One tactic in resolving unauthorized uses of one's images is to offer the copyright infringer a "retroactive license". This solution is often employed by photographers once the infringement is discovered, before engaging an attorney, or understanding fully what the risks of doing so are.
"Before finally bringing a lawsuit, Masterfile offered to enter into a retroactive license agreement with J.V. Trading for the three years that J.V. Trading infringed. Although J.V. Trading did not respond, the courts used this offer as guidance in assessing whether the damage award requested by Masterfile was reasonable."
So, how does this work? Well, suppose you would normally license an image for a specific use for, say, $275. Oftentimes, a photographer might offer then, a retroactive license (that is, to pretend that the client actually licensed the image and was billed for it) for 3X the original amount. Sometimes, it's the amount PLUS 3X, or sometimes it's just a total of 3X the original amount. Either way, be careful when doing so, as you may place yourself at risk of a lower final judgement/award in your favor by doing so. A retroactive license should be a part of settlement talks, if at all, rather than a general offering, since settlement talks between both parties are not to be disclosed during court proceedings, thus, you would not be hindering yourself.
Lastly, make darn sure that whatever you do, you resolve only the infringment(s) at hand, and not grant to them a blanket agreement/license/settlement for "all infringements", since what you caught may be the tip of the iceberg. 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.
Chromatic Soul Blog - Veronica Lynne's approach and perspective on the world is worth a look.
Photoblogs.org - Just really interesting photos, and little else.
Photowalking - What the hell is Photowalking? Check out the site, and learn for yourself!
Now go! Check 'em out, and come back soon!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.
I stumbled across this graphic today, and it got me thinking about rights on the web. Here, TMZ has a standard graphic that they swap in when their rights end for a particular piece of video, and, more importantly, they say "so sorry - we don't own everything". That's a perfect example of how things should occur.
How are others handling this?
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One of the big things will be how Getty handles the management of their 3 month license for online uses. Just as textbook publishers manage the rights when they order a second edition of a textbook, with no changes, so too must image buyers manage the rights of the images they have on their websites. It's nice to see that TMZ has some form of management of this, or perhaps, the video owner sent them a message along the lines of "if you want to keep that video up, it'll be $x more, otherwise, take it down", and TMZ felt that they wanted to keep their story up, but without the video. Somehow, without the accompanying video, it's just not as impactful - so too with photographs.
The use of some form of management/auditing system, to maintain image licensing aging, will be critical moving forward. One major solution would be for a photographer to submit a photograph to a third party with the licensed URL, and that organization would maintain the licenses for the photographer, and scour the web for unauthorized uses. PicScout currently scours the web, but it doesn't keep a watch on authorized URL's, and sending out invoices on a photographer's behalf for re-licensing, or licensing extensions.
This would be a natural service that a PhotoShelter or DigitalRailroad would apply to the licenses they grant onbehalf of photographers, which would generate them more money as well as you, the photographer. Perhaps they could also manage your licenses for images you negotiated yourself, if you just gave them the URL and image for reference. This could be a boon of a new service! 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.
When PhotoShelter wanted to announce their PhotoShelter Collection (which I discussed here) they decided to travel the country doing a town hall series, and since I was already scheduled to be in Atlanta, I was asked to be on the panel discussion they had there.
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When you travel with the President, you're inside a very tight protective circle, and it seems fairly calm, relatively speaking. However, what you don't realize is that if the President is on a boat, there are scuba divers below the water, if he's in a helicopter, there are other aircraft on the horizon, and high above protecting his every move. You never see these protective measures, and I'm not revealing anything that's not obvious when observed from the outside, but when you're inside, you just might now see everything. Today, I'm "inside the bubble" as security is preparing for the PBS Presidential Debate outside of Baltimore, so security is top-of-mind for me right now, thus, the reference to security as above.
I simply copied the link from SportsShooter's home page, and it looked like this:
http://www.sportsshooter.com/pix/sslogo6.gif
If you're a frequent visitor to Sportshooter, as I am, that image is in my cache, and so it loaded without a problem. But with over 1,000 people viewing the blog today alone, the protective measures of SS kicked in, protecting their logo, just as they would protect someone from hot-linking to a photo you have in your portfolio on their site. Further, it just wasn't a "no image found" broken link, but rather, the genius behind the Sportshooter programming is that when they see heavy hits on a single image, they actually swap out the hot-linked photo for this graphic:
Nice huh? So, if you're worried about your images being hot-linked, rest assured that they've not only got your back covered, but have a nice little message for the thiefs. These are protective measures that, as with the President, you never know exist, but are none-the-less in place to keep your images secure. In my case, it was their logo, about their story, I've since fixed the issue, but I think you'll find it reassuring that they're looking out for you in ways you may not be aware of.
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Airline travel is a pain these days. I have been a staff photographer with USA TODAY for the last 18 years and I fly frequently. I've had my share of airport delays. Haven't we all? Lost luggage, long security lines, canceled flights, the works. Since 9/11, the two words I have heard most are "bag check". My travels on Friday August 24, 2007 gave the words "bag check" a whole new meaning. ...After checking in at the Delta counter,...I was enjoying my roast beef sandwich, when 20 minutes into our meal we --- and all others in the restaurant --- were told to leave immediately and proceed to the terminal exit. ...I was standing in the parking lot...Who was that official with Andrea...I was ready to ask questions, but he had a few for me. "Are you Eileen Blass" Yup, I said. "Are you flying out on Delta?" Uh huh. "Did you check a large black bag?" Yes. Then I heard my heartbeat in my head. Andrea and I looked at each other. Huh? This was my entire fault?
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When I first saw Microsoft's Sea Dragon technology, I was blown away. A demo of the application of that technology can be seen here. I am similarly amazed at how the videos below demonstrate a whole new world of resizing, whereby "priority" is given to certain items, either automatically, or via optional user interaction. Called "seam carving", or "content-aware image resizing", these techniques are sure to make it into Photoshop CS4, and are the new phrases to describe the techniques.
One concern I have, is how the resizing can alter perspective, and there are a few examples, where perspective changes are altered in the video.
