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I've made images of probably over a thousand artists and musicians over the nearly two decades I've been making images. In fact, I am shooting a performance of a well-known 80's band on Monday for a client. On these assignments, I maintain my rights to these images, as well as preclude any conditions of my exercising those rights. I wrote extensively about making this type of imagery back in September ( So, You Want to Shoot Concerts? - Primer, 9/18/07), and I enjoy the continued challenges this type of work presents.
On more than one occasion, I have been presented with contracts I am supposed to sign in order to gain access to the venue, and these contracts restrict uses or transfer ownership or use to the artist I am assigned to cover. These contracts we just don't sign, not only because it's our policy, but it's the policy of the publications and clients we work for that any restrictions such as that have to have been negotiated in advance of our appearance, and more than once, a PR person came after me as I was walking away from signing, saying I didn't have to sign it, and could still cover the show. Sometimes I was on assignment for Rolling Stone, other times, lesser publications.
Now, one record company is taking all the images they have - some probably from employees images, others no doubt, from freelancers who they hired and recieved copyrights/broad re-use rights from, and is licensing theses images.
"Some of Sony’s music executives believe there is a gold mine under the company’s New York headquarters on Madison Avenue...'We’re looking to take advantage of all the assets of the company, not just the audio recordings'...". The article makes sure to note Sony's respect for the performers "To sell photos from the archive, Sony BMG gets the permission of the artists or their estates and gives them a cut of sales..." but wait? No mention of any compensation to the photographers who created the images.
If Sony owns the images, or the rights to re-sell them, then, by all means they should do so. I have no bones to pick with that. What I want to caution you to do is that, when a company - musical in nature or not - says that they need all rights, or copyright, and that they aren't going to do much with the images, that you think twice. They may not now, but they well could as those assets appreciate, and you're cut out of the loop.
Always do everything in your power to retain your rights to your images when a client comes calling. If you opt to license an extremely broad rights package (i.e. unlimited for ever) be sure to limit it to uses by that company only, or if not, to ensure that they are not exclusive rights, and be darn sure you are properly compensated to the breadth and extent of that client's rights package.
The article is definitely worth a read, and will give you insight into the many many ways your images can find their way into uses you never anticipated.
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One of the things that gets me is when someone who has three production trucks, a star trailer, a Musco lighting rig, and six assistants puts together a project, and then expects the masses to snatch their video's off the shelf. Sure, they may sell a bit, but what people - especially those starting out - really need, is a hands-on real world (for most of us) demonstration of how to make lighting work, sans the AD, DOP, or best boy.
Enter my friend and colleague David Hobby, who has produced an amazing set of DVD's that aren't all slick and glamourous, and they're not supposed to be. While Chase Jarvis has shared with the masses how he rolls (helo's, Ninja's, and all), and I've shared with you what we use and why, and how we pack it, David is giving you the best how-to around. I've had the pleasure of watching David at work (among other things, we covered Ronald Reagan's funeral together) and his skill at getting in, getting the shot, and getting out, is a sight to behold.
Thus, it's worth the $139 he's selling the DVD's for. Trust me on this one. Spend the dough and be enlightened. His this link to get yours now, and this link to see what David's saying about it, and several teaser bits to entice you if, for some crazy reason, you're on the fence!
(Comments, if any, after the Jump)
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More and more, Conde Nast is growing their universe, and family of publications and online editions. Previous Conde Nast contracts are now being used in the CondeNet contracts. Here below is the CondeNet version, but it's essentially the same as the Conde Nast versions. In fact, the CondeNet version is essentially a drive-by rewrite of the Conde Nast edition, because of concepts like "Foreign Editions", which would be printed editions as well. These designators are OL1 and OL2, and I am making the educated guess that the "OL" designator, is short for "OnLine."
Recognize that in these contracts, you're not being compensated for your work appearing in online editions when the print-side commissioned you, and conversely, you're also not being compensated for your work that appears online when the online-side commissioned you. Yet, advertisers must pay if they wish to appear online and in the print editions, seperately.
There's a great deal wrong with both versions, and we'll go in an dissect each section.
Technical note: Since I don't want to bump every other post off the first few pages of the blog, I am posting this Introduction post with today's date, and I am posting the remaining comments, and conclusions with a date several weeks back - essentially so far back that you wouldn't be drilling in, page by page and see them. This allows for the other posts from previous days to remain on the front page. At some point, I will fix that and they all will be one after another. If you are getting this on RSS feed, my apologies since I know you will end up getting them all, despite the date adjustment.
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NOTE: There has been SIGNIFICANT discourse in the comments section of this post, which makes it well worth reading - AGAIN, in light of the insights by a number of folks. -- John I got to thinking the other day, about how many times I license an image to a client exclusively. I sign a contract. It's a rigid contract. Usually it's exclusive to the industry, sometimes it's a complete exclusive. I promise I won't license the work to anyone else that would dillute the client's brand for the work they commissioned me to make.
Here's an example of an image used in a multi-million dollar ad campaign (not by me though) for Nike: When that photographer (who goes by the name of Boogie) doesn't submit this image to the Orphaned Works database, his work will quite possibly become orphaned. His background is noted here:
This Thursday is Nike Boots and Vault in Harlem will show an original photographic Exhibition by Boogie. Boogie is a Serbian immigrant with a body of work that’s graced the page of The New York Times, Time, Maxim, Playboy, and Rolling Stone. In his photography he not only captures a moment of life but nearly the whole story as well. Boogie’s well know for his incredible photos from the Bed-Stuy area of Brooklyn capturing the life of gangs of the area.
