Monday, December 28, 2009

Privacy Rights, Cellphone Searches, and Photographers

What right of privacy do you have to your cell phone? Well, for starters, what about your rights when a search warrant is presented? Most search warrants read something like this:
You are therefore commanded to search:
The Premises and building known and designated as and commonly called:
1234 Main Street, Anytown USA, more specifically described as a brown single-story detached home.
including all rooms, attics, and other parts therein, garages, storage rooms, and outbuildings used in connection with the premises or located thereon and in any receptacle or safe therein;
What's missing from this?

Why, it's items on your person - including things like your cell phone, camera and/or camera bag, briefcase, or backpack, provided of course, that they are on your person.

Thus, a separate warrant, or, more than likely, a warrant that includes what is called a "container search" would need to be included as a part of the warrant. There is a "physical possession test" and a "relationship test" that are applied to ascertain the constitutionality of a container search (more here in PDF form).

Ok, so how is this news, and how does it apply to photographers?
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It's news because, at least in Ohio, it has just been reported that cell phones cannot be searched without a warrant, according to the states' highest court. The court stated that cell phones are "capable of storing a wealth of digitized information" and therefore they should be considered private. The New York Times writes on it here, and here is the PDF of the ruling.

How about photographers? Well, it is often reported that photographers have had their cameras seized, and either files have been reviewed and then deleted (not only easily provable, but also easily recoverable) and this ruling could be - with little effort - carried over to the privacy of digital cameras, whether or not there is a first amendment issue in play. Carlos Miller writes on his blog Photography Is Not A Crime (here) about the legality of seizing your camera, with an interesting perspective. Miller has been in an ongoing legal battle with the Miami police since 2007 over his rights on this subject. Miller does a great job of summarizing the past year today in his post - 2009: The Photography is Not a Crime year in review. There there was this video where the LA police threaten to submit a photographer's name to the FBI "hit list."

It is, however, important to note that our first amendment rights and our fourth amendment rights, while guaranteed under the constitution, may not necessarily be top-of-mind for those hoping to usurp those rights, even while wearing a badge. Now would be a good time for you, dear reader, to take a few minutes, and not only get the name and both regular and emergency contact numbers for a good first amendment-savvy attorney, but also to put those numbers into your cell phone - the one that's now decreed (at least in Ohio) as private, but also give to someone you might have to call should someone in law enforcement attempt to trample on your rights.

Here's a reminder - that badge they are wearing is what requires them to protect you while protecting others - and that includes protecting you and ALL your rights, including those guaranteed under the 1st and 4th amendments. If you are a staff photographer, be sure you have not just your photo desks' phone number programmed in, but that of your organizations' legal team too. Doing so could well limit your time in a holding cell.

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Thursday, December 24, 2009

Twas The Night Before Christmas

Twas the night before Christmas, and all through the house,
not a client was stirring, not even to grouse.

The CDs were burned and shipped with consideration,
in hopes that the photos would earn remuneration.

The staff they were nestled all snug in their homes,
with visions of days off, reading their tomes.
and I wearing both the kerchief and chaps,
had just settled down to write about business mishaps.

When out in the studio there arose such a clatter,
I sprung from my desk to see what was the matter.
Up the stairs that I took, two at a time,
I arrived in the studio with a curious find.

When what to my wondering eyes should appear,
but a colleague with keys and access so clear.
A studio strewn with clothes near and far,
and this colleague, why, they were shooting boudoir!

Boudoir in my studio, it just can't be,
I thought in my head as I looked on intently.
This studio is for food, and head-shots and such,
but I guess with that figure I don't mind very much.

The subject was beautiful, in their own very way,
and the scene quite professional, I certainly must say.
Nothing tawdry or lewd, just art being made,
the capturing of beauty before age makes it fade.

I thought of the scenes of products that sell,
that had been previously shot there, and shot quite well.
Yet nothing compares to the body, the form,
and the expression of a face, looking forlorn.

The focus was true, the light was just right,
the drive of my colleague was set to for a full night.
I knew that the work was not to diminish,
so I left my studio so the colleague could finish.

I considered my art, my creative fruitions,
yet my skills were lacking, I didn't know those positions.
I knew that some art was best left to others,
even if I had my own chaps, and my own druthers.

Late in the night, almost the morning,
I knew they were working on nothing boring.
As the sun rose, on the next day,
I decided there was little else I could say.

Yet an urge called for me, to say something,
as they packed up their props and their holiday bunting.
and all that there was that I think there to say,
I said to the colleague - "have a great day!"

You see, it's the truth, photography is art,
your present this Christmas day should be to give it a start.
Whether food or people, weddings or news,
Not following your passion could give you the blues.