Alternatively, the ability to also delete content by marking it as a first to delete, is very interesting indeed. This gives rise to the whole Getty $49 issue as it relates to the resizeability of those smaller files.
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Below is another example of content aware resizing (no audio on this one), using several images. For the image of the White House, you can see how the algorythms are "thinking", in keeping the White House itself the same, and diminishing the green lawn in the foreground, for example.
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There are a number of people who complain about the copyright office’s turnaround times. The return time can vary from a quick turnaround of 1-2 months, to 9 months. It’s necessary to remember that the copyright office is processing thousands of requests at any given time, but more importantly, your registration date is effective when their office receives your completed application, fee, and deposit, not when you get the final form back.
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What follows is a pictoral display of every step of the registration process, including one or two you don’t want to know about personally (because you made a mistake), but are non-the-less integral to the system.
The Copyright Office (or, CO) is undergoing sweeping changes in terms of how they serve the public. Modernization of systems for electronic receipt of submissions to the imaging of forms, checks, and correspondence, means that the CO is always looking at how they can better serve the public. These images may be a bit dated as they were made at a point where modernization was taking place, however, they are, in my opinion, a revealing insight into all that goes into your registration, and why it was reasonable that the registration fee increased from $30 to $45 awhile back.
When the CO completes the process, we look forward to bringing you another look - behind the scenes - at the Copyright Office, of how their new, more automated world, brings it, and thus, your registrations, into the 21st century.
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There are two ways for your registration application to find it’s way to the copyright office for registration. Soon, you’ll be able to submit electronically, but as of now, there’s only two ways.
The most common way is to mail/ship your registration. Sending the package via US Mail is one way, however, it’s recommended that you do that with a method which allows for you to receive a notification that it was received. Certified/Return Receipt Requested is highly recommended. However, solutions like Priority Mail, FedEx, DHL, or another overnight service is our preferred method for shipping.
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All packages go through a central receiving facility, where they are irradiated to ensure the shipment is safe. This protection was put into place following the 2001 anthrax attacks on the US Capitol, and since the Library is a part of that complex, all of it’s deliveries became subjected to that protective screening. One challenge that has arisen, is that CD’s may become damaged or non-readable by this process, and the CO may contact you to ask for another CD to be sent.
Once the packages have been processed for biological agents, they are then sent over, in rolling bins (as shown above), to the receiving station, officially called the Reciept Analysis Control Center, located in the Madison Building of the Library of Congress, to begin their processing. A Walk Through The Copyright Office:
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If you are within driving distance of the Copyright Office, I highly recommend you deliver your registration by hand. There is just something fulfilling about walking in, presenting your application, and receiving a receipt for that registration. The office staff there are friendly and as helpful as they can be.
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When you arrive, there’s a fair amount of street parking to the East of the building, metered, and with a 2 hour limit where non-metered around the residences. Park, and head to the fourth floor, and coming off the elevators, you can’t miss the double doors right off the foyer. You can arrive as late as 5pm, but you can’t do credit card transactions after 4:30. I recommend you have a Deposit Account anyway (click here to learn how to set one up and maintain it), especially for ease of consistent registration. They’ll check your DA to ensure there is sufficient balance on the account to cover the registration(s) you’re dropping off, and hand you a receipt, and you’re done.
It's worth noting that the Copyright Office has begun their beta testing of it's "electronic Copyright Office", or "eCO", and participation is open to the public. If you're like to participate, check out Hot Topics at www.copyright.gov. A Walk Through The Copyright Office:
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Here, in the Reciept Analysis Control Center, items which are photocopies of items (as seen to the left) to be registered are deemed to fall into the “nonsecure" category, and are transported in open cases. This doesn’t mean they are being mis-handled, but rather, the items are considered to not be as fragile as other items that come into the office.
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So, rest-assured, the Copyright Office is handling your registration with care.
Items such as cassettes, valuable photographs, valuable CD's or CD-ROM's, video cassettes, film reels, adult materials, etc, are determined to be “secure" and are delivered in locked rolling carts to the Copyright Office (as seen, on the right.) A Walk Through The Copyright Office:
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However the CO receives your application, the first thing that has to happen, is someone has to ensure that you have a full and complete application. That’s where the Incomplete Claims Handling office (ICHA) comes in. The ICHA is looking for your registration to include 3 things – 1) A completed form (with your signature); Payment for the application (either a check, money order, DA account, or credit card receipt); and 3) the required deposit of the item(s) being registered.
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If the application is missing one of these items, the application gets set aside. Here, a Copyright Office staff person prepares to send a notice to the person registering their copyright that they did not provide all three of the required items are a part of the package that is presented. 1) Payment, 2), the proper registration form, and 3) the representations of the item to be copyrighted, whether printed, electronic, or recordings. If the item has not been published previously, all the items that were recieved are returned. If the item being presented for registration has been published, the Copyright Office retains the item(s), and sends along a special letter.
If the item has not been published previously, all the items that were recieved are returned, as is the case with this cover letter reading “SORRY, but you didn’t send us everything we need to register your claim to copyright, and we’re going to have to start all over". You’ll get this, and need to take care of whatever the problem was, and send it back. The CO sends detailed instructions as to how to do that.
If the item being presented for registration has been published, the Copyright Office retains the item(s) (as is the case with those filed on the shelves in the photograph below), and sends along a special letter, (as seen above and to the left). The letter essentially says the same thing, however, they are just making it easier for you (and them) by holding the already published items.
Time is of the essence, as the CO has a limited space for holding material, so address their concern, and get your response back to them. A Walk Through The Copyright Office:
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Next, an examiner reviews the contents of the registration request, to determine if the applicant's registration contains copyrightable authorship to be registered, has not been previously registered or published, or any other reasons why a registration should not be granted.
If the registration is granted, the examiner dates and signs the application on the front and back, and forwards it on.
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This area is the Correspondence Control Unit. Here, should there be a problem with your registration, your paperwork will be placed on hold until you respond the correspondence sent to you from the copyright office.
Questions range from inquiries about the date listed as published, a concern about images on a CD, and so forth.
