Images;

COMMENTARY & ANALYSIS: Sadly, this clause is necessary as there may be some photographers who did not formally study photography and may not realize the ethical considerations that go into delivering images that are not manipulated into something that didn’t happen, or is re-created because the moment was missed.

n. Photographer shall use Photographer’s best efforts to promote Agency's name and good reputation throughout the world at all times, and Photographer shall not make any disparaging remarks about Agency or its affiliates; and

COMMENTARY & ANALYSIS: This means that when USPW/Gannett is late to pay, or a USPW photographer gets criticized at a sporting event, you’ll defend USPW/Gannett. Further, if someone criticizes USPW/Gannett in an online forum – even if it’s a justified criticism, you not only can’t say “I see your point”, you must use your “best efforts” to promote USPW/Gannett, which means posting a positive comment.

o. Photographer shall use its best efforts to submit a second edit of Images while working under a credential and on assignment by Agency (“Stock Images”) within ten (10) days following the event or assignment in accordance with the policy guidelines set forth in the Agency stylebook.

COMMENTARY & ANALYSIS: This means that not only are you doing the $100 assignment for 4-6 hours, and spending 2-4 hours doing your first edit, but you also are doing another 4 or so hours on a second edit – not to earn you much more money, but rather, to expand the library of images.

4) Indemnification. Photographer hereby agrees to indemnify, defend and hold Agency, its affiliates, successors and assigns, and their respective officers, directors, employees, representatives and agents, harmless from and against any and all claims, demands, actions, causes of action, settlements, damages and expenses (including reasonable attorney's fees and court costs) arising directly or indirectly from: (i) the breach or alleged breach by Photographer of any representations, warranties, covenants or agreements made by Photographer hereunder; (ii) any erroneous or inaccurate information supplied to Agency regarding the Images; and (iii) personal injury (including death) or property damage caused by Photographer while working under credentials issued from or through Agency and while on assignment for Agency.

COMMENTARY & ANALYSIS: This is indemnification without parity. You are not indemnified if Agency does something wrong. However, if you mis-credit an image, have a football player crash into your 400mm 2.8 and crush it, or the Agency gets sued for your actions, you’re on the hook for everything. Further, clause "(i)" may be okay provided that the other terms that require photographer to warrant that no 3rd party rights have been violated, be revised.

5) Use of Images. Agency and its affiliates, successors and assigns shall have the right, in their sole and absolute discretion, to: (i) determine how the Images will be marketed, displayed and distributed to Agency's customers; (ii) edit, crop or modify the Images, including the captions and metadata that accompanies the Images; (iii) establish the terms and conditions, including the fees, for the license of the Images to Agency's customers; and (iv) perform its services without Photographer's further approval. Photographer agrees that any Image or Stock Image given to Agency for distribution shall remain available for distribution by Agency for a minimum of five (5) years from the date of receipt by Agency.

COMMENTARY & ANALYSIS: This is where USPW/Gannett licenses all the photos under a subscription where you earn nothing, or next to nothing. You have no say whatsoever in anything having to do with your image and how it gets used.

6) Compensation.

a. Assignment Fees

i. Agency will pay to Photographer an assignment fee in the amount of One Hundred Dollars ($100.00) per day per assignment for the remainder of the 2011 calendar year. Commencing January 1, 2012, Agency will pay to Photographer an assignment fee in the amount of One Hundred Twenty-Five Dollars ($125.00) per day per assignment. Photographer shall receive an Agency code for each event or assignment. Assignment fees will be paid by Agency on a monthly basis based on such Agency codes. The assignment fees include basic expenses for local area assignments. For clarity, Agency will pay to Photographer one (1) assignment fee for any assignments that have multiple events in the same day, such as a baseball double header or basketball tournament.

COMMENTARY & ANALYSIS: This is basically an allotment of $100 to cover your parking and mileage as well as a meal, as all of this is a part of the $100. Further, unlike most other organizations, if there is more than one sporting event you get paid extra, USPW/Gannett will not. This seems unreasonable on it’s face, but I am sure that there will always be someone who will say yes, no matter how bad the deal is.

ii. Photographer acknowledges and agrees that the assignment fees shall be paid to Photographer in lieu of any compensation for the use of Images or Stock Images by Agency’s editorial subscription based customers worldwide where applicable and in the Agency’s sole discretion. This does not include licensing proceeds for any commercial use or editorial a la carte sales.

COMMENTARY & ANALYSIS: This means, as it is written, that anything you have had in the USPW archives may well not generate income for you, as this “new deal” where they pay you for assignments, covers whatever you might have earned off stock licensing. Of course, for the rare commercial or a la carte sale, you still generate revenue, however those are few and far between, at best.

iii. In the event any additional expenses are required, reimbursement must be pre-approved in writing by assigning editor and agreed to in advance by the Photographer. The pre-approved expenses must be submitted on an Agency expense reimbursement form and submitted to the assigning editor for review and approval within 30 days after they are incurred.

COMMENTARY & ANALYSIS: This is a reasonable clause to have in.

b. Editorial and Commercial Licensing Fees.

i. Agency shall retain a commission from the fees collected from the licensing of any editorial or commercial a la carte Images and Stock Images, in accordance with the Commissions Schedule set forth on Exhibit A attached hereto and incorporated herein by reference. Agency shall deliver to Photographer the net balance of the fees collected from the Images and Stock Images in accordance with Exhibit A, along with a report listing the origin, description, and amount of sales. Agency will deliver all reports and make all payments to Photographer on a quarterly basis, during the month following the quarter and only after Agency receives the fees from its customers for the Images and Stock Images.

COMMENTARY & ANALYSIS: Aside from the ridiculous notion that a “commission” is a figure is in excess of 50%, this concept is reasonable. The challenge will be how they define “net balance”, because they can attribute all manner of expense to the marketing of an image.

ii. Photographer's share of any fees collected from the Images or Stock Images will not be paid until Photographer’s account equals at least One Hundred dollars ($100.00); provided, however, if there is a lesser amount in the Photographer account and Photographer makes a written request to have the lesser amount paid, Agency will pay the amount currently due Photographer. In the event that no fees have been collected from the Images or Stock Images, Agency will not deliver a report or make a payment to Photographer. In the event that Photographer is no longer submitting Images or Stock Images to Agency on a regular basis, or the Agreement is terminated for any reason, Agency will pay Photographer's share of any fees collected from the Images on an annual basis, commencing on the first anniversary of the last date that Photographer submitted any Images to Agency.

COMMENTARY & ANALYSIS: This is a reasonable clause.

iii. A la carte fees licensing fees and quarterly reports of Images or Stock Images shall be paid in addition to the assignment fees set forth above.

COMMENTARY & ANALYSIS: This is a reasonable clause.

7) Unauthorized Use of Images. In case of damage, destruction, loss or unauthorized use of any Images by any customer who lawfully obtained Images from Agency, Photographer hereby grants Agency full and complete authority to make claims or to institute proceedings in Photographer's name to prosecute such unauthorized use. In no event, however, shall Agency be liable for such unauthorized use nor shall Agency be required to take any action to prosecute such unauthorized use. Any recoveries shall be divided between Photographer and Agency 50/50, after deduction for the costs of any such actions incurred by Agency, including, without limitation, legal fees or other expenses. All settlements shall be made in Agency's sole and absolute discretion. If Agency chooses not to pursue any legal action, Photographer reserves the right to do so after notification from Agency.

COMMENTARY & ANALYSIS: So, if a publication infringes your copyright, you are not allowed to sue – only the Agency – if they decide to, at their sole discretion. However, if they do, and win, they get half . So, all the legal fees get paid (or attributed by in house counsel at out-of-house rates) and then whatever is left over, you have to split with Agency. Only after Agency opts not to pursue a matter, can you – if you notify them. That said, you would still be required to split whatever you won, as this clause is written. What would be fair instead would be that agency has the first option to sue, and as long as they don't exercise that option within X months of the notification, you then have the right to sue and keep 100%.

8) Term. This Agreement shall commence as of the date first set forth herein above and shall continue for an initial term of five (5) years, unless sooner terminated by Agency, or otherwise terminated as provided herein. Upon the expiration of the initial term, this Agreement shall automatically renew for a term of five (5) years, unless written notification is given by either party to the other at least sixty (60) days prior to the termination date. Agency may terminate this Agreement at any time, with or without cause and for any reason or for no reason at all, upon ten (10) days prior written notice to Photographer. Agency will pay Photographer's share of any fees collected from the Images or Stock Images after the termination date on an annual basis, commencing on the first anniversary of the termination date.

COMMENTARY & ANALYSIS: This is a lengthy term, and it should be a year, at most two.

9) Return of Original Images. Upon the expiration or termination of this Agreement, if requested by Photographer in writing, and provided the Images have been in Agency's custody for at least five (5) years, the original Images and Stock Images will be returned by Agency to Photographer, and digital formats will be removed from Agency's database within one (1) year from the date of the written request. If Photographer requests faster retrieval, Photographer agrees to pay Agency its cost of labor necessary to perform the removal, retrieval and return of analog Images or Stock Images. Agency is not obligated to return any digital formats to the photographer. Notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement will require any of Agency’s third-party customers that license use of the Images from Agency to remove the Images, at any time, from any archived editions of the media properties through which such customers had the right to distribute the Images pursuant to a valid license from Agency.

COMMENTARY & ANALYSIS: The notion that you could produce 4 years of images and then have your relationship end, and then the Agency not be liable for the return of your Original Images is unreasonable, at best.

10) Confidentiality. The contents of this Agreement are confidential in nature and shall not to be shared, copied, distributed, discussed, either whole or in part to any third party by Photographer during the term of this Agreement or after the expiration or termination hereof. At any time any other information, proprietary technology or any company business or operational information, including but not limited to discussions with Agency management or personnel is made available to Photographer, be treated as “Confidential Information” and shall not be shared with or to any third party anywhere in the world. Furthermore it is acknowledged by the parties that any violation of this provision will do irreparable harm to Agency and its affiliates.

COMMENTARY & ANALYSIS: This type of clause has often been struck down by courts. Further, when you get some “amendment” document, the original contract, and the amendment, become confidential. As such, it will be no problem for USPW/Gannett to say “oh, we’ve made changes to the contract for the better…” and they can’t comment on it to anyone (publically or privately).

11) Miscellaneous.

a. Independent Contractor. This Agreement is not an employment agreement between Agency and Photographer. Photographer is acting as an independent contractor. This Agreement does not constitute a joint venture or partnership. Neither Photographer nor Agency shall hold themselves out to any third party contrary to this understanding. Photographer possesses Photographer’s own medical, life and liability insurance at all times or agrees to be self-insured.

COMMENTARY & ANALYSIS: This is a standard contract term, however the addition of the sentence about agreeing to be self-insured if you don’t have coverage is interesting.

b. Arbitration; Governing Law. Any dispute arising under this Agreement shall be determined and settled by arbitration in the Commonwealth of Virginia, pursuant to the rules of the American Arbitration Association. Any award rendered will be final and conclusive upon the parties hereto and judgment thereon may be entered in any court having jurisdiction over the parties and subject matter. This Agreement shall be governed by, and construed and interpreted in accordance with, the substantive laws of the State of New York, without regard to the conflicts of law principles thereof.

COMMENTARY & ANALYSIS: Submitting – and being required to submit – to arbitration – is a bad deal in most instances.

c. Notices. Any notice relating to this Agreement shall be in writing and delivered in person, by registered or certified mail or overnight courier. Notices shall be addressed to the parties at the addresses set forth in this Agreement. Either party may designate a new address by notice to that effect given to the other party. Notices shall be deemed given (i) if by registered or certified mail, three days after mailing, (ii) if by overnight courier, the day after delivery by such courier service to the proper address and (iii) if delivered in person, the day of delivery.

COMMENTARY & ANALYSIS: Standard clause.

d. Successors and Assigns. Photographer may not assign or otherwise transfer this Agreement without Agency’s prior written approval. Agency may freely assign or transfer this Agreement. Subject to the foregoing, this Agreement shall be binding upon Agency and Photographer and their respective heirs, executives, administrators, representatives, successors and permitted assigns.

COMMENTARY & ANALYSIS: Standard clause.

e. Entire Agreement. This Agreement constitutes the entire understanding between Agency and Photographer and supersedes any prior understandings or agreements, oral or written, including, without limitation any existing photographer agreement between Agency and Photographer (“Existing Agreement”), which such Existing Agreement is hereby terminated. Notwithstanding the foregoing, any Images delivered by Photographer to Agency under the Existing Agreement prior to the date hereof shall become subject to the terms and conditions of this Agreement; provided however:

COMMENTARY & ANALYSIS: While the top of this clause is standard, the clause also folds in all previous images into the subscriptions and pay models.

i. Prior Use. Photographer shall be compensated for any such Images licensed by Agency prior to the date hereof in accordance with the Commissions Schedule attached to the Existing Agreement; and

COMMENTARY & ANALYSIS: This should be expected.

ii. Future Use. Photographer shall be compensated for any such Images licensed by Agency on and after the date hereof in accordance with the Commissions Schedule attached to this Agreement.

COMMENTARY & ANALYSIS: This is a problem if you had a contract you were happy with before, as now it’s governed by this one.

f. Exhibits and Schedules. Each Exhibit and schedule referred to herein is incorporated into this Agreement by such reference. Agency reserves the right to change, adjust or modify such Exhibits and schedules with the prior written consent of Photographer, which shall not be unreasonably withheld or delayed.

COMMENTARY & ANALYSIS: Standard clause.

g. Severability. If any provision of this Agreement is held illegal, invalid or unenforceable such illegal, invalid or unenforceable provision will not affect any other provision hereof. This Agreement shall, in such circumstances be deemed modified to the extent necessary to render enforceable the provisions hereof.

COMMENTARY & ANALYSIS: Standard clause.

h. Waiver. The failure of either party to insist upon strict performance of any of the terms or conditions of this Agreement will not constitute a waiver of any of its rights hereunder.

COMMENTARY & ANALYSIS: Standard clause. However, if say USPW/Gannett don’t insist on you doing, for example, a second edit, you can’t decide on your own on the next assignment to not do one.

i. Amendments. This Agreement may be amended only by a written instrument duly executed by Agency and Photographer.

COMMENTARY & ANALYSIS: Standard clause.

j. Counterparts; Facsimiles. This Agreement may be executed in any number of original or facsimile counterparts, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument.

COMMENTARY & ANALYSIS: Standard clause.

k. Survival. The provisions of this Agreement that by their nature or as specified hereunder are intended to continue beyond the expiration or termination of this Agreement, shall survive the expiration or termination hereof.

COMMENTARY & ANALYSIS: Standard clause.

(signatures)

---------------

EXHIBIT A

COMMISSIONS SCHEDULE
This Commissions Schedule is made an addendum to that certain Active Photographer Agreement (“Agreement”) by and between US PRESSWIRE, LLC (hereinafter referred to as “Agency” and {Photographer Name} (hereinafter referred to as “Photographer”.)

COMMENTARY & ANALYSIS: Standard clause.

WHEREAS, Pursuant to Section 6(b) of the Agreement, Agency has agreed to remit certain payments to Photographer for fees collected by Agency for the licensing of Images and Stock Images (as defined Agreement) on an a la carte basis, and Agency is entitled to retain a commission for the fees collected by Agency for the Images.

COMMENTARY & ANALYSIS: Standard clause modifying original agreement.

NOW, THEREFORE, the parties hereto hereby agree as follows:

1) Third Party Fees. Photographer agrees and understands that Agency has entered into certain agreements with third party agencies (hereinafter referred to as the “Third Parties”) pursuant to which such Third Parties have been granted the authority to distribute the Images and or Stock Images on their respective websites and via other electronic means. The Third Parties will remit commissions to Agency from sales made by the Third Parties of the Images (“Third Party Fees”), in accordance with such Third Party agreements. Thereafter, Agency will remit to Photographer fifty percent (50%) of the net Third Party Fees, and Agency will retain a commission of fifty percent (50%) of the net Third Party Fees. Agency will remit Photographer's portion of the Third Party Fees pursuant to Paragraph 6 of the Agreement.

COMMENTARY & ANALYSIS: This is horrible, because essentially, if USPW uses Gannett’s wire service to distribute a $50 photo, then USPW would only get 50%, and then you would only get 50%, or $12.50. Yet, Gannett would, through the revenues of it’s wire service and USPW, as two separate corporate entities under the one parent company, get 75%.

2) Agency Fees. Agency will remit to Photographer fifty percent (50%) of the net fees collected by Agency from editorial and commercial sales made by Agency of the Images and Stock Images (“Agency Fees”), and Agency will retain a commission of fifty percent (50%) of the net Agency Fees. Agency will remit Photographer's portion of Agency Fees pursuant to Paragraph 6 of the Agreement. Agency reserves the right to change, adjust or modify Agency Fees with the prior written consent of Photographer, which shall not be unreasonably withheld or delayed.

COMMENTARY & ANALYSIS: Standard clause.

3) Uncompensated Use. Photographer agrees and understands that Agency may, from time to time, allow Agency's customers to use certain Images and Stock Images without compensation. As a result, Photographer may not be compensated for the use and distribution of certain Images and Stock Images. This will be for, among other reasons, the purpose of revenue generating usage commitments or for promotional trials for the customer. Photographer agrees this action can be performed in Agency's sole and absolute discretion and without further compensation to or consent from Photographer.

COMMENTARY & ANALYSIS: This is a horrible deal where the photographer gets the short end of the stick while the Agency benefits. For example – a prospective client says they want their first month free, and your images are a part of that, and then on the second month, when the Agency got a check, none of your images were a part of that, and so you get nothing. Or, if some other USPW/Gannett photographer screws up, and in order to make it up to the client they say that the next assignment is a freebie, clearly they won’t use the one who screwed up, so you could end up getting the call, and there would be no compensation for the customer to use your images. Further, they have the right to use your images for barter arrangements, where they collect "in kind" compensation without collecting any money, and the photographer gets nothing. The examples of how this can be exploited to the photographer’s severe disadvantage are seemingly endless.

(Signatures)

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The Legitimacy of Schools Teaching Photography

2011-10-06T14:21:00.000+01:00

Photo District News, about a month ago, posited the question "The Art Institutes: Legitimate Photo Schools or Accessories to Fraud?", and as someone who's been a guest speaker in their business classes, and given the commencement address at their 2009 graduation in Washington DC, I was a bit surprised. I know of many schools that couldn't care less about the future success of their freelance graduates, which seems a bit self-defeating since these students therefore have a diminished capacity to pay back their student loans. Yet, in the end, the school isn't taking the loss on the unpaid loans, it's the student, or the taxpayer/lending institution. I do know that the Art Institute of Washington takes very seriously the graduated success of its' students, and I suspect that mindset carries over to their other schools as well. "Fraud" is surely not a word I would use to characterize the AI schools when it comes to teaching photography students.

In 2008, Brooks Institute resolved a multi-year issue whereby, according to the Ventura County Reporter (here) "...emerged victorious early this year over charges that prospective students were attracted to enrolling there with guarantees of gainful employment post-graduation." Yet others are continuing to make further claims, which will likely result in further losses for students. I know that Brooks turns out exceptionally talented photographers (from a creative standpoint) and that they also teach business skills. It would stand to reason that a Brooks graduate could be skilled enough to start out their career taking well-paid photography assignments, and, if managed right, could be highly successful. Yet, if creatively talented photographers don't focus on business, or don't have the business acumen to succeed, they will likely fail, despite their talent.