Boogie no doubt licensed to Nike the exclusive rights to use this (and others he made) for their campaign. They surely insisted that these images not be used to promote other footwear lines, if not all other uses, for the duration of the ad campaign.
A Google search for "boots gangs brooklyn" returns this image in the result. Hit that link to see it. Dragging the image to Photoshop reveals no metadata. There's no photo credit, and no corporate logo. When Nike sees this image being used for something else (this image is 490px wide, big enough for lots of web ads) they will naturally go to the photographer. Here's the way that conversation will go:
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Nike:Hey Boogie, you're in breach of our contract for licensing that image to Brand X for their ads. We had an exclusivity clause. Boogie: Hey Nike, I didn't know anything about that. They're infringing my work. Nike: You did register that work with the copyright office? Boogie: Of course! I register everything. Nike:Good. Now, let us know what's happening with this. We're very upset. Boogie: I'm on it. *** Boogie: Hi Brand X, you're using my photo that I shot for Nike in your own ad campaign. I didn't give you permission, and you stole it. Brand X Rep:No, we didn't steal it. In fact, we did a search to find the image, and it came up in our web search. We tried to determine who's it was. In fact, we went to the databases that the copyright office set up so that we could search for it. Boogie:But I didn't give you permission, and you didn't pay me either. Your using it puts me in breach of contract, and I could well lose not only them as a client, but a lot of money because their use isn't exclusive anymore. Brand X:Sorry. We're using that in about 500 web ads to promote our "stay away from the gang life" messaging. Boogie: You can't. Brand X:Actually, we can. See, we did a diligent search for your work, and couldn't find you. Unfortunately for you, you can't stop us. We only have to make a good faith offer to you. We found this photo on Flickr, which we could have used when we did the same search, and this photo we found on iStockphoto, which would have cost us about $1. Since our only obligation is to come to a good faith resolution to this matter, we'll offer you five times that, or $5. Our accounting department will expect an invoice from you, and I'm not sure if you'll need to fill out a W-9, they know these things. We'll get you paid in 30 days. Boogie: But by accepting $5 from you, that means I have accepted payment from you for your use, and I am thus violating the terms of the contract I signed with Nike. Brand X:That's not our problem. You shouldn't have signed away exclusivity to these images in the first place. Don't you know there's really almost no such thing as exclusivity any more in this new Orphan Works Era. **** Nike:Well? Boogie: I can't stop them from using the photo. They're going to pay me $5 for their use of the photo, and I don't have a choice. Nike:You're in breach of our contract. We paid you a lot of money for that image, both to create it, and for exclusivity, and now we want that our money back, plus damages for the dillution of our brand equity, and the confusion that those ads are now creating between their product and ours. Boogie: But I didn't do anything wrong. Nike:That's not our problem. You'll be hearing from our lawyers, and you better have a good one yourself, this is going to cost you. ***
How do you think the conversations will go for these: That one above? That's Boogie's too, for the same campaign.
OR this one, also cropped (and note, the cropping can be done by the user, or by others and then the images can be released without owner information or company logos) that was Microsoft's ad with a photo-illustration of penguins, poking fun at Linux:
Or this one, also from Microsoft, where (before the white-line cropping) it was an ad for their Silverlight product:
I could go on, and on, and on. Licensing exclusivity to your work could place you in a legal quagmire that will shutter your business. This applies to magazine work, newspaper work, and, of course, ad work.Related Posts:
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So, you're stuck with just one way to point your flash head, and a single bounce-card to make your light look better, and you haven't taken the baseline advice of David Hobby over at Strobist to take your flash off-axis with an off-camera flash cord?
Enter a cool new device to make you look better. Check out the video for the latest Presslite flash modifier: Makes you want to order one right now, doesn't it! At the introductory price of $34.95, you're going to have a nice new tool in your satchel. via Gizmodo
(Comments, if any, after the Jump)
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"Did I mutter, or stutter?" Said the author, arriving at the desk of the publisher. "I said I want my copyright back. "
"Well," said H.J. Henry, "You can't have it back. You transferred it to us back in 1981, when you were the naive and starstruck song writer that you were, what was it, 23?"
The author retorted "yes, and I didn't know any better then. I am fifty now, and I know that you've made millions off my work."
"Too bad," said Henry. "It's ours."
Not so fast. Our now-wisened bard has a safety net that was built into the copyright law.
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§ 203. Termination of transfers and licenses granted by the author(read it here)
Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978...Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant;...The termination shall be effected by serving an advance notice in writing...The notice shall state the effective date of the termination, which shall fall within the five-year period....A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect...Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant...Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author...
So, if you're a creative, whether it's photography, music, illustrations, text authors, or others, you can turn back the clock - in a way - and undo the transfer of your copyright.
"But I signed a work-made-for-hire agreement", you say.
Why do you think that almost all contracts that have WMFH in them, which reads:
each of the images created is a "work for hire" under the Copyright Act;
Has as a direct follow on:
"...and to the extent that the images are not deemed to be a "work for hire" under the Copyright Act by a court of competent jurisdiction, Photographer hereby assigns all right, title and interest in and to the Assignment Photos to AP, including all copyrights and any other rights in law or equity (including but not limited to other derivative works of any kind, made by any method or technology known or invented hereafter, derived from the images."