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This area is the Data Processing Unit. The CO staff affix a bar-code to your registration, assigning it a number. This number is entered into the Library of Congress copyright office database, which is accessible both from the card catalog area of the Library, as well as via the Library's online services.
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Nearing the end of the process, a Copyright Office staff person images (i.e. scans from analog printed sheet to a digital file) the completed form, once all the appropriate registration numbers have been applied to the form, and sends the item to be printed with the color logo of the Copyright Office.
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The final registration form, complete with color logo, are sent to the person who has registered their work, after final inspection by a Copyright Office staff person.
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Here, a Copyright Office staff person, or the general public, can look up a specific registration, and review and print an electronic version of the form, which is accessible from the card catalog area of the Copyright Office (as seen here). While you may get your form within a few months, they may not appear online for a few more months following that.
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There are a number of steps involved in the process of completing a copyright registration. The Copyright Office offers an expedited service, where you can have your entire registration completed within 5 to 10 days. A person is assigned to personally shepherd your registration through the many steps of the process, traveling to the many offices with your registration in hand, seeing to it that it gets done. This is a premium service, costing several hundred dollars per registration.
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There are a number of steps involved in the process of completing a copyright registration. Here, in the Materials Control Unit, librarians are asked to come in and review selected items presented for registration which the Library feels it would like to have both copies of the item being registered for the Library's collection. It is a rare case that the Library of Congress would request a photograph, but it retains the right to do so. Here, the Library has selected, and will correspond with the authors of a number of books to request copies for the Library's collection.
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This article should not have given you any instructions as to how to register, what is registerable, or the legality, or validity of any registration. To find information on how to register, head over to www.copyright.gov.
What it hopefully has done, is provide you with an understanding of just how the Copyright Office has done work in the past, and how it continues to serve the public moving forward. It’s no easy task, as there are thousands of applications that are made during any given month. This piece was made possible, in part, by the in-roads that the Advertising Photographers of America made, and we thank them for those arrangements, and for all they continue to do for photographers on the copyright front.
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It's impossible to charge too much. Period. If you provide a client a figure for your services, and you outline all of the upcharges, add-ons, rush fees, and so forth, regardless of the price, and your client accepts the fees and expenses, then you are not charging too much, as they have agreed to pay that amount. If they don't want to pay that much, then, well, you can't charge them for that. Thus, while a bit of word play, it's impossible to charge too much.
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Dialing that back a bit, take a minute to examine what you're charging. First things first though, it's important to remember, that the main goal of being in business, is not to be doing lots of work, but, instead, it is to be profitable. For whatever you are charging, if you were to double your fees and licensing, and that resulted in a drop of 50% in your work, not only would you be earning the same in fees, but you would have more free time, and have to carry much less in expenses for each job. Now, this is a risky proposition, and, frankly, much too risky for me, but there are many photographers out there, at the $15/hr, $25/hr, and yes, even $50/hr, or, doing assignments for just $200-$400, that could easily do this, with much less risk.
Surely, a raise in rates will cause your more price conscious clients to drop off. That's ok, that just makes room for better paying clients who are less price conscious. I can't recall the last time a colleague said to me that he was slow and didn't have any money because he or she was charging too much, but I hear all the time from friends who aren't making any money because they arn't charging enough.
Further, low rates will wreak havoc on your profit margins and will damage your credibility. More than once, I was the only photographer, among three considered, that was priced appropriately, the others were so far below me that the client knew - they knew - the assignment could not properly be completed for those low figures, so I recieved the assignment. In addition, when you expect clients to hire you because you're the cheapest, you'll have just that - cheap clients - wanting to do business with you. That's no way to succeed, let alone, get ahead.
There is a general rule in business, which is that if 20% of your clients are not complaining about your fees, you're not charging enough. There's a very interesting article here about pricing and client ratios. The article discusses Pareto's Principle, " It is a common rule of thumb in business; e.g., '80% of your sales comes from 20% of your clients.'" The article posits "Many businesses put up with clients that consistently pay late, change their minds or appointments, expect miracles in terms of timing, insist and haggle over discounts and are just downright stressful to work with. It should be a privilege to do business with you; not a right."
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A few years agoor so, Getty (GYI) introduced Photographer's Choice, whereby Getty's contributors were paying $50 to have their image considered for inclusion in the Getty archive. By paying this, you didn't get premium page position, you just got included.
A number of photographers justified this in their mind by looking at the average sale of $500 for online sales, and much higher for print sales, felt that it was a worth it to take a chance at spending $50 to do so. Photographers were very selective in what they posted, because it had a direct cost to them. They looked at the numbers - if one sale of $500 was made, and they earned their 40%, that generated about $200 for them. Thus, it would be a zero-sum game if, for every four images they uploaded, one sold. It was slightly better for an average $900 print sale. Now, the tables have been upended. The $50 cost to photographers remains, but in order to cover the cost of just one, the revenue of $12.50 or so that the photographer gets has to be earned over 4 times, in order to cover the cost of one upload. Surely now, it's not Photographer's Choice, but rather, it's more aptly titled Photographer's Chance. What's also not discussed, is the abismal "all you can eat", or "subscription model", that Getty has had ongoing. One photographer I've spoken with reviewed their statement with me recently, and showed their share of a subsciption sale as $2.16 for an image that went online.
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According to the $49 FAQ, the "500KB 72 dpi file...depends on a few variables such as color versus black and white." Ok, so we'll presume that the 500kb file is color, and they say " this is designed as an ongoing product, not a limited-time offer." The files are listed as "web res", not "for the web only." So, "Royalty-free images may be used multiple times for multiple projects", thus, any RF image can be used repeatively in both print and electronic. This may not be explicitly stated, however, when it's said that " Rights-ready images may be used in web or electronic media for commercial or editorial projects such as websites or email for three months" that specifically stipulates electronic only, it becomes more clear. Further, this isn't about a high school book report. IBM or General Motors can use the files for the same price, with millions of impressions. And then there's "Rights-managed images may be used in one commercial or editorial website, email or mobile project for three months." Here's my bet on this three months concession they made. They either won't enforce it, or, they will piss of their clients when, 90 days after download an e-mail goes out to the clients saying they have to pony up again, or delete the file from their site, or, the Getty legal department will become overburdened with chasing all these $49 unauthorized uses, that they won't have time for anything else, and then, in turn, they just won't pursue all the overdue payments, and clients will get the idea that it's open season on paying once for Getty images, and never bother to renew. Or, when they do pursue the claim, and end up in court, a opposing counsel will claim selective enforcement, demonstrating that the claim before the judge is just one of only 1% of the infringements that Getty is pursing, and thus, since Getty doesn't agressively pursue all claims, that the one in question should be either dismissed, or diminished. It's a downward spiral to be sure.