So make tomorrow your day to begin,
not following your passion I think is a sin.
Yet focus on its' business all throughout,
and your spouse will have no reason to pout.

For you see it remains a reality you shouldn't flounce,
that your bills must be paid, or your checks they will bounce.
The business of art, it can be quite fickle,
but be careful or you'll get caught in a pickle.

(Continued after the Jump)

- With apologies to Clement Clarke Moore (the original author of Twas the Night Before Christmas), and to you, dear reader, for the light number of postings this month. Merry Christmas and Happy Holidays.

- John

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Sunday, December 13, 2009

Earned Success

Recently I was breaking bread with a friend and colleague, who is a highly respected and well known photographer. For the sake of this story, we'll call this photographer Asa. During the conversation, I turned to this photographers' assistant, and asked "how did you come to be assistanting Asa?" What was shared was not, per se, genius, nor, really, a secret. However, it was a validation of the common truths along the path to success, and it is worth sharing.

The story goes, that after the assistant had heard the photographer give a lecture, through happenstance, they ran into each other several months later. Pleasantries were exchanged, and an offer of "if you ever need some help, don't hesitate to call me" was made. Now, it's important to note that this assistant was still in college. A short time later, for a short-term assignment, Asa called the assistant, and the assistant was available. At this point, you might be of the mindset to suggest "oh, well, that assistant just got lucky." And to that I say "perhaps. However, Luck is what happens when preparation meets opportunity." Thus, here is where our erstwhile assistant proved their mettle.
(Continued after the Jump)

Photographers and assistants have an interesting symbiotic relationship. I can recount one instance where my full time assistant, a young women of a mid-sized build, suggested that she was unable to heft several large equipment cases into the production vehicle, and so, rather than push her or expect more, I just helped. No harm no foul, I surmised. However, when a project came that called for a second assistant, after several months with my full time assistant on board, we send the second assistant down to the production vehicle. We arrived there, and I said "wheres all the gear?" This slightly built (also female) assistant said "oh, it's in the car", and from that day forward, the first assistant was loading all the gear herself, and without any quarter for complaint from me. The point is, photographers often get accustomed to just accepting the stated limitations of an assistant, even when the limitations outlined just don't seem to ring quite true. As in my case, Asa had a similar situation. Asa's full time assistant was used to a somewhat tortoise-like travel case handling routine, and as the normal assistant would be moseying along with cases, Asa would have to wait around, and otherwise be delayed by the assistant. However, for Asa, the first sign that the new assistant was a keeper was that when Asa arrived at the curbside, the new assistant had figured out how to load all the gear onto two huge luggage carts and have them ready for Asa without delay. From that point forward, Assistant "Tortoise" had been one-upped by Assistant "Hare", and the fabled ending to that tale is not the same as this one. Here, the Hare proved that when called upon, Hare could deliver.

As we finished out meal, I found it refreshing to find a fine example of success coming to someone who really demonstrated a superior work ethic. To this day, That assistant is traveling all over the world with Asa, and their commitment to excellence shows through each time an assignment comes in and is swiftly completed.

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Monday, December 7, 2009

FocalPop - Expect Pop Pop Fizzle Out

Who grades these grad school fantasies, Krusty the Klown? FocalPop - the latest incarnation of the idiocy of crowd-sourcing advertising photography assignments has apparently ozzed from the hot Summer nights of UT Austin. Here's the pitch:
1. Seekers fill out a request describing the exact photo they need, how much they'll pay, and how soon they need it.
What's missing: Oh, right - buyers don't get to dictate price.
(Continued after the Jump)
2. FocalPop notifies the community of Photographers of the new Photo Request.
What's missing: Oh, right - qualifications to actually do it. "The proof is in the pudding" doesn't work too well here.
3. Photographers review Request details, shoot photos that meet the Request needs, and upload submissions for review.
What's missing: the best results come from a dialog with the client, and who's covering the expenses for the shoot? Oh, wait, maybe that's the photographer.
4. After the deadline, the Seeker reviews all of the photos submitted, selects their favorite, and pays FocalPop the amount they specified in the Request.
What's missing: What if they don't like any? Unlike other plans, FocalPop will select the winning photographer and pay them from escrowed funds supposedly set aside by the client (a.k.a. "Seeker"). According to their T&C - "The Seeker further agrees that it would be unfair if no photographer received the award(s) offered by the Seeker due to the Seeker abandoning the request. Therefore, if the Seeker does not select the winning design/photographer(s) within seven days after their request ends, the Seeker agrees that FocalPop may select the winning photographer(s) and pay the award(s) on behalf of the Seeker. Additionally, you agree that when you are a Seeker in a request, you will complete wrap-up in your request within thirty (30) days after your request ends. You authorize us to release escrowed funds to pay the winning photographer(s) if more than thirty (30) days have passed since your request ended." Interesting, so let me get this straight - the client has to blindly agree to accept whatever images are produced by an unknown quantity/quality of photographers? Oh no, wait - their Seeker FAQ doesn't quite agree with the T&C above "We take a deposit of 30% at the time a Request is created in order to protect the photographers. We want to ensure no one requests photos that they don’t actually intend to purchase. However, if your Request receives less than 15 submissions and you are not happy with the results, we will gladly refund the 30% deposit – no questions asked."
5. FocalPop provides the high resolution file to the Seeker and pays the winning Photographer a commission on the sale.
What's missing: Hmmm, let's see - FocalPop would be the one recieving a "commission" on the sale, as the conduit. According to their T&C here, they'll take 30% to serve as this conduit. Or, wait - is this the same 30% that the photographer gets if a winner isn't chosen? Hmm, then maybe FocalPop takes 70%?
So far, all 10 of their requests (here) have come from one of the company founders, several of which were used to illustrate the website itself.

