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 The orphan works dilemma needs to be solved. Just not this way. Museums and libraries find their missions frustrated by an inability to identify and contact rights holders. As a result, important works are unavailable to the public, and aging, disintegrating works cannot be preserved by duplication, which might violate the rights of unknown rights holders. Preservation of these works - for non-commercial uses - is essential to the protection of our cultural heritage. All that it would really take would be a modification of the "fair use" provision of current laws to allow for preservation, and you would immediately have language that would appeal to the vast majority of museums and libraries. Those that don't support this notion, probably have more than preservation in their plans. This past Sunday, as I normally do, I watched 60 minutes. During this remarkable piece on Justice Scalia, when asked about his scathing attacks on the remarks of his fellow Justices, he said ""I attack ideas, I don't attack people. And some very good people have some very bad ideas." My approach shall be in this vein, while writing. I know that there are some people out there who hold a different opinion than I do. Some in the leadership of two major trade associations, for instance. The fact that they have a larger pulpit than I do, and direct access to legislators doesn’t make them right, it just makes them, well, louder. Fasten your seatbelts, it's going to be a bumpy ride. (Continued after the Jump)
The bills as presented ( S.2913 and H.R. 5889) are a photographer’s worst nightmare, and do much more harm than good. If you have not read them yourself, take the time to go through them, they may well become a dictator of your future. Despite the incredible damage that these bills will reap on the profession of photography, the house bill (and not the Senate version) has been strongly endorsed -- as-is --- by the ASMP and PPA - both of which I am a member of, and an active supporter of. These two leading organizations are charged with acting in the best interests of their professional photographer members. Apparently, these endorsements appear to have been made out of fear. Fear that no matter how horrible these bills might be for photographers, future bills may be worse. Sort of like jumping off of a cliff head first onto the rocks below, out of fear that you might one day slip and fall off of that cliff. Only in this instance, every photographer in the country will go over that cliff with them.
A true, wholesale re-writing of the bills is necessary. How many ways can you cook liver and make it taste good? Instead, send this innard back to the kitchen, and get some meat on the bones of a reasonable piece of legislation that serves not only to benefit and protect creatives, but gives those entrusted with the preservation of our cultural history the tools they need to carry this out with a limited amount of liability.
To quote the injured and disenfranchised sheep in the movie Babe, the secret password that the pig needed to get the other wayward sheep to listen, he said "Baa-ram-ewe, baa-ram-ewe. To your breed, your fleece, your clan be true. Sheep be true. Baa-ram-ewe." It's unfortunate that our Babe seems to be missing from the picture we're all staring in. Sadly, it's more like A Nightmare on Elm Street, than that of the lovable Babe.
One of the major problems is that the proposed orphan works legislation - and I stress 'proposed', this ain't law, not by a longshot - applies not only to older images, but to images that you created yesterday, and to images that you will create today and tomorrow. Worse yet, the legislation does not limit usage to libraries and museums, and does not limit usage to non-commercial use. That’s right, the orphan works legislation, if passed, will allow anyone to use your images for almost any purpose, including advertising, editorial, product packaging, television, and just about anything else, without your advance permission. The only requirement is that they fail to find you before they start using your image. The only limitation on use, apparently the result of lobbying by organizations representing retail photographers (wedding, portrait, sports, school), is a prohibition on the use of images on “useful articles” (keychains, coffee mugs, etc.) which are increasingly a cornerstone of the retail business. Interestingly there is no prohibition on the use of orphan works on packaging for useful articles.
Don’t be fooled by the fact that the legislation indicates a date of 2013 for the first use of orphan works. A careful reading reveals that the legislation will allow use of your images immediately upon the certification of the first two registries to be certified by the copyright office. Such registries could be launched and certified immediately upon passage of the bill this year, allowing anyone to use your images even before you have an opportunity to register them. Under these bills, you have no right to stop anyone from using your images once that usage begins, and you lose the right to sue for copyright infringement, even if you have registered your copyright with the US copyright office. Some classes of users are not required to pay you any fee if and when you discover the unauthorized usage. Others are required to pay you a reasonable fee, but only if you discover the usage, and even then, the user will have the upper hand in determining what the user believes is “reasonable.” As you might imagine, most users will point to the millions of microstock images available for $1.50 each, allowing unlimited usage.
There is an Armada of pirates on the horizon, and it's full steam ahead, with the world as their oyster, having disembarked from the US. Instead of Revere's midnight ride into history, it's Tony Sleep, shouting from his UK perch - "the American's are coming...", and the entire world needs to wake up from their slumber and heed this call.
Orphan works legislation allows anyone in the US to use any image by any photographer or stock agency (regardless of nationality) for any purpose (with the exception of “useful articles", aka "tchotchkes ") without permission of the rights holder, simply by searching for and failing to locate the rights holder.
Instead of calling these users, let's call them what they are - infringers. They remain infringing upon the rights of the image creator, but they are like the bulletproof monk, except they have the more timely title judgement-proof infringer, or JPI for short.