And While Getty is saying here, "This means you can get your hands on any creative, news, sport, entertainment or archival image for just $49.*", that asterisk directs readers to the "fine print", which reads "*This pricing may not be combined with any other offers, discounts or pricing agreements and does not include images from Image Source or Arnold Newman Collection, or select editorial images." So, somehow, Arnold Newman got exempt (and deservedly so), so did Image Source, and where they refer to "select editorial images", I draw the educated assumption that they are referring to breaking news event images and those which they have exclusive rights to, among others. This image of Brad Pitt on People's website is $49 to People, unless, of course, it falls into the "select editorial images" category.
Boy, there sure are several windows of exception there. But, consider carefully the stipulations, "72 dpi", which is "web res", and further, has a maximum of "500kb." How does that math work, in reverse? Well, a 150dpi file, which can be used in newspapers and other print outlets, allows easily for a 2.3" x 3" file. A 300dpi file is 1.2" x 1.6". To give you an idea, here's a file of mine that I sized to fit the 500kb size, and that's not a small file to be sure.
According to a press release dated 9/21/07, "The Association of Photographers (AOP) have joined forces with an international coalition of photographic trade associations, led by The Stock Artists Alliance (SAA), to protest at Getty Images plan to launch a $49 web use (500 px wide, 72 dpi) across all licensing models (RM, RR, RF)."
From the release, AOP Awards Gold Winner and IPA Professional Photographer of the Year 2007, George Logan, said:
"I have been becoming increasingly disenchanted with Getty for some time and this $49 'promotion' is the final straw. I find it truly insulting that I might receive approx £12.50 per image sold. I do not want to be associated with a company who would sell off my work in such a cheap and crass manner.
This is not what I got into photography for and I know I am not alone...every other photographer I have spoken to, including many of their major contributors, feels the same way.
I shall no longer submit images to Getty and will withdraw my existing collection at the soonest opportunity.
Well respected photographer, and AOP Member, Jo Sax, said:
"$49 for a digital media license is an affront to the time, funding and energy that goes into producing a high quality creative photograph.
I am not prepared to have my work devalued this way.
Additionally, negotiating for a fair digital media fee on commissioned work may become a real sticking point. I work with several agencies that also license stock from Getty. The disparate pricing this new Getty 'product' introduces will confuse the market at every level.
I am terminating my contract with Getty Images, and I would like to ask other GI photographers to examine this situation carefully and then respond appropriately.
So, it seems that Getty's decision to do this will diminish, in a qualitatively and quantitatively significant way, the content in their archives. I have spoken with several Getty contributors stateside, and their tact is the same. They're ceasing providing the high quality images they're known for, and also are considering (and some planning on) yanking their images, and Getty's right to license them to photo buyers. Some are going to Alamy, others to PhotoShelter, or Digital Railroad, others to other solutions.
Note to Getty's hard drive suppliers, your orders will be slowing down. Note to Getty's scanning and keywording services - you will soon have more time on your hands. And, note to the Getty photo editors - a few of you should be polishing your resumes, as it's belt-tightening time at GYI.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.
"Jeff Kravitz, President and Founder of Filmmagic, bought by Getty Images in the $200 million Mediavast deal, has officially resigned. Citing impossible working conditions within the Mega image distributor, antiquated distribution system, one of the most succesful, and influential, red carpet photographer is slamming the door in the face of the Getty management."
So, we called Mr. Kravitz, who was on the East Coast covering an event, and I asked him about the above quote, and he said, without actually confirming he wrote that in an internal e-mail "well, that sounds like something I would say" and then said that "all I'll say is it's an interesting time in my life, and everyone should just stay tuned." Mysterious? Yes, Ambiguous? I think Kravitz is smart like a fox to have provided just the right answer. (Check Jeff's blog for some cool insights into his life, but nothing about this - yet, anyway.)
Also, the rumor that Evan Agostini (hit this link for a brief story and headshot of him) and Peter Kramer, both of them prolific photographers, having nearly 200,000 images they produced on the Getty Images site (and wholey owned by Getty, from what I understand), are leaving GYI for the Associated Press is true.
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Well, I have it confirmed from a source inside Getty that they're leaving, but I don't have it confirmed that they're landing at the AP, but that would make a ton of sense for them, especially given the rumor that's floating around about an AP internal restructuring to throw more money at entertainment and sports (can you say, "shot across the bow of GYI?") in the near future, so as to beat down the getty inroads in those arenas of late.
That just leaves 12 (most likely) Angry Men left -stuck in Getty's quagmire, under NDA's and non-completes for probably 3-5 years, depending upon how the deal was handled. Kevin, Paul, Lester, Justin, Steve, Michael, Jeff, Jason, Josh, Stephen, Michael, and Mark - I wish you well, and I look forward you when you find yourself out of the labrynth of bureacracy and red tape and: A) depart, and B) finish up your non-competes while hanging out poolside. When you're free and clear, I know you'll all be back, and better than when you were under the Getty regime. By that time, GYI could well be a penny stock, or Google/Rupert Murdoch could have paid $10 a share to populate their respective photo services with great photos. Nice work on the $200 mil figure, you all look like geniuses, with JDK/et al as the happless dunces in the corner. 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 big difference between an image being used online and offline, is a requirement for quality for most online uses, the volumes are enormous, and a good enough picture does the trick." Yet, their website says "Getty Images creates and distributes the world's best and broadest imagery collections...". So, people don't need to come to you, they can get "good enough" elsewhere. Why bother shopping "the world's best", when you just need "good enough?"