I can't imagine the irresponsibility of a school sending a graduate off with a diploma and degree without a skill so key as business. The bigger issue is new graduates entering the marketplace with rose-colored glasses, wholly unprepared for the reality of the photography market in the 21st century.

In the end, we find our markets dilluted with hungry idealistic photographers being churned out only to find there isn't a marketplace to bear them.

Why is that?

They're educated, regardless of social position. They're smart(er), they're more savvy, and by default, artistically talented. Yet, being a photographer - having the drive and passion to create visually stunning images, is not enough for you to survive as a photographer. There is a critical need for techical and business saavy for all photographers. Setting the camera on "Program" and hoping for the best, isn't the solution, nor is ignoring the pile of bills and thinking the elves in the middle of the night will pay them and send out your invoices.

So, what's to be done? The original school of thought of the wise photographer, was that, at some point, starry eyed students would flock to institutes of higher learning under the promise of education leading to higher dollars in our profession.

According to the US Department of Labor's Bureau of Labor Statistics, (here) , "Median annual wages of salaried photographers were $29,440 in May 2008. The middle 50 percent earned between $20,620 and $43,530. The lowest 10 percent earned less than $16,920, and the highest 10 percent earned more than $62,430."

Lots of people graduate, and think things will be handed to them on a silver platter, and then get upset when succeeding as a freelancer requires....oh yeah....work! For those of us in the industry, work is just not enough. We are faced with a new dynamic. Gone are the days of a picture being worth an average of almost $1k ( the average stock license, according to a Getty report several years ago).

Where is that yellow brick road? Or, to cite a well-known book "Who Stole My Cheese?"

(Continued after the Jump)

The US Department of Labor says about photographers (here):

"Most photographers spend only a small portion of their work schedule actually taking photographs. Their most common activities are editing images on a computer—if they use a digital camera—and looking for new business—if they are self-employed."

That's right, most self-employed photographers spend most of their time looking for new business.

The DOL goes on:

"Photography courses are offered by many universities, community and junior colleges, vocational-technical institutes, and private trade and technical schools. Basic courses in photography cover equipment, processes, and techniques. Learning good business and marketing skills is important and some bachelor's degree programs offer courses focusing on them."

SOME? Seriously? Some?!?!

And the DOL goes on...

"Photographers who operate their own business, or freelance, need business skills as well as talent. These individuals must know how to prepare a business plan; submit bids; write contracts; keep financial records; market their work;"

...and on....

"Those who succeed in landing a salaried job or attracting enough work to earn a living by freelancing are likely to be adept at operating a business and to be among the most creative."

It's remarkable that only "some" schools are teaching the business side of photography, when clearly almost all of the graduates who end up being photographers will be freelance, and thus, operating their own businesses. It seems to me, that it's a dereliction of a responsible school to not teach the business skills necessary to succeed.

Is the problem education?

Those in the marketplace have done substantial damage to the value of images and assignments. This isn't the schools' problem, it's the problem of the marketplace, and, the community.

Hmmm, let's think about that. newspapers are downsizing at the same time their ad revenue is up. Why? well, it's because of an expectation of free, thanks to the internet. That genie has left that bottle.

There are no magazines, newspapers, or, really, other publications that don't use photography (or illustrations.) The reality is that photography IS worth something - a lot - dare I say, a thousand words? We are so used to getting everything for free, we expect everything to be free - the content we view, CNN, etc. We are perpetuating a cycle of free that is now bleeding over to our own bottom line. You should be paying for your news, for example. A major part of the problem is that people think photos should be free, and they should not. Our images make or break most magazines, ads, and so on. A pair of jeans sells on the strength of the ad campaign. A president is elected on the strength of the photojournalism surrounding his campaign. Public opinion is formed on our wars overseas by the pictures that come out of those events. And, your wedding day was a success after the dust was settled if your wedding album is fabulous. You don't remember having the good time - you rely on the photographs to show you that you did!

Is there a responsibility for full disclosure? This is full disclosure.

- if you continue to pay photjournalists $200 an assignment and they lose all their rights...this is not a sustainable business model.
- Photography licensed with huge rights being granted at $1. This is horrible for the profession.
- Magazines who make tons off advertising are not paying rates commensurate with what they paid even 10, 20, or 30 years ago, yet for almost all of them, ad rates have increased even within the past 5 years. Mark Loundy, who writes the Common Cents column for the NPPA's News Photographer magazine, reports in this month's Common Cents (here) - "If you've seen Sports Illustrated's "Leading Off" feature of full-bleed double-truck images you know how impressive they are and how important the magazine clearly considers them. Just not in the iPad version of the magazine, for which they pay a whopping $50." In that same column, Mark (who was a technical editor on my book) notes that even his optometrist never learned business skills during his time in school. Sheesh!

Now is the time for a sea-change.

It's becoming all too common for images to be free, or next to free. Pictures make things happen. The PDN article cites several examples of students who feel wronged by the recruiters, and I am sure there are more bad-apple recruiters at other schools as well - that issue isn't limited to AI recruiters (if they were at all misleading) - not by a stretch. I see nothing wrong with a recruiter citing an income level of $62,000+ as something that is possible when selling their education - it's a real figure from the US Department of Labor. I also see nothing wrong with, say, Brooks Institute surveying their graduated photographers and learning their income levels of, say, $75k (or more) and then citing that, as well as citing that their graduates earn above the top government estimates for income. Whether this has happened or not, I can't say, but it wouldn't surprise me, and would be a reasonable marketing approach.

People coming out of the doors of higher learning instutions must say no when a bad deal is offered. Good professors that I know of have saved more than one student from giving their work away, by teaching them the value of their work. In fact, I know of some professors who, when someone comes-a-callin' to a photo school for photo students to complete an assignment, will lecture the person calling about that attitude, and won't turn over unreasonable requests to their students.

Make no mistake about it, schools - all schools - need to be profitable. Just because, say, the Art Institutes, or Brooks, make a profit, or are a part of a for-profit business model, isn't evil. Profit isn't a four-letter word. Further, state-run universities, and private schools like, say, American University, all make some form of profit. If a school has a class with insufficient attendance, or a degree that's not generating enough students to make it cost-justifiable, they cancel the class, or the program.

All schools that teach photography should have a responsiblity to teach the business side - the core - you are a business and you are worth the money you are going to make. in the same way that somebody who gets a law degree charges for their time. Regardless of the countless styles of photography, the countless genres (wedding, pj, commercial, portraits, etc etc etc) the one core requirement is how to operate their business.

Does this guarnatee the pot of gold? no, but we as a community are to blame for the dwindling prosperity prospects.

There is no photographers union, and there never will be. While we have trade associations that do all they can, until we have photographers en masse who not just say no to bad deals, and not just focus on their own business skills, but also take on the roll of helping those around them be better about business. There is a critical need for a new generation of photographers - visionaries who can make a difference - whether they come to us through an institute of higher learning, or as an apprentice of an experienced photographer, they are a necessity. We as a society need to understand and recognize the worth of the photograph, and those who create it - they are a business, we are a part of an industry. We need health insurance. We take vacations. We want a retirement plan and a good standard of living.

Hard work doesn't guarantee success. There are no guarantees in life but death and taxes. If you're such a poor business person that you don't even earn enough to pay taxes, then your only guarantee in life is death, in poverty. Good luck with that.

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Fearless Photographer: Portraits

2011-09-30T09:24:00.002+01:00

From time to time a book comes out that challenges you to think differently about your portrait photography. To not just think outside the box (which is so cliche), but to really engage your subjects, and to get them to open up, be more of themselves that you're used to seeing (or they're used to showing), and really create some amazing portraiture. Fearless Photographer: Portraits - by Charlotte Richardson^* is just such a book. I've added it to my recommended reading list, and encourage you to buy it and check it out.

Charlotte rarely uses Photoshop to composite/fabricate images (and discloses completely whatever may have been done in Photoshop) throughout the book. So, for example, when she places her subjects in a heart-shaped ring of fire - they really are surrounded by fire, not dropped in in post-production. As a photographer for over 20 years, she first trained to "get it right on film", so concepts like "we'll fix it in post-production" are approaches she abhors. Wherever possible, she strives to realize a vision in-camera, not as pieces composed after the fact. The book is a fun and easy read, with practical advice and Charlotte is never afraid to tell you her mistakes as well.

The book, in the end, isn't just a how-to, but also gives you inspiration and encouragement to really engage your subjects, and, yes, be fearless.

Here's an overview of the book and one of the behind-the-scenes videos (below), and after the jump are seven more videos showing behind-the-scenes looks at several chapters of the book.

Fearless Photographer Portaits - Behind the Scenes - Hearts on Fire: Ray and Angel

Fearless Photographer Portraits - Overview

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Fearless Photographer Portraits: Behind the Scenes - Chloe Alyce and Lucky

Fearless Photographer Portraits: Behind the Scenes - Preteens: Olivia and the Beach

Fearless Photographer Portraits: Behind the Scenes - Soccer Stars

Fearless Photographer Portraits: Behind the Scenes - Hunter: Rock Star (and cover subject)

Fearless Photographer Portraits: Behind the Scenes - Blaine: A Man with a Message

Fearless Photographer Portraits: Behind the Scenes - Lyndi and Clyde: Beauty Tames a Ton (Literally)

Fearless Photographer Portraits: Behind the Scenes - Agent C's Hot Wheels

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^* Charlotte is my better half, and I served as a humble assistant to bring her visions (and those of her subjects) to reality. She also cornered me into appearing a few times in the book.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

UPDATE: US Presswire & Gannett

2011-09-28T21:24:00.009+01:00

Despite the deafening silence surrounding Gannett (NYSE: GCI) acquiring US Presswire officially from Gannett, other tidbits of information are coming through the grapevine, and other interesting places.

One such interesting insight comes from Photographer Thomas Shea, who's shot for USPW for some time. Shea posted this on his Facebook account:

As such, it seems that Gannett is making good on all the back debt that US Presswire photographers are owed. This is often the case when a company acquires another company - they not only get all the assets of that company, but also assume all the debt. Also what happens in many cases, is, if say, a company is valued at say $1,000,000, but the company also has $500,000 in debt, that debt is deducted from the valuation and while the purchase price/valuation is $1M, the actual payout to the company's owners is the net amount. While it is unclear if this happened in the Gannett USPW deal, it often does happen.

(Continued after the Jump)

For photographers looking at the potential detrimental effects on their bottom line, the SportsShooter.com website (here) shows a $375/$400 range of pay for an assignment. That's an incredible rate in comparison to the $100/$125 payments that Gannett is making to USPW photographers under the new deal.

As late as Sunday September 14, USPW Holdings COO Bob Rosato, is still working for Sports Illustrated, having been on the sidelines of the Ravens game and producing an SI regional cover, here. It may be that Rosato is playing out the end of a deal with SI as the Gannett arrangement ramps up, or there may be some other arrangement in place.

Also of interest, is that apparently Getty Images and US Presswire have exclusive licensing deals with college schools, whereby here, one photographer quotes the Michigan Wolverines as saying:

"The school also does not credential photography services beyond Getty Images and US Presswire, which have licensing relationships with the school, according to Ablauf."

Lastly, it seems that US Presswire (a la Gannett) is now covering high school sports - here. In the past (4 other times) USPW has covered a high school game, it was because 1. Ashton Kutcher was a coach; 2. Joe Montana's son was QB; 3.) Matt Barkey (went to play at USC). The only other thing about this game was it featured two USA Today top-5 teams. It could be that this is a new order, "on high", from Gannett.

It looks like photographers who used to earn $375/$400 won't be needed with the $100 photographer in abundance from the ranks of the USPW folks. This is yet one more example of how what you do not only affects others, but yourself, if, say, you were shooting for Gannett when they called, and USPW in the meantime - you contributed to your own cost-slashing.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

US Presswire Confirmed Sold to Gannett, Name Change

2011-09-12T13:38:00.004+01:00

According to the Florida Department of State Division of Corporations, US Presswire's mailing address has changed to that of Gannett (NYSE: GCI) headquarters in McLean, VA on September 7, 2011:

Mailing Address
7950 JONES BRANCH DRIVE
MCLEAN VA 22107
Changed 09/07/2011

Also changed, US Presswire is now legally known as USPW Media Holdings, LLC, according to the same filing.

What remains to be known is what was paid for US Presswire. Likely Gannett will have to disclose this figure sooner rather than later, as it is a publicly traded company.

Over on the SportsShooter.com website (here), photographer Darren Carroll makes a remarkable point about all the photographers who were working for free for US Presswire:

"IF all of those photographers had insisted on getting paid a decent rate to cover those 5,300 games, Presswire would never have been in a financial position to offer such a bargain-basement deal for its pictures."

Carroll went on to do the math and illustrate the fact that these photographers, working for free, subsidized the build-up and sale of US Presswire:

"5,300 games (U.S. Presswire's number, from its own press release). For argument's sake, let's be conservative and call a "decent" rate $500 per game (commensurate with the standard S.I. day rate). If every shooter who "worked" for U.S. Presswire would have insisted on being paid that amount, that would be a $2,650,000 hole (not counting other overhead) that US Presswire would have had to climb out of just to be profitable. And the only place the company could have made that back was by charging more for its sales and licensing. Basically, then as Allen Murabayashi alluded to in an earlier post, all of the photographers who agreed to work for free just subsidized U.S. Presswire over TWO AND A HALF MILLION DOLLARS to help conduct its operations in 2010."

I can't think of a more solid example of how working for free is detrimental to all photographers and benefits corporate owners.

(Continued after the Jump)

Here is the corporate filing data from the Florida Department of State Division of Corporations website:

You can view the listing here.

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Worth Reading:

US Presswire, Message Thread 1-51 on SportsShooter.com
US Presswire, Message Thread 52-103 on SportsShooter.com
US Presswire, Message Thread 104- on SportsShooter.com

Related:

Gannett Acquires US Presswire, 9/7/2011

One Gannett Photographers take on the US Presswire Acquisition, 9/12/2011

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One Gannett Photographers take on the US Presswire Acquisition

2011-09-12T05:01:00.002+01:00

The Gannett (NYSE: GCI) acquisition is sure to have an adverse impact on Gannett staff photographers. To be expected will be a reduction in the Gannett organization sending it's staff photographers to games when there are 2-3 photographers already there shooting the event for a fraction of the cost they previously had for a freelancer, let alone a staffer.

One well known sports photographer (non-Gannett) sent along the following figures from the Maryland State Personnel Management System for direct an indirect costs for a $49k salaried employees, which is as follows:

EMPLOYER'S COST OF BENEFITS FOR A TYPICAL STATE EMPLOYEE IN THE STATE PERSONNEL MANAGEMENT SYSTEM (Maryland Fiscal Year 2010) (see page 18, here)

Salary* $49,019
DIRECT COSTS
Social Security $3,979
Health Insurance** $8,528
Pension Retirement $4,541
Deferred Compensation Match $0
Workers Compensation $667
Unemployment Insurance $52
-SUBTOTAL DIRECT COSTS $17,767
INDIRECT COSTS
Personal Leave $1,197
Holiday $2,394
Annual Leave $2,993
Sick Leave $998
-SUBTOTAL INDIRECT COSTS $7,582
TOTAL COST OF BENEFITS $25,349

TOTAL COST OF SALARY & BENEFITS: $74,368

This assumes that a Gannett photographer earns $49k, and I believe their number to be significantly higher. Yet, let's consider this as a solid example on the low-side. This does not, of course, include the costs for transportation, photo equipment, and a laptop. You can reasonably expect that figure to add $6k a year, minimum, to the indirect cost of a staff photographer. So, with a salary of $49, added direct and indirect costs of $25k, and the estimated additional $6k gear allowance, you're looking at $80k a year to carry one staff photographer. Not to mention travel assignments where air/hotel/car rental/meals/etc are an added cost. Why pay an annualized cost when you need only pay the sports photographers on the days you need them, and they're local? As such, Gannett photographers who have spent most of their days covering sports should consider their days numbered, and they have much to be concerned about.

We heard from one photographer, who shared his concern as a comment on the original story we broke. He wrote:

(Continued after the Jump)

I'm a photographer at a Gannett paper who was instructed not to talk about the Presswire deal. We are as uncertain of the future and what this deal means as the US Presswire photographers probably are.

Does this mean Gannett will stop using AP & Getty and rely exclusively on Presswire for wire sports? And use it to renegotiate lower rates? Does it mean Gannett papers will no longer contribute sports photos to the AP wire and now market them through Presswire, competing with the Presswire photographers?

Are Gannett's motives even darker? Does it mean that Gannett papers will no longer staff NFL/MLB/NHL/NBA and the like instead relying on Presswire?

Let's face it, it's a lot cheaper to send one or two US Presswire photographers to a NFL game for a flat $100 each than two staffers who in addition to their salaries get health insurance, expenses and mileage etc. By the time you stretch the math out you could probably send three Presswire people for what one staffer would cost.

Gannett's motive could be even more nefarious. Once the Presswire deal is concluded, Gannett will have a large roster of reliable freelancers at its disposal. Will they start to use them to replace staffers. If they will take $100 to work a football game maybe they'll take $25 to do a community back to school assignment? Again, much cheaper than sending a staffer.

It's interesting that neither Gannett nor Presswire have made any announcements about this yet. Rumor has it that a number of Gannett people are traveling to Virginia next week to hear about the deal and what it means. I guess we'll have to wait till then to find out what's in store. "

This staffer has made a number of astute observations, and is rightly concerned. This will have an adverse impact on every staff photographer, including those at the other wire services. With Gannett no longer needing AP/Getty for the sports package, there will be fewer photographers assigned to those games, and Reuters/AFP will also possibly see a similar impact.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

The ACLU and Photographers Rights

2011-09-10T16:04:00.002+01:00

The American Civil Liberties Union has come out with a remarkable - and timely - resource in their piece "You Have Every Right to Photograph That Cop" (ACLU website - 9/7/11). Ten years ago tomorrow, my ability to cover the attack at the Pentagon was cut short by an overzealous FBI agent despite my having been in the same location for over 5 hours and behind a fence line. That had not been my first experience with overzealous police or federal authorities - in this case one who refused to provide his name and only flashed his badge - and it also has not been my last.

At right is a Supreme Court police officer approaching me to admonish me that cannot be where I am - the public front steps of the US Supreme Court - to take photographs - this, before 9/11, as if that's actually a valid excuse. It is not.

(Continued after the Jump)

Countless times I have been directed (or watched others directed) by overzealous authorities with a badge (and sometimes a gun) to leave an area because we were press, while the general public was allowed to wander aimlessly in the area - or even shoot pictures with a point-and-shoot - and threatened with arrest if the directions were not heeded. This is, and has always been, unacceptable. Yet, I take high offense when the blanket excuse is "...you can't do that/be here because of national security..." .

The ACLU cites law enforcement programs that "suggest that photography is a 'precursor behavior' to terrorism, and direct the police to react accordingly." So is driving a car to your intended destination to commit terrorism, and feeding yourself during the process. Ludicrous, I know. Yet, it's the comparable. Further, anyone who really wants to take a photo can do so surreptitiously.