So, who are these dreamers? Brian Romanko (LinkedIn: Profile) touts in his biographical sketch about his past - "...Brian worked for numerous startups — both successful and utter failures..." Brian - be glad you got a good grade on this, because the real world has already proven this crowd-sourcing school project of yours to be an utter failure - see Pixish - Stupid Is, As Stupid Does (2/12/08) and Pixish - Finally Down The Tubes (2/7/09), and even the lunacy of David "that model was interesting, but didn't pan out" Norris (7/12/07, OnRequest - Realizing the Obvious). Heck, even Brian's friend Jonathan Cho (LinkedIn: Profile) trashes the idea here " the spirit of hating on crowdsourcing, here’s a similar site that my friend’s launching, except instead of design its photography: a fucking awesome designer, i’m a bit ashamed to admit that i’ve submitted a few designs to crowdspring. an hour or two in illustrator = quick buck, right? what’s horrible is that my designs have never been picked. i’ve always lost to much crappier designs. and that is why i hate crowdspring." With friends like that...oh, wait - his friend is actually smart and giving him good advice.

Co-Founder Becky Parker (LinkedIn: Profile) seems to be simultaneously tasked to "Oversee the strategic planning for Sony Electronics' online social marketing programs" at marketing firm Powered, Inc, as well as trying to "...find her passion for offering true value to customers online and in developing meaningful customer relationships" for FocalPop. Becky - try working to find value for the creative talent that will produce this work, not pennies on the dollars of what the projects should really be worth. Hint: A project you facilitate for $100 that earns you $30 for FocalPop really could earn you $300 if it was more appropriately priced at $1,000. I guess, though, that winning the Moot Corp contest taught you to over-value moot money? Tip: moot money is as valuable as monopoly money in the real world.

The third in the trio of wunderkinds is Shawn Carr (LinkedIn:Profile), wooed in by the void left by Ronnie Lebert (LinkedIn: Profile), Eddie Howard (LinkedIn: Profile), who have both left for smarter options at Dell and Datran media respectively. Carr hasn't left the chilly weather of New England where he is an IT manager for a small company, and consulting for Croop-LaFrance. Hint - don't quit your day job, Pixish and OnRequest, as detailed above, are your harbingers of things to come, and that equity you might have - not going to be worth much, just make sure you get paid before you have to post that "out of business" splash page.

FocalPop is the quintessential example of the re-hashed ideas coming from MBAs time and time again. This idea hasn't worked before, and it won't work this time.

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Washington Spaces - Empty Space Earns Smiley Face

Former media company turned educational company Washington Post Co (NYSE:WPO) has axed one more of its under-performing assets, under the guise of blaming the economy. Washington Spaces will cease publication with the November/December issue. In an e-mail sent to clients by CEO and President of Greater Washington Publishing Company Becky Loker (LinkedIn: Profile), she refers to this as a “very difficult and painful decision.”

Suffer on, I say. Loker's publication was built upon a faulty premise that you could con photographers to give free use of photographs and cover expenses on assignments. Here is the laughable, and ill-written agreement that they attempted to foist upon contributors:
(Continued after the Jump)


I grant a copyright to Washington Spaces magazine to publish the said photos one time at no cost in an issue of the magazine and for use on the Web site in the context of the article. I also grant permission to Washington Spaces magazine to use the photos forever in the context of the article, on the Web site, and to promote the magazine.