One of the more interesting concessions, was when JDK 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." So, your core business - the one that you brought to IPO, and skyrocketed to 93+, and is now down around 27 or so, is in fact, a not only stopped growing, but is declining?
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About 34 minutes into the call, JDK said "we've made no secret of the fact that 75% or so of the business is down, umm, so, until we're able to stabilize that business, uh, we're not going to be ultra-growthy, ever the master of understatement. And having said that, we think that business can be stabilized, we think the new website does a lot, we think the $49 approach to the web market does an enormous amount, uh, we're seeing tremendous growth in some geography, we're underpenetrated in the publishing and corporate sector in most countries and overpenetrated in agencies...so, the market has said very clearly, we're not a growth company, and until we demonstrate some growth numbers, I expect the market will rule, and what I have said, which may be seen as negative, is that when you're dealing with specular, or systemic issues, uh, it's going to take some time."
One question was posed - "The stock pricing performance has been disappointing, obviously...how do you still think about stock buybacks, how do you think about whether you even need to be a public company given this transition you're going through?"
JDK: "Well, the way we think about stock buyback is, we had a board meeting today, and it was discussed. And, we are just like you, adjusting to the dramatic re-rating of Getty Images in the last six weeks. A re-rating which didn't come out of the blue..."
A question was posed, in response to JDK outlining long term debt and stock buyback activity, relative to positions of the debt market, where JDK went on, and then said "I've probably said more than I should have done...", was asked "so, no buyback short term?" to which JDK responded "I didn't say that, you just did." And, the call was then ended.
Sometimes, letting people's own words and mindset sink their own ship further is far better than any added commentary, so - 'nuff said. 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.
Today's Speedlinks are so cool that the top four are now daily visits for me!
Anonymous Photo Editor - At first I was going to highlight JDK, but this blog - A Photo Editor, has so much more to offer, and potential assistance for people wondering about the mysteries of getting editorial work, so this one wins hands down. And, since she's actually gone through the trouble of getting a URL to go along with her blogspace, she's planning on being around for awhile.
Fake Jonathan Klein - First things first - I am definately not this guy, but I do enjoy the post. Just as Fake Steve Jobs was found out, so too will this person, who will hopefully keep their job (or GYI contract position if that's where they work!) I have my own JDK's World, which I will update as his value downgrades. I'll end the updates when he first "leaves for personal reasons", and then I'll report where he lands, then that'll be that. Until then, updates from me, and full on satire (hopefully) from FJDK.
Atlanta Photographer - Stan Kaady - Stan's just got some really nice images worth a look.
Now go! Check 'em out, and come back soon!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.
This past weekend, PhotoShelter launched what I consider the final phase of their marketplace entry, launching the PhotoShelter Collection. Daryl Lang, over at PDN penned their first review PhotoShelter Launching Community-Based Stock Site (9/14/07). My thoughts on this new service are based having just been a speaker at PhotoShelter's Atlanta Town Hall, just prior to my presenting to the ASMP Atlanta chapter.
The most attractive feature (so far), is that you don't need to be a member of the current PhotoShelter service to have your images considered for inclusion, or to start generating revenue.
And, what does it cost?
(Continued after the Jump)
Before I get into cost, note above, I said "considered". Your work must be presented and reviewed by PhotoShelter's new team of editors, who's job it is to make sure that no crap gets into the archive. This has been a complaint by some of the pre-Collection content at PhotoShelter - specifically, that there's a lot of sports and personal photos that buyers don't want to weed through. Agreed, they don't. PhotoShelter gets that. Hence, not only do you have to submit images to the Collection for review and consideration, but a pair of photo-buying eyes have to approve your submission. How do they do that?
To start, there's two classes of accepted images - "Accepted", and "Editors Choice". If your image is good enough, it will be given the classification "Editors Choice", and be listed first in search results. In a previous post (I told you so? No, not really (Well, maybe, sort of)", 8/4/07), I noted how a search for "White House" on iStockphoto yielded better results first than Getty's more expensive offering - Getty Images.
As the service has just launched. in beta, and for photographer submissions only, I can't do as in depth a piece as I did for Digital Railroad's Marketplace, however, once both have gotten their feet wet, with a bit of time under their belt, I'll do a comparative piece, and, in the near future, I may compare the stated services - i.e. costs/fees, and so forth.
For now, the big question is - How much does it cost?
Free.
Sweet. What have you got to loose?
You don't need to be a current PS paying member. You don't pay anything monthly - not a dime. You don't need to pay a fee to submit. You don't need to pay for server space. PS is betting on their editors' eyes. If their editors think your image is worthwhile, they give you a free spot in their listings, expecting to make up the costs of the storage, maintenance, and promotion of your (and others) work through image licensing.
So, what's the deal with percentages? Well, first things first - standard agency deals are a 50/50 split. Some (including Getty) have evolved to a 60/40, or 70/30, and in some cases 80/20, favoring the agency.
PS is doing just the opposite - their take is 30%, with 70% to you. But, if you've got images now, ready to go (and I do), uploading before November 5th gives you 85% (for the first six months), with PS taking 15% on those images. So, in order to facilitate the initial growth of their library depth, getting in first not only gives you an extra 15%, but, you're the "fresh fish", getting the exposure first. I'll save the comparison to Digital Railroad's 20% take in a later piece.
PhotoShelter also does not require exclusivity, so you can have your images there as well as, say, iStockphoto. If you're an iStockphoto contributor, why earn $1 on your photos, when PhotoShelter will earn you much more? PS is targeting, in tandem with professionals - amateurs as well. At first blush, this would be a red flag for pro's not wanting their work alongside the non-pro's, but in the end, it's about the image. If the amateur has as good as, if not better than, a working pro, they get a fair shake.
How much more? PS uses the industry-leading pricing model espoused by fotoQuote, a tool I have relied on for almost a decade. fotoQuote allows you to modify your pricing, so, if you think your work is better than average, you can adjust your pricing to, say, 110% of all fotoQuote's midpoint pricing. You're in control of how much your work is worth.