As someone who has worn a press credential for over 20 years, and who served two terms as the President of the White House News Photographers Association, I have seen too many egregious encroachments on the tenets of the First Amendment, and it's nice to see the ACLU taking a stand on this issue.

Be sure to read, print, and carry a copy of the ACLU's "Know Your Rights: Photographers" guide to "Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties."

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Gannett Acquires US Presswire

2011-09-07T18:47:00.006+01:00

According to sources familiar with the deal, US Presswire has been acquired by Gannett (NYSE: GCI). In a conference call last night amongst contributors and US Presswire management, the details of their new deal were discussed.

Among the details, US Presswire photographers, who previously shot on spec and had to cover all their own expenses, now would be compensated, albeit at a nominal amount. According to sources, US Presswire's Bob Rosato, who is set to stay on as the Chief Operating Officer of US Presswire under the new Gannett deal, told photographers that now, with an "assignment fee" of $100, which must include all expenses, that all the photographers are getting their expenses paid. This lead to some grumbling amongst conference call participants who concluded that some photographers have been getting expenses paid, while others have not. Under the terms of the deal, the $100 assignment fee will apply for the first year, with $125 being the assignment fee paid in the second year.

(Continued after the Jump)

Further details of how revenues would be divided came to light during the conference call. Images that were previously a part of a subscription arrangement, similar to the one that USA Today was paying $600 for, which ultimately became a $1000 a month deal when they added USAToday.com and Sports Weekly, for with an "all you can eat" stream of images, would not earn those on assignment any additional fees, whereas it previously did, albeit at a nominal $5 or so per image, according to one source who's often been paid these amounts. Further, if USPW has a photographer on assignment at a game, and another USPW photographer requests a credential to cover the game, any images that the requesting "not on assignment" photographer submits will not generate any income from the subscription feeds, however any a la carte sales would remain paid at regular rates.

There are no planned departures, with all senior management reportedly staying on. A new contract that all contributors will be required to sign is in the works, and the timetable for the formal takeover, while happening soon, has not been announced with an exact date.

With Gannett re-launching their Sports Network brand (as noted here), it seems this is among the faster ways that Gannett can get a network of photographers rapidly, although it remains unknown if all of the USPW content will be used without charge within the Gannett family of properties (USA Today, USAToday.com, Sports Weekly, all of the Gannett newspapers, etc) or will there be some compensation.

Rumors abounded several years ago that Getty Images, seeing US Presswire as a thorn in their side more than a valuable property to acquire, offered an excessive amount of money to USPW owners - in the realm of $4m - $5m - which they turned down. Rosato, staying on as the COO, also is reported to have resigned his position as a photographer with Sports Illustrated, supposedly because of conflict of interest concerns if he were to stay on.

Photo Business News has written several articles about USPW in the past, and taken a critical look at how photographers have frequently gotten poor deals and the short end of the stick. With this new deal, management will likely have little room to offer as an excuse that they don't have any money to pay photographers, as they have in the past.

We've made outreach to Gannett throughout the day, and the response we received, was no comment.

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Related:

US Presswire "Steps In It" With MLB and Getty Images

US Presswire - Introduction
US Presswire - A Conflict of Interest
US Presswire - Friends Don't Screw Friends
US Presswire - Contract Analysis
US Presswire - The Client's Perspective
US Presswire - The Freelancers Perspective
US Presswire - Closing Thoughts

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9/11: Looking Back

2011-08-27T04:49:00.003+01:00

On September 11, 2001, I found myself outside of the Pentagon, on assignment. A few months ago, the Smithsonian asked if I would donate those images to the museum's collection, and I was honored to make the donation. As it turns out, they were doing a special on 9/11 for the Smithsonian Channel, and asked if I would sit down to discuss some of those images.

Their special begins showing this coming week, with previews online now. A segment and some of the images that were donated appears in the section on the show's main page, under "Donating the Pieces", which can be seen by clicking here.

(Comments, if any, after the Jump)

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A Call-Out to Photography School Professors and Deans

2011-08-11T18:42:00.002+01:00

If you are a professor at a photography school, or a dean of a department at a photography school, and are either now using, or would like to use, Best Business Practices for Photographers, in your curriculum, please send me an email.

Thanks!

(Comments, if any, after the Jump)

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Wedding Photographer Convicted On Breach of Contract

2011-08-11T18:32:00.002+01:00

Greenville SC photographer Gerald Randolph Byrd was convicted of failing to deliver images to a wedding client - even though he had been paid - and recieved a sentence of 8 years in jail, suspended to two years of house arrest, according to WYFF television, as reported here.

Byrd charged $2,450 to a wedding couple, and was paid. Because his breach of contract included fraudulent intent, his sentence was so severe, it seems.

A word to the wise - when your client signs a contract, YOU have to live up to the terms of the contract too, and that includes delivering on what you promised you would.

(Comments, if any, after the Jump)

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Business Skills For the Wedding Photographer

2011-08-01T15:18:00.000+01:00

Absent from most workshop programs that teach photographers how to take better pictures, is how to earn a living once you are proficient with a camera. I submit that photographers that are mediocre in their talents and excellent in their business skills will succeed far and away better than the most talented photographer who hides under a rock when presented with the opportunity to learn more about being in business.
As such, I have been asked by the good folks at Momenta Workshops to talk about the business aspect of being a wedding photographer.

IN ONE WEEK - ALL DAY - MONDAY - AUGUST 8TH, WASHINGTON DC

About the Program
The wedding industry is readily expanding as photographers look for new markets and revenue streams. The photographers and studios that will last are the ones who build sustainable business practices into their growth models. Momenta believes in supporting photographers with professional training at all levels. We believe a stronger photographic community means success for everyone. Therefore, we are offering this one day, intensive business skills workshop to help you take your profitability and business practices to the next level.

Our panelists, speakers and lecturers will cover topics that will help each division of your services. From marketing to finance to client relations and products, we will discuss the many ways you can build your business to be more profitable and successful.

Along with the handout materials and lectures, we are providing all pre-registered participants with a copy of John Harrington's Best Business Practices for Photographers. John Harrington is a national asset to photographers who offers professional, tested advice on how to make the best financial decisions to grow your business successfully. His book has been considered the "Bible of Freelance Photography" for many photojournalists and studios since it's first publication.

Hit the jump for the program, or go HERE to register and learn more!

(Continued after the Jump)

Here's the program:

9:15 a.m. | Keynote Speaker Address. Maryland based Amy Deputy will discuss finding your bliss in your career. Amy will share her story of growth from a wedding freelancer into one of American PHOTO’s Top 10 Wedding Photographers. Her discussion, punctuated with her award winning portfolio images, will focus on the successes, mistakes and major learning lessons of her career. Amy will guide attending photographers through her very unique journey to finding the right price point for her services and how she found the right clients for personal vision. Following her presentation, Amy will open the floor up for Q&A.

1 p.m. | John Harrington’s Best Business Practices for Photographers. Grab a seat and get ready for four of the most fascinating hours of your career. John’s usual one-hour lectures just scratch the surface of his vast level of expertise in growing a business. Having and reading John’s book is just the beginning for understanding the best way to become a professional and make your more business profitable. Seeing John in action ties it all together!

Throughout the afternoon, John will be walking you through the many steps you will need to succeed in today’s economy using all the tools available to you. Whether you are a seasoned professional or a brand new start up, we are confident you will learn an enormous amount from John’s workshop. Through interactive presentations, actual client phone call recording and practical examples, John will cover the following topics and more in his afternoon address: pricing your services for sustainable income; how to create a portfolio worthy of client presentation; finding clients in a bad economy; how to get clients who won’t fight your pricing; client negotiations and tactics for success; planning for taxes and accounting practices to save you time and money; professional gear for professional people; how to use your leadership skills, social networking, marketing and peer groups for your business’ future growth.

....and we wrap up at 5.

Register HERE!

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Copyright, Copyright, Copyright

2011-07-30T14:40:00.002+01:00

We here at Photo Business News encourage people to recognize the value of their copyright. These days, more and more people are crying that copyright shouldn't exist, or that people should be free to mash-up your work without your permission. In other words - once you put your work out for public consumption, the public owns it and can do what they want with it.

Uh, no.

Going into court is a painful process. It's always easier for both parties to come to a settlement, and not have to wade into the morass of Federal court. Unfortunately, though, thieves, often empowered by a belief that they can outspend and wait-out an artist whose work they stole, will fight until the bitter end. Then, you have judges, who can understand, say, Disney's claims of lost income when they are infringed, but consider a photographer who had his work infringed as getting some sort of windfall they otherwise wouldn't have received or certainly aren't entitled to, when some Fortune 500 company steals or misuses their work, and, as such, gives them some minuscule award of damages.

Yet, the fight must go on. It is, simply, a fight for what is right. Sometimes, fighting for what is right isn't easy.

Back in April of this year, Photo Attorney Carolyn Wright began a "Diary" of a copyright infringement, that's worth having a read - if for no other reason than to see the minutia that is involved.

So, I commend you to read the series.

- Diary of a Copyright Infringement Lawsuit – 1

- Diary of a Copyright Infringement Lawsuit – 2

- Diary of a Copyright Infringement Lawsuit – 2a

- Diary of a Copyright Infringement Lawsuit – 3

- Diary of a Copyright Infringement Lawsuit – 4

One of the most important things about a copyright infringement that you're dealing with, is to be very careful about how and when you might contact the infringer, and what you might say.

Whatever you write in your emails will become a part of the evidence against you, if, for example, you demand $500 and then later, after learning more about the breadth of the infringement, you demand $50,000, your $500 email will cost you.

Most attorneys will talk to you for 5-15 minutes about your case, generally, before beginning to charge you. Most will give you general information, listen to the specifics of your case, and talk about possibilities and probabilities. At the point that they formally start giving you "advice" is when they'll start charging you. Understand, though, they are also trying to decide if they will take you on as a client.

Most importantly, make sure the lawyer you contact knows copyright. Disastrous mistakes get made when you hire a lawyer who isn't specialized in copyright.

(Comments, if any, after the Jump)

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NPPA Workshops - The Business of Photography

2011-07-25T10:09:00.003+01:00

Not only do we all know a colleague in our photographic community who could use some business counsel, but a refresher and new perspective on the business of photography could benefit you as well. To that end, the NPPA has put together an amazing day of workshops - the NPPA Business Blitz, which kicked of at the beginning of June in the DC area, and is now traveling the country.

How much? $10 ALL DAY (NPPA members) and $20 (non-NPPA members)

So, encourage your friends to go (send them a link to this) and let's get people focused on the business of being a photographer!

Here's what was done in DC (each city varies a little):

9am - 10am - Keynote - Keynote: John Harrington- A Strategic Roadmap to Success: Avoiding Pitfalls and a Survey of Today's Landscape

Breakout sessions were offered throughout the day. Each of the following was offered in three time slots:

John Harrington: Real Business, Real Estimates, Real Life: Surviving and Thriving as a Working Professional
Allen Murabayashi: SEO and the Web
Chip Litherland: How I Learned From My Mistakes to Build a Successful Freelance Business
Garrett Hubbard: Shooting, Editing, and Maximizing Profitability for Video Storytelling
Craig Mitchelldyer: Lighting Session - Making Your Work Stand Out from the Crowd

6:30 pm - 7:30 pm - Keynote: Allen Murabayashi; Put More Business in Your Photo Business

Joining the program in Denver will be Ellen Jaskol, who not only has won 2 Pulitzer Prizes, but spent 17 at the Rocky Mountain News in Denver, and before that was at the Los Angeles Times. Since 2009 she's been the main photographer for the new magazine, Colorado View.

Also joining the program in Denver will be Matt Slaby, a photographer and founding member of LUCEO Images based in Denver.

Sponsored by the good people of Nikon and great thanks to the Nikon Professional Services team, as well as the geniuses behind Photoshelter.

(Comments, if any, after the Jump)

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VIDEO: The Space Shuttle Legend You (Likely) Never Knew

2011-07-21T20:10:00.002+01:00

Scott Andrews has been covering the NASA Shuttle since before it first launched. Photo Business News previously reported about Schoot in the run up to the he 2011 inauguration (here - Scott Andrews, Remote Cameras, and the Inauguration (1/17/09). When it came time to take a unique look at the last shuttle launch, Washington Times decided to take a look at Scott's coverage of the shuttle. Scott first worked for Nikon Professional Services, and currently works for Canon Professional Services, however he has always helped out all "brands" of photographers whenever he's been asked.

The Washington Times video is in two parts (Part 1 and Part 2) - check them both out!

(Comments, if any, after the Jump)

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VIDEO: On Assignment - Family Fitness Magazine

2011-07-15T17:26:00.002+01:00

From time to time, we have an opportunity to share with you assignments we've done. Here's one we did with fitness guru Denise Austin recently, for Family Fitness Magazine. Enjoy!

(Comments, if any, after the Jump)

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The State of the Stock Industry

2011-07-14T18:36:00.002+01:00

The stock photography industry is in free fall, and the floor seems to be porous, whereby free isn't even the bottom. While photographers who control their rates using services such as PhotoShelter, with pricing models powered by the baseline of fotoQuote, are able to better withstand the demand for lower rates, by simply saying "no" when unreasonable offers are made, those who are at the whim of pricing models set by a conglomerate, are suffering.

It would be smart for organizations, like Getty, Corbis, and others who have the marketshare to allow photographers to use their services more as a portal, or conduit, while permitting those who use the portal to set the rates. A transaction fee similar to that paid to credit card companies who process transactions (2-4%) would suffice.

Betsy Reid has done a remarkable job of analyzing the state of the market, over at the Brittish Journal of Photography, here, and I highly recommend it for a thoughtful read!

(Comments, if any, after the Jump)

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STOP Using Freelancers!

2011-07-13T03:04:00.000+01:00

Once upon a time, news organizations had robust photo staffs that could cover the news of the day. These staffers were paid well, provided with gear, a retirement, and in turn, were loyal, and ethical, in their work. They also feared being fired for doing something wrong and so, in large part, they didn't. A staffer making $45k a year costs the organization, when all is included, between $250 and $300 a day. The AP, for example, when they pay a staffer $65k a year, and then adding in all their expenses ( office space, computers, cameras, car/mileage, 401k, health insurance, etc) comes to about $320 - $500 or so. It's no wonder they haven't replaced many staffers and are using freelancers when they cost only $200, and they get all the same rights from freelancers, as employees!

Staffers, of course, should do everything they can to discourage management from using freelancers, because, from a cost standpoint alone, the rise of the freelancer equates to the demise of the staffer - it's not like there's less news these days!

I understand that, from time to time, when there's a big news story in a region, temporary needs for freelancers arise. However, when an organization uses multiple freelancers daily, guess what? It's time to staff up! Heck, even union agreements (wherever they still exist) place limits on the frequency of freelance use for the very reason to protect staff positions.

Of course, news organizations, and the AP is just the most recent example, are suffering under the ethically challenged freelancers. Poynter did a good job of reporting on this here, and PDNPulse reported - Another Photo Manipulation Case Raises Question: Is the Penalty High Enough?, and PDN also reported on a Getty freelancer here - Photographer Cut by Getty for Altered Golf Photo Offers Explanation , and the BBC even reported about a freelancer for Reuters (here) who did the same thing.

Yes, there are organizations that need a photographer once a month or twice a year, and freelancers are good for that. Freelancers fit the bill in many instances. However, sending an ethically sound photographer on a plane trip to ensure the images are legitimate serves the long term best interests of news gathering organizations. Hoping you get good sound images from a freelancer you found from an internet search, or a friend of a friend of a friend, is no way to sustain the reputation of your news organization. I know budgets are tight, but with your organizations' reputation on the line as every freelance image moves over the wire, is it worth it?

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Objections to ProtectIP Act - Silly Rabbit, Tricks are for Kids!

2011-07-12T13:19:00.002+01:00

Oh, those law professors, living in their ivory towers and thinking their reality is the real world. Like Neo, their reality is so far removed from the real world that they know not of which they speak!

Engadget is reporting (here) that 100 or so lawyers have written members of Congress, as Engadget writes "under the bill being advocated for by the RIAA the MPAA, a judge can issue a temporary restraining order that will essentially shutdown a site based only on evidence presented by the government. " And, as such, the lawyers believe that when a site is shut down, even temporarily, it restricts free speech.

Au contrare. It restricts people from profiting from the theft of intellectual property of another.

There are many examples of property being restricted when its use is related to an alleged crime. Take the, ahem, John, who gets busted allegedly soliciting prostitution - in many jurisdictions, the punishment begins with the impounding of his car. It doesn't matter that he had other personal property in the car, the car and it's contents are impounded.

When a house gets raided, say, looking for drugs, things can get damaged, or impounded, during the course of that investigation, and, in some cases, the house may be sealed for a period of time.

Or, take the white collar (alleged) criminal, who may have committed a crime online, or have used his computer(s) to commit the crime. When the government raids his home, they impound his computer to look for evidence, and that evidence isn't often returned until after the trial, yet the accused loses the ability to use the computer, and likely access to all the other documents on it. What if the accused was a small business owner who has Quickbooks on it and couldn't run the business without it?

Of course, Google is opposed to it, because it could be used to shut down, or limit, vast swaths of Google, who, oh, that's right - sells advertising alongside everything, including illegal stuff.

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Rights of the Public and the Press - Court Rules For Photogs

2011-06-26T03:08:00.000+01:00

I've spent my fair share of time on movie sets. Sometimes, I was the unit photographer, and in other instances, I was tasked with covering the news going on in the community. One of my early assignments had me covering Tom Cruise one Halloween in Georgetown, a tony part of Washington DC, when he was filming a scene for A Few Good Men. Then, myself and a colleague were met with blankets and scrims tossed up in-front of us as Cruise moved about the street, causing us to have to head to a second story window amidst an ongoing Halloween party and some kind revelers who let us "hang out" and make images above the scrims.

On June 24th, Photo District News reported 'Judge Orders Ft. Lauderdale to Allow Photos Near Movie Set' which followed up on their original article 'Ft. Lauderdale Photo Ban: Bought and Paid for by Hollywood?' where photographers were literally banned from places that the general public was allowed to walk freely upon.

The press enjoys not only the full rights and privileges of the general public, but also an expanded right as guaranteed by the first amendment. Thankfully, a judge found on behalf of the press in this emergency ruling. If only I had known about things like emergency rulings way back then, my images of Tom Cruise might be that might better.

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Court Rules Photo Credit Removal a DMCA Violation

2011-06-20T02:57:00.000+01:00

Many photographers try to make the lame assertion that they don't care about money, just seeing their work being used, or a photo credit, is all they care about. Well, for those lame-o's, and the rest of us who actually earn a living making pictures, there is now money to be gained when someone removes your photo credit.

As reported by the Copyright Litigation Blog (here), the employees of subjects in a photograph infringed on the photographers rights when scanning the magazine that resulted from the a photo assignment and posting the image online.

While the joke may well still be "will work for photo credit", the reality is "photo credits can work for you."

Yet, friends, one more reason you should be registering your work. Lame-o or not, this is business folks. Business.

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VIDEO: How To Establish Assignment Rates for Photographers

2011-06-17T02:50:00.000+01:00

A few weeks ago, PhotoShelter was promoting their "Starting a Photography Business" guide, and asked me to say a few words on how to establish fair and reasonable rates for assignments being done. Here's a video of that interview, which they originally posted on their blog, here.