Once the JPI commences use, there is no means by which to stop that JPI from continuing to use the image, even in competition with the photographer or rights holder. It's like giving Fat Albert an all access pass to the buffet, with everything from book covers to advertising, billboards and electronic use, even if the photograph was made yesterday.
White supremacists could find a copy of a one of my photographs on the web, from which my name and contact has been stripped by a third party, and do their diligent search, maybe even post a message in the local paper or on Craigslist in the "missed connections" column, and then when no one responds, use it on the cover of a "white power" poster, adorned with swastikas, and I'd have less recourse than a virgin after-the-fact, to reclaim my innocence and purity.
In fact, my fellow photographers could claim my images as their own, modifying them or photo compositing them into their own works.
The work of every photographer around the world would be fair game under the orphan works laws. Further, we all must register with registries certified by US Copyright office, or risk the unencumbered use of their images throughout the US. Why don't we just get a number tattooed on our forearms, so when we die, there's a web page that the coroner can go to, with a link to the registry, so all our copyright registrations have our date of death auto-updated? Oh, wait, maybe the idea of a tattooed number on one's arm might be equated with something else that's heinous. Let's re-think where an indication of our registered intentions should be best displayed. Over the comode perhaps?
When a rights holder discovers that an image has been infringed by a JPI, s/he must approach the JPI, prove ownership of the image, and request reasonable compensation.
The determination of what is “reasonable” is left to the JPI, not the rights holder, as the rights holder loses all rights to sue for
copyright infringement even if the rights holder has registered her work with the US copyright office far in advance of the usage.
If offers to me for re-use are any indication (photo credit, $50, $100 are recent laughable offers), reasonableness is in the eye of the JPI, who doesn't want to pay anyway! In the age of microstock, when determining reasonable compensation for any usage, users will be able to point to millions of images available for $1.50 (and by the time the law is activated, these same images will be available for $0.50, and later, $.05).
These market rates for unlimited usage of images will also directly bear on the determination of reasonable compensation. Further, the rights holder is entitled to the profits that the user made from the use of the image, but only if the rights-holder can prove those profits, which is 180-degrees from the current copyright protections, which require that an infringer must prove what of their profits wasn't as a result of the infringement! Since there is no “discovery” provision in the legislation that would require the JPI to provide the rights holder with any information (accounting, correspondence, copies of all usages), it will be virtually impossible for any rights holder to determine the extent of the usage and the calculate the profits made by the user.
While several trade organizations (PPA, and ASMP among them) have taken to the table valiant ideas, they have been premised on the notion that we need to save whatever morsels of our rights we can, rather than standing firm until truly fair compromises have been made.
Why not stipulate, for example, that anything that appears to have been created prior to, say, 1950, be eligible for orphan works protection? Or perhaps, it's a rolling year, as in "any image which appears to have been made 30 years prior to the date of it's intended use, is eligible for orphan works protection." Or at least, to require far more stringent searches and limited usages for any image that reasonably appears to have been created within the last 30 years. This surely would provide substantial and sufficient protections to cultural centers looking to preserve degrading imagery. Why, instead of publicly coming out in support of the proposed legislation, didn't these organizations, in exchange for the current slate of concessions, simply remain neutral in their positions?
One example that I expect came at the request of the Professional Photographers of America (PPA) is the notion of "useful articles", which I refer to as tchotchkes above. Yes, yes, I know that these are substantial revenue generators for their members, but the endorsement (as opposed to a lack of objection) by two major trade organizations sends the wrong message to Congress. It's suggesting that this legislation will benefit photographers .
Instead, this legislation falls into, what the all-you-can-eat buffet patron Comic Book Man on the Simpsons, says - "worst show ever." Certainly, this legislation is among the worst - ever - for photographers. It may even be the death blow for the many of the independent photographers, already faced with the most difficult marketplace in the history of the medium.
In a standalone position, the APA submitted comments based upon the last legislative sessions' bill, that is well worth a read. It was submitted at the request of the Senate Committee on the Judiciary, on page 33 of the record of the 4/6/2006 hearing.
I need to restate again - the idea of a limited orphan works bill is a good one. Just not this one. Really, not this one. The problem is in the legislation, which makes every work, new and old, a likely orphan, as soon as it is distributed, even if the rights holder includes a full slate of copyright information in the image metadata.
The notion of a small claims court for copyright infringement, as tacked onto the legislation, is a concept first proposed by PPA in previous incarnations of the negotiations, which would allowing wedding photographers to make a case in small claims courts against their customers who make prints of wedding and portrait photos without the photographer's permission. However, this proposal will be a disaster if implemented.
Though it is proposed as an option, your odds are better than betting on both red and black that it will be the defacto method by which copyright claims are required to be resolved. Any half-wit knows that the discovery process and expert testimony are among the most critical elements of pursuing a copyright infringement claim. Since the small claims systems have no discovery process to speak of (concept: "get 'em in, get it decided, get 'em out), other than an unsupervised exchange of paperwork (think honor system for thieves), and there is literally no way to enforce any level of compliance or demands for disclosure.