I have permission from the homeowners, if applicable, and/or business owners to supply the said photos to Washington Spaces for publication.
Setting aside the illusory phrase "I grant a copyright to" (hint - you grant a right, or, you transfer copyright) it is far and away poor business to demand of your vendors "no cost" products or services. It is not sustainable, period.

Another contract they put out read as follows:

This Agreement is intended to cover any and all Works (hereinafter “the Work”) you create for use by Greater Washington Publishing, Inc. (hereinafter “GWPI”), or otherwise license for use by GWPI.

You and GWPI agree to the following terms:

1. In exchange for payment to you for each Work accepted by GWPI, you agree to give GWPI exclusive, first-time print publication rights to the Work (if applicable), as well as the subsequent non-exclusive right to reproduce, distribute, adapt or display the Work for any purpose and in any manner or medium worldwide during the copyright term of the Work, without additional compensation. The non-exclusive rights granted may be exercised in any form or media in which the Work may be reproduced, published, distributed or displayed (including but not limited to compilations, microfilm, library databases, videotext, computer databases, CD-ROM and the Internet). Provided, however, this non-exclusive license limits GWPI’s use, transfer or sublicense of the Work to inclusion in works that are marketed, distributed and/or grouped under or in association with GWPI’s name or brand.

2. Other than the rights granted to GWPI set forth above, you own the rights to and are free to sell or license the Work elsewhere following publication in Washington Spaces magazine. Any income from such sale or licensing belongs to you. Third-parties contacting GWPI for permission to use individual Works will continue to be referred to you for purposes of such sale or licensing.

3. You represent and warrant that the Work is your creation and that GWPI’s reproduction and distribution of the Work will not violate any copyright or other right of any third party.
The magazine, which published every other month, had a circulation of 80,000. It has not been stated (yet) how many layoffs will result from this, however, it's almost sure to happen, given this closing.

Here's a tip for future publications - you will attract the top creative talent (for both photographic and writing aspects) which will produce compelling content, and you will sustain that talent over time, if you pay them fees and cover expenses that are fair and reasonable. As a result, advertisers will want to be adjacent to other compelling images as they promote their own products. When planning your budget proposals for your new ventures, don't think you know what a photographer should be paid - contact a number of them whose work you respect (as seen in reputable publications) and ask them what they would charge for a variety of assignments. On more than one occasion, I have been called upon for just such a query.

Upon hearing this, more than one photographer whom you (Washington Spaces) asked to provide "no cost" photography wrote to me: "this made my day"; "more room on the news stands for the good publications"; and other even more colorful missives.

Good riddance, Washington Spaces.

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One-Stop Shopping for Photo Buyers - Too Complex and Fractured

One of the questions that continues to surface like so much floatsam and jetsam on the sea of discourse about photography licensing, is why there isn't one centralized location to license images. Dan Heller recently tried to answer the question in his blog post here - Why there's no one-stop shop for photo buyers - (11/29/09), and he compares the business of photography to that of electronics, suggesting that the reason that there is a "viable, stable market for electronics (unlike photos) is because there are mechanisms in place that help establish price points, distributors, manufacturers, and so on. In short, it's a mature industry." There are two problems with that position - #1, photography has been in the marketplace for far and away longer than electronics even existed, and further - is is extremely easy to search for electronics because they have model numbers. It is exceptionally easy to compare two products with the same model numbers, and to enumerate even the most nuanced of differences between models when there is even one or two characters that change (example: Nikon D3 and Nikon D3x, or Canon 5D as compared to the Canon 5D II). Even though, if you don't know exactly what you are looking for, there is a very limited universe of variations on each type of electronics. However, if you try to search for a "cell phone cover" you are hosed. 75 millions results. Iphone cover: 110,000,000 results.

The problem is the nature of the medium. Not the maturity of the industry.

In photography, search is most often not for a particular object or product, but for a concept, which may be expressed by the state of a particular object.
(Continued after the Jump)

For example, If you want to find a dog photo, not a particular photo but a photo that expresses a certain concept, there is no possible answer (other than wading) but reliance on keywords. And when you do that search, if the results have not been edited for quality, you are going to waste time wading through though thousands of images to find a gem. Supplementary keywords added by viewers might improve keywording accuracy, however, it will be decades - at least - before a computer can parse the difference between a person smiling and showing their teeth - and that same person with a angry teeth-barring scowl, not to mention the micro-facial-expressions that differentiate happiness as compared to attraction.

Visual search can help with color, orientation, pattern, but not concept.

Image recognition can help with finding an exact image if you already have one, or an image with similarly structured feature points if you already have the image that you are looking for.