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VIDEO: Typical Business Mistakes Made By Photographers

2011-06-11T02:43:00.000+01:00

The good folks over at PhotoShelter interviewed me for a piece they called - "The Typical Business Mistakes Made By Photographers " and posted the video below as a part of that. Enjoy the video!

Common Business Mistakes Made By Photographers: Interview with John Harrington from PhotoShelter.com on Vimeo.

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STOLEN: Photographer's Rights of Iconic Image

2011-06-10T02:30:00.001+01:00

As a youth in the 80's, the Run DMC and Jam-Master Jay were all the rage. The beginning of mainsteam rap that ushered in all the rest.

Photo District News reported here on the news that the photographer has won his lawsuit against an infringer who made all manner of reproductions.

Carolyn Wright, over at PhotoAttorney.com provided some insights worth reading as well, here.

In short, protect your rights. Register your work. You never know when your work will be stolen, and having done the leg work necessary to protect yourself will give you all the tools necessary to protect your rights to the fullest extent of the law.

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TwitPic - As Expected! Selling YOUR Photos

2011-05-26T02:08:00.000+01:00

It comes as little surprise that TwitPic announced they are now licensing images that photographers transmit over the TwitPic service. They, of course, have the right to do so, and we stand by the position we first put forth when we wrote about it last year (Morel v. AFP, AFP v. Morel - Which Way Blows the Wind?, 10/5/2010).

The model continues - 'offer a free service, or a limited one, build up a critical mass of users, change (or enforce existing) terms, and then aggregate the users' content for profit and gain.'

The New York Times reported here, and Photo District News wrote both 'Time to Quit Using TwitPic?' (5/23/11) and 'Twitpic: Laundering Images of Owners’ Rights' (5/24/11) about the realities of how the "free" model is affecting your intellectual property.

South Park has a hilarious show on the issue whereby no one actually reads terms of service here, as always, taking the issue to it's absurd endgame.

This just underscores the reality that there really is NOTHING that is free. While something may appear free, you are always giving something up when you accept something for free. Time, privacy, or, in this case, your rights.

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PicScout Acquired by Getty Images

2011-05-24T02:09:00.005+01:00

Getty Images has made an interesting acquisition in buying the PicScout image recognition service a few weeks ago, and frankly, it's a smart move. Getty Images, with millions of images, and a dwindling per image revenue stream, must find alternative revenue streams, and focusing on infringements is wise.

In 2007, when Getty was publicly traded, and had to do things like conference calls with investors, Getty CEO Jonathan Klein said "the way we see the world today quite simply, is that our core stock photography business has stopped growing, in fact, it's declining. Our number 1 priority is to stabilize that business...we're trying to stablize the core stock business, at the same time, trying continuing to grow the other businesses." (PBN - GYI's JDK: "our core stock photography business has stopped growing, in fact, it's declining.", 9/20/07). So, the new business seems to be pursuing infringements?

Also back in September of 2007, the Stock Artists Alliance released a white paper - “Infringements of Stock Images and Lost Revenues.”, that they did with....wait for it....Pic Scout, revealed some interesting figures. We wrote (God Save the Alliance, 9/07), "SAA’s study found that 9 out of 10 images they found were infringements upon RM images. That’s a lot of infringements! What’s worse, because of the low-dollar-per-image issue, it seems that tracking infringements of RF isn’t cost effective, giving infringers essentially a “license” to infringe." We also cited from the report back in 2007 "According to Selling Stock’s recent count, there are just over 1 million RM images on gettyimages.com. If we apply the 1:15 annual infringement rate observed in our study, we arrive at an estimate of approximately 67,000 infringements in a one –year period."

PicScout certainly is the industry leader when it comes to image recognition. They also are the provider of image recognition services to the PLUS Coalition's PLUS Registry, which positions not just PicScout, but also Getty Images, to lead the industry in the long term.

Frankly, all photographers would benefit from Getty being on top of their rights management, and the pursuit of infringers. The more infringers are pursued, the more they will think twice infringing, whether it's a Getty image, or that of a freelancer.

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End of Term at the White House News Photographers Association

2011-05-14T01:26:00.001+01:00

After two terms as President of the White House News Photographers Association, my term ends with our 90th Anniversary Gala, May 14th, 2011. It has been my pleasure to serve the members during our meetings and discussions with the White House over access issues, as well as meeting individually with many of the members to discuss how to grow their businesses. It is with great ] appreciation that I thank our Executive Director, Heidi Elswick for her service, and especially board member Jon Elswick for her continuing service to the membership.

There is much work to be done by the board in the coming year. As my tenure was wrapping up, I found my last full day as President, handling press calls that resulted in (or followed up on) articles in the Washington Post (here), Los Angeles Times (here), Politico (here), and Poynter (here), to name as few. This issue will continue, and the access (and retrictions thereof) will continue as the White House shifts into campaign mode in the coming months.

Best wishes to the incoming President, Ron Sachs, and the board as they continue to serve the members of the WHNPA, who are truly, the Eyes of History.

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LOOK3 - Festival of the Photograph - 2011

2011-04-02T01:52:00.001+01:00

This year, the Festival of the Photograph returns to Charlottesville, Virginia, June 9th through the 11th, featuring photographers
Nan Goldin, Antonin Kratochvil, and Massimo Vitali, as well as many others. For more information, click here, and to get a flavor of the event, check out an overview video we did during the 2009 event (they were on hiatus in 2010), below:

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Copyright: Know it or Blow it

2011-03-29T01:20:00.001+01:00

American Photographic Artists has an excellent program that is ongoing - Copyright, Know It or Blow It - which is travelling the country, and Topics to be discussed include:

-- What To Do When Your Image Has Been Infringed

-- How And When To Choose An Attorney

-- Putting Copyright To Work For You

I have spoken (and am speaking) at several of them as time and my schedule permits. To learn more about the FREE program, visit the APA site here.

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Google v. Authors

2011-03-25T00:35:00.002Z

Much has transpired in the case between Google and book authors. Back in 2009 it was determined that photographers are not authors (Techcrunch - 11/09 - Judge In Google Book Settlement Case Says Photographers Are Not Authors) and were refused access to the Google lawsuit.

On March 22, the judge who is overseeing the possible settlement between Google and the authors rejected their agreement. The prime reason the judge rejected the agreement was that it would have been a huge exemption to existing copyright law, in that Google's "registry" of copyrighted material they would have been collecting would have automatically been included unless the authors took action to opt out.

Fortunately, while the outcome of this case doesn't directly affect photographers, the results are insightful as professional photography organizations continue to press a seperate lawsuit against Google (more information here).

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Stock Artists Alliance Shuts Down

2011-03-23T00:57:00.002Z

The Stock Artists Alliance, an organization dedicated to a focus on the rights and needs of stock photographers, shuts down in April, according to Roy Hsu, David Sanger and Betsy Reid, all former officers of SAA. Formed in 2001 to combat encroachments on revenue and rights that Getty Images was demanding of photographers, it grew to serve a broader audience as it expanded.

We wrote about SAA back in 2007 (Photo Business News - 9/07 - God Save the Alliance) when they were releasing a white paper on the rampant infringements that are ongoing on the internet. When Reid, whom I count among my friends, was hired by the Professional Photographers of America (SAA announcement, 3/09) I was concerned for the future of SAA, as she was really the cornerstone of the organization.

The demise of SAA parallels the demise of the stock photography in general. The money just isn't there for the creator, however, it seems, the corporate giants that the SAA was founded to fight, still sees money. If nothing else, they see an unending flow of images from all comers, most as doe-eyed contributors who have no concept of their rights, or the value of their images.

Sad.

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Egregious Demands by Gaga and Ms. Jackson

2011-03-03T01:41:00.001Z

We ain't babies, Janet, and yes, Miss Jackson you're nasty. A colleague sent along this demand from Janet Jackson's "people" for photographers looking to cover her concerts, which most definitely is Egregious :

STANDARD TERMS AND CONDITIONS FOR PHOTOGRAPHERS/LIVE
APPEARANCES

Juggernaut Productions, Inc.
c/o Hertz & Lichtenstein, LLP
450 N. Roxbury Drive, 8th Floor
Beverly Hills, California 90210
Attn: Seth Lichtenstein, Esq.

Dated as of ________________________, 2011

You ("Photographer") have requested permission to photograph Janet Jackson ("Artist") at and/or in connection with the ________________________, 2011 live concert/personal appearance by Artist (the "Performance"). Any and all photographs and/or other recorded material embodying the images of Artist taken by Photographer are referred to herein as the "Photographs". For good and valuable consideration, receipt of which is hereby acknowledged, Photographer is hereby granted such permission, conditioned upon and subject to the following:

1. Right To Photograph: Photographer shall have the limited right to capture still photographs of Artist solely during the first three (3) songs performed by Artist at the Performance. Photographer shall not have the right to use any "flash" in connection with any such photographs.

2. Ownership/Rights:
(a) All rights (including all copyrights) in and to the Photographs shall be owned by Juggernaut Productions, Inc. (“Company”) as a "work-made-for-hire." In the event that the Photographs are determined not to be a "work-made-for-hire," this agreement shall constitute an assignment to Company of any and rights in and to the Photographs. At Company’s request, Photographer hereby agrees to provide Company with one (1) complete set of contact sheets of any and all Photographs taken in connection with the Performance, for personal, commercial and/or archival use by Company and Artist (and the licensees and designees of Company and Artist). Company and Artist (and the licensees and designees of Company and Artist) shall have the right, without any obligation to Photographer or any third party, to use and exploit the Photographs in any manner.

(b) Photographer shall have the limited right to use certain Photograph(s) expressly approved in writing by Artist, in a single instance, solely as part of a news item relating to the Performance in the news publication of which Photographer is an employee/agent. Any other use of the Photographs (including, without limitation, any syndication of the Photographs, any
additional use in connection with the news publication of which Photographer is an employee/agent, or any use in other publications) is subject to Company’s prior written consent in each instance. The Photographs may not be used in any manner which could imply an advertisement or endorsement by Artist of any company, person, product or service. By way of
example, but without limiting the foregoing, neither Photographer nor the news publication of which Photographer is an employee/agent shall have the right to embody the Photographs (or any portion thereof) in or on any items of merchandise or in connection with any advertisement or promotion of any person, product or service whatsoever. If the Photographs are to be printed together with any editorial, news or other informational text, the final edit of such text shall be subject to Artist’s prior written approval. Photographer shall have no other rights with respect to the Photographs, and Photographer shall not assign, license or transfer such rights. All rights in and to the Photographs not expressly granted pursuant to this subparagraph 2(b) are reserved by Company and Artist.

3. Miscellaneous:
(a) Without limitation of the other remedies to which Company and Artist may be lawfully entitled, any breach of the terms hereof shall result in the immediate rescission of all rights granted by Company hereunder and shall be subject to injunction by any court of competent jurisdiction. Without limiting the foregoing, (i) Photographer shall be held liable for any and all damages suffered by Artist and/or any and all third parties in relation to the breach by Photographer of the provisions hereof, and (ii) any payment or other consideration or benefits payable to or received by Photographer in connection with the unauthorized use or disclosure of the Photographs shall be the property of Company and shall be immediately turned over to Company by Photographer or held in trust by Photographer for Company.

(b) This agreement shall constitute a binding contract, construed in accordance with the laws of the State of California. Photographer hereby consents to the jurisdiction of the courts of the State of California.

A SIGNED COPY OF THIS DOCUMENT MUST BE RETURNED TO ARTIST’S REPRESENTATIVE PRIOR TO THE PERFORMANCE. ANY PHOTOGRAPHY OF ARTIST BY PHOTOGRAPHER SHALL BE DEEMED ACCEPTANCE BY PHOTOGRAPHER OF THE TERMS HEREOF, AND COMPANY AND ARTIST SHALL PROCEED IN RELIANCE ON SUCH ACCEPTANCE.

ACCEPTED AND AGREED:

Print Name:
("Photographer")

Employee/Agent of
(Name of Publication/News Group)

Seriously? I am sure that the many legitimate news outlets whom have photographed "Ms. Jackson" have not signed this, nor agreed to it. Photo District News details a similar demand by Lady Gaga (here), which is ridiculous. These "contracts" likely would hold little water nor stand up in court, but it stands that artists continue to devalue and disrespect their fellow creatives with contracts like these.

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2011 NPPA Northern Short Course

2011-03-01T06:03:00.003Z

So, are you wondering what to do next week- specifically Thursday March 10th, through Saturday March 12th? Wonder no more! The NPPA's annual Northern Short Course kicks off three days of AWESOME programming in picturesque Warwick, RI.

Not in the upper northeast? It's worth the flight (especially via Southwest!) to see:

Amy O'Leary teach you all about AUDIO

Eric Maierson teach you about FINAL CUT PRO

Darren Durlach teach you about how to tell a story in video

Tom Sperduto reprise his AMAZING location lighting workshop

AND TONS AND TONS MORE!

The short answer is - this is the best value for your dollar over three days - where you pay once and get to see as many seminars as you can. Oh, and Nikon and Canon are there to do free check-and-cleans of your equipment.

Oh, and Saturday, you get to listen to NPR's David Gilkey, Nat Geo's Karen Kasmauski, Washington Post's Marvin Joseph, and Reuters' Lucy Nicholson, all whom will inspire you to leap and bound forward in your career with confidence.

For more details on the over TWENTY programs and lectures, click HERE to get the details, and sign up!

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Stock Loss: Stupid is, as Stupid Does

2011-02-24T19:37:00.006Z

When Getty Images acquired iStockphoto, they said they did so to prevent iStockphoto from canibalizing their own business, at a time when the average price for a stock photograph was in the $900 range.

Here's a photo, on the iStockphoto website (here) of a nondescript fragrance bottle. Price? About $10.

Where can you buy this exact same photo, with the exact same resolution, for $340?

(Continued after the Jump)

Why, iStockphoto parent company, Getty Images, right here via their Getty Images Flickr site!

So, Getty is doing a pretty good job of self-immolation. This isn't the first time, nor will it be the last, that Getty Images makes mistakes that cost them their bottom line!

(via Shannon Fagan on Facebook)

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Copyright - Enforce it Wherever possible

2011-02-17T00:43:00.004Z

I read with great interest an article on the web site "webcopyplus" - Legal Lesson Learned: Copywriter Pays $4,000 for $10 Photo - where the website admits to stealing a photograph "...frankly, we screwed up." and then tells the tale of one of their copywriters who was "were under the impression that images on the Web without any copyright notices were “public domain” and therefore free to use. Naive? Yes."

Naive indeed.

The story reads like part admission of guilt, part "...we got busted and learned a lesson, but everyone does it..."

What lessons should photographers take away from this?

(Continued after the Jump)

First - register your copyright. They said that if the lawyer had contacted the design firm instead of the client, they had some options "Had the lawyer engaged Webcopyplus, in which case our client wouldn’t be caught in the middle, we would have had options: ignore the letter; say, “Go ahead, sue us”; or respond, “$1,925 is our final offer,” which there’s a chance they’d accept." When their request for a copy of the registration certificate was not provided, they were able to go to the Copyright office's website, "and by entering a registration number at the U.S. Copyright Office’s website (www.copyright.gov), we were able to confirm the image was copyright registered and the lawyer’s client was the rightful owner." Now, they are taking the demand seriously.

Second - (and I learned this from singer/songwriter Jon Sebastian) WHENEVER you learn about someone infringing upon your copyright, you should pursue it with great vigilance. By doing this, not only can you generate revenue, but you teach the greater community of users of photography that if they steal, they run the risk of paying the price.

Third - Don't try to go it alone. Get a lawyer. When you have a lawyer, people realize you're serious. The first correspondence from the lawyer to the infringer included the sentence "“Cease and desist demand and offer to settle copyright infringement claim, and digital millennium copyright act claim, subject to Rule 408, Federal Rules of Evidence.” according to the infringer. This is a critical sentence, because the letter made a demand for money, and if that sentence was not in there, the amount that the lawyer was asking for on behalf of the photographer to settle the claim would be something that could be introduced into evidence during a trial, and limit the amount the photographer could actually win during a trial.

Fourth - Engage the infringing entity - in this case, while the infringers were both the design firm and the company, going after the ongoing infringer - the company, you not only will often get a better response from their lawyers, but the company likely also carries insurance to cover lawsuit/settlement losses, and they will likely pursue reimbursement from the design firm. Many design firms don't have these protections, nor lawyers on retainer, and are likely to try to sweep these things under the rug. In this case, the infringement gave a black eye to the design firm in the mind of their client, so there was no sweeping under the rug! They noted - "It was a tough pill to swallow, but we were the ones who messed up, and salvaging the client relationship was priority."

The design firm suggests, regarding the settlement amount "We felt — and photographers we spoke to agreed — the proposed settlement amount was excessive." Well, I'm not sure whom they spoke to, but $4,000 is a very small settlement amount, so whomever they spoke to that represented themselves as photographers must really not understand the value of the photographs they produce - perhaps it was they who also advised a valuation of $10 - "Why would copywriters at Webcopyplus pay $4,000 for a digital photo that retails for about $10?"

One really bad thought that was posited was "...Based on recent discussions, even after we shared our story, some continue to suggest copyright laws are blurry, and insist if you ever run into conflict and get a threatening letter, you can simply delete the image and toss the document in the trash (one designer even labeled it “delete and toss”)." BAD IDEA. They then acknowledge that "While this might work with some individuals and organizations, particularly if they’re in a different province, state or country, which might make legal costs prohibitive, be aware: you could end up in a lengthy and costly court battle. For those who insist, “It won’t happen to me,” mind the fact that this beach photo was the only one we’ve ever grabbed from the Web for a client’s website. And it cost us almost $4,000. Consequently, we urge others to recognize and yield to a simple fact: If it’s on the Internet and others wrote or created it, do not use it without their permission."

While it's dubious to believe "...this beach photo was the only one we’ve ever grabbed from the Web for a client’s website..." in the end, now, there's one less company out there who is under the misguided thought that if it's on the internet, they are "...under the impression that images on the Web without any copyright notices were “public domain” and therefore free to use." and who now professes "...We apologize, and it won’t happen again."

Good.

(Disclaimer - I am not a lawyer, nor is this specific legal advice, but rather general information for your review and consideration.)

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What's Next in Photography - Jamie Rose

2011-02-14T05:06:00.001Z

During FotoWeek DC's annual PhotoFest, a group of concerned photography professionals brought together a series of presenters to talk briefly about what's next in the industry. Jamie Rose, a seasoned photojournalist and well-established NGO photographer, and co-founder of the Momenta Workshops was among the presenters, and the presentations are now online on YouTube.

Here's the Highlights video (RSS readers see the video here):

After the jump is the entire presentation, in 2 clips...

(Continued after the Jump)

Clip 1 of 2 (RSS readers view the clip at this link):

Clip 2 of 2 (RSS readers view the clip at this link):

The original description of the program was as follows (and appears here):

What Next?

So you're a photographer, or you want to become a photographer, but you know the business model is changing and constantly evolving.

What is the new paradigm? How will you succeed as a working visual communicator? What will give you the edge over all the others out there?

Come listen to a unique, diverse, and experienced group of visual professionals as they share their ideas of new business models for our world today and tomorrow.

Hear their predictions and how they're preparing for the future. Join us for Questions and Answers with these pros, and participate in their panel discussions.