The stock agency giants will also rush to profit from this legislation. We will see clearing houses (think late night law firms
with the "if you've got a phone, you've got a lawyer" tag line) that will go through the motions of “reasonable searches” on millions of images and will offer up subscriptions to orphan works collections. An automated process for divesting tens of thousands of images at a time will ensue, and will also flood the registries with superfluous entries and stipulations of diligent searches performed, when none was honestly and with care and true consideration, actually done. Since large stock agencies (Getty, Jupiter, Corbis, and so on) will not be affected in any significant way by this legislation, they have an
upside here as well, and further they are easy to find.
Next up - "Orphan Works Collections", that not only are sold for profit, but moreover, offer limitations on any liabilities for these uses! Just as now we are charged a "usage fee" for public domain images (think: white house hand-outs of presidential events) which are still based upon usage, when we should be charged a flat "research fee" for these images, there will be an “orphan works search fee” rather than a "license fee". Right now, there is no provision in the legislation that would prevent such profiteering. We will see all types of websites , offerings and commercialization. It's even happening now.
 Joe Keeley, previously the lead House Copyright Committee staff
member , has recently registered www.orphanworks.net (check that here) . Obviously, a little lightbulb went off in his head, when he noted when he received the APA letter, where, on March 15, 2006, APA cautions:“ Within two weeks of the issuance of the Copyright Office Report on Orphan Works, nearly all of the domain names associated with orphan works were registered by commercial interests, in preparation for the profit-taking that will result if the legislation is passed without significant revision. Among them: orphanart.com, artorphanage.com, orphanedphotos.com, findorphanworks.com, and dozens of others.” "...nearly all..." must have been an attractive concept. What was missed, was www.orphanworks.net, which Mr. Keeley, at some point after receiving that letter, registered. One must presume the best, and that it was done following his departure from his official duties, but, well, if nothing else, it appears to me to be bad form, at best.
Further, any online database allowing browsing of images that are potential orphans will quickly become one-stop-shopping for anyone seeking to use images for free. Knowing that these images are already deemed likely to be orphans, users will use these databases like a candy store. Any database at which users are required to list their intent to make use of a potential orphan is entirely useless to rights holders. Small business owners do not have the resources to monitor even one such list on a regular basis, let along monitoring dozens of lists, each with potentially hundreds of thousands of orphan works listings, to which new listings are added daily by the thousands.
Let's take a look at this from a legislative standpoint:
It's not a good sign when a bill is submitted with only 3 co-sponsors, for a total of two from each side of the aisle. Two don't count as substantive supporters, since they are the Chair and the ranking member of the committee. The second Democrat is John Conyers, and the second Republican is Lamar Smith. Want to know more about sponsors and co-sponsors? Click here.
If you really want to dig deep (which we love to do), check out this report from Legislative Studies Quarterly about the predictive outcome of a bill's passage based upon the number of sponsors a bill receives. While written about state legislatures, it's insightful, since little other formal research has been done. Those who have worked on Capitol Hill in a members' office (as I did, for a spell) know that the more the sponsors - especially upon introduction - the higher the likelihood of final passage. In other words, the report validates what staffers (and former staffers) know empirically.
To the suggestion that this is the best bill we can hope for, let's take a peek inside the proverbial locker room before the game. The current lineup of players on the committee suggests that there are others on the committee that are going to be more agressive. This is the suggestion we are lead to believe, and, were this mid-session, I might be inclined to consider this. But it's not. It's the end of a session, and there will be a new session come January. It is expected that Jerold Nadler, a 7th term member of Congress, already on the Judiciary Committee, is in line to head up this sub-commitee next session. Nadler's district includes much of the creatives' communities in New York City, from SoHo, to Chelsea, as well as TriBeCa. You can bet his constituency won't take too well to a bad OW bill.
With this bill now presented, much of the committee's work is done, however, your work has just begun. If momentum builds up, from constituents opposed to this bill, it will never come to a vote. And here's how it works: WHENEVER a constituent writes, it gets chalked up as a YEA or a NAY for the bill. The more NAY's the bill gets, the less likely the member is to vote for it, and don't under estimate the importance of a NAY. Further, if you're a constituent, that weighs even more heavily for the member.
Don't know who your member is? visit here to find your own member just by using your zip code. About four clicks of the mouse, and you are corresponding with the person that your community (or state) elects.
That said, writing to the committee members, suggesting that you will work, as a citizen, vigorously to oppose this legislation, with your own representative, and encourage your colleagues to do the same, will let them know that there are not smooth seas ahead.
The following e-mail links are the most reliable information we can find for the committee. If the "send an e-mail" link doesn't work, click the "website" link, to visit their site directly.
When using these links, feel free to change the subject line, but make sure you include the bill # in it. Also include your contact information in the e-mail. Write something cogent, and be concise. Don't ramble.
If, after reading this, you still want to support it, then by all means, engage yourself in the democratic process, and click the "SUPPORT" link below, if not, click the "OPPOSITION" link below.