How will your images be returned during search results? Of course, there's the metadata search of the caption and so forth, but what about keywords? I am in the process of taking a collection of just over 2,000 images that I have scanned, to make them ready for the online world. I talked with David Riecks, of the well-respected Controlled Vocabulary keywording solution (which I purchased a copy of, and which powers all of my keywords), about keywords, and specifically, the value of synonyms. Reicks talked about Getty's propriety ability to deliver synonyms for search results, and that I should seriously consider the added expense of synonyms. What's the extra cost using Jaincotech? $0.35 each. So, not having to do synonyms will save me $700 for 2,000 images. Further, as a part of PS's synonyms/plurals capability, is their artificial intelligence to return a search for "big apple" to with images keyworded "NYC".
It would be amazing if even a few of iStockphoto's major contributors/producers to submit a collection of images to PS, and have them realize just how much they've been selling themselves short as it regards the value of their work. What you submit doesn't have to be exclusive, so, there's little downside to trying it out.
How do you "get in"? Visit PhotoShelter Collection and sign up. You'll be asked to submit between 3 and 10 images so they can confirm you can make images, and then you'll be approved. Within the first three days, they had over six hundred photographers sign up. By the time you read this, it'll probably be closer to 700. I know that I did.
So, how will people even know that the Collection exists? With the service actually becoming available to buyers in November, starting in January they have set aside $1 million for advertising/marketing of the service. That's not chump change.
So, what about amateurs? Well, if your work can compete with the "big boys", this levels the playing field. You're judged on the quality of your submissions, and nothing more. By including the amateurs in the community, and helping them to realize the value of their work, these amateurs become a part of the solution, rather than part of the problem. Giving them data about their images, insights into appropriate pricing models, and feedback is going to make a huge difference in their growing role in the field of photography.
So, bring 'em on! 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.
Getty Images (GYI) has reached a new 52-week low. It's previous low of 27.05 was surpassed this morning plumetting to 26.52 midday. Forbes.com has an AP Story - "Out of the Gate: Getty Images", citing "...a Kaufman Bros. Research analyst {who} said reduced prices for images to be used on the Web will cut into total sales and profit, despite higher expected volumes...Barbara Coffey, in a client note, cut her rating on the stock to "Sell" from "Hold," citing the company's recently reduced prices for images to be used on the Web. She reduced her target price to $24 from $36...Still, the analyst said sales and profit in the December quarter and 2008 will come in lower than previously expected."
Perhaps if Getty hadn't devalued their own ability to bring infringements (as noted in my recent post God Save the Alliance) by slashing web prices to $49, they might have enough to cover the spread between what they need to earn to appease Wall Street, to what I predict they ultimately will earn, that will definately not make investors happy. UPDATE: The AP reported in their article Stocks soar after half-point rate cut:" A jubilant Wall Street barreled higher Tuesday...The Dow Jones industrial average reacted by surging 335 points — its biggest one-day point jump in nearly five years." Ok, so, why, when Wall Street was so jubilant, did Getty (GYI) reach a new 52-week low? Oh, that's right, because they're feasting on their young, metaphorically speaking, that's why.
(Comments 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.
Betsy Reid caught me at a good time. I had just wrapped up phase 1 of my 19 hours in Atlanta at the PhotoShelter Town Hall, and as I was running out the door to present at the ASMP meeting, she thrust in my hand the SAA white paper, titled “Infringements of Stock Images and Lost Revenues.” I filed it away for a later read. Couple that with an hour-delayed departure from ATL at 6:20 am the next morning, and I skipped reading the Marriot-provided USA Today, instead, picking up her report for a good read.
Reid is the Executive Director of SAA, or the Stock Artists Alliance. But, it’s clear to me that she’s the Princess Leia of the Rebel Alliance’s fight for all that is good in the realm that is within the Alliance’s purview.
(Continued after the Jump)
The paper revisits some of the astonishing results of their study with PicScout, as to just how bad the issue of infringement is on the internet. 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.
One of the major points of misuse was found in templates. Essentially, when you put together a website template - a product you then intend to turnaround and sell as a finished package. The devil is, of course in the specific details of the license, but if you’re licensing an image for your product, and then you turn around and sell that finished product – a template, you’re not specifically re-selling the image, because it’s an integral part of the template, so a careful reading of the license (which I’d doubt the template creators did) is necessary. Clearly, Corbis’ pursuit of TemplateMonster is giving legal direction to how the courts perceive templates, so that will serve as a precedent for others to follow, and for future infringers to be wary of.
SAA’s paper (conservatively) extrapolates the results of their study, methodically concluding that:
“we applied the infringement rate observed from the study to the rest of Getty Images’ current RM collections. 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. Using an average license fee of $600 ( a conservative figure, based upon Getty’s published rates for commercial web uses), we calculate that these usages represent a market value of $42 million per year.”
Not anymore. Getty’s slashing of all web uses to $49 makes that a $3.3 million dollar market value, and whatever infringement claims Getty will be bringing to bear on infringers will be finding settlements based upon those lower figures, and certainly judges (and juries) will be looking at current pricing to award damages. These losses don’t even take into consideration RF. IF you’re producing RF, those infringements almost certainly won’t be pursued by those supposedly looking out for your interests, so you’ll be happier pissing into the wind.
With $42 million, or $3.3 million, plus punitive damages for 67,000 images in a year, Getty could hire an army of attorneys nationwide and flood the federal courts with infringement suits, and probably pay for the entire endeavor and then some, with the awards they will garner from these thieves. Further, after about 6 months worth of cases flowing through the courts, people will begin to get the idea that Getty is serious about stealing, and will settle. Again, it will surely be a zero-net cost to make these pursuits real by filing, and further, with all the damage that Getty has done to the industry, this could be the one thing they could do to right some of their past wrongs. If Getty were to adopt, in the short term, a zero-tolerance for infringers (in other words, if you infringe, you get sued, rather than trying to turn infringements into retro-active legitimate licenses, as they are trying to do in many cases now), they would reap long-term benefits. Further, others would be less likely to steal because they were taught a lesson by Getty’s lawyers. I suppose this would be a side benefit of having the same interests as the school-yard bully.