Learn, Share, Network

Each presenter will speak for 15-20 minutes on their idea for the future with Q&A sessions.

The seminar’s goal is to help discover that one great solution for you in the changing world of the photography business.

Presenters
Steve Freligh, Publisher Nature’s Best Magazine
Kathleen Ewing, Kathleen Ewing Gallery and past Executive Director, AIPAD
Keith Jenkins, Supervising Senior Producer for Multimedia, NPR
Jamie Rose, photographer, entrepreneur Momenta Workshops
John Harrington, photographer, author, President WHNPA
Michael Lutzky, Strategy and management consultant (former photojournalist)

Organized by a group of concerned photography professionals
Khue Bui, Bill Auth, Lauren Stockbower, Larry Levin

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What's Next in Photography? - Michael Lutzky

2011-02-06T05:09:00.000Z

During FotoWeek DC's annual PhotoFest, a group of concerned photography professionals brought together a series of presenters to talk briefly about what's next in the industry. Michael Lutzky, a former staff photographer for the Associated Press who now is a strategy and management consultant for media companies, was among the presenters, and the presentations are now online on YouTube. Lutzky made a number of remarkable points, one so much so that I added it in to the beginning of my presentation (with his permission, of course.)

Here's the Highlights video (RSS readers see the video here):

After the jump is the entire presentation, in 3 clips...

(Continued after the Jump)

Clip 1 of 3 (RSS readers view the clip at this link):

Clip 2 of 3 (RSS readers view the clip at this link):

Clip 3 of 3 (RSS readers view the clip at this link):

The original description of the program was as follows (and appears here):

What Next?

So you're a photographer, or you want to become a photographer, but you know the business model is changing and constantly evolving.

What is the new paradigm? How will you succeed as a working visual communicator? What will give you the edge over all the others out there?

Come listen to a unique, diverse, and experienced group of visual professionals as they share their ideas of new business models for our world today and tomorrow.

Hear their predictions and how they're preparing for the future. Join us for Questions and Answers with these pros, and participate in their panel discussions.

Learn, Share, Network

Each presenter will speak for 15-20 minutes on their idea for the future with Q&A sessions.

The seminar’s goal is to help discover that one great solution for you in the changing world of the photography business.

Presenters
Steve Freligh, Publisher Nature’s Best Magazine
Kathleen Ewing, Kathleen Ewing Gallery and past Executive Director, AIPAD
Keith Jenkins, Supervising Senior Producer for Multimedia, NPR
Jamie Rose, photographer, entrepreneur Momenta Workshops
John Harrington, photographer, author, President WHNPA
Michael Lutzky, Strategy and management consultant (former photojournalist)
Organized by a group of concerned photography professionals
Khue Bui, Bill Auth, Lauren Stockbower, Larry Levin

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The Flash Bus - Coming (likely) to a city near you!

2011-02-02T05:47:00.001Z

I'll admit that my speedlight knowledgebase is lighter than what I know about studio and location lighting that travel in large flight cases, and, in fact, the first time I tried wirelessly using a second speedlight that talked to the one I had on my camera, I was pleasantly surprised with the results. So, when I learned about this upcoming workshop, I was excited about the opportunity to engorge the thinner areas of my lighting knowledge, and get insights into the speedlight mystique.

Lighting gurus David Hobby (also known as "The Strobist") and the legendary Joe McNally have teamed up to visit 29 cities in 6 weeks, all to speak the gospel of speedlight salvation (from heavy cases with excess baggage charges!).

So, check out The Flash Bus Tour 2011 and make a point of taking this day-long presentation, I guarantee it will be worth it!

Cities They're hitting:

(Comments, if any, after the Jump)

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What's Next in the Field of Photography?

2011-01-29T05:00:00.004Z

During FotoWeek DC's annual PhotoFest a few months ago, a group of concerned photography professionals brought together a series of presenters to talk briefly about what's next in the industry. I was among the presenters, and the presentations are now online on YouTube.

Here's the Highlights video (RSS readers see the video here):

After the jump is the entire presentation, in 5 clips...

(Continued after the Jump)

Clip 1 of 5 (RSS readers view the clip at this link):

Clip 2 of 5 (RSS readers view the clip at this link):

Clip 3 of 5 (RSS readers view the clip at this link):

Clip 4 of 5 (RSS readers view the clip at this link):

Clip 5 of 5 (RSS readers view the clip at this link):

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

ASMP's Strictly Business 3 - 2 More Left!

2011-01-27T06:22:00.002Z

ASMP's Strictly Business 3 seminar series roared back into the ethos last week with the launch in Los Angeles, and there are only 2 more cities left - February 25-27 in Philadelphia, and April 1-3 in Chicago. Last time around (SB2) when I was a speaker, we had attendees talking about how valuable it was for them to fly-in and spend the weekend with several hundred other photographers focused on growing their success.

This time around, you can be sure that it's the same, so I strongly encourage you to make the investment in your future by attending this time around.

To learn more, and register, click here.

(Comments, if any, after the Jump)

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The Art and Business of Photography

2011-01-26T06:10:00.004Z

While one might consider it unusual that I would recommend and promote a book on the business of photography when I am the author of what could be considered a competing book, I genuinely believe that the more business knowledge that's available, the better it is for photographers.

It is to that end that I recommend you consider Susan Carr's book - The Art and Business of Photography, which you can pre-order on Amazon now, and get it in a few weeks.

I've known Susan for a number of years, and worked with her on the ASMP Strictly Business 2 seminar a few years back. She not only edited the updated ASMP Business Practices book, 7th Edition, a few years back, but she also responsible for developing educational programing on professional photography for the ASMP as their Education Director, and has been for almost 4 years. So, she brings a learned perspective to the subject matter, and I am sure you'll garner significant insights from her book. So, pre-order it now.

(Comments, if any, after the Jump)

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eCO Update - Group Registrations

2011-01-25T04:43:00.001Z

One of the biggest problems with the U.S. Copyright Office's Electronic Copyright Office system of accepting uploaded content online is that they haven't been able to take group registrations - that is, registrations of a group of published images made over a period of time (but within the same calendar year). Now, they seem to be headed towards a solution.

(Continued after the Jump)

According to the January 24th Federal Register (here) (red emphasis added):

The Copyright Office is adopting interim regulations governing the electronic submission of applications for registration of automated databases that predominantly consist of photographs, and applications for group registration of published photographs. This interim rule establishes a testing period and pilot program during which the Copyright Office will assess the desirability and feasibility of permanently allowing such applications to be submitted through the Copyright Office's electronic filing system (“eCO”). Persons wishing to submit electronic applications to register copyrights of such photographic databases or of groups of published photographs should contact the Visual Arts Division for permission and guidance on electronic registration.

This is, of course, excellent news, because for many photographers, registering their published images online, when limited to images produced on just one day, or just one assignment, was cost-prohibitive and burdensome logistically.

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Related Posts

9/25/07 - A Walk Through the Copyright Office
7/8/08 - Form VA being phased out

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Discounts vs. Gouging

2011-01-20T15:36:00.002Z

When is what you normally pay for a product or service fair? Way back in 2002, friend and colleague Mark Loundy, who writes the column "Common Cents" for the NPPA's News Photographer Magazine, and the Digital Journalist online magazine, spoke with me about pricing and negotiating strategies. I told Mark that one of my favorite questions is "what's your budget" (Common Cents, September 2002), and in many ways that lets me know what level of production I am bringing to execute the assignment (flash on camera vs. 30 cases of lights and 5 assistants, etc). A few months later, Loundy cited a reader who was outraged by my "over charging" my client, and another who suggested I was "outright gouging." (Common Cents, January 2003.)

In this month's column, Loundy applauds a New York Times ethicist (and rightfully so), yet I found something also interesting earlier in the ethicist's article by a physcian who inquired "...I routinely use a downward-sliding scale to help parents in financial difficulty afford care. Many of my patients come from families with extremely high net worth. A friend suggested I charge them more. Is it ethical to use the sliding scale in both directions?"

Interesting question.

(Continued after the Jump)

The ethicist began his response, in part "You already use the sliding scale in both directions, and reasonably so. To give one person a price cut is tantamount to giving everyone else a price increase."

Indeed. If it is reasonable to give a charitable organization a discount, then it should also be reasonable to charge more to a Fortune 500 company, right?

One factor that is not being considered, when it comes to photography, is the scope of use of the images, of course. A local charity with a one year PR rights package to the images you shot at their event would have a nominal amount of use, but during the same duration of time, say, the next day, when working for that Fortune 500 company at a product launch event with the same one year PR rights package would have exponentially greater uses.

As the ethicist ends, citing the variable pricing of an airline seat based upon when you buy it, or your age for movie tickets, he notes "...psychology plays its part: it can feel different if you apparently lower a price — that’s generosity — than if you seem to raise one: that’s gouging."

9 years ago I didn't consider what I was doing, gouging, or over-charging. I was trying to work within a client's budget, and this allowed me to bring to bear a higher level of production than I might otherwise have, making the shoot easier, and, likely, increasing the quality of the final result. Also we need to take into account that knowing what our prospective client is comfortable paying is equal to their expectation of quality. By this I mean if I had offered to do the job without enquiring as to the budget and given a price far below one they were used to paying one of two things happen in the clients mind. Either I am a bargain or considered to good to be true in the same way a car for $500 comes with issues. I want my clients to know and believe they are getting the best. I never want to leave money on the table and with all services that are negotiated it is just that a negotiation, the client and myself can decided to walk away at anytime. I am a business and therefore in it to make a living, to live a standard of life I am comfortable with. My clients have budgets and deadlines and they to are trying to make money. This is not a parasitic relationship it is a symbiotic one, and it's life.

When you give a discount to a client, make it a good reason. For instance, they are booking you for a dozen days in a month, or they are a long-term repeat customer who needs some help. When you charge greater than what you might otherwise charge, make sure you bring a higher level of service than normal, and you might just realize that working at that level of service, production, and quality, is something to aspire to do more of, and then, you'll be raising your rates for a good reason. In no case though, would you be price-gouging. Gouging, in my estimation, happens when you have a captive audience that has no other choice and no other resources to turn to. Further, we live in an environment of supply vs. demand, and when supplies dwindle, and demand remains the same, then prices will naturally increase, and rightly so.

Lastly, more often than not, some clients have a budget that they have to spend, and if they don't, they lose it. A PR firm or ad agency will have, say, a $10,000 budget for photography, of which they will get their standard 17% markup, or $1,700. If you agree to do the $10k job for $5k, you just cost them $850 of their markup, and if something goes wrong on the shoot, the client could well say "why did you hire a 1/2 price photographer - that' probably the reason this is all screwed up...". The list goes on and on. Never assume. Always ask the budget, and know that the first number that comes out is almost always lower than the real number.

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Buzz Aldrin Sues Topps for Use of Likeness

2010-12-30T17:01:00.000Z

Astronaut Buzz Aldrin is suing the Topps trading card company in federal court in Los Angeles for the use of his likeness after they used what is arguably him inside a space suit doing the first walk on the moon.

Aldrin, a very private man since his launch to fame, has been very protective of his likeness and has fought to protect others from profiting or exploiting him. What's worth noting here is the fact that you can't actually see Aldrin in the photo on the Topps Heritage box, but you can see the image of a suited man (obvious to all as Aldrin) on the moon.

For a long time it has been said that if you can't see a persons face you don't need a release, and there are numerous court cases that point out the fallacy of that argument. So, the point remains - get a release wherever you can.

If you'd like to know more, the Washington Post has more here.

(Comments, if any, after the Jump)

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R.I.P. PicApp - We Told You So

2010-12-29T01:06:00.004Z

Back in August of 2009, with great fanfare, PicScout announced PicApp, and we took a critical (and dim) view of it, as we wrote about here - Silly Rabbit - PicApp's Got Problems (8/19/2009). The concept was - free photos for your non-commercial blog/etc, and we'll intersperse some ads among or overtop of the images, and make money that way.

We said it was a bad design then, and, more importantly, we said it made no business sense then, and on their blog here (12/23/2010)

"...the demand was not sufficient to commercially justify this as our core business model, which is why we have decided to terminate the Picapp images search....".

Right. Because it was poorly designed, made no business sense, and was also likely competing with the sources of the images (Getty/et al), and they didn't like it either. Paul Melcher does a fine job of taking a critical look at PicApp here - so I won't rehash what he wrote, other than to say "we told you so."

(Comments, if any, after the Jump)

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When Is Your Black Friday?

2010-11-26T02:40:00.001Z

Most people don't know what the origin of "Black Friday" is. For those of you not in the know, the answer is - it is the date that most retailers go from being "in the red" to "in the black", that is, profitable. So, the money they make from Black Friday until the end of the year, is, essentially, their profit.

The question then becomes - do you know when you go into the black? Are all your assignments profitable? Should they be?

If you don't know your Cost of Doing Business, check out the NPPA's CODB calculator here, and work it out. If you learn that your overhead for a day's photography is $250, then taking that $200 photo assignment "because you don't have anything else to do that day" is a really bad idea.

(Comments, if any, after the Jump)

POST JUMP TEXT.

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Photopreneur Speedlinks

2010-11-20T02:33:00.001Z

It's often interesting and insightful to read what's happening over at Photopreneur. Here are links to a few articles worth checking out!

You Could be a Professional Photographer When… -You’re not ready to become a professional until you also have these elements of professional knowledge figured out:

1. You Know the Legal Stuff
2. You Understand Licensing and Pricing
3. You Have a Professional Attitude

Photographers Start to Give Up on Copyright Restrictions - For photographers, the ownership of images seems obvious: they had the concept, set up the shots, used their creativity, drew on their technical skills, and produced beautiful photographs. The results belong to the artists who created them, and they’re the ones who should get to control how the photos are used.

Photography Deals That are Worse Than They Look - A photographer finds that a bad deal included his being ridiculed by the end user of the photography.

Now go! Check 'em out, and come back soon!

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(Comments, if any, after the Jump)

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Livebooks - Speedlinks

2010-11-16T02:14:00.001Z

Our colleagues (and, yes, advertiser) Livebooks does a great job over on their Resolve blog of posting timely and insightful articles on the realities of the business and marketing of photography. Here are a few:

What is Branding - Want to build a strong brand that best represents your business? Sit down and define the following:

What is your mission statement?
Who are you? What is your business about?
What are you values and your company’s values?
What do you want to be known for?
What is your specialty?

Selling Relationships - The client wants to know that you are listening and want to meet his or her needs. The client wants a RELATIONSHIP.

Pricing – How to Factor for YOU in Your Costs - I don’t care if you’ve been in business for 2 months or 20 years; this is something that is always of concern to small business owners. And, for those people who feel comfortable in their pricing, it is a short-lived comfort. Pricing must always be examined and re-examined.

Now go! Check 'em out, and come back soon!

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(Comments, if any, after the Jump)

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

US News & World Report To End Print Edition

2010-11-08T02:06:00.001Z

For as long as my professional career has been ongoing, I have always held as the holy grail, Time, Newsweek, and US News & World Report, in the magazine industry, as the harbingers of the industry. Now, US News is looking more like a pallbearer. As we learned from the Huffington Post (here) , US News will cease to print it's publication in 2011. You can be sure they'll do print editions of their "Best Colleges" and other "Best" special issues, but US News is essentially signalling that print is dead.

If the thickness of Time and Newsweek are any indication, I expect that they too will stop killing trees and go online, but with 30% of households not having internet according to this article, it would seem that that audience will no longer be served by US News, but, perhaps, that's not the audience they are targeting?

(Comments, if any, after the Jump)

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PDN Acquires WPPI, After Capture, and Rangefinder

2010-11-02T01:37:00.002Z

The evening of the PhotoPlus Expo Bash, on the USS Intrepid, it was announced by PDN that they (or, rather, their parent company, Nielsen) had acquired the publication Rangefinder, After Capture, and the trade Wedding and Portrait Photographer International (WPPI) trade show.

I've had the opportunity to attend both trade shows, and they couldn't be a more disparate group of people attending the PhotoPlus Expo and the WPPI show, so this seems like a solid move on Nielsen's part. As someone who has attended the PhotoPlus Expo for almost 20 years, and thinking it was the end-all-be-all of shows, it was enlightening (and refreshing) to see the group of photographers at the WPPI show, and, frankly, those photographers seemed far more focused on the business realities of photography than those at PhotoPlus. Further, the show's structure means that the seminars and show floor don't compete as much as they do at PhotoPlus.

(Continued after the Jump)

Interestingly enough, WPPI had tried to expand their perceived market from weddings and portraits to a broader audience, when they attempted to change their trade show name to "World Imaging Expo." Seemed a good idea, no? Well, apparently, the Professional Photographers of America (PPA) didn't quite like that idea, and filed suit a few years back because of their trademarked trade show "Imaging Expo" and "Imaging USA" tradeshows. The suit - Professional Photographers of America, Inc. v. Rangefinder Publishing Co., CV08-02324 SVW, was filed in the Federal District Court of Los Angeles. (more info here).

I think that the acquisition by PDN's parent company does two things - it solidifies and consolidates two well known and well respected brands, and also signifies to people who thought that PDN was on borrowed time that the PDN brand will be around for the forseeable future.

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PhotoPlus Expo 2010 - Day 1

2010-10-29T06:51:00.002+01:00

It's the first of three days at the Jacob Javits Center in New York City, and the 2010 PhotoPlus Expo is in full swing. Below are several interviews we did on the show floor with vendors we think you should check out!

ThinkTank Photo - (RSS readers click here)

PNY Technologies (RSS readers click here)

APhotoFolio (RSS readers click here)

Wiebetech Hard Drive Solutions (RSS readers click here)

(Comments, if any, after the Jump)

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Photographs from the Edge of Reality

2010-10-25T11:29:00.004+01:00

It is with great pleasure that I announce the release of my latest book - Photographs from the Edge of Reality. The book tells the stories about a number of the assignments I have done over the past 20 years, and the challenges, logistics, and obstacles that were surmounted to bring images back.

Why the title? Well, as I traveled around the world as a photographer, it quickly became apparent that stories like, “I was stuck on an overnight train, sleep deprived en-route Warsaw Poland as the border guards were demanding my travel documents at 4am in a language I didn’t understand…” or, “I found myself celebrating the Fourth of July with the Mexican Ambassador being serenaded by Ben Vereen…” or, “The President looked right at me as he was walking down Pennsylvania Avenue…” all seemed surreal to friends, family, and even colleagues. They seemed, in fact, made up, or impossible. Fortunately, my reason for being there was to document these circumstances–with a camera–seemingly from the edge of reality, hence the title.

Very early in my career, I began writing dispatches and sending them off to family, usually by email, well before the age of the commonly known Internet as it is today. It saved me time, as I didn’t have to recount the stories repeatedly and miss leaving something out. Over time, my life got a bit crowded, and I lost the time needed to do them as I previously had.

However, as most photographers will tell you, their photographs are not just images to them, but an instant reminder of what was seen through the viewfinder, as well as the environment outside of the frame, from weather to assignment challenges, to the shot that got away. This too, is the same for me. I also remember lighting setups, and even for film assignments, I can remember f-stops and shutter speeds, and usually focal lengths too. It’s a form of instant recollection that I am putting down on paper here not just to weave a tale from assignments past, but to bring these stories back to life, and share with you, dear reader, what went into the assignment. The challenges overcome, the missed shots, the lighting setups, and even, in some instances, the full take so you can see how a moment in time gets captured and selected.