House Committee on the Judiciary
Senate Judiciary Committee
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 Boy, I'd wish I'd written that line, but it belongs to the Editorial Photographers - UK, who's author, Tony Sleep wrote it ( Why the Orphan Works Act is Uncle Sam's thieves' charter, 4/27/08). I'll say that I've been very involved in the dialog about Orphan Works, and one of my biggest concerns has been, and remains, how this change in copyright protection will be consistent with the Berne Convention, and consistent with the word "shall" in the phrase that is in that little document called The Constitution, signed by the Founding Fathers, who decreed: "The Congress shall have Power To...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" I seriously believe that the Orphan Works Act, in whatever final form it takes, will have a brief lifespan, dying when someone is egregiously infringed and has the resources to take the constitutionality of the law to the Supreme Court, where, because I can't square it with the above sentence, it shall be struck down. Hopefully, during it's duration, all the decaying films and shoeboxes of interesting pictures will have been preserved that museums and others are squawking about as a part of their primary raison d'etre for pursuing this. The meretricious Shaun Bentley Orphan Works Act of 2008, is, by all accounts, better than it's predecessors. The ASMP ( Update on 2008 Orphan Works legislation, 4/24/08), APA, PPA, Imagery Alliance, Copyright Alliance, and others have done much to be applauded for, with the improvement of the language that appears in the Act's current form. Yet, in some ways, it's like counseling someone who kicks their dog every day as they pass by it, on a chain in the back yard, and applauding their improvement because it's now just a kick every other day. (Continued after the Jump)
NPPA reported on it (New Orphan Works Bills Introduced In Senate, House, 4/25/08), without taking a position, Sen. Leahy's office put forth a release on it (Judiciary Leaders Introduce Bipartisan, Bicameral Orphan Works Legislation, 4/24/08).
One problem as noted by Public Knowledge (Orphan Works 2008: House and Senate Bills Introduced, 4/24/08) , is the Notice of Use Archive (NUA), in which "...only a description of the work (not a copy of the work) is required, every photographer that thinks they’ve taken a photo that fits a description is going to be pestering the user and claiming ownership." Right. How many photographers have taken the photo described as:
Horizontal photograph of two male hands, in business suits, shaking hands, flatly lit, with a black background.
or
US Capitol - Vertical photograph of US Capitol Building dome, on a bright and sunny day with a blue sky, and spring flora and fauna in the foreground.
or
Horizontal photograph of the Golden Gate Bridge, from Marin, at sunset, with the San Francisco skyline in the background.
Right now, the pre-registration process has a place for just a description, but that description is then followed up by an actual registration of images.
Podcasts are decrying this, with sentiments like "If these laws change, you'll have to pay to protect anything you make....even though you make the work yourself, it's not considered commercially yours, unless you pay money to actually own the rights" (YouTube video podcast here), another YouTube video that's very organic is here, but Meredith Patterson clears up some misconceptions about Orphan Works (pre-bill drop) on her blog - Six Misconceptions About Orphaned Works, 4/12/08. So as to not compound confusion, Cynthia Turner, and the good folks over at the Illustrator's Partnership penned a response to Patterson's piece, correcting some of those misconceptions - "Orphan Works – No Myth", and it too is worth the read.
All the links on this posting are critical reading - they affect YOUR rights, and your rights in the future. Don't care? Then don't complain when people steal your work in the future, and you have little to no recourse.
If you're a real legislative junkie, the Senate Bill can be read here, and the House version can be read here, and the Copyright Office has a page with reports and previous bill language links here. Note that each bill must be identical to the other, in it's final form. Not even a comma's placement can be different. Comparing the two, you can see that there's a lot of work to do.
How much time do they have? The House schedule shows 17 days in May, 19 days in June, 25 days combined in July and August, and 19 days in September, before they adjourn for the year. To make that worse, subtract 8 of those days in May because they are either Mondays or Fridays (when Members are in their home state districts, and thus not in DC) so now thereare 9 "working days" in May, subtract 8 days in June so there are now 11 "working days" in June, and subtract 10 days from the July/August 25 making that actually 15 "working days", and lastly, subtract 7 from the September period of 19 days so they are now at 12 days. This is a low of 47 days where the members are actually in DC and engaged, and are all assembled for a vote, and a total of 80 legislative days if you include those Mondays and Fridays where staff are in, and presumably working on this. The Senate's not much better. Add in to that mix the grandstanding that will be taking place for members up for re-election, and other things like the war, and, oh yes, the Presidential election! The focus this year, for the 47 or so days that our elected officials are actually all in Washington, means that these bills won't be getting much attention.
In the end, I concur with the perspicacious outlook that Ars Technica has, this bill won't pass this session (New Orphaned Works Act would limit copyright liability, 4/25/08). There will be lots to discuss, but it's the precursor to the next session, when, with a new President, and new session of Congress, whatever watered down (and thus, worse for creatives) version of the bill that meets it's demise now, will be the starting lineup for 2009. Get ready, it's going to be a bumpy ride.