Object recognition can help with finding photographs of clearly delineated, unambiguously rendered objects, such as a bicycle, but will have a tough time distinguishing between a terrier and a cat. This will improve with time, but it takes a pair of eyes and a brain to distinguish subtleties, and this will not change. A combination of object recognition and contextual search will yield better results than either type of search alone.

But if you are conducting a search at a search engine like google, the results are images IN USE, not images FOR SALE. Big difference.

The problem is, there is almost always, as those attempting to solve licensing problems, a failure to recognize the fundamental differences between different types of products, and different types of intellectual property.

Searching for music is easier than searching for photos because there are relatively *few songs*. Searching for music -- a "mature" industry -- is a big headache, if you don't know the artist or the name of the song, but are just looking for a song that expresses a certain concept. However, lyrics can be of some assistance, beats per minute, genre, and so on. Yet, in the end, to be able to actually experience - by listening - to a song, will provide you with the final answer. So too, by seeing concepts in images, you really do have to either see it, or have had someone see it and keyword in conceptual keywords.

Heller, among others, suggest that even the big fish (Getty/Corbis/etc) can't/won't even attempt to solve these problems, because their results are absent images they don't represent. Yet, as noted above, it's more than that - these results would not include images that are for sale, yet not in a stock agency or indexed by Google.

Further, the licensing of images is a challenge too. If I told you that someone needed an aerial photograph of a football stadium, but they only wanted 200 copies for a printed brochure, how would you price that? Well, it's one thing if the brochure is for a local realtor to show how protected a home's traffic access is to the seasonal traffic jams on nearby roads, and completely another if that brochure will be what sells the NFL owners on having the next Super Bowl at that stadium.

Photography (and illustrations, for that matter) will continue to be far too complex and fractured an industry for there to be any one place to centralize the licensing of it

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Friday, December 4, 2009

Monkey Business & Photography

Q: Why is a monkey smarter than 98% of all microstock photographers?

A: Because the monkey can feed herself by taking photos.

Sadly, this isn't a joke, it's the truth. Paul Melcher, over on his "Thoughts of a Bohemian" blog (here), shares the news that a 33 year old Orangutan earns a raisin for every photo taken.

Let's see - why don't we do the math: reports from some photographers suggest a ratio low ratio of images "snapped" to images "accepted", and it's not unreasonable to believe that 100 or more images are taken at a shoot. So, you shoot, say, a gross of 500 images and get, say, 10 accepted. Your monkey competitor has earned 500 raisins. That's about equivalent to 9 15 oz boxes of Sun-Maid raisins. A 15 oz box of Sun-Maid raisins sells for $2.50 at So, after 500 photos, the monkey has earned $37.50 in raisins. In order for a microstocker to have $37.50 to spend on food (i.e. a personal item), they have to have earned $75 in taxable income because between federal, state, and self-employment/social-security taxes on their microstock income, they are paying 50% taxes on their profits, and we all know that microstockers argue that it doesn't cost them a thing to make photos, so whatever they earn is profit, right?
(Continued after the Jump)

How long does it take for those 10 accepted photos to make $75? Quite awhile, when the average per-sale figure is about $2, according to Jim Pickerell, in this article.

The numbers could be even worse. According to the iStock Contributors site here, the TOP contributor, Yuri Arcurs, in 4 years only has 5,006 files uploaded, which equates to 104 images a month, on average, that are accepted. the site lists Arcurs as having 136 new files in the last 30 days. In his profile here, it is suggested he shoots "hundreds of 39mp files per day...", so assuming he shoots 5 days a week, and let's say 200 images a day, that's 1,000 a week, 4,000 a month, and he's only getting 136 accepted - and he's the TOP guy? That's a 3.5% shoot-to-acceptance ratio.

So yes, this generalization of math and microstock income provides the rough estimation that even a monkey is smarter than almost all microstock photographers.

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Thursday, December 3, 2009

Time Warner - Letting Freelancers Screw Themselves

If you're a freelancer, and Time Warner owes you for assignments, for a fee you can get it paid in 25 days after it's approved. Want it in 10 days? The fee quadruples. Again, this is an acceleration of "approved payments", not the acceleration of payment. Reports of 60 to 90 day payment cycles abound,(despite claims that you are getting paid in 30 days) so at what point are they approved in the system? I highly doubt that you could actually get paid 10 days after sending your invoice, for example. The concept of "2/10 net 30", while common in the business world, assumes that you're actually getting paid in 30 days in the first place.