As frequent readers of this blog Previously, I wrote the book Best Business Practices for Photographers, and you’ll find some of that information here in this book too. If, however, you want to read about the assignments and see the resulting photographs, and how they were achieved–from photographing presidents to Eastern Europe, to the biggest names in Rock and Roll and Hollywood–often making something out of nothing–then this is the book for you.

In over 20 years spent as a photographer, I have had the good fortune of traveling the world on someone else’s dime to make great images. This is the book of the stories behind some of them.

Here are what a few friends and colleagues have said about the book:

"John Harrington's, "Photographs From the Edge," is a real "how to" book that gives aspiring shooters insight into the real world of assignment photography. Harrington has done it again when it comes to describing his innovative approach to his profession, and his ability to share it with the world."
David Hume Kennerly, Pulitzer Prize Winner
"John shows you the world of Washington DC photography behind the pomp and power posturing. If you want to learn how to do it right, then this is the book for you."
Cameron Davidson, award-winning photographer
When John Harrington goes on assignment, you go with him. It's more than just loading your memory cards and batteries. It's figuring out where you need to be and how to get there. John is a Pro at business, and now with his new book, shares some of his hard won secrets of how to make your clients as happy with your pictures are you are.
David Burnett, award-winning photojournalist and co-founder, Contact Press Images
"With this book, John does not attempt to glorify or sugar coat what it is REALLY like to be a news photographer. This leads to a much more introspective and interesting look into the behind the scenes world that most will never get to experience. I can see this book appealing to both photographers as well as every day people who are interested in the details of what happens BEHIND the camera - not just in front of it."
Vincent Laforet, Pulitzer Prize Winner & frmr New York Times Staff Photographer.
Great stories from a great guy. Read this book.
Bill Frakes, award winning photographer

Let me here express my thanks to them for their kind words.

If you're travelling to New York City this week for the PhotoPlus Expo, I'll be at the Cengage Learning booth all three days (check the booth for times) signing copies, if you'd like one, and they will also have my previous book - Best Business Practices for Photographers, if you'd like a signed copy of that one, and presenting the seminar below, Thursday morning:

Here are the details:

COMMERCIAL/ EDITORIAL
Thursday, 8:45 AM – 11:45 AM

NEW! Delivering What You Promise on Global Assignments [TA3]
John Harrington
Sponsored by Cengage
Once the assignment has been booked and contracts signed, delivering on your promise is often one of the most challenging parts of the job. The key to longevity in the business is making sure the client gets what you said they would, despite the logistics of getting there, the challenges of pre-visualizing the final image and the demands of working with high-profile subjects. Through a series of his own assignments—covering subjects that range from Presidents to rock stars to your everyday Joe—Harrington will talk you through what it took to get the shot. Whether climbing to the crows’ nest of the Golden Gate Bridge or hanging out of a helicopter for air-to-air photography, the core of this presentation will be about learning from experience and knowing what it takes to get the shot. All levels.

So, go, sign up (here). While the book, Best Business Practices for Photographers has all manner of detail on the business of photography, there are not photos. This presentation will show you the photos, the behind-the-scenes images, and other details about how the assignment ended up!

Buy the book (on Amazon): - Photographs from the Edge of Reality.

(Comments, if any, after the Jump)

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Peter Krogh's Rebuttal to Our Post on Lawrence Lessig

2010-10-22T13:10:00.003+01:00

In the interests of providing a forum for discourse on this subject, from time to time we offer differing and alternative viewpoints to be put forth, and to that end, Peter Krogh, former ASMP national board member, author of The DAM Book, Digital Asset Management for Photographers, and a longtime colleague of mine, has sent along an alternative viewpoint to our post titled "Lessig's Kool-Aid: Proposed New Norms - Don't Drink", which was a follow-up to our original post - "Thank God for Disney, The Wire Services, and the Record Labels!", in which we take great umbrage with Lawrence Lessig's position that was essentially encouraging wide-spread theft of intellectual property.

Following Peter's rebuttal, we'll offer a short response, and then the floor is open in the comments.

(Continued after the Jump)

John,
At the risk of seeming to be allied with the antichrist, I would like to point out that you are missing a large part of Lessig's point. And one part of it is undeniable - laws have not caught up with changing technology and cultural practice.

If you have not seen it, you need to watch RIP - A Remix Manifesto. It's freely available on the interwebs. It makes a pretty convincing argument that copyright law is broken. I don't agree with all of it, but I do agree with some of it.

It's clear that copyright law is being written for the large copyright aggregator, not the independent creator. The US registration scheme has long been written to protect the interests of big media while it works against the independent creator.

I believe that one of the difficulties we have is that photographers have cast their lot with big media, and our interests do not coincide. As a rule, we don't have the legal firepower nor the long-term interest in IP protection to warrant support of the same policies.

By taking the side of copyright aggregators, we say to the world, yeah, we are on the side of the assholes (as many people perceive them). But we are not Warner music - collecting royalties on "Happy Birthday" 100 years later. We have an entirely different set of realities, needs and priorities.

Pretending that our interests coincide with those of big corporate copyright aggregators will not be effective for us, in the long term.

I'm definitely not saying that appropriation from the independent artist without compensation is okay. I don't think Lessig is saying that either. I think he is talking about big media - remixing works that have become part of the cultural fabric, and have already earned a generous return.

Of course this is a tough line for us to walk. I don't want to say any appropriation is simply okay. But are we really on board with supporting a $400,000 fine for downloading a handful of MP3 files from Napster? I, personally, don't think that's a reasonable punishment for the equivalent of shoplifting a CD from Walmart.

You can say "it's the law", but the law didn't get there by itself. It got there because big media made it happen. And they pushed for that law instead of one that would really be beneficial to the independent creator - such as the right to sue for copyright infringement in small claims court, rather than federal court. (This is a place where the interests of the creator and big media are in direct confrontation).

I think what Lessig is saying is that laws have not caught up with the reality of the digital age. The deficiency of those laws gets a lot more obvious once you take your perspective overseas. A licensing scheme that seems plausible in the USA is laughably unrealistic in most of the rest of the world.

I recently spoke with a software company representative who acknowledged that there is simply no way that they could mass market in India or China. The value proposition is entirely broken. I have seen this myself in Africa.

I certainly don't have the answers (in many cases, there simply are no good answers at the moment). And I don't think Lessig has all the answers either. But until we accept some of the nuances and complexities of the entire situation, we won't even start down the road to a solution that works for the independent creator.

As I said earlier, I suggest taking a look at Brett Gaylor's film RIP. It really helps to frame this as a more complex issue

Peter Krogh
Author, The DAM Book, Digital Asset Management for Photographers
Second Edition May, 2009
www.theDAMbook.com

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We respond:

So, let me follow your logic on this one, see if I get it wrong:

The laws against the theft of intellectual property should be updated to allow for more efficient enforcement, tracking and compensation.

So, in the mean time, people should be encouraged to steal photographs from photographers, and photographers should be encouraged to throw away their IP or to allow unauthorized and objectionable uses of their creations?

Anyone should be able to go to your website, take photographs, use them, "remix" them, and do so without your knowledge or permission. Is that correct?

Really?

If not, what position would you take on people who visit your website and 1) want to use a photograph without your permission, or 2) take a photograph and remix it without permission?

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Lessig's Kool-Aid: Proposed New Norms - Don't Drink

2010-10-18T00:04:00.003+01:00

Mr. Lessig, Professor of Law at Harvard Law School, and the Director of the Edmond J. Safra Foundation Center for Ethics, has responded to criticisms of his position which essentially recommends wide-spread theft of intellectual property by re-mixers (and the law will eventually catch up and relent that doing so is ok), by using the time-honored defense of the beleaguered politician, suggesting what he was cited as having said was done so "without making clear the context within which I was speaking." Ok, let's first let readers listen to, in the entirety provided by The Creators Project, what Mr. Lessing actually said, because it's on embeddable video (and thus, allowable, according to Vimeo). So, without further ado, Mr. Lessig, in his own words:

(For you RSS readers, here's the link to see it on Vimeo)

Ok, so, let's look at what we said, in our last post:

"[Lessig] attempted to decree that the thieves of the world "can teach this culture how this form of expression is essential." By "this form" he meant, the mash-ups and repurposing of others intellectual property, and he goes on to say "When we've taught the culture, the law catches up..."

Hmm, that's spot-on accurate. That's exactly what he was saying. No contextual error there.

We also cited him as saying:

"We need to stand up and acknowledge what we're doing, give people credit, and thank them, but not ask permission"

What he said, if we are to actually believe the video showing the words coming out of his mouth, through the sound system, and recorded on video, is:

"Now, I think it's time for us just to stand up and be brave enough to acknowledge what we're doing. And acknowledge and respect the people we're building upon by saying it's this person's work I am using, and thank you for creating that work, but I'm not asking permission to remix that work."

Lessig spoke of this in relationship to how the hip-hop artists of the 80's and 90's were advised by corporate lawyers to hide whom they were remixing - why? Because it was illegal then (as it still is now) to do it. The context was essentially telling people that if you're using someone elses' creativity which they have transformed into intellectual property, whereas before people were hiding that violation of copyright, now, Lessig seems to be saying "stand up and be counted as someone who's taking others creative works, and give them credit when you repurpose it, but don't ask them for permission." Not withstanding the slight difference between the quote we cited from another blog, and the actual transcript of what he said, the sentiment is the same.

The last thing we quoted him as saying was:

"Respect in the 21st century is acknowledgment. When you use someone else’s work, you give them credit."

What was said was:

"Now we don't respect them in the old fashioned way, which means calling their lawyer or having your lawyer call their lawyer to get permission to include their stuff in your stuff, that's not respect in the 21st century. Respect in the 21st century is acknowledgement. it's to say, that when you use somebody else's' work, you're upfront about it. At the end, in the credits, somewhere, deep down, you clearly state I remixed, or I used this."

Hmmm, the context looks pretty much the same there, Mr. Lessig.

How about this one:

"When we've taught the culture, the law catches up..."

What he said, was:

"doing this more, acknowledging who we're building upon, and demanding the artist be respected as an artist, we can begin to teach this culture how this form of expression is an essential 21st century form of expression. We can encourage a much wider range of people to do it and celebrate it, and when we have done it in culture, then the law catches up."

And by "this", he was referring to his three (not four, as he suggested) points:

Spread re-mixing of others creative works far and wide, in every context possible. Not just on video sites, but in schools, public performance spaces, "in every single place we can."
Respect the work of others in a way he proposes to newly define "respect". By giving credit "deep down" somewhere, "in the credits", but not asking permission, nor, it seems, paying for that respect.
Building environments where the re-mixer owns the rights to the re-mix. (But not the underlying source material, he cautions.)

So, let me get this straight - we need everyone to do as much re-mixing as possible without asking for permission from those whose work we remix and rights we violate, and then build a paradigm where the remixer has rights that should be respected? And, eventually, Congress and the law will have no other choice but to accept this new paradigm?

Thankfully, no.

Now, Mr. Lessig has presented his defense. In his response, on the Huffington Post, he write in an article titled "The "Imbecile" and "Moron" Responds: On the Freedoms of Remix Creators", he revises and then re-outlines his position - this time, intended for a much broader audience.

Now, Mr. Lessig, it's time for your cross-examination.

(Continued after the Jump)

Mr. Lessig states that the frame for his presentation was having just watched 50 remix videos for a video contest, and that he was to address that kind of creativity. Lessig first points to how the competitors must have done more than just "grab" the work of others, but rather, they must have been "using the work of others in a way that is transformative...", and Lessig, if his professorship at Harvard Law School is worth it's salt, must know that setting forth this notion of using the copyrighted work of others in a transformative way - compilations and re-mixes is often specious, at best. Transformative uses, according to Stanford University (here), is "any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work." With transformation, at least as it pertains to Copyright, it means that the use is in the public's interest, and as such, does not infringe on the copyright holder's copyright. So, hmmm, the famed Zapruder film of JFK's assassination - that old footage seen from a hill overlooking the motorcade as it passed by - the public's interest is so great that all showings of that film are transformative because of the public's interest? Hmmm, I think I know of at least one great lawyer who has demonstrated that this is false, in multiple courts of law.

Lessig then goes on to provide a history lesson on "fair use", the siren song of many an infringer. I agree that fair use is a critical cornerstone of copyright, and the ability to cite portions of a book, motion picture, or even a song (lyrically, or instrumentally) is important. When Lessig writes in his defense "even the most vigorous defenders of copyright recognize the critical importance of 'fair use' to our copyright system", I would fall into that category.

Let me make that PERFECTLY CLEAR again - I agree that fair use is a critical cornerstone of copyright, and the ability to cite portions of a book, motion picture, photograph, or even a song (lyrically, or instrumentally) is important.

Next Lessig posits his points from his talk (in his defense he suggests there were four, in the video, he only cites three). He states:

"First, I urged creators of remix to make much more of it...It should be practiced and critiqued in a much wider context." He then goes on to attempt to draw a parallel between re-mixing and kids learning to do creative writing essays by quoting other creative writers. In other words (it seems) - this is all about learning and education. He attempts to suggest that in his video, where he wants this done "not just on sites like Vimeo, in schools, in elementary schools, in universities...", however, there's a big difference between "making much more of it" as he defends himself saying, and saying "We need to spread this kind of creativity and expression in every context we can...in every single place we can", and then later referring to all the money that the hip-hop artists of the 80's and 90's would loose if it was discovered that their remixes contained the creative efforts of others, when he envisioned a statement from the rappers' lawyers to the rappers, who might have said "if they ever discover it they're going to sue your ass, and you're going to loose all the money you're making, so, be as obscure about it as you can." Lessig understands then, as now, that there's money in them thar remixing hills.

"we needed to develop better norms to govern remix creativity." The new norm, according to the videotape of his remarks, should be "Now, I think it's time for us just to stand up and be brave enough to acknowledge what we're doing. And acknowledge and respect the people we're building upon by saying 'it's this person's work I am using, and thank you for creating that work, but I'm not asking permission to remix that work." There are already established norms. For example, in publishing, if I wanted to quote Lessig in my book, I can cite a segment of his book - and while there is no hard and fast rule on the number of words citable without infringement, a paragraph or three, or a few hundred words from a 100,000 word book, would likely be within reasonable bounds. On TV shows, it's often 12 seconds or less of audio/music from a single copyrighted work. The problem with still photography, of course, is that the showing of a still photograph is not using a segment of the copyrighted work (i.e. a few seconds, or a few words) but the entire photograph. The new norm, it seems he's suggesting, should be that I can re-mix as much as I want, without needing permission. Norms, for sure in other arenas, have changed over the years. For example, the norm of acceptable language, sexual situations, and topics on TV has changed over the years. The norms for proper attire in public (street clothes and beach wear) too, has evolved. Yet, the norms of property ownership and the protection thereof should not be changing much.

"the remix creator needs to be recognized as a creator -- meaning, that creator needs to be assured she can keep the rights to her creativity." What he said was "we need to build environments where the remix artists is an artist - meaning, that artist - he or she owns the rights to what he or she creates." In this instance, I will agree with Mr. Lessig, along very narrow lines.

For example, I for one can appreciate the talent that went into remixing the Sham-Wow guy's re-emergence into tv sales for the slap-chop commercial (here - 11 million view). That re-mix was amazing, yet, yes, an infringement. Would that re-mix artist ever have gotten permission to do that? No, but it went viral, and the slap-chop garnered far more publicity because of it, which is why the slap-chop people didn't send a DMCA take-down notice - in fact, they used it as an actual commercial, as noted here. In fact, the re-mixer, DJ Steve Porter, according to this Reuters article, was all but unknown doing "standard dance remixes to little fanfare for a decade", and then along comes the slap chop video, and he's a star. Next, he re-mixes an NBC News affiliate's interview of Antoine Dodson after an attempted rape of his sister in their home, and now it's the "Bed Intruder Song" with a combined 48 million views - but wait - also according to Reuters, there's "revenue for Antoine Dodson and his family, who will receive 50 percent of the track's sales profits".

Lessig, however, wants the artist to be able to, for example, simply by re-mixing Star Wars video, be able to claim ownership of the finished product, and the creativity that a Star Wars remixer employs and the benefits derived thereof can't easily be separated from the creativity of the original underlying Star Wars material. Because, it seems, there could be commercial value to that remixed finished product, but the finished product would be worth far less had not just the original costs of creativity been incurred, but also the tens of billions of dollars of marketing that has made Star Wars a household name since the seventies. Lucas is essentially coming at it from the mindset that movie editors are a credited contributor to the movie, but not a stake holder in the final movie, as is the case in Hollywood now, and then, compensated as an editor. Lucas is essentially saying that you can re-edit my movies, but you can't commercialize the finished product no more than someone I hire as an editor on a movie I make can.

Lessig then employed a charged word "sharecropper" - which draws direct lines of recollection to the South after the Civil War, where former slaves would work the land of property owners as sharecroppers, which became, for some, a new form of slavery. A choice use of words, Mr. Lessig, but the slaves saw few alternatives to earning a living and felt relegated to that station in life, hereas assigning the word "sharecropper" to re-mixers sets them up as an underclass that does not exist - they have countless opportunities. They can sow the land of creative opportunity in the land of public domain, or they can do so in Tornado Alley where the risks are far greater.

Lessig then spoke out of both sides of his mouth when he said "I suggested that remixers signal to others the freedom that they themselves have practiced....It's not my job to tell artists to give away their rights." Which one is it? You just did that, and, in point of fact, you espoused it's widespread happening "in every context...in every single way we can."

Then, you go on and suggest that "None of it, I thought when I finished, anyone should have any reason to disagree with. " Really? How about your organization, Creative Commons, whom you seem to have thrown under the bus? Where are you espousing CC licenses? Where? In fact, you didn't mention CC once! You espoused widespread use without regard for the rights of the original creators, as CC has a mechanism already in place and widely accepted, to do. Is this the ethical thing to do? I suppose as the Director of the Edmond J. Safra Foundation Center for Ethics, you can define what's ethical and what's not - or, well, maybe not? I am supposing that the ethics of banker Safra would not not have approved. In fact, from the Foundations' website we learn that Lily Safra, who chairs the foundation and espouses a commitment to the caring for the less fortunate, would find a need to defend the rights of the starving artist photographers who's work would be a part of a re-mix and could not bring suit in your new norm and new world of ethics. While it may be attractive to serve the underprivileged in third-world countries, closer to home there is a creative community that is starving for the ability to pay rent and put food on the table, and your new world order would harm that very creative community. Realize what I was trying to point out in the previous post - what you espouse for Star Wars re-mixers because it couldn't possibly hurt the pocketbook of George Lucas would most definitely hurt the freelance photographer, independent musician, or documentary videographer who doesn't have Lucas' bank account nor lawyers, but would suffer in your new world of copyright without the means to defend their rights nor earn a living.

Then, when you defend your statement "take it and use it" by saying:

"If you understand 'take it and use it' to mean take whole copies (what others call 'piracy'), rather than what everyone in the audience heard, take in order to remix, then indeed it does sound as if I'm 'advocating widespread infringement.'"

Yes, when you're talking about the use of, say, a photograph in a video, guess what - you're taking the whole copy. That's what happens when you use a still image.