Perhaps our Princess Leia can turn the Empire against these dark forces. Heck, what would Star Wars have been like if Luke, Leia, Hans and Darth Vader all been on the same aside against a threat posed against them all? And maybe these issues were what Conde Nast was prophetic in worrying about when they demanded all rights “throughout the universe” to the images you produce for them?
Then again, maybe not. In the end though, we should be gratful of the SAA for this study, and continue to support them and their endeavors.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.
I recieved my September issue of Professional Photographer magazine this weekend that contained an article by David Bailey titled "Get Ready to Rock". Fine piece, except David glossed over an important point. He writes:
When you arrive at the concert venue, you're sometimes required to sign a contract stating the planned usage of the photographs and agreeing to certain restrictions.
There are a few problems with that statement.
1) The publication you're shooting for will not agree to restrictions to, say, just the newspaper, as it precludes online use. You're signing away restrictions you are not allowed to, since you're not authorized to engage in contracts on behalf of the publication.
2) If you sign it, and it's just for the newspaper, your own use on your website will be precluded.
(Continued after the Jump)
Concert photography has been made difficult over the years. the space between Row 01 and the stage is called "the buffer", or "the pit", depending upon who you ask. Typically, there's heavy metal security fencing there, with about 4 feet between the fence and the physical stage's edge. That's the workspace we have. When the pit fills with people with point-and-shoot cameras, you typically know that they are fans with credentials (FWC, for short). They're there because they just want to photograph the band, and someone gave them a credential. You'll likely never see their work in print, unless you're looking at their desk in their cubicle. These are the same people who, during a post-show press conference, feel it necessary, before asking their inane question like "did you have fun out there tonight", to tell the artist something like "I just love your music, I have all the albums/CD's back until when you started...". Begin eye-roll....now.
When you're in the pit, unless you have a pass like the one to the left or right, you'll get the boot after a very short period of time. For a Neil Diamond concert some years ago, it was 90 seconds, for recent Beyonce concerts, it can be as short as 50 seconds. Many times, it's first song, or first three songs. The truth is - if you are a professional, and you know what you are doing, you can accomplish your assignment needs within that period of time. Further, the artist will look their best at the beginning of the show, when they've not perspired through their wardrobe. And two last points worth making - 1) the artist knows the press will be there, and is usually performing to appeal to their visual needs, and 2) the lighting is often brighter at that time because they know the press needs decent lighting to capture the artist at their best.
None of this though, gets to the point about concert releases, but, is rather just a primer. To the left is one from a concert I did several years ago, but the language hasn't changed much on the photo release, as seen below. Sometimes, the release grants the artist all rights to the photos, sometimes it requires you to get permission before any photo is sent out, sometimes, it's any one of a number of egregious demands by the artist. One venue local to me has a strange contract - since the union is the one who lit the stage, they argue that they are entitled to 50% of your income from any image licenses, and they exclude only "local papers" from this requirement. That's some union contract.
So, what kind of a predicament are you in? Well, let's examine your situation. You are given the green light to photograph the artist at the venue. If the publicist has sent over to you or your editor, a release like the one above, take the time to review it, and then object.
Many photographers use as a (poor) excuse for accepting low low assignment fees, is the value of the resale of images following the assignment and it's associated embargo period. Signing off on these terms means you'll earn zero, and, more than likely, not be allowed to have the images on your site in the first place. This should also be explained to your assigning editor, and they should go to bat for you, telling the artist's publicist that those terms are not workable, and that, without changes, the publication won't be covering the show. This does work, more often than you think. If you think it's ok to take the low low assignment fee, and sign the deal, then you're really just accepting the assignment to be closer to the band then you'd ever otherwise be allowed to be, so you're not really there to photograph them in the first place - thus, you're in the way of real working photojournalists, so get back to your nosebleed freebie tickets you got.
When this release is presented to you right before you're about to go out to make pictures, it's quite easy to make the legal assertion that this non-negotiable contract is, in fact, a contract made under duress, or is a contract of adhesion, since it is so one-sided in favor of the party presenting it to you. So, in both circumstances, the contract can be nullified.
There are, however, two other problems when you're asked to sign something. The first is that there is no place for the artist/label to counter-sign, which is a requirement for a legally binding contract. Both parties must be signatories to the agreement. The second is, you are never provided a counter-signed copy for your files (nor is there a witness either). These two issues also can cause the contract to be nullified.
Pearl Jam is fairly well known for their contract language being one-sided. I recall covering the Tibetan Freedom Concert here in DC several years ago, when, while 60 of us were huddled beneath the stage, we were told to first sign the contract, and then, that all 60 of us would rotate through the 5x20 pit, within the first two songs, or, about 5 minutes. More than one person in that line of 60 simply inserted a fake name, and no one was checking ID's. I did not sign the contract, and was still allowed to make images.
There are also conflicting issue for you, on assignment and under contract. If you're working for the AP, Reuters, Bloomberg, Getty, and so on, your contract, somewhere in there, states that you tranfer all rights, or copyright, to your images. This means that these organizations are free and clear to do with the images whatever they want. Yet, you've signed away an encumberance to those materials, and this puts you at fault if the artist/label pursues a use by those who assigned you, with you in the middle. It's often simply easiest to say "my paper doesn't allow me to sign those." And be prepared to walk away. Further, you can call your desk editor and say "they want me to sign a contract which limits what the paper can do with the photos" (because some contracts only allow for the use of the photo for 14 days) and have the desk editor tell you to leave. You'll still get paid for the assignment this way.
In the end, these contracts are supposed to be precluding you from making posters/postcards, t-shirts, and other commercial uses of the artist's likeness. They are teeth used to take those commercially expoiting the artist to court. However, if you're going to be doing all this stealing of the artist's likeness/commercial value, you probably aren't really caring much about the document in the first place.
2 ... 2 ...
One tactic in resolving unauthorized uses of one's images is to offer the copyright infringer a "retroactive license". This solution is often employed by photographers once the infringement is discovered, before engaging an attorney, or understanding fully what the risks of doing so are.
Today's Speedlinks.