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 I used to take offense and get all worked into a lather when I heard stories about reporters being given cameras. I'd rant and rave, and now, I just laugh. A tossed-back head type of a laugh, usually coupled with a hearty "good luck". How else to respond to such an absolutely absurd suggestion? A second place to this is the eye-roll that takes place when someone asks, of a non-Holga/lensbabies-type image, "what camera did you use". Ok, when it looks like a Holga or Lens Babies, I get that you *might* want to know if it was done that way, or in Photoshop. But now I just roll my eyes when I hear this question. Next up is my "welcome to the real world" sentiment when I hear that an editor thinks they can shoot an assignment. (Continued after the Jump)
Now, don't get me wrong - I know many editors who were amazing photographers, and either their knees, wrists, back, or a combination thereof got a bit worn down, and they opted for the steely grip of a two-buttoned mouse over the elbow-to-the-gut wrist-inverted pose that is required when you're shooting with a 300mm 2.8 sans stick(s). Or, they decided that the cool breeze from central a/c coupled with the office latte machine and reasonable (or atleast predictable) hours was more conducive to the family life they promised their spouse when they said their "I do's". This is, usually, when the spouse starts asking when the 'for better' part is coming along, as the insane hours had the marital gearshift stuck in the 'or worse' direction.
It's those editors who are new to town and somehow believe Google Maps when it says you can get from point A to cross-town point B in 25 minutes. Or, it's the editor who doesn't know that there's a problem with 1100 West Capitol Street or 111 First Street. (hint: in DC, #1 doesn't exist, and there are four of #2). Lastly, it's the editor who complains that you didn't get the shot, and brushes aside excuses like: 1) You didn't tell me that the concert promoter expected me to sign a form which gave all rights to the photos I would shoot for you to the band, for free; 2) I got arrested trying to make this photo and have been 'indisposed' for the last four hours; or 3) the subject decided once I got there that they didn't want to be photographed, so they left to get ice cream with their girlfriend.
It's like this: You can't know war until you've fought in it; you can't know parenting until you've been a parent; you can't understand death or divorce unless it's smacked you upside the head on some idle Wednesday; and you can't know what goes into - and can go wrong with - and assignment, unless you've been on the street trying to make something out of - literally, nothing.
Enter Reuters. Reuters' blog has an interesting entry, which is worth a read: Stepping into photographer’s shoes…, (4/25/08). In it, one of Reuters intrepid editors, who no doubt has gotten upset with the failings of an assigned photographer in the past, gets put out on an assignment. Not because she wants to, but because she has to, as a part of her "performance target" for the year (as, apparently they all are now required to do). Her name is Shahida. I'll apologize now to Shahida for my criticism of her experience, because it comes about 1/10th close to what we go through for our editors, but serves as a lesson worth reading.
First things first - Shahida gets to pick a day when she's working for her first foray out as a photographer. In other words, she left the desk, and is being paid her salary, while making photos. This isn't reality. There's nothing on the line, like - 'miss the shot, you don't get paid for the day', or 'miss the shot, get yelled at because the other wires beat you', or 'miss the shot and the A1 front page story now has missing art', kind of pressure.
Next up - Shahida was overconfident in her first outing, and she was looking for static images of old and new buildings. This isn't iStockphoto you're producing image for, it's Reuters - the highly regarded wire service! Anyone I know would get laughed off the phone if they, well, phoned in a performance like that.
Then, Shahida encountered the human condition, as it is prone to wanting it's privacy. "Go get me people in suits, and be sure to get their names..." now seems a bit harder than before? I guess that's the point of this exercise.
In her post-mortem of failed assignment #1, Shahida tells herself to plan ahead, be mindful of the weight of your gear, and that an assignment (even as simple as this one) requires time, patience, and a fresh mind.
Plan ahead - yes, good idea. Did you just think you could go out and make images that were worthy of a being wire image?
Mindful of the weight of the gear? I presume this will give you some compassion and cause you to not ask "why didn't you chase after that guy to get a shot" - because I was carrying 100 lbs of gear, and they outran me. Lesson learned.
Time/patience/fresh mind? Right, so don't go giving a photographer four assignments and expect the same talent and attention on the first as you do on the fourth, unless they have atleast 10 years under their belt. Also, don't go repeatedly calling the photographer asking "have you got it yet". We know the pressure of the assignment - it's weighing on us. Your phone calls aren't helping. In fact, they're a distraction.
Outing #2 for Shahida wasn't much better. She thought she could outrun a train, even having "dressed comfortably", and carrying "a lightweight backpack." She wasn't discreet (or, perhaps aggressive) enough and got the boot from railway station. Her lesson - "a little bit of research beforehand doesn't hurt." Uhhh, that's a given. Again - lesson learned. Maybe next time Shahida will help her assignee out, and do some research and include it in the e-mail to the photographer? What, no? Heck, can't I just dream a bit for all the future photographers to be assigned?