When you state "it would indeed be outrageous that a professor of law would be advocating infringement. "

Yes, it would, and - certainly when it comes to still images - you would be doing so. In fact, many remixers use whole songs as the audio track of their visual remixes. Here's an especially amazing example of that (25 million views) - possibly using military footage (which would be likely be in public domain) but a copyrighted song. So, what say you?

You then write "I believe copyright law should be updated to the 21st century. But in the mean time, I am quite explicit: don't violate other people's copyrights." So, which is it, Lawrence? "in the mean time...don't", or, is it do it now "in every context...in every single way we can." and then, as you state in the video "when we have done it in culture, then the law catches up." You can't have it both ways.

Then, seemingly chagrined to be challenged by the rights-holders when your mindset comes to light for an audience greater than 150 people, you write "I didn't give the talk I gave on national television, or even, on the Internet. I gave it to 150 souls." So, this is like the Dixie Chicks hoping their anti-American tirade they went on on stage in Europe shouldn't reach their American audience? Or, perhaps, then candidate Obama, who, in an intimate donor's dinner in San Francisco, as cited in the Huffington Post here where he thought he didn't have a broader audience, criticized the good people of Pennsylvania when he said "they get bitter, they cling to guns or religion."

You then suggest "We need an anti-moron norm: If something sounds crazy, assume its not." Really? "A woman drives her minivan with her kids strapped into the seats into a lake to drown them, so she can be with her boyfriend." Crazy, but true.

How about: "Mr. Embassy official - my son, he's going on a jihad against America. He's going to strap a bomb in his underwear and try to blow up an airplane on Christmas Day." (here).

If you follow "if something sounds crazy, assume it's not", then what about that guy (here) who built a "community where they could escape American capitalism—and criticism—and practice a more communal way of life?" In the end, his followers, under US government scrutiny relocated to Guyana, and no one could have ever imagined that his direction to drink the Kool-Aid he gave them would kill more than 900 people!

It seems you're offering up your own flavor of "new-norm" of Kool-Aid, and no one should be drinking. Not 150. Not 900. Not anyone. Please, return to your ivory tower, and while you're at it, get Rapunzel a haircut.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Thank God for Disney, The Wire Services, and the Record Labels!

2010-10-15T04:10:00.005+01:00

Fortunately, for we lone photographers, awash in a sea of a litigious society, our rights stand equal to that of the mighty behemoths - Disney, Sony Music, and all of the news photography wire services. Now, don't get me wrong here, but there's an old adage - the enemy of my enemy is my friend. I greatly dislike what the record labels have done to independent musicians, and the contracts that the wire services dictate to the freelance community is crushing self-employed photographers like Steinbeck's Joads were. While I want to tag them as Steinbeck did when he wrote "I want to put a tag of shame on the greedy bastards who are responsible for this", in reference to the Great Depression, there'll be enough time to sort out things and finger point later. Right now, these folks, with their deep pockets, and unreasonable demands for our intellectual property will be the defenders of intellectual property in general, and thus, in a strange twist of fate, the IP of yours and mine as well.

How so?

(Continued after the Jump)

We need only look a few years back, when the hooligans that ran Napster were, quite literally, running amok with the creative talents of musicians everywhere. More than one professional photographer I knew had streams of Napster-sourced music running in their studio, and they seemed to see nothing wrong with it, until I pointed out the hypocrisy, but then I was the killjoy. Too bad. Call me Kilroy, or Killjoy, stealing music was stealing from artists. Period. Then, someone (ahem - Apple) invented a way to properly manage music, and Napster was lobotomized into a lifeless parody of itself, all legal, of course. All, thanks to the music industry's deep pockets and lawyers on retainer.

Now, we have the imbecile Lawrence Lessig, who, from the ivory tower of Harvard University (by way of a video festival awards ceremony), attempted to decree that the thieves of the world "can teach this culture how this form of expression is essential." By "this form" he meant, the mash-ups and repurposing of others intellectual property, and he goes on to say "When we've taught the culture, the law catches up..." Really? Is that what they're teaching at Harvard these days? Teaching the general public to break the law, and eventually it will be ok? Gosh, that sounds a lot like the early arguments for the 12,000,000 ~~illegal aliens~~ undocumented immigrants, and they're close to getting just that. Lessig posits "We need to stand up and acknowledge what we're doing, give people credit, and thank them, but not ask permission". Fortunately, what's good for the goose is good for the gander.

With we as the goose, enter the gander. While I didn't like that Disney mickey-moused with the copyright laws to protect their aging-into-public-domain mouse, it did demonstrate their might, when they wanted it to be exercised. Photographers will likely be among the beneficiaries of the platoons of lawyers the ~~intellectual property industry~~ entertainment industry brings to bear against ill-concieved pronouncements like Lessig's. When the wire services, music, or movie industries leverage their might against the mash-up madness, the laws (and yes, the constitution) will rear up its ugly head and lop off Lessig's Medusa-like head. Lessig can pander to the masses, who no doubt cheered his cute little idea, but if he has any sense at all, he knows it'll never happen, but he gets points and street cred from the mash-up artist for these ideas. How's that working out for you so far, Mr. Fairey?

Lessig, according to the PDN article on this, is quoted as saying "Respect in the 21st century is acknowledgment. When you use someone else’s work, you give them credit." Ok, and I can pay my mortgage with....credit? Mr Lessig, are you saying "let's screw the creative community now, and you'll respect them in the morning?" If so, who's wearing the beer goggles now?

While the concept of Creative Commons was a good one, Lessig has essentially named himself Creative Evisceration Officer, and anyone who now supports CC is aligning themselves with his as-yet-unstated-until-now position. ASMP, who has previously associated themselves with Lessig (here) should immediately disassociate themselves from Lessig in no uncertain terms. Plagarism Today, asked in a piece - Is Creative Commons a Rights Grab? - and it seems that that was the smoke, and Lessig's latest comments reveal the fire. Who will he burn next?

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Pitching the Photographic Client - On the Phone

2010-10-11T03:37:00.004+01:00

Often what it comes down to when calling a prospective client is the introduction. Suppose, for example, you want to call Jason Adams* at Spin magazine to shoot portraits for them. Your objective is to engage him with your creative talents, right? Wrong. Your objective is to get his permission to send an email to him with a few images, and a link to your website. How do you do this? Well, break down your call into what happens.

First - find out his direct dial number. How do you do that? Well, first things first - what's the main number? A Google search for "Spin Magazine" turns up this - and once there, they conveniently have a "masthead" link - here. Their direct dial number turns out to be 212-231-7400. That'll get you to the receptionist. You can first call that number and say "Hi, can you please tell me the direct dial number for Jason Adams?", and maybe you'll get lucky. If they say "oh, we don't give those out...but I'll connect you..." say "no thank you, not right now" and hang up. You can also ask what his extension number is, and they may give you that. You can also call after hours, select the company directory, and enter Jason's name, and often that automated system will say "connecting you to extension 312, please wait while I connect you", and now you have somewhere to begin.

So, you now now that Jason's extension is 312. That'll get you to him when you dial the main number after hours, and key in his extension, or when you're in their lobby, and want to stalk Jason from the phone on the side table. Don't do that. The next resource is the jobs, PR, or advertising sections of the website. Unlike all the other sections of the website designed to keep the hundreds of thousands of readers from bugging the staff, the advertising department (and thus, that section of their website) is chock full of contact information and direct dial information. So too, the PR section. So, let's delve a little deeper, shall we?

(Continued after the Jump)

The "contact" section of the advertising section of the website (here) lists all sorts of emails and direct dials that were missing from the main "contact us" section of the site - here! Surprise Surprise!

In the ad section, we learn that while the main # is still 212-231-7400, the publisher's direct dial number (obviously, to his secretary!) is 212-231-7302. We also learn that one of the account managers there has the direct dial number 212-231-7355. Other people listed on this page have the suffix of the phone number 7421, 7426, 7450, 7440, 7470. So, it seems, Spin owns the 7300 and the 7400 exchanges for the 231 prefix, of the 212 area code. So, Jason's direct dial number is most likely 212-231-7312. Bingo! Now, don't dial it just yet, TEST it during off hours. Say, around 10:30 at night, call the number and see if it's Jason's voicemail. Be careful, in today's day and age, many people are forwarding their work numbers to their mobiles, so if he answers, apologize for the wrong number, and hang up! You're not ready to actually talk to Jason yet!

Now, you need to learn Jason's email address. Why? Because you don't want to ASK him for it - you should be saavy enough to have figured it out BEFORE you talk to Jason. Do some more research. Often, as before, the advertising, PR, and Human Resources section of the site has peoples' email addresses. BUT WAIT! You shout, I don't want a job - I want to do a shoot for them! Patience there, friend. heading back to the advertising URL - here - we see that the publisher's email - Malcolm Campbell is mcampbell@spin.com, and the Fashion Director - Kelly Rae is krae@spin.com. Seeing a pattern there? That's right - Jason's email is likely first initial then last name, @spin.com. In other places, it's firstname.lastname@company.com, and then it can be lastname_firstinitial@company.com. In other words, learn the email nomenclature. Now, be careful, because if the person's name is John Smith, there may be more than one "JSmith@company.com", so it'll either be first two letters of the first name then the last name, or it could be jsmith2@company.com. It can get a little tricky there. You an also try doing a search for his email address "jadams@spin.com" and see if it comes up.

Ok, now that you have the contact information, head to the website, or the local bookstore and check out what they're doing now. DO NOT call and offer them something you do that they don't! See what they're doing and think about if you are a good fit or not, and be honest - don't waste there time or yours. If you're spending all your time doing this research, I am assuming you've already been pining about how your work is just as great as what they are running, or better, and you could do that too, so that's why you're doing this research, but, really, be honest!

So, say, you see a great portrait of Fat Joe and Jay-Z in the magazine, and you light your stuff like that, but it says in the credit "Photographed on location in Jay-Z's Atlanta studio, August 12, 2010." And, say, you're a detroit photographer, and the car executives aren't calling these days for updated portraits. So, prepare your pitch. You have 20 seconds. Write it down. Refine it. It might go something like this:

"Hi Jason, I hope I'm not catching you at a bad time, but I wanted to just call and get your permission to send you an email promo. I hate spam, and I didn't want you to think I was spamming you, but I saw that amazing portrait the magazine ran of Fat Joe and Jay-Z, and I work in the Detroit area and wanted to share with you some of my work if that's ok?"

When Jason says "sure, no problem". You can either say "thanks, I'll send it right along", or say "I have your email as JAdams@spin.com, is that correct?" Either way, don't ASK for it, but you could confirm it's right.

There are a dozen ways you can script your call, but the key is to script it, and read it a dozen times to yourself to ensure it's smooth, and you don't stumble, and you sound natural. My first read of that script took 15 seconds. Some might dissect that and say the "I hate spam..." sentence fragment is negative, and should be avoided, but the positive side of that is you're trying to point out that you don't want to spam him. The point is - think, and then re-think your pitch on the phone.

When he says "sure", send it right along - as in, within 5 minutes or so. Don't call first thing in the morning, or at the end of the day. Right before lunch time (remember time zones changes from yours!) or midday - between 2 and 3:30.

Don't leave messages. If he doesn't answer, call back 20-30 minutes later. Don't call right before an "on the hour" or "on the half-hour" time, because he's likely headed to a meeting. So, call between the :10~:20, or the :40~:50 time windows.

How many times does Jason need to experience your name/offering before being ready to do business with you? Nine times. The problem is - for every three times you do put your name/offering infront of him, he's actually only paying attention once. Yup. Don't believe me? Check this link for more insights, and then go buy it as it's a book I highly recommend - Guerrilla Marketing. So, you've just done it twice, and maybe he'll remember it once. You've now got 8 more conscious experiences for Jason to have with your work before he's ready to work with you. Maybe less, if you're really all that you think you are.

What else could you do? Well, you could look up Jason on Facebook and LinkedIn, to see if you can learn more about him. Read his wall postings, and really get to know Jason. Yes, I know you might think this is stalking, but, in reality, it's called gathering business intelligence about your prospective clients, so they become your clients. Once you get to know Jason, you'll want to note in your smart phone things like his favorite drink(s), birthday, kids names, spouse's name, the neighborhood where he lives, where he grew up, and so on. Again, this isn't stalking, it's getting to know more about your client, over time, and then not forgetting that he's, say, an alcoholic, so you don't send him a nice bottle of wine for the holidays. Or, knowing that he's jewish, and would likely take offense at your "Christmas" gift. The above personal client "data" are things you learn from them, over time, whether they share that information with you directly, or post about it on their facebook account - i.e. publically! Either way, be careful how you use the information, as it could come across as really creepy. For example, if you say "hey, my kid just joined Babe Ruth baseball, does your son Timmy like it?" And when Jason says "how do you know my son Timmy plays Babe Ruth?!?!" You can say "oh, I remembered you posted on facebook about the game..." - be honest wherever possible.

You could, of course, get all sorts of contact information from Agency Access, or AdBase. Back in July of 2008 we wrote Getting Clients - A Few Options, and in November of 2008 we wrote Marketing 201: AdBase - A Timesaving and Valuable Tool, which does a lot of the initial research for you, for a fee, of course.

next up? What to write in that email!

----------
(* Jason Adams, by the way, is a made-up name. He's fictional. I have no idea of there ever was a Jason Adams at Spin, but, you get the point.)

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Photographer Prevails in Wedding Lawsuit

2010-10-07T04:22:00.002+01:00

In November of 2009 we posted Wedding Photography Contracts - A Cautionary Tale - about the risks on assignment, as well as the possibilty of a tarnished reputation when things go south. Photo District News posts today - Blushing Bride Loses Underwear Photos Lawsuit - with the update that the photographer prevailed in court. The problem now, is that "One of the Best 10 Wedding Photographers" (according to his website, ranked by American Photo) has to restore his reputation, tarnished by this brides's suit.

Reading all the links above serve as a good reminder of the risks to our business by clients who feel wronged, even, as decided by the court in this case, the client was wrong.

Thus, ample proof that the client isn't always right. Want more insights into this?

The Client Isn’t Always Right: Dealing with Abuse as a Freelance Writer

Just Say No: Three Reasons the Customer Isn’t Always Right

10 Freelancer Mistakes that Damage Your Success

(Comments, if any, after the Jump)

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Morel v. AFP, AFP v. Morel - Which Way Blows the Wind?

2010-10-05T00:01:00.000+01:00

Much has been said critical of Agence France Presse (AFP), and Twitter (and the unrelated yet seemingly related site TwitPic), in the case where, in the early hours following the devastating earthquake in Haiti, photogapher Daniel Morel "tweeted" 13 of his photographs to the outside world via the TwitPic network, and AFP distributed those same photographs to their worldwide network of customers, without compensating Morel for their use of his photographs. To date, much of that criticism has been directed towards AFP and TwitPic/Twitter, admonishing them because they "stole" the photographers work.

To the contrary.

(Continued after the Jump)

Morel signed up for a TwitPic account, which is free, and which has a lengthy set of terms and conditions under which he may use the account, and further, what TwitPic may do with material he transmits across their network (text or visuals). He agreed to these terms and conditions. Whether he conveniently forgot what he agreed to, or whether he never read them before clicking the metaphorical "I accept TwitPic's Terms and Conditions" button, the photographer is in the wrong. TwitPic has a network, and the tangent to TwitPic has a network, Twitter, which is bearing the brunt of this suit, and alleged wrong-doing. They both provide the service for free, for reasons that are mostly unknown right now. It may be that they are mining data from tweets about trends in society, age groups, or otherwise taking the pulse of the collective consciousness, and that may be a marketers dream data set. However, the Twitter network spends millions of dollars a year to operate itself, and in exchange for making that multi-million dollar network available to it's users, Twitter gets rights to content it carries over it's proprietary network. Their conveyance of those rights to third parties - in this case AFP, is perfectly within the bounds of their rights, and Morel is out of line.

Jean Francois Leroy, the Director of Visa Pour L'Image has a similar take on this. Over at Duckrabbit, (here) they use similar language - "AFP took Morel’s pictures without the photographer’s permission" and "they thought the photos belonged to somebody else". The operative word in the first quote is "took", and it's wrong. "Took" implies without permission, and they make it clear that's what they meant, when they say just that. The fact is, Twitter's T&C give AFP permission, granted to them by Morel, when he accepted them as a condition of his use of Twitter.

Leroy was quoted as saying:

"Anyone who puts images on Flickr or on Twitter, and then sees them being used, well too bad for him… a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough. You can’t ask me to defend you. What I’d like is for all photographers reading this is that they stop putting images on such sites."

The only objection I would have to that quote is that Leroy characterizes the action as "stolen", and, as I have detailed above, AFP did NOT steal them, they have a license (permission) to use them. Otherwise, Leroy is spot on.

What if Morel had been smarter about his images, and used the internet to transmit his images to, say, a service like Photoshelter, where people can access and license images immediately, and which are search-engine friendly so the photos get found easily? They might not have seen the distribution and publication depth and breadth that they did because AFP has thousands of subscribers worldwide, but Morel would have maintained control of the licensing of his images, and likely profited significantly from controlling his rights.

I stand with Leroy, and common sense - don't use free internet services when your own intellectual property is at risk. Not only do you risk losing control of your work, but also, it's just not professional.

For those of you curious, here are the respective Terms of Service (i.e. the terms under which you may use the service, and further, agree to):

From Twitter's TOS:

- You may use the Services only if you can form a binding contract with Twitter

- The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites...You should only provide Content that you are comfortable sharing with others under these Terms.

- You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
- You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

- Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

- We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

From TwitPic's TOS:

- By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites

- you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.

What part of that's not clear? Photographer “A” delivers images to party ”B” (TwitPic and then Twitter) and in doing so, accepts terms expressly providing that party “B” has the right to sublicense his work to third party/ies “C”, then the photographer must abide by terms to which he/she agreed. As to Party "C" being Lisandro Suaero, who downloaded the images from TwitPic and reposted them on Twitter under his name (see FastCompany article here for this gem of information), nothing in TwitPic's terms require photo credit, let alone, an accurate photo credit. Setting aside Suaero's ethical breach for taking credit for someone elses' work, AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legimiately got them from Morel. AFP did the right thing, as they learned that Morel was in fact the photographer, and not Suaero, so they corrected the photo credit to attribute Morel. Morel is not some newbie, or someone unschooled in how to transmit photographs - he used to be an employee of the Associated Press as a photographer, so any claims of "I didn't know..." will, for me, fall on deaf ears.

Any questions?

------------
Related:

AFP sues Morel for defamation (PDF)

BJP - AFP v. Morel: The debate rages on

BJP - AFP v. Morel: The Important Questions

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Property Releases - Not Necessary One Court Rules

2010-10-04T05:01:00.002+01:00

For years, it has been espoused that, in order for you to use someone else's property in a commercial way, you needed permission from the owner of that property in the form of a Property Release, much like a Model Release. No so, says the U.S. District Court in Northern California, in a rare case that likely will have far reaching consequences.

In the case of Robinson v. HSBC USA, Mr. Robinson's home, an often-photographed Victorian-era home in San Francisco, was used in advertising for the HSBC bank. (Read the decision here). The case, interestingly enough, was brought against the bank, one can assume, because they had the deep pockets for an award, as opposed to being brought against the photographer, who had far shallower pockets than a multi-national bank.