It's because of what can statuatorily be considered a WMFH. The statute that defines copyright appears in Section 101 of the Copyright law. In it are enumerated several tests to determine if your work is even eligible to be considered a work-made-for-hire. They are:
1) a work prepared by an employee within the scope of his or her employment; 2) a work specially ordered or commissioned for use as a contribution to a collective work 3) as a part of a motion picture or other audiovisual work, 4) as a translation, 5) as a supplementary work, 6) as a compilation, 7) as an instructional text, 8) as a test, 9) as answer material for a test, 10) or as an atlas,
if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an “instruc- tional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
The only category that the image might fall into would be "a work specially ordered or commissioned for use as a contribution to a collective work", but that's not really going to fly.
So, there' more to learn about the copyright laws, and how it affects you. Consider what's written here, and linked here. Then, if you even think you created work back then, talk to a good IP lawyer about how to work though getting your work back. If you have work that was created even as late at 1988, you can file a notice - up to ten years in advance - of your intent to recoup your copyright. This law is like your Oil of Olay, but while it can't clear up those brow lines and crows' feet like that salve can, it can give you back those lost pieces of yourself that you sold when you were young an innocent, and didn't know any better. 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 find I get a great deal out of my reading. I can't imagine the person who just doesn't enjoy reading. Learning from the wisdom of others holds an infinite amount of genius - at your fingertips.
Today, I was reading an article which referenced a book - The 48 Laws of Power. Law 13 notes that in order to get what you want, you have to appeal to people's self-interest, not their mercy.
Really?
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Yes, Really. Those most pre-disposed to responding to a merciful call either wear a habit, a Roman collar, or are otherwise faith-based.
When was the last time you heard a colleague say they got the assignment because they threw themselves on the mercy of the client - "oh please, hire me. I need to make rent this month!" Nope. Doesn't work that way.
Instead, you have to appeal to their self-interest. Will the work you produce bring to life the vision that the client sold to their client, and make your client look good? Will the imagery you produce sell more product, and bolster the company's bottom line? Will the work you deliver make a subject more attractive, or is it a magazine cover that causes an increase in newstand/single-copy sales?
If you're saying "oh, I'm a documentary photographer working for XYZ humanitarian causes, it's not about that." Really? Yes, it is. It's about the self-interest of the organization in utilizing your images to promote their cause to the world, or validate the efforts of those financing the trips/outreach - so that they continue to give.
If you're saying "I work crappy assignments so I can save up and take trips that are meaningful to me, and hopefully, through my work, make a difference when I can shed light on the plight of the {fill in the blank} people." If that sentence applies to you, and you felt a kinship with it. Read it again, focusing on the phrases "meaningful to me; though my work; I can shed;." That's all about you feeling better about yourself, with the resulting benefit being your work sheds that light.
The sooner you can focus your outreach to clients on what your work can do for them to make them: look better; sell more magazines; further the cause; or improve profits, the sooner you will win those assignments.
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Photographer Thomas Barwick produces a great deal of images. Getty Images has 3,479 images available online via their Digital Vision brand, and other brands - including Photographer's Choice, where he may well have paid to put the images up. Mr Barwick's work here stands as evidence of the value of actual assignment photography, rather than stock. Doing a "search within" for the phrase reveals 193 images include a laptop. Having a look at those images reveals that he probably lined up the whole class - boys, girls, brunette, african american, glasses, no glasses, and with teachers, among them.
Unfortunately, for two PC part manufacturers, and I stress "PC", they both were fishing from the wrong ocean of images. First, they were images of a Macbook, second, well, you take a look....
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They tried - probably attempted to secure exclusivity to the image they wanted, because the actual images they each used appear to be off the website, just this one. This is the only image on the Getty site. Note the position of the youth in the background. This is the link to the images on the Getty site, and the image is available on a CD, likely with others from the same shoot of the boy.
Next up, is one of the variations from that same shoot. ASUS used a different image and cropped out the ports, because they obviously were not PC ports, they're Macbook ports. Here's the ASUS official product page.
Then there's the MSI computer. Note that they've modified the ports on the side of the Macbook, and added in the MSI logo. Here's the MSI official laptop section, here.
The evidence mounts - assignment photography, commissioned for the client, and precluded by others in the same field, or altogether, is worth a great deal. If nothing else, it's worth it to avoid the embarassment.
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Most assuredly, the AP has a new contract. We first reported about it here (A New AP Contract Emerging? - 5/14/08), and more than one copy came our way from several readers. Of note in their paperwork, was the disparity between pay from bureau to bureau.
You have until June 1, or about 2 weeks, to indicate your intent to object to this or sign it. If you don't sign by June 1, you won't be getting any more AP assignments.
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Interestingly, the AP notes in their cover letter "We urge you to read the agreement closely and to seek expert guidance before signing if you desire." Yes, be sure to talk to a lawyer, and your insurance agent (regarding indemnification, if for nothing else), before signing.
I've consolidated sections 7, 8 and 9, because they have some fairly standard language in them, and my comments/suggestions in those sections are somewhat limited.
In the end, there clearly was an attempt at doing more for the photographers. Perhaps it was because the AP was competing with Reuters for freelancers, who already pays royalties. Perhaps it was because there was ambiguous, or aged language in the last contract that needed updating. Perhaps it was because they just couldn't get consistent image quality from their freelancers (setting aside competition from Reuters) with the previous low rates. Perhaps it was the AP making an effort to be more thoughtful about the realities of being a photographer. Likely, it was a combination of all of the above. Continue Reading:
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As we consider the viability of Orphan Works, let's not look at the content of the bill, but rather, a statistical history of the last decade or so to fortell it's likelihood of passage this session.