We all can understand the concept that if you have $100 owed to you, it is better for you to be paid that $100 immediately, than to have to wait a year for it. If you get that $100, compounded interest could mean that after a year in your bank account earning interest, you'd have $105 (or more). However, if you wait to be paid the year, your debtor has earned that same $105. This concept is called Time/Value of money, and you can read more about it here. While you may not be able to leverage a $5,000 early payment of a bill for an assignment (including expenses) into more than a few dollars, imagine JP Morgan (Time Warner's payment vendor) being able to leverage 100 of those $5,000 bills by delaying payments a month or two? That's called "the float." Banks used to delay making the funds available for upwards of 7 days even though they got the money within 24 hours. A long time ago, it might have taken 7 days to get a check drafted on a New York bank validated by a California bank. However, long after those days had passed, the delays were still in place, giving banks a 5-6 day "float" on your money, so that tens of millions of dollars could earn interest for just a few days, and you would be none-the-wiser. Laws were enacted to force banks to change.

Here's the "Happy Holidays" memo sent to Time Warner's freelancers:
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Happy Holidays!

If you are receiving this email, you are the JPMorgan Xign administrator and you, or someone from your organization, is submitting electronic invoices or receiving electronic payments via the JPMorgan Xign solution on behalf of Time Inc. I apologize for the blind distribution but I wanted to protect everyone's privacy while sharing this important information.

As year end approaches I wanted to ensure that you were aware of the PayMeNow functionality, which allows you to _accelerate payment for invoices that have already been approved_ by TIME. This is an excellent tool to help with your cash management at year end! This does not change your payment term on future invoices, it simply accelerates the payment on the ones you specifically request.

* If you are receiving this email, it means you have approved invoices that are pending payment and can be accelerated for payment this week or any day before year end. *

This is a purely optional service that is available to you by following these easy steps:

1) Log into your JPMorgan Xign account at

2) Look for the green $$ and click the link.

3) This will display all available invoices

4) Either select the fastest date to be paid, or select "Lower rates" to schedule payment later in the month, but still before your year end.

Thanks very much and please let me know if you have additional questions related to cash acceleration. For all other inquires, please contact our Support Team at 800 485 XXXX.


Linda Piazza

Vice President, Relationship Management
It seems that a survey done by the JPMorgan Business Settlement Network, as reported by Financial Services Technology - Early payment discounts – a lucrative cash management tool - suggests that "faster payment" represents "one of the great earnings opportunities in corporate finance." The article encourages "You need to consider the amount of discount ‘leverage’ you have with a particular supplier." Then (and here's where the lowly freelancer comes in):
"There is another large pool of suppliers...the non-strategic suppliers. These suppliers are typically small to mid-size suppliers...they are also the hungriest for cash and much more likely to accept discounts versus strategically sourced suppliers. Understanding your supplier’s need for cash is a key to success."
So, the next time you think that that Time Warner employee is your friend, or cares about you, remember, they are fronting for a payment system that wants you to be the "hungriest for cash and much more likely to accept discounts."

Gawker reports - Time Inc. Will Pay You Promptly, If You Pay Them for the Service - "Given how desperate freelancers are to be PAID NOW, largely because companies like Time Inc. never pay them on time, this is a pretty genius idea."

If you'd like to know more about the author of that missive, Linda Piazza's LinkedIn profile is here, and you can send her an email via LinkedIn, if you are so inclined.

Photography is business. Keeping your money longer and then giving you discounts, (as Gawker accurately describes it "charging its freelancers for the privilege of being paid for their work in a timely fashion") is Time Warner's business. So, you freelancers who fall into Time Warner's "non-strategic" category of vendors, remember how much they care when they won't pay you in full on time, despite your mortgage and credit card bills all being due in 30 day payment cycles, and you can't pay your bills.

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FLYPMedia - The Future of the Magazine Experience

For some time now, FLYPMedia has been creating some really really cool interactivity, building it not only into existing content with publications you know, but also their own original content. So, it was with great anticipation that when I saw the new Sports Illustrated Tablet Demo, I had expectations that a FLYPMedia-like interaction was in the offing. Nope, not so fast. Something similar is in play for the advertisers, and the SI Swimsuit Edition, but Gizmodo sums this tablet idea up pretty well "...How is this different from a web page? Other than costing ten times as much to produce, that is...Never mind, I will tell you how: It’s a lot worse. It’s just pasting an old medium into a new one, painting the resulting clusterfuck with two layers of thick varnish."

Why Time Inc, who is slashing and burning staff these days, and seems to have forgotten that content is king, isn't embracing FLYP as they should is a big mystery.
(Continued after the Jump)

Here's the SI experience on the tablet:

Here, however is the FLYPMedia experience of a Sports Illustrated story. First - it's in your browser (full screen), so no tablet needed. Second, it is FAR AND AWAY more interactive than the tablet. Browse around, and check them out. They've got some really amazing - and engaging - stories. The FLYP technology isn't, as Gizmodo put takes the tablet to task, a "... resulting clusterfuck with two layers of thick varnish." FLYP gets it right.