Outing #3 is sold as the point where "thing really started to come together". Uh, no. Not from what's shown on the blog anyway. But, she did learn that what the photographer sees on the LCD screen is small, and can't always yield information we need - like sharpness. In her case, sharpness may not have been an issue, but what about the photographers you're working with? And, you were able to get back to that office to view your files, not on a laptop in the bright sun trying to make out color and tone. Count your blessings on that one. There was, of course, the distraction and fear of barking therapy dogs. Please remember this when the barking is from police/military/guards with guns, or protestors weilding sticks. Your fear of "stepping on a dog's tail" does not equate to our fear of having thugs stealing your gear and giving you a beat-down, or worrying as you are being detained if you swapped the CF card with the images you want for a blank image card that is going to get confiscated.
I laughed the other day - out-loud, when I learned that the fabled photo editor at the Washington Post, who, it has been reported, left his perch atop the Photo Department at the Washington Post, to "get back to shooting", had an encounter with the reality his team worked in for years. As the story goes, on one of his first days out (if not the first), for a weather feature, Elbert was decked out in his new "photo clothes", and headed out to make some art. Upon returning, perspiration making it's way through his attire, his colleagues wanted to see what he had made. Elbert demured, saying he didn't think he had anything worthy to share. Come on - for a weather feature? So, back out he went, for a second attempt. Coming back again, exhausted and his now nice outfit in need of a heavy wash cycle, something akin to "it was a hard assignment" passed his lips. More than one of his former team mates (and I use that term, which suggests a high level of morale in the department), whom he had chewed out for missing a worthy picture in the past, chuckled under their breath. Welcome to the real world Mr. Elbert. Atleast Michel DuCille had come from the street to take over for you, and put in some solid time covering Katrina, so I know he knows what reality looks like! Next time you're in a press scrum doing the back walk, remember - knees bent, no cameras behind your back to fall on and break (and jam into your kidneys), and work with your colleagues so everyone gets the shot - get in, get the photo, and get out before you take a tumble. Maybe this story, as recounted, isn't exactly as it transpired (but I believe it to be), but it's worthy to make the point about an editor's newfound perspective. Now only if this clarity had come along a decade or so earlier.
Interestingly, Shahida (and other Reuters desk positions) was the beneficiary of US/EU outsourcing, and Elbert has downsizing/buyouts to thank for his current state of affairs - the idea being something like "I want to end my time here as a photographer", and so, he has - he's among those partaking in the latest buyout, according to sources. Two peas-in-a-pod, on opposite sides of the globe, one getting their sea legs, one sun-setting themselves before the ax falls of someone else's doing.
Don't get me wrong, I'm not complaining about what we do. I just enjoy anyone's newfound respect for the profession. Don't give a photographer a pencil and expect cogent questions during a press conference, and then have it turned into a solid lede, or even a quality product post-jump . Don't give a reporter a camera and expect images that will keep your readers buying the paper. And don't give your photographers both still and video cameras, and expect both to come back equally well shot.
Hopefully, the Reuters "performance target" will make more understanding editors out of their staff, with a newfound respect for those filing the images. One can only hope.
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 Commentary and analysis begins: As of {Month}, {Day}, 2008, {publication} owned by CondéNet Inc. (“Company”) and (“Freelancer”) agree as follows: | Version OL1 | Version OL2 |
| 1. Scope of Agreement/Services: This agreement will govern each assignment performed by Freelancer for any current or future service owned or operated by Company and all photographs, illustrations, or other visual works or copyrightable material taken at or created as a result of each assignment or otherwise submitted to Company for a service owned or operated by Company or its affiliates (the “Works”). For purposes of this agreement, an “assignment” is a project agreed upon by Company and Freelancer. Company and Freelancer will separately, on a case-by-case basis, arrange the specifics of each assignment or submission, including fee, due date, and subject matter. The fee for any assignment or Work encompasses all the rights granted herein. Reimbursements for expenseswill be negotiated on a per-assignment basis, are subject to approval in writing in advance by Company, and receipts and proper documentation must be provided within one month of expenditure. The results of each assignment must be satisfactory in form and substance to Company, and must be submitted by the agreed due date. Freelancer must provide a selection of photographs, as determined by Company, from each assignment, from which Company may choose what it wishes to publish, and upon request of Company, Freelancer will provide additional (or all) photographs. Freelancer will retain an original or other high-quality copy of all material submitted to Company. | 1. Scope of Agreement/Services: This agreement will govern each assignment performed by Freelancer for any current or future service owned or operated by Company and all photographs, illustrations, or other visual works or copyrightable material taken at or created as a result of each assignment or otherwise submitted to Company for a service owned or operated by Company or its affiliates (the “Works”). For purposes of this agreement, an “assignment” is a project agreed upon by Company and Freelancer. Company and Freelancer will separately, on a case-by-case basis, arrange the specifics of each assignment or submission, including fee, due date, and subject matter. The fee for any assignment or Work encompasses all the rights granted herein. Reimbursements for expenses will be negotiated on a per-assignment basis, are subject to approval in writing in advance by Company, and receipts and proper documentation must be provided within one month of expenditure. The results of each assignment must be satisfactory in form and substance to Company, and must be submitted by the agreed due date. Freelancer must provide a selection of photographs, as determined by Company, from each assignment, from which Company may choose what it wishes to publish, and upon request of Company, Freelancer will provide additional (or all) photographs. Freelancer will retain an original or other high-quality copy of all material submitted to Company. |
COMMENTS:
These two terms are identical. It is of interest to note that the fees in either contract are not defined. Further, this contract would also cover any type of video (often “behind the scenes” video) that some photographers are producing now, and that appear, as below on the CN family of websites, like here, on the Vanity Fair site.