Here's a breakdown of the number of bills that were introduced into the House and Senate. Where it says "Enrolled", what that means is that, of all the bills introduced, that number is the only # that made it out of Congress to go to the President for his signature, which would make it into a law (or a revision of a current law.) The percentage of bills that make it that far are very small, and an even smaller sub-set of bills actually become law. I've included the last session under President Clinton, and all the sessions under President Bush.
Congress
House Bills
Senate Bills
# Enrolled
% Enrolled
# that became law
Law %
106th
5681
3285
719
12.7%
580
10.2%
107th
5764
3181
471
8.2%
377
6.5%
108th
5430
3036
590
10.9%
498
9.2%
109th
6432
4105
581
9.0%
482
7.5%
110th*
6040
2995
297
4.9%
230
3.8%
With this in mind, in an election year, where there are many many other priorities for Congress, from the war, to healthcare, taxes, and so forth, and with about 40 or so days left where the Senators and Representatives are in Washington, and conducting business, how likely are we to see this bill pass, or die in committee?
That remains to be seen, of course. No one has a crystal ball. The Senate concluded markup yesterday, with a few amendments, and voted it out of committee unanimously. Next stop, floor debate for both. Stay tuned to C-span for those debates. When we know when they're scheduled, we'll get the details for you.
Hopefully, this will give you an idea as to the likelihood of passage and enactment.
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Yesterday, I was on Capitol Hill. I wasn't there to discuss Orphan Works, but it sure came up. I was at a breakfast with a Senator, and in there were 22 members of the American Library Association on hand. Here's what their website shows they were coming to DC for:
National Library Legislative Day 2008
On May 13 & 14, 2008, hundreds of librarians and library supporters of all kinds are coming to Washington, DC, for an event like no other: National Library Legislative Day (NLLD). And you can come, too!
NLLD is a two-day event in which people who care about libraries participate in advocacy and issue training sessions, interact with Capitol Hill insiders, and visit Congressional member offices to ask Congress to pass legislation that supports libraries.
National Library Legislative Day is sponsored by the American Library Association, Chief Officers of State Library Agencies, the District of Columbia Library Association, and the Special Libraries Association.
On their webpage, they list links for their talking points on Copyright, which you can read and download here. Topping their list of issues is....you guessed it, Orphan Works. Here's their Congressional Visit packet.
As a member of the leadership of the ALA talked to the Senator, her 21 other constituents listened - intently, and nodded their heads at all the right times. So did the 100 or so other constituents from across the state, listen in - democracy in action, they probably thought. This was the first and thus only issue that was addressed (as it was discussed for some time), and the Senator's legislative counsel came to talk further once the Senator left. Talking points were delivered by the ALA, and the message from the libraries was clear - strike the "dark archive" clause of the House version (among other things). They were organized, they had their message ready.
(Complete post, after the Jump)
Where were the photographers? Nowhere to be found. Not that they were expected, they've never come before. There's been no organized effort to get creatives to swarm the hill, and do what's called a "Hill-climb" (so named, because people are typically walking up the slope to the Capitol from below the building). That's not to say the idea hasn't been floated. I know that others have tried to organize these, yes, including PPA and ASMP. But, apathy abounds amongst photographers when it comes to visiting DC for this purpose.
It seems that photographers can't see the strategic benefits of making this outreach. All photographers see is the $1k in expense to come to DC, and the lost day of work back home, and don't recognize that every other professional business has this type of effort underway to ensure that the legislation that has an impact on their livelihoods they have a voice in shaping.
This is necessary to be done annually, if not more frequently, so that when issues come up down the line, you have an open dialog. Executive staff at all the organizations can only do so much. It's the constituents - the actual voters - that need to come to DC and make their positions known to their elected officials. Yes, cards, letters, and e-mails can help, but whether it's:
Orphan Works (Senate version S.2913, House version H.R. 5889)
Tax deductibility of healthcare for small business (House version H.R. 2132, and Senate version S. 99)
The Artists Deduction Bill - The tax deductibility of artists works at full value rather than materials only (Senate version S. 548, House version H.R. 1524
Thus, know this, there will be many many more issues that affect you down the line.
Get engaged. Make a difference. And yes, co-ordinate with your organizations. There will be many fights ahead. You can either join in the fight for your own best interests, or suffer the consequences of ignoring the issues while the other side of the debate gets what they're pushing for. Related Posts:
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There's discussion about a new Associated Press contract floating around (UPDATED: We critique it here - The 2008 AP Contract Analysis - Introduction, 5/19/08), and we'd like to set our eyes (or sights) on it. There's rumors of a long overdue royalty for re-sales, but it's still a work-made-for-hire for the entire assignment, apparently, not just on the selected image(s). These are, just rumors, until someone sends it to us. (hint hint). Then, we'll take to reviewing it's terms, and let you know if we think it's a good better deal than the current one.
Which begs the question - this can't be that they're giving photographers a resale percentage out of the goodness of their heart, could it? Or, perhaps it's because they're not getting the level of consistent talent from their stringers? We'll wait to answer those, and other questions, and hopefully get a chance to talk to those at the AP who've put this one together, to understand their thinking behind it.
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So, why has the PPA come out in support of the House version of the Orphan Works bill? Well, at first, let me say, this post is made upon some educated assumptions and observations, as well as corporate tax records. I'll be speaking in broad brushes here, but it's still worth a read. This post is meant to try to make some sense out of something that just seems unconscionable - that is, the current state of the Orphan Works bills, and how anyone could come out and support them.