I am not alone in this. TechCrunch cautiously reviews the tablet here, saying " is not exactly a glorified CD-ROM, but adding more links would breathe some life into it", which would create a bigger problem because the tablet then becomes a Time Inc computer, which is a really really bad hardware business for them to get into. Instead, as TechCrunch cites the leader of the project to bring this to fruition, Josh Quittner, (who is also an editor at Time and the TechCrunch writers' former boss, hence maybe the tepid criticisms?), suggesting Quittner "thinks of it as an app. If people are willing to pay for apps on the iPhone, why not deliver magazines as apps also?" An app would be a better idea, and keep Time Inc out of the hardware business, letting the expected iTablet and whatever Microsoft tablet comes along, handle the hardware. TechCrunch ends their piece suggesting, of the name "Manhatten Project", that "Hail Mary might be a better name."

Further, Rob Haggart over at A Photo Editor (Time Inc’s “Manhattan Project” Is A Tablet Magazine, 12/2/09) thinks the tablet is a bit limiting too, however he points out the repeated highlighting of original/exclusive SI photography as a selling point of the tablet.

The concensus is, this Time Inc Tablet idea is like putting lipstick on a pig - it's still a pig. Go get yourself some real Kobe Beef, in the form of FLYPMedia - it's a far more satisfying experience, and doesn't cost you. As FLYP's tagline says, they're "more than a magazine", and you can see their own video about how FLYP is re-imagining the magazine experience here.

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.

Monday, November 30, 2009

Illyria with Others, Bidding for PDN's Parent Company

In an era where the printing presses are becoming dinosaurs of a (soon to be) bygone era, the value of niche media with a target audience, delivered in an online platform is becoming the new standard for content, and a valuable one at that. Almost since their arrival online, Photo District News, one of the several valuable properties owned by Nielsen Business Media, has delivered a partial set of their valuable content for free, with a greater set of content behind a firewall, accessible only to those with paid subscriptions to the print edition. This "nibble for free, pay for the whole thing" approach is one that is attractive to the prospective owners of Nielsen. The principal lead for Illyria is Lachlan Murdoch, son of Rupert Murdoch, who is not only known for continuing the same nibble-then-pay model at the Wall Street Journal, but is also looking to make a strong deal with Microsoft and their Bing search engine for new business models online.

Nielsen has a strong portfolio of publications, including The Hollywood Reporter, Billboard, and others. Of concern though, is this quote, by Nielsen, as cited by the Financial Times, “For assets that don’t hit the mark, we’re always looking to work them out of the portfolio.” PDN is not insulated from drop in print subscribers or drops in advertising revenues. However, it would be foolish for the Nielsen number crunchers to judge PDN on print subscribers alone when their online content is not only robust, but also pre-designed to continue the nibble-then-pay model that the Murdochs (rightly) see as the future of publishing.
(Continued after the Jump)
One interesting model is that used by The Hollywood Reporter, touted by them as " exact replica of the print edition with page turner technology...", and that may be one model that could spread to the rest of the Nielsen-cum-Murdoch lineup, post-acquisition. Interestingly, this model just may allow some of the high per-page advertising rates to be maintained, as opposed to the poorly established low per-pixel rates being paid for online ads that was set across the board years ago, and is not sustainable nowadays (actually, it was never sustainable, just underwritten by the print ad revenues).

As noted at the beginning, broad coverage, in an attempt to serve the masses, is not the future, niche media is. TechCrunch reported on a survey that showed that small town newspapers showed an increase of 4.3% in advertising, as well as local classified ads. Considering that a local newspaper is one example of niche publishing (i.e. local news for the local reader), this makes sense. One example (and apologies in that the town's name escapes me) showed that local (i.e. niche) focus pays well, with a circulation of over 100%, because the subscribers were giving their papers to friends in neighboring towns to read. While this may be an extreme example, consider the value of the free subscriptions given to doctors offices, in terms of the number of actual readers per issue.

In the end, it makes sense for Nielsen to not only utilize and expand the PDN nibble-then-pay model, but also to keep the quality of content and reporting that PDN has delivered for years and expand on it where printed page-counts are not the limiting factors to great stories, articles, and insights.

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.