The front of the brochure, is at right, where Robinson's home is the yellow one.

(Continued after the Jump)

With the court's decision, it was dismissed "with prejudice", which barrs Robinson from bringing another case on the same claim. At right is the inside of the brochure - a second use of Robinson's home.

Over at the Property, Intangible blog, there is an excellent dissection of the case by an intellectual property lawyer that's well worth the read. Carolyn Wright, over at A Photo Attorney, discusses that there is almost no need for property releases in the United States, and she writes a bit about it here.

Essentially, there was no libel or defamation, nor even the suggestion that Robinson had a home loan with HSBC. Further, there was no trademark issue (like a logo visible in the image), nor a copyright issue. Further, the image was taken without trespassing on private property.

While I'm not a lawyer, and further, this isn't legal advice, it seems that unless you're going to use an image of someone's home and say "hey, here's a great place to open a brothel", or "this house looks like a crack house", a property release isn't as necessary as we have all been led to believe in the past.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Paying Attention to your backgrounds - Avoid 'Photobombing'

2010-10-02T13:58:00.002+01:00

As professional photographers, paying attention to all the elements of your photograph is critical. Now, I'm not talking about studio work, or situations where you are in control of the entire environment, for this blog post. Instead, what I am talking about are uncontrolled situations are the regular experiences of wedding photographers, photojournalists, event photographers, and so on.

A good photographer will do more than just properly expose and focus the image, but taking it to the next level, they will actually compose a good image too, so the subjects are properly framed as well. Once again, taking it to a higher level, eliminating static "photo bombs" like glowing exit signs, lamp posts and trees coming out of peoples heads, and other odd objects makes for a much more professional photograph. One of the few remaining road blocks to a good image is the human 'photo bomb'. That is, when there's someone in the background doing something distracting, either by happenstance, or with the intention of ruining your photograph. In news coverage, waiting for the other people in the photograph to either be a part of it by looking at your subject can take seemingly forever. Few things irk me more than photographing a subject at a podium only to have the people on either side of the speaker looking down, looking away, or otherwise not paying attention to the person whom the entire audience is expected to be listening to!

So, for some inexplicable reason, it is with a good chuckle that I saw this tounge-in-cheek new 'feature' in Photoshop. Enjoy the video, and for more examples of photobombs, check these out on YouTube, and Flickr!

(Comments, if any, after the Jump)

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Beware Your Copyright Infringements - Case in Point

2010-09-21T02:13:00.002+01:00

Your copyrights, and those of your colleagues, are under constant attack. It's critical to not just police yours, but to help out your fellow photographers, where it seems likely an infringment might be possible.

Today, while in-between assignments, I was in Washington DC's Union Station. There, I stumbled upon Images 4 View (listed here), a kiosk operating a green screen business. Most of the images appeared to be snapshots they could have taken themselves, or, in a few cases, White House public domain images. However, one image stood out for me - the image from the cover of Sarah Palin's book. Set aside your opinions of Sarah Palin, the fact is, this was the one image I thought was a candidate for having been infringed.

First, I made several images of the booth scenery, and it being operated.

(Continued after the Jump)

Then, a quick online search turned up the photographer - Seattle photographer John Keatley. Fortunately, his cell phone was listed there, and a quick call to him confirmed what I suspected - he was being infringed. While no one likes learning this, I think what they like even less is that people are profiting off of their work and they are not being compensated. What's interesting here - is that while locations like Union Station must be certain that their vendors are not selling illegal drugs, and are operating with a license to do business, they should also be making sure that their vendors are not violating federal laws like Copyright. I get this same type of frustration when I see a kiosk in the mall where a sketch artist has "sketched" famous images like John Lennon with his arms crossed, or other iconic images of celebrities. I can't wait to stumble upon one of my images that has been infringed - I will have a field day with that vendor.

In this case, I sent along all of the images I shot of the booth. Next, I went to the hourly photographer working the booth, and asked for the company owner's name, and she provided it, and his email address, which I promptly sent along to Mr. Keatley.

If each of us, when we see what could well be an infringement, or, well, just looks odd, spend a few minutes on your smart phone, make a few images, and help out. The more we police this, the better our community will be.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Practice Makes Perfect

2010-09-18T17:01:00.000+01:00

Every so often, I post over at the blog of my agent, Black Star. My most recent post is - "In Both the Craft and Business of Photography, Practice Makes Perfect".

I come across so many photographers who seem to think good things should just happen to them — and if they don’t, it’s their “bad luck.”

To that, I counter with one of my favorite sayings, by the Roman philosopher Seneca: “Luck is what happens when preparation meets opportunity.”

Even the Declaration of Independence doesn’t promise you happiness. It only says you have a right to pursue happiness. That’s very different; it puts the responsibility on you to make it happen.

When it comes to your photography business, that means professional success and fulfillment are up to you.

Continue reading at Black Star Rising.

(Comments, if any, after the Jump)

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

The Power of One

2010-09-17T05:01:00.001+01:00

One of the most hotly discussed issue among professional photographers, is "to combine, or to not combine? Whether 'tis smarter to join together fees for creative and use, or to separate them out." Here, I shall endeavor to address this issue with several concrete examples, and some insights into the issue.

Warren Buffett once said "price is what you pay, value is what you receive." This is true across every spectrum of business transaction. Is the price too high? Well, it may be for some, but no so much for another. While some may scoff at the cost of a smartphone, saying the extra data plan and phone features are just not worth it, almost every day the price of the phone and connectivity charges are a drop in the bucket compared to how having that phone keeps me connected to clients and booking jobs. Recently, I was on assignment, and booked for a shoot to photograph an auto accident that was staged and set up, because the client said they couldn't find good images of cars having an accident. To the client, it cost them tens of thousands of dollars to stage the accident, from stuntmen to actors to totaling a car. Could they have searched among the 70,000+ images on flickr (here) that turn up for the search term "car accident?" Sure, and they could have possibly gotten the image for next to nothing. However, to this client, the value of what we delivered was worth the investment of all that went into it. (And they did search Flickr,Getty, etc and did not find what they wanted - I asked.)

(Continued after the Jump)

Magazines value photography because it entices readers to subscribe of buy single-copies, which ensures that there are eyeballs looking at ads, which pay the bills. Advertisers buy ads and use images because almost always a well used photograph tells a story and sells a product better than any written words can. These advertisers make their investments in ads and images to sell products or services, increase their bottom line, and make a profit for the company owners, whether a private company, or one traded on the stock market. It's all business all the time, make no mistake about it.

While it used to be that breaking apart the costs to produce an image (creative fee) from the costs to use an image (usage/licensing fee) was common, more and more these fees are being put together, and not separated. Consider that the combined fee is not full compensation for the image's coming into existence, but rather, the least that the photographer will accept for the initial work and effort. On more than one occasion, I have done a stellar job or delivering far above a client's expectations, and the client (especially when they are on set) begin to see things far and away beyond what the original intent of the shoot was. Usually, I overhear a client saying to their colleague "oh my god, we could do a whole campaign around these images, instead of just the one we were planning - these visuals are great." Usually, the negotiations for the additional licensing fees for extended or expanded uses of the photography are handled after the fact, but not always.

Yesterday, we went into great depth about a license as a "window of opportunity." If the client wishes to expand their window of opportunity, then additional fees should be paid. However, if the photographer delivered as required, and then, say, the client does a focus group on the commissioned visuals, and decides to kill or scale back the project, they are not entitled to a refund. This is the client's right - to control the exploitation, or lack thereof, in the work you created. This does not mean that you can't give back money, or bill for less. If you determine that it is in your own best interests to do so, then, by all means, do so.

Here's a case where keeping the fees together made a huge difference. This is a real example, but I'll change the industry/client for the sake of the example.

The problem is taxes. The government is trying to impose taxes on a variety of snacks - chips, cakes, and cookies. Enter the American Snack Foods Association. I get hired to photograph all the snacks (which means that while my client is the ASFA, the end client is Frito Lay, Enteman's, Hostess, General Mills, Altria, and so on. You get the picture - a lot of people who usually compete, having to work together on an issue) together. We do, and we get sign off from ASFA. The bill - $10k for the creative and usage, combined. I do this job on a Friday. Sunday, I get a call - one of the Frito-Lay bags is the old branding, and we need to re-shoot on Monday. No problem. We send another contract for $10k. We get on set, ready to go, crew at the ready, computers and lighting ready. The client doesn't even turn up to the shoot, and scrubs the shot. No problem. Send a bill for $10k. We are told Monday afternoon we are to finally shoot Tuesday. Send another contract for $10k. We do the shot, and the client again signs off on the job, and this time, they mean it. Total bill? $30k. Paid in a week. This client is an ongoing and repeat client for me. If I had separated out creative and usage fees, it may have been more challenging to argue that they still needed to pay those fees.

When putting together estimates, keeping fees together, wherever possible, ensures a greater amount of revenue for your business, and thus, has a significant impact on your bottom line.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Licensing - A 'Window of Opportunity'

2010-09-16T05:01:00.002+01:00

Consider the license to a photograph a window of opportunity. For example, an image shot at a political rally this past weekend has, first, a window of a day as a news photograph for the daily newspapers. After that, the window of opportunity to generate revenue from this consumer of images closes significantly. For a news-weekly, the window is a week or so. For a monthly magazine, it's about 30 days. Following that, the window of opportunity for the use of most images from that rally have a window that closes significantly on election day - November 3rd. Then, it becomes a historical image, as fresh images will be needed for the political needs 2 years from now. As you license an image you close windows, and others cannot open. For example - if a photograph is licensed by the democrats for ads critical of the political rally, then that image is almost assuredly not going to be licensed by the republicans for ads in support of the issue. Other windows of opportunity abound.

(Continued after the Jump)

The broadest example of a window of opportunity is the term under which you control copyright. The term is life of the author plus 75 years (see here) . So, in the US, life expectancy is 78 years (source here), and assuming you start shooting professionally at 23, right out of college, your first images have a protected duration of 55 years + 75 years, or 130 years. The images you shoot at age 65 have a protected duration of 13 years + 75 years, or 88 years. So, you have a window of opportunity to exploit the value of your images for between 88 and 130 years, provided you live to the average age of 78. So, if you grant to a client a 10 year exclusive use of your photography, the window of opportunity for others to have exclusive use of the image (and you to generate revenue) is narrower after the first use expires.

A more narrow example of a window of opportunity applies when it comes to fashions and technology. For example, (cell phones - Game Changing Cell Phones Of The Last 30 Years) if you had shot a "generic" image of a business man using a Motorola flip phone back in 2003, as the Palm, iPhone, and others came out, that image looked dated, and has very few uses to illustrate a business man on a phone. So too, images that show CRT televisions and computer monitors - everything is flatscreens these days. So, for that flip-phone photo, your window of opportunity was about 4 years, before it "aged" out of the market.

When I license a window of opportunity to a client, I have no way of controlling the exercising of the rights I granted, beyond defining the maximum extent of the use. If I license an image to a client to produce 100,000 printed brochures for the next 6 months, I cannot force them to actually print them, for example.

When, for example, I rent a car, I am renting a window of opportunity to exploit my exclusive use of that car. I may opt to rent it and sleep in it overnight because it's cheaper than a hotel room, or I may decide to drive it for 24 hours straight, stopping only for gas. Just because I didn't exploit it the entire time as a car in the first scenario, I am not entitled to any pro-rated refund. Nor would I be if I just drove it for 4 hours and returned it. While it used to be that U-Haul treated their moving vans this way in the "24 hour period" approach, they found that they could narrow their windows to overnights, and even shorter periods of time, and still make money. If, however, you did rent a moving van for 24 hours, you would not have to pay more to the moving company if you moved yourself and two friends than if you just moved yourself. It was your prerogative to exploit your rental and the extent to which you did that is up to you.

So too software. Everyone pays, say, $200 for a Photoshop upgrade. However, some people use that software three times a week, others 8 hours a day 7 days a week. You are entitled to use it 24 hours a day 7 days a week on one desktop and one laptop (see here) provided you are only using one machine at a time. Are you entitled to a discount if you're only using it a few days a week for a few hours a day? Nope. Adobe does not control your exploiting of the window of opportunity, only you do.

Same goes for music. If you download a song from iTunes, you have a personal use license. You can listen to the song 24 hours a day, forever, or you can listen to it once a week, in your normal music rotation. The cost to do so is the same, regardless of the extent of your exploiting of the license. However, if you want to use it beyond your personal use license (i.e. selling your services as a DJ, as background music in your restaurant, in a commercial selling your products, etc), the costs increase because your use increases and your benefit increases, so, too, does the creative talent behind the music need to benefit.

When it comes to photography, your ability to leverage the narrow window of opportunity during which your images have value will be a cornerstone of the extent of your income as a photographer.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

iStockPhoto - Wait! It's About the Money?!?

2010-09-14T05:01:00.002+01:00

For a number of years now, I've been hearing the iStock-a-razzi congratulating themselves with atta-boys and high-fives when they see things like their images used on the covers of places like Time Magazine (here), and for all manner of uses that should have garnered thousands of dollars in stock licensing fees, but instead garnered less than subway fare for a day. "It's all about seeing my photos in print..." or the otherwise celebratory "wow, they used your photo for their album cover..." back-slaps. They, with bright eyes and bushy tails were like a doe in the headlights as the oncoming frieght train of reality came towards them, and they just seemed to think "oh, look, pretty light". In fact, people were bemoaning those who actually cared about the money.

Enter reality.

(Continued after the Jump)

As Getty Images CEO Jonathan Klein can afford to drop $10,000,000 on his New York City Park Avenue spread back in March (Real Estate Mack Daddy Sells 760 Park Spread to Getty Images Chief for $10 M., 3/11/10), he, and his subordinate company, iStockphoto can't seem to keep paying the contributors who supposedly didn't care about money (until they did) the same amount.

Jeremy Nicholl, here, has done a great job of highlighting the hypocracy of iStockphoto~~, from within, as a contributor~~ (apparently, not! Sorry for the mistake!).

Nicholls cites an August 9, 2010 company missive, which reports:

“Since roughly 2005 we’ve been aware of a basic problem with how our business works. As the company grows, the overall percentage we pay out to contributing artists increases. As a business model, it’s simply unsustainable.”

Really? REALLY?!?! I mean, come on, I've been writing about how just how unsustainable the iStockphoto business model has been since like 2006. SERIOUSLY? SERIOUSLY!?!?! I was strung up by all the iStockers who wrote me and commented here on the blog about just how this wasn't about money, and how I was off base. I mean, saying "I told you so" just seems so inadequate to the facts as they were, and still are. Just now they're admitting these things? Hmm, or was it that they were lying? in January of 2008, iStockphoto stated:

“That our revenue and payouts have eclipsed those of many traditional stock photography companies confirms that microstock is a viable and profitable business model for contributors and clients.”

Oh when it comes to judgement day, these boys will be on the fast track to a burning caldron of boiling sweat from the toiling of the contributors who have given of their creative genius. But, will these creatives be able to find their way out of a canopy tent? I mean, when God was passing out business sense these dimwits must have thought he said "brightness scents" and said "what? Smart people can't smell..." and took a pass.

Wake up and smell the free coffee down at your local shelter after you check your pockets to make sure your twice-chewed bubble gum is still in the used wrapper as you roll off your free cot, and see that your change from the night's pan-handling becomes more of an income than licensing photography - there will be droves and droves of people behind you - the Flickr-ites - that will swarm to iStockphoto like moths to a flame. You've already been burnt, now it's their turn.

The COO, in this missive - Where we go from here - writes, in part: "I want you to know that I would tender my resignation at iStock before I had to do something I couldn't stand behind." Ok. I'm waiting. Please be sure to send me a copy. I've set up my inbox with a rule for an email from you to play "Ding Dong The Witch is Dead" when it comes in. I can't wait. Jonathan Klein will still be trying to convince you of his altered reality, as his minions call out "pay no attention to the man behind the curtain..." Guess what? There are a lot of "Toto" dogs on Park Avenue, and one of which can nip at his heels in real life, and the Wizard of Oz was just a fantasy, but these are the lives of real people that iStockphoto and, in turn, Getty, is screwing up.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

A Copyright Ruling That Could Affect Photographers

2010-09-13T12:01:00.000+01:00

In a 3-0 decision by the 9th U.S. Circuit Court of Appeals on Friday, the court said that companies that make and sell software can use shrink-wrap, or in the case of online downloads - click-to-continue licenses to preclude "owners" from the re-sale of the license.

The ruling seems to be the first ruling by an appellate court that specifically focuses on the sale (i.e. the sale of a license) to a party beyond the original purchaser, and the terms of that sale affecting the ability to re-sell it later.

How can this be, you might ask? Well, back in 1909, the "First Sale Doctrine" allowed the owner of a legitimate copy of a copyrighted work to sell/transfer ownership of that particular copy without the authorization of the copyright holder. The court ruled "The first sale doctrine does not apply to a person who possesses a copy of the copyrighted work without owning it, such as a licensee..." This has the potential of having a substantial impact on photographers' licensing and contracts.

How?

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As it stands, if you have, say, a photographer's book, you own that physical book, and you can tear out the pages, frame them, and then re-sell each of those framed "prints" without the photographers permission (generally speaking.) There has been some controversy in the past about this. This, however, would be a case where you possessed a physical copy of the work, and the first sale doctrine would apply in most instances.

In the past, I have purchased software from bankrupt companies, and had the licenses transferred to me. Having the bankruptcy executor sign a document stating that they represent the bankrupt company worked, and in cases where, say, I wanted to sell a piece of my software to a colleague, I would execute an agreement to that effect. For example, Adobe has guidelines and policies as it regards a transfer, and the documents they require - here.

However, if you posses a license to the work, according to this new ruling, you could not transfer it without something in writing. This certainly can affect contracts. For example, in my contracts for advertising/commercial work, I have this language:

This Agreement shall not be assignable or transferrable without the prior written consent of Licensor and provided that the assignee or transferee agrees in writing to be bound by all of the terms, conditions, and obligations of this Agreement.

This is an important clause. Because, if your images are contained on a client's hard drives, no doubt, the language in the sale of the company as it pertains to intellectual property likely reads something like this:

Company X hereby transfers all right, title, and interest to all trademarks, patents, copyrights, without restriction...."

Thus, the aquiring company could wrongly believe they own copyright to the photography that is yours, on their hard drives. As such, the clause in my contracts is critical to protect me.

The software company that was a party to the lawsuit, Autodesk, had a significant number of restrictions on the sale or transfer - they hard to provide written consent, and further, under no circumstances could the license be transferred outside the Western Hemisphere.

While the company who lost in this case has vowed to appeal, the 9th circuit had overruled a lower court who ruled that the when a purchaser is allowed to keep the work they purchased as the original purchaser, they have the right to re-sell it at their discretion. The American Library Associiation and eBay took a position counter to the ruling of the court, arguing that other copyright holders (among them, photographers, book authors, etc) could follow suit. The court acknowledged as much, but left legislative solutions to that, noting the government should modify copyright law "if it deems these or other policy considerations to require a different approach." With Congress introducing bills to protect fashion designs (as reported here and here in the Washington Post) which are currently not protected by copyright at all, it seems that copyright laws may be in for a substantial revision in the near future.

You can read the courts opinion here (as a PDF).

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