First, every trade association has a fairly well defined membership. For example, you won't find many advertising photographers affiliated with the National Press Photographer's Association. So too, you won't find many school portrait photographers members of the Advertising Photographers of America either. That said, PPA did make an effort to take over the APA, and then set their sights on the ASMP, wanting to absorb one (or both) under the PPA umbrella. When neither of those efforts worked, they created Commercial Professional Photographers International.
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The Professional Photographers of America, a not-for-profit association, has 19,000 members worldwide. The PPA's website notes that the PPA "began providing education and a sense of community to the photography industry since 1880". The organization is made up, in large part, by wedding, school portrait, family portrait, and special event photographers, and it is headed up by their CEO, David Trust.
I have come to know David Trust for some time, and he is doing a remarkable job serving his constituents. Yet, that service is not always beneficial to the wide variety of photographers and creatives outside of his purview. It's nice when his efforts benefit non-PPA stakeholders, but it's a nice fringe benefit to PPA's efforts, not always the driving force. However, the legislation PPA was engaged in working on behind closed doors affects all creatives, and that's where criticism of them lay.
Trust's congressional testimony, while technically accurate, is curious when he says "As the CEO of Professional Photographers of America, I am here today representing 33,000 professional photographers. This includes PPA and it affiliates, as well as three other organizations that have endorsed our testimony: the International Association of Professional Event Photographers, Commercial Photographers International and the Student Photographic Society."
It's curious because the " International Association of Professional Event Photographers" website's ownership records, the Commercial Photographers International - website's ownership records, and the "Student Photographic Society" - website records, all list the same address in Atlanta, the same home of PPA. In fact, the student organization's website records list PPA as the owner. However, you won't find disclosure on the CPI, IAPEP, or others that they are owned by/related to PPA. Also located there is the Evidence Photographer's International Council, these organizations which, while on the surface, appear to be separate, are in-fact, a part of a web of organizations, the Alliance for Visual Artists, or AVA, their splash page website is here. So when PPA says something like "we're speaking for all these organizations", as if they have assembled a broad array of groups, they're more accurately saying something like "we're speaking for all of the divisions of our organization" or something of that nature. Their headquarters are in Atlanta Georgia, as you can see here on the Secretary of State's website for the state, and their 2008 registration with the state can be seen here. A review of their records reveals that PPA is actually a Delaware Corporation. Below is information (as of today) from the Delaware Secretary of State's website: (click the image to see the full record from the Delaware database). Unfortunately for PPA, Delaware's records indicate they are delinquent in their taxes. Now, this may be an error, and we should allow for that, but the status date is from the beginning of March, so who knows.
With all of this in mind, how does this affect how the PPA worked to get a carve-out that protected the best interests of it's members?
First, let's look at what the PPA's members are most concerned with when it comes to copyright - the unauthorized duplication of their member's images by their clients, and their clients are most often individual people, nor corporations, ad agencies, and so forth. Again, remember, I am painting with a broad brush here. A PPA member almost would never get statutory damages from a wedding client, for example, for the infringement of their copyright when they made copies at Wal-Mart. Further, this legislation would not protect photographers, or the PPA, from pursuing claims against the Wal-Marts and one-hour photos of the world who did the infringing at the request of the customer who wanted a 5x7 from their wallet-proof photos. PPA did get a carve-out for "useful articles":
(d) Exclusion for Fixations in or on Useful Articles- The limitations on monetary and injunctive relief under this section shall not be available to an infringer for infringements resulting from fixation of a work in or on a useful article that is offered for sale or other distribution to the public.
This means keychains, t-shirts, coffee mugs, and so forth. In fact, it could well also include an 8x10 school photo duplication, wedding album, and so forth. Things that are revenue producers for PPA members. Thus, Trust did a great job for his members, but those who don't need this carve-out protection don't benefit from Trust's place at the table.
Many in the photographic community are spending a great deal of time criticizing PPA and it's leadership, including me, because it was expected that PPA would represent and defend all photographer's interests. Perhaps this expectation was misguided. Perhaps, mis-understood?
PPA specifically stated to the ad-hoc group Imagery Alliance that it would negotiate on behalf of all it's member groups, when it was written to IA members:
"We are reading everything that is being written by each of you. It is incorporated into everything we discuss in the room. There is nothing that you are concerned with that isn’t being covered."
Moreover, they requested that all the other IA groups cease their own individual advocacy efforts regarding Orphan Works because it made everyone look like they weren't unified, and further, they asked all the IA members to ask their own membership to cease writing to their representatives.
As we arrive at half-time in this real-world-real-consequences game, it seems that the idea that if you can't save everyone, then save those to whom you answer to. PPA, and Trust did just this. It was wrong for House staff to preclude other organizations from the table. Photo organizations outside of the negotiations certainly placed their trust in those at the table to negotiate for everyone, yet those not at the table either fell (or were thrown) under the bus. Trust noted who he was speaking for in his testimony, and it wasn't NPPA, APA, ASMP, GAG, Illustrators, or anyone else. It was PPA, and it's subsidiary, or sister organizations. PPA got what it needed. Those not benefiting from their efforts are right in being very angry, dismissed, or feeling cast aside. Sure, it would be nice to have the bill done properly and those at the table looking out for everyone, but that's a bit altruistic.There is an old saying, usually attributed to firefighters, doctors, and others who face a seemingly insurmountable task of trying to save everyone. "save who you can, and mourn those you could not help." 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 was doing my weekend read of the tree-killing newsprint that arrived soggy on my doorstep today, and ran across a quote that spurred this piece. It's from Wal-Mart's chief operating officer, when asked about it's competitors offering free generic drugs, he responded:
"Free is a price that is not a long-term sustainable position."