I stumbled across this graphic today, and it got me thinking about rights on the web. Here, TMZ has a standard graphic that they swap in when their rights end for a particular piece of video, and, more importantly, they say "so sorry - we don't own everything". That's a perfect example of how things should occur.
Eileen Blass of USA Today writes
There are a number of people who complain about the copyright office’s turnaround times. The return time can vary from a quick turnaround of 1-2 months, to 9 months. It’s necessary to remember that the copyright office is processing thousands of requests at any given time, but more importantly, your registration date is effective when their office receives your completed application, fee, and deposit, not when you get the final form back.
There are two ways for your registration application to find it’s way to the copyright office for registration. Soon, you’ll be able to submit electronically, but as of now, there’s only two ways.
If you are within driving distance of the Copyright Office, I highly recommend you deliver your registration by hand. There is just something fulfilling about walking in, presenting your application, and receiving a receipt for that registration. The office staff there are friendly and as helpful as they can be.
Here, in the Reciept Analysis Control Center, items which are photocopies of items (as seen to the left) to be registered are deemed to fall into the “nonsecure" category, and are transported in open cases. This doesn’t mean they are being mis-handled, but rather, the items are considered to not be as fragile as other items that come into the office. 
So, rest-assured, the Copyright Office is handling your registration with care. 
However the CO receives your application, the first thing that has to happen, is someone has to ensure that you have a full and complete application. That’s where the Incomplete Claims Handling office (ICHA) comes in. The ICHA is looking for your registration to include 3 things – 1) A completed form (with your signature); Payment for the application (either a check, money order, DA account, or credit card receipt); and 3) the required deposit of the item(s) being registered.
If the application is missing one of these items, the application gets set aside. Here, a Copyright Office staff person prepares to send a notice to the person registering their copyright that they did not provide all three of the required items are a part of the package that is presented. 1) Payment, 2), the proper registration form, and 3) the representations of the item to be copyrighted, whether printed, electronic, or recordings. If the item has not been published previously, all the items that were recieved are returned. If the item being presented for registration has been published, the Copyright Office retains the item(s), and sends along a special letter.
If the item has not been published previously, all the items that were recieved are returned, as is the case with this cover letter reading “SORRY, but you didn’t send us everything we need to register your claim to copyright, and we’re going to have to start all over". You’ll get this, and need to take care of whatever the problem was, and send it back. The CO sends detailed instructions as to how to do that.
If the item being presented for registration has been published, the Copyright Office retains the item(s) (as is the case with those filed on the shelves in the photograph below), and sends along a special letter, (as seen above and to the left). The letter essentially says the same thing, however, they are just making it easier for you (and them) by holding the already published items.
Next, an examiner reviews the contents of the registration request, to determine if the applicant's registration contains 
If the registration is granted, the examiner dates and signs the application on the front and back, and forwards it on.
This area is the Correspondence Control Unit. Here, should there be a problem with your registration, your paperwork will be placed on hold until you respond the correspondence sent to you from the copyright office. 
This area is the Data Processing Unit. The CO staff affix a bar-code to your registration, assigning it a number. This number is entered into the Library of Congress copyright office database, which is accessible both from the card catalog area of the Library, as well as via the Library's online services.
Nearing the end of the process, a Copyright Office staff person images (i.e. scans from analog printed sheet to a digital file) the completed form, once all the appropriate registration numbers have been applied to the form, and sends the item to be printed with the color logo of the Copyright Office.
The final registration form, complete with color logo, are sent to the person who has registered their work, after final inspection by a Copyright Office staff person.
Here, a Copyright Office staff person, or the general public, can look up a specific registration, and review and print an electronic version of the form, which is accessible from the card catalog area of the Copyright Office (as seen here). While you may get your form within a few months, they may not appear online for a few more months following that.
There are a number of steps involved in the process of completing a copyright registration. The Copyright Office offers an expedited service, where you can have your entire registration completed within 5 to 10 days. A person is assigned to personally shepherd your registration through the many steps of the process, traveling to the many offices with your registration in hand, seeing to it that it gets done. This is a premium service, costing several hundred dollars per registration.
There are a number of steps involved in the process of completing a copyright registration. Here, in the Materials Control Unit, librarians are asked to come in and review selected items presented for registration which the Library feels it would like to have both copies of the item being registered for the Library's collection. It is a rare case that the Library of Congress would request a photograph, but it retains the right to do so. Here, the Library has selected, and will correspond with the authors of a number of books to request copies for the Library's collection.
The story first broke on 
Also, the rumor that Evan Agostini (hit 
Well, I have it confirmed from a source inside Getty that they're leaving, but I don't have it confirmed that they're landing at the AP, but that would make a ton of sense for them, especially given the rumor that's floating around about an AP internal restructuring to throw more money at entertainment and sports (can you say, "shot across the bow of GYI?") in the near future, so as to beat down the getty inroads in those arenas of late.
Jonathan Klein, Getty Images Co-Founder and CEO said, during a 
This past weekend, PhotoShelter launched what I consider the final phase of their marketplace entry, launching the PhotoShelter Collection. Daryl Lang, over at PDN penned their first review 
Betsy Reid caught me at a good time. I had just wrapped up phase 1 of my 19 hours in Atlanta at the PhotoShelter Town Hall, and as I was running out the door to present at the ASMP meeting, she thrust in my hand the SAA white paper, titled 
I recieved my September issue of Professional Photographer magazine this weekend that contained an article by 
When you're in the pit, unless you have a pass like the one to the left or right, you'll get the boot after a very short period of time. For a Neil Diamond concert some years ago, it was 90 seconds, for recent Beyonce concerts, it can be as short as 50 seconds. Many times, it's first song, or first three songs. The truth is - if you are a professional, and you know what you are doing, you can accomplish your assignment needs within that period of time. 
Further, the artist will look their best at the beginning of the show, when they've not perspired through their wardrobe. And two last points worth making - 1) the artist knows the press will be there, and is usually performing to appeal to their visual needs, and 2) the lighting is often brighter at that time because they know the press needs decent lighting to capture the artist at their best.
None of this though, gets to the point about concert releases, but, is rather just a primer. To the left is one from a concert I did several years ago, but the language hasn't changed much on the photo release, as seen below.