It is also worth noting that they refer to expenses as reimbursable. In other words, this seems to imply that you are not entitled to any markup. So, if a lighting kit rental costs you $250, you need to account for your 30 minutes arranging the kit and coordinating it’s pickup with the assistant (or courier company), as well as those costs to pick up and return the lighting, including the assistant’s mileage and charges for their time.
Further, they are requiring receipts. There is no tax code regulation that requires Conde Nast to have your receipts. Their receipt is/would be your invoice listing each item. Beware – your supplier base is, and should remain, proprietary. If you know the best assistant/pilot/gear house in off-beat locations, that is of value to you. Sure, it’s one thing to share it with a colleague heading there. However, for Conde Nast to have the receipts gives them supplier names, and that information, properly leveraged, could diminish the value you bring to them in the future. <
Also, there is some confusion here. It says you’ll keep “an original or other high-quality copy of all material submitted to Company”, yet, is that material the receipts, images, or both? If it’s images, and you’re shooting film (i.e. Polaroid transfer, 120mm in a Holga, etc) you are then required, as noted here in the contract, to keep copies, which means scanning. Be certain that your invoice includes the cost to scan everything!
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Commentary and analysis continues: | Version OL1 | Version OL2 | 2. Exclusive Rights:
Freelancer owns the copyright in the Works and hereby grants to Company the exclusive first worldwide right to reproduce, publish, transmit, disseminate, display, perform, or otherwise use each Work, which exclusivity lasts until ninety (90) days after the initial publication or public dissemination of the Work by Company. Freelancer will not publish, disseminate or use or allow
anyone else to publish, disseminate or use any of the Works for any purpose until the exclusivity period has expired. Company’s exclusivity extends to each and every Work taken at the shoot or as a result of the assignment until the exclusivity period has expired. | 2. Grant of Rights
Work-Made-For-Hire: It is agreed that the Works shall be works-made-for-hire within the meaning of the U.S. Copyright Act, and Company shall own all rights, including copyright, therein throughout the world. In the event any of the Works are determined not to be works-made-for-hire for any reason, Freelancer hereby transfers and assigns the entire copyright (for the full term of copyright), throughout the world, in any and all media and forms of publication, reproduction, transmission,
distribution, performance, adaptation, enhancement and display now in existence or hereafter developed, in each Work to Company. |
COMMENTS:
Here’s where the major difference between the two contracts is. OL2 is a work-made-for-hire contract. OL1 is not, but has many many restrictions on what you can do with the work. What is problematic though, is how they define the exclusivity. For example, OL1 says “Company’s exclusivity extends to each and every Work taken at the shoot…until the exclusivity period has expired.” The problem here is that, suppose I were to take a portrait of Person X, and I made 40 images of Person X in pose 1, and 40 images of Person X in pose 2 in a second location. They are only going to publish one, maybe 2 or 3, throughout the story. This leaves about 78 other images that fall under the “each and every Work” classification, that are still exclusive to Conde Nast, You may not read it this way, and an editor may tell you that’s not what they mean, but Conde Nast’s legal department surely has been clear – “each and every Work.”
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Commentary and analysis continues: | Version OL1 | Version OL2 | 3. Other Rights:
Freelancer also grants Company, for the full term of copyright, the non-exclusive right to reproduce, publish, transmit, disseminate, display, perform, or otherwise use any of the Works, the right to make and authorize the making of reprints or stand-alone copies of the article or feature including the Works for any purpose, the right to authorize the use of the Works as set dressing or otherwise in movies, television shows, and other productions, and in addition, the right to use the Works and/or Freelancer’s name and likeness in publishing, promoting, advertising and publicizing Company and services in which the Works appear, and in merchandising. | Freelancer’s Name/Likeness: Company may use Freelancer’s name and likeness in publishing, promoting, advertising and publicizing the publications and services in which the Works appear, and in merchandising. |
COMMENTS:
Conde Nast is grabbing reprint rights here. This is a very valuable package of rights. Further, they can re-publish your work as well. In both cases, you are not entitled to a piece of the pie when the monies for that are collected.
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Commentary and analysis continues: | Version OL1 | Version OL2 | | 4. Syndication Rights: Freelancer further grants Company the non-exclusive, unrestricted, royalty-free right, for the full term of copyright, to syndicate and/or license the Work to one or more third parties throughout the world in all languages, to retain third parties to do so and to retain all proceeds therefrom. The Rights, Warranty, and Miscellaneous provisions of this agreement shall apply to all such syndicated or licensed use. This provision does not affect Freelancer’s non-exclusive, unrestricted right to syndicate the Works and retain all proceeds therefrom. | {does not apply.} |
COMMENTS:
You are granting to Conde Nast the right to take every image you’ve shot for them and set up their own photo agency/syndication service, and you get no additional revenue, as granted by “Freelancer further grants Company the non-exclusive, unrestricted, royalty-free right, for the full term of copyright”. Of course, they try to be nice by saying it does not affect your non-exclusive right to syndicate them yourself. However, in point-of-fact it does, as evidenced by some photo agencies requiring exclusivity clauses in order to represent your work.