Enter a few interesting insights that came this way from the Flickr forums, and Craigslist:
We have a cool opportunity for a photographer who wants to make some great marketing contacts....This is our First Annual Golf Classic fund raiser, so we need someone who’s going to do an exceptional job, yet can give us very competitive pricing (since money for luxuries like photographers is sparing)... [we] would like to own the photos after the event......We would also like to be able to provide high quality photos...to the guests throughout the day...To let you know what you’re quoting: I have received many, many responses, some of which are offering to do it for FREE just for the contacts; yet, we are willing to pay something, looking for a premium photographer, so please at least make your quotes competitive."
Zing! They're asking for all three -good - "need someone who’s going to do an exceptional job", cheap - "many responses, some of which are offering to do it for FREE", and fast "provide high quality photos...to the guests throughout the day".
The photos to be taken are unexpected by the person/persons that you are taking the photos of. The person/persons have a celebrity status and the photos taken will be used in a magazine (both print and online). There may be high traffic with other photographers present on this day and time so we ask the following of you if you are interested in this assignment:..You must be experienced...You must have your own equipment/supplies and staff...This is great experience for you as a photographer. You will have the right to use these photos for your own personal use including your portfolio, but you will not be able to sell or transfer the photos to any other source...We are willing to pay no less than $100.00 per photo and up to $150.00 per photo...The photos must each be unique in settings, backgrounds, and pose...All photos will remain your property until we select the photos we would like to puchase...Once the photos are taken you can upload them to a common public server / hosting website, we would prefer you to upload them to photobucket.com.
There seems to be no end to these "opportunities", and no end to suckers lining up to take them.
There's something called the "Project Triangle", and it helps people think through their end-goals. Also of interest is the notion of "project scope", where the area of the triangle inside it is considered the "scope", i.e. "I can do one portrait for the good-fast-cheap" you're looking for, but if you want 10, well, the scope is too big for the same figures to apply. Author James Lewis calls this the PCTS relationship, for "Performance, Cost, Time, Scope." So, perhaps for the fees and turnaround needed, to produce one quality portrait I can do it. But if you want four portraits, the fee and time needed will have to change relative to the scope you've expanded this project to.
It can be light-hearted from time to time, when encountering a prospective client who cites price, to say to this person "I can give the images to you good, fast, or cheap - pick two." Heck, you'll likely not do the assignment anyways, but you can enjoy the conversation none-the-less. And maybe, if you send your estimates for "good and fast", they might just go with you. 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.
So, we have the bi-cameral process to thank for the duplication that occurs when the House and Senate seperately consider a bill. We have circumstances like the American Libraries Association supporting the Senate version, the ASMP and PPA supporting the House version, and all sorts of other constituents taking up various other positions for or against.
Yesterday, the Senate took up about a dozen bills during their markup (aka business meeting). At around 10:15 or so, an informal request was made of Sen. Leahy, the bills' sponsor, to "hold over" the bill until next Thursday. Why is it important that it was informal, and why was it important that Sen. Leahy noted this?
(Continued after the Jump)
When a bill is introduced to the committee after being referred from the Senate, where it got it's number, any member of the committee may request that the bill get put off to the next meeting. Generally, this allows the members more time to review and consider the bill, and to hear from constituents and other interested parties (i.e. the ALA, ASMP, PPA, and so on). Next Thursday, the only real way the bill can be held-over again is if the bills' sponsor - in this case, Sen. Leahy - makes that request. The idea is that you don't want any member trying to continue to put off a bill that should be reviewed.
What does this mean to you? Well, if you're so inclined, you have another week to reach out to committee members and make your voices heard. ASMP urges you not to do that, in part, in their recent message - "Stay cool on Orphan Works":
Please do not buy into the hysteria that you are hearing...I assure you that we are working at the table to make these versions of this bill as good as we can. We are working to influence changes that can greatly effect the final versions...There may be a time when we do want you to contact them with a specific message, but now is not the time."
APA writes that
"...APA is asking its members and all concerned individuals to take action by writing your members of Congress to voice your concerns.".
NPPA, in their piece "NPPA Cannot Support Orphan Works Legislation", wrote:
"'We cannot in good conscience support this bill,' NPPA president Tony Overman wrote...Overman urges photojournalists who oppose the bill to immediately write to their representatives.",
And PPA has finally made a statement on the subject -
"Expecting a worse fate if we wait until 2009, and recognizing that it is possible to gain some small improvements yet, PPA is generally pleased with the proposed bills’ direction. We are grateful for significant improvements made on behalf of photographers and artists. We stand ready to support what we hope will be the very best legislation possible—allowing us to prepare for the future copyright fights that are sure to come. "
In addition, the SAA (Stock Artists Alliance) makes concrete recommendations that would make OW legislation more paletteable here.
Meanwhile, on the non-photographer's side of the table, The American Library Association is urging it's members (here):
"We need you to ask members of the House and Senate to support copyright Orphan Works legislation (H.R. 5889, S. 2913) that does not include a “dark archive” provision. While we strongly support legislation resolving the orphan works problem, we recommend the Senate version of the bill over the House version. As time is running out, we ask that you contact your Senators and Representatives (with priority given to members of the Senate), to communicate the library community’s enthusiastic support for orphan works legislation that does not include a “dark archives” provision."
"Two orphan works bills were introduced to begin to bring balance back to copyright law...Having a bill out there with specific language helps a lot. Some of the visual artists are...already lining up to take their pot-shots at the bill. They’ll try to add more exceptions and carve-outs as poison pills so users will have no use for the legislation. We hope that doesn’t happen and will work hard with our film maker, library, museum, public television, and archive allies to make sure it doesn’t. We’re going to need your help, too, so sign-up on our site, join the FaceBook Rescue Orphan Works Cause, and stay tuned for an Action Alert to write your Member of Congress."
The Library Copyright Alliance (LCA) consists of five major library associations: the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. These five associations collectively represent over 139,000 libraries in the United States employing 350,000 librarians and other personnel. The associations participate in the LCA to address copyright issues that have a significant effect on the information services libraries provide to their users....We write to express our appreciation for your introduction of H.R. 5889, ...However, we wish to state in unequivocal terms our strong opposition to the notice of use filing (the so-called “dark archive”), ...As we discuss below in greater detail, the requirement of such a filing will dramatically limit the utility of the legislation for libraries and other important stakeholders.
It seems that there's going to be a great deal of writing to Senators, and Representatives on this subject. For the Senators on the Judiciary Committee, you have at-least another week to write. Then your correspondence would be best sent to those officials (House and Senate) who represent you, unless the bills go back to markup again. NPPA's piece concludes in noting, about the 2006 House version - "In 2006 that year's orphan works bill died in committee when its sponsor, Texas Republican Rep. Lamar Smith, withdrew the bill from consideration at the committee’s final mark-up session for the term. Smith told the committee that he didn't see any reasonable chance that the the Copyright Modernization Act of 2006 (HR 6052) would be signed into law during that year's session." There's not too many in-session days left in this term, so this could well be the final disposition of the 2008 bills.
If so, there's always next year, and they say - "the third times' the charm." Who'll get the brass ring next time? Related Posts:
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.
Well, it appears that the House Judiciary Committee has opted not to live webcast the markup. has, after all, decided to webcast the markup. We'll live-blog it for the next hour or so, since we're in between assignments, and wanted to get a listen to who's saying what. Since we're not set up for liveblogging with an auto-refresh feature, you'll want to hit the 'reload' button every three to four minutes to see what we've added.
(Comments, if any, after the Jump)
We're arriving there shortly..... 2:02 - We're here. The comittee is still discussing retail gas prices - the hearing before the one on Orphan Works. 2:08 - still discussing oil. Hearing wrapping up shortly. Feels like it will wrap up shortly. 2:10 - previous hearing concludes. Members switching out, should begin shortly. 2:14 - The House has just called a five minute vote. Those in charge of the webcast are indicating that they WILL be webcasting the markup. It may be as long as 30 minutes before they start. 2:21 - No members in the hearing room yet. 2:24 - Doors open. Members of the public interested in Orphan Works are filing in. 2:28 - An additional inquiry made about Live Webcast link. Technicians indicate it will be on the site "shortly." 2:29 - Link now active. You can get to it from THIS LINK as well, or go direct from the committee's website. 2:31 - 13 minutes remain in another vote that was called on the House floor. 2:36. 8 minutes remain in the floor vote. The microphones were just tested. 2:47 - the room is almost full, staff is behind the rostrum, but there are no members here yet. 2:57 - I can see the webcast. It's streaming the eagle seal that is on the wall in the back of the room. No members yet. 2:59 - another vote has been scheduled. 3:06 - one amendment is being discussed here, before things get started. 3:08 - 12 minutes remain in another House vote. No members yet, but at-least one amendment is confirmed, in the behind-the-scenes scuttlebut going on here.
WIth that in mind, you are best served being returned to your regularly scheduled programming - the live webcast. Please direct your browsers to the House Judiciary Committee's web page for the webcast.
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.
Whether you're for it, or against it, there's nothing like learning about the process that goes into lawmaking. Usually, you'd likely turn a blind eye to how things happen, but this is going to affect you, so I encourage you to take a look. The House bill that was introduced is going to be debated today in what's called a "Markup session", at 2pm Eastern time. The House Committee on the Judiciary is scheduled to amend and re-write the Orphan Works bill, and, at the end of the day, the Chairman, Howard Berman will either take an informal tally, or have a formal vote, on the bill. If he doesn't think he has the votes to move the bill forward, without a big fight, he'll likely table the bill, and it will do what's called "die in committee." In an election year, people tend to save their political might for bills that will make them look good in their home districts, and easy fights are far better to move through than those where there are opposing parties. The Chronicle of Higher Education is reporting that the American Library Association favors the Senate Bill over the House Bill, and "...is urging its membership to contact their senators and representatives in the U.S. Congress and press them to support the Senate version of a bill, S 2913, that would make it easier for people to exploit orphan works...A comparable bill in the House of Representatives, HR 5889, is flawed, the library group states, because it includes a “dark archive” provision that would require people to notify the U.S. Copyright Office of their intention to use an orphan work." Check out the ALA Action Alert by clicking here.
(Complete post, after the Jump)
Here's a short (but informative) FAQ on how a bill becomes law - click here. To check out the Schoolhouse Rock story on how a bill becomes law, for a brief 3-minutes of nostalgia, click here.
MARK UP: After public hearings have been held the committee meets to discuss, revise and vote on the bill. A committee can defeat a bill, hold up action on a bill for weeks, amend it beyond recognition, or speed its way through the legislative process. The vast majority of the more than 10,000 bill that are introduced in Congress each year die in committee for lack of support.