Back in 2002 the Illustrators Partnership of America, as the IPA notes in this article, entered into negotatiations, in part, related to "Condé Nast representatives have written to both the IPA and to the Guild, as well as to various individual members stating that the warnings on our websites are inconsistent with Condé Nast's current intentions not to license work by contemporary contributors. We have relayed Condé Nast's statements to our members. But we must remind everyone that the language of the Condé Nast contract wholly justifies our warnings. For Condé Nast's recent assurances to become binding, the language of the contract itself must be changed." The language remains essentially the same since that time.
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Commentary and analysis continues:
| Version OL1 | Version OL2 | | 5. Miscellaneous Rights: Company has the sole discretion to decide whether, when, and how to publish any Work and the right to crop, retouch and otherwise modify the Works. Upon Company’s request, Freelancer will be available for and will cooperate with Company’s fact checking and will supply Freelancer’s research material relating to the Works. In the event Company returns any original material to Freelancer, Freelancer shall promptly loan them to Company upon Company’s request. | Miscellaneous Rights: Company has the sole discretion to decide whether, when, and how to publish any Work and the right to crop, retouch and otherwise modify the Works. Upon Company’s request, Freelancer will be available for and will cooperate with Company’s fact-checking and will supply Freelancer’s research material relating to the Works. In the event Company returns any original material to Freelancer, Freelancer shall promptly loan them to Company upon Company’s request. |
COMMENTS:
These two terms are identical, save for the fact that they have different positions within the contract. Here, when referencing that Conde Nast can “: Company has the sole discretion to decide whether, when, and how … retouch and otherwise modify”, your images could very well be leaving the realm of “editorial”, and into a “photo illustration”, where people are added/removed/merged, and faces of celebrities are retouched. What would happen if you licensed that work after the 90 day embargo, unretouched? Tucked into OL1 Term 16/OL2 Term 9, below, is the language “and will indemnify Company against any claims of any nature arising from said agent or representative’s execution of this agreement.” So, when you publish unretouched photos of a celebrity, and someone does a comparison of the Vanity Fair versions compared to the Time Magazine version, and the celebrity sues, you are the one on the hook, not Vanity Fair. This also indemnifies them in Term 9d below “If Freelancer makes any subsequent or other use of any Work, Freelancer is solely responsible for obtaining any necessary releases from any models, persons, or owners of property pictured in the Work. Freelancer will hold Company harmless from and against any claims by any person arising from any subsequent or other use.” In addition, it says “Freelancer shall promptly loan…” but doesn’t say you can’t charge a research fee, loan fee, or other such reasonable fee for your work involved in getting these images to them.
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Commentary and Analysis continues:
| Version OL1 | Version OL2 | | 6. Exercise of Rights: Company may exercise the rights granted herein in any media now in existence or hereafter developed, throughout the world. In doing so, Company may arrange with third parties for distribution, transmittal, publication, promotion or other dissemination of its service(s) containing the Work(s) or portions thereof, or material from Company or its service(s), in a collection, section, manner, or area identified as being associated with or containing material from Company, including with any database operator or other service (e.g., Nexis), and may provide links and other enhancements to the Work(s). | {Does not apply} |
COMMENTS:
Again, no mention of additional monies due you for these rights. Recognize that every time a Conde Nast publication has it’s content re-purposed, they are generating additional revenue from them. Yet they seem to not care that you are not a part of that equation.
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Commentary and Analysis continues: | Version OL1 | Version OL2 | | 7. Foreign Rights: Company may allow any of Company’s or its affiliates’ owned or licensed services outside of the United States, and/or foreign language services in the United States (in each case “foreign service”) to acquire publication and dissemination rights to each Work in that service’s country and/or language of publication. The foreign service may acquire the rights by giving notice thereof within one (1) month of the initial publication or public dissemination of the Work by Company and by agreeing to pay a fee to Freelancer upon publication that is twenty percent (20%) of the fee paid to Freelancer for the Work. The other Rights (not including exclusivity), Warranty and Miscellaneous provisions of this agreement shall apply to such use by the foreign service. | {Does not Apply} |
COMMENTS:
Here’s where that breakdown of photo fees and expenses gets you. If you’re paid $400 as your fee, a Euro-edition of the article, for example, need only pat you $80USD to use the work, and that well could be a full page photo.
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Commentary and Analysis continues: | Version OL1 | Version OL2 | | 8. Reservation of Rights: All rights not granted herein are retained by Freelancer. | {Does not apply} |
COMMENTS:
This is, to a degree, stating the obvious. However, it’s appearance is much more likely to be an attempt to make it look like they’re not taking everything, and are somehow compassionate to the creators of the works.
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