When we contacted the committee earlier today, as there was not a "view live webcast" button for this session of the committee, we were assured that there would be a webcast, since the markup was taking place in the full hearing room. If, for some reason, it's not there by around noon or 1pm, I encourage you to call 202-225-3951, and ask why you can't view the webcast of the markup. If no one calls, they won't bother if they weren't going to broadcast it. If many people call, when they weren't going to, they may well change their minds. Check this link for the details.
It's been said that you never want to see how sausage is made. So too, is it often times painful to see how legislation is made. So, take a gander at the proverbial "sausage factory" that takes place on Capitol Hill. It'll be an eye opening experience, whether you're for or against it.
How this bill ends up will be historical if it is reported out of committee, and historical in that it will serve as a basis for next session's version. Either way, it's history in the making. Related Posts:
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.
There is a great deal of information floating around the internet about the Orphan Works legislation that is now pending before Congress. I've received many many letters on the writings I've posted here from people of stature, or of note who wrote things from "articulate, balanced and makes some great points", to "borders on 'egregious'", to "you are simply wrong on many of the facts." While I stand by the content of the original piece, and no one has pointed to anything in my post that was inaccurate, to date, for now, I'd like to direct you to several places so you may become more informed, but you can expect to hear more from me (much more) on the subject moving forward, and down the road.
It is absolutely critical that people take away from this discussion, debate, and discourse, that reasonable people can - AND DO - disagree. Let us all move forth with this in mind.
(Continued after the Jump)
There are, to date, two photo trade organizations that are in support of the current form of the House bill - ASMP, and PPA. Missing in a position (as of now) are NPPA, APA, and EP, although NPPA wrote an article here that outlines ASMP's position, without taking a position of their own. Although, it could reasonably be argued that NPPA's citation of the ASMP position without taking a formal one of their own takes a step in the direction of support of ASMP's position, but that remains to be seen. Neither ASMP or PPA supports the Senate version - ASMP's language to make this point is "We believe that the Senate version could still benefit from some changes." Ok. So, I encourage you to read what ASMP has written. Understand, as I misunderstood - I thought that the ASMP's comparision on their site is from the 2006 version of the bill, to the current version, which I mistakenly thought would demonstrate where negotiations had occured to benefit copyright owners in the new bill. However, the comparison is between the pre-bill Copyright Office ideas that they sent in their proposal to Congress, and the current version of the bills under the microscope. ASMP's take on the bill (I haven't seen PPA's yet), and their arguments for it, should be read here:
"After months of discussions among Congressional staff and the parties with an interest in this legislation, bills were formally filed...ASMP believes that, on balance, the House version is a bill that photographers can support. We believe that the Senate version could still benefit from some changes...As with any legislation, one could always wish for more favorable terms. Realistically, though, the House bill is about as good as photographers are ever going to get. If the bill is not passed this year, it will return in the next session of Congress, when at least one of the crucial subcommittees will be under different leadership. Based on the track records of the legislators who are in line for leadership, it is almost certain that they will write legislation that is far less friendly to copyright owners than the current leadership."
"The Stock Artists Alliance has just published extensive commentary about Orphan Works as a resource for artists and other members of the visual arts community who will be affected by this legislation."
"Two orphan works bills were introduced to begin to bring balance back to copyright law—to help find owners and encourage new and creative uses of unexploited copyrighted works...the Senate bill is what I’ll call the “clean version.” It’s language is at the root of the House bill without the additional gimmes for owners. It has the characteristics of what I described above and, in PK’s opinion, would need very little tweaking, if any. One provision we would like to see is in the registry certification requirements, that these registries be free for public searches and machine readable."
Duke Law's Center for Study of the Public Domain has a good read on the perspective from the side of the potential users of orphaned works:
The costs of an inadequate system of access to orphan works are huge: needlessly disintegrating films, prohibitive costs for libraries, incomplete and spotted histories, thwarted scholarship, digital libraries put on hold, delays to publication...The difficulty of access to orphan films is a matter of crisis because these works are literally disintegrating. At a time when digital technologies allow for more sophisticated and cheaper restoration and distribution of old films, uncertainty about copyright status has impeded restoration efforts.
"my initial thoughts are that the bill’s chances of passage are slimmer than many think...it also has very little support from copyright reformists, such as Professor Lessig, who deal heavily with the orphan works issue. The bill has no real champion among the people..."
Larry Lessig, generally speaking on Orphan Works, is worth a read:
my op-ed in the NY Times...proposed one system for dealing with orphan works -- register your copyright after 50 years and pay $1; if you don't the work passes into the public domain...The Copyright Office's report is brilliant. Its proposal is less brilliant. I think this both goes too far, and not far enough...Too far: By applying the remedy to all works immediately, the work imposes an unfair burden on many existing copyright holders..."
Keep reading. I will write more, ASMP will write more, PPA will probably write something, APA will write something, and the dialog will continue. The worst thing that you could do is to just march in lock-step with someone else's position on this because so-and-so said so. listen and pay attention - this really will affect your lives for decades to come.
Remember though - we have about 47 effective working days for members of the House and Senate to take testimony, debate and discuss in committee, schedule for a floor vote, debate on the floor, in both chambers of Congress, vote, appoint conference committee members, hash out a final compromise version, re-schedule the conference report for a vote, debate it, vote, and send it to the President for his signature. Otherwise, these bills die in this session of Congress, and must be started - essentially from scratch, next January. Related Posts:
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.
2 ... 2 ...
Sometimes, Brevity has it's place. To that end:
. Law 13 notes that in order to get what you want, you have to appeal to people's self-interest, not their mercy.