Thursday, November 26, 2009

Thankful? Yes, and No

Yes, we have a lot to be thankful for this year. Below are several of the positive things personally and professionally that are worth noting and being thankful for. After that, are the things - like when a car splashes a huge puddle of water on you as you wait to cross the street, and exclaim "yeah, hey, THANKS for that..." followed by some form of an expletive.

The Brighter Side:
  • THANKS for GIVING me and my family health this past year
  • THANKS for GIVING me a profitable year this past year
  • THANKS for GIVING me great new friends and the time to maintain old friendships
  • THANKS for GIVING me so many great clients and amazing experiences while making photos
  • THANKS for GIVING me the time and mental space to produce a second edition to the book that was an instant bestseller on Amazon
  • THANKS for GIVING us one less Getty Images department to produce wholey owned content
  • THANKS for GIVING us one more year without the headache of Orphan Works legislation
  • THANKS for GIVING us one more Flickr photo mis-use to further demonstrate to clients the risks of Flickr photos, eventually ALL respectable and responsible ad agencies and design firms will self-ban Flickr photos (one can dream, right?)
The Darker Side:
(Continued after the Jump)

  • THANKS for GIVING us a Copyright Office that has an all-but-non-working electronic Copyright Office online submission process because no group registration filings are allowed, and then hiding the Form VA so almost no one can find it on the Copyright Office website.
  • THANKS for GIVING us an economy that blows
  • THANKS for GIVING us more and more clients who don't value good photography
  • THANKS for GIVING us more microstock crap to further devalue stock photography
  • THANKS For GIVING us more people who call themselves "professional photographers" but who are anything but.
  • THANKS For GIVING us photographers who think that a few dollars is plenty for a magazine cover or a book cover.
  • THANKS For GIVING us clients who think that working for free is reasonable.
  • THANKS for GIVING us clients who want to do their own post/retouching, and then cry in their soup when it blows up in their face.
Feel free to add your own brighter or darker side THANKS in the comments.

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.

Sunday, November 22, 2009

Microstock Creates New Markets? - No, It Devastates Existing Ones

I hear all to often that "microstock creates new markets". Ok, so let's take that statement at face value, and agree with it, but break it down to see what monster has actually been "created." defines market in several ways, the most applicable to this statement is "a body of existing or potential buyers for specific goods or services."

To say "microstock creates new markets" makes it appear is if this is a good thing. However, not all markets are good, or even legal. "easy access to Pseudoephedrine creates new meth markets", or "the decline in police patrols created new open air drug markets." The cash-for-clunkers program grew the market for new cars. Yet, that program not only damaged the used car market for buyers who could never afford a new car and now have fewer used cars to choose from (thus raising the prices of those still available) but also spiked the new car market in the early part of the year at the expense of later-in-the-year sales, according to some reports.
(Continued after the Jump)

Microstock didn't come into the market to serve high school children who need school report images, or even the mom-and-pop corner store. They came in like a drunk bull in a china shop with careless regard for the devastation on the existing market. Jonathan Klein, co-founder of Getty Images, on justifying the acquisition of iStockphoto, suggested all the new markets they could go into. Yet, iStockphoto is going to kill off the golden egg goose that was Getty Images. Sources suggest iStockphoto will be spun off in 2010 and go public.

Microstock has taught image buyers that most photography is worth pennies on the dollar of what it used to be worth. Yet, time and time again, normally responsible buyers get burned by the use of microstock and create confusion when the same image they chose is one that the competition is using (or has already used.)

Every time an entrpreneur turns around with some hair-brained idea, they have usually surmised "there's a market for X", and then proceed to demonstrate how they can actually serve that market. Yet, the reality is that the market must be sustainable. The dot-com boom era is a wasteland of non-sustainable markets where billions were lost. The money in the gold rush was not in the actual gold, but the suppliers of the tools and equipment that the miners used. The money in microstock is not in the images, but in aggregating the content of people who don't care about getting paid, and then taking a fraction of a dollar for the image license. The profits in microstock are like end products where the pollution dumped into fragile eco-systems as a part of the process is simply disregarded. Today, countries like China who don't give a hoot about their environment or worker satisfaction are polluting the skies and streams with the post-manufacturing waste, and living wages are not paid to workers there either. As a result, US manufacturing can't compete, and irreversible damage has been done. In the same vein of thinking, microstock photographers have little to no regard for the damage they are doing to the photographic environment, causing immensely talented photographers to close up shop. A few pennies for a book cover or national magazine cover is just enough for a latte, and beyond that, the digital-camera-toting enthusiast couldn't care less.

Stop saying "microstock creates markets" and instead try "microstock markets are devastating existing profitble markets."

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.

W Magazine - The Case of the Missing Hip

The blogosphere is abuzz about whether or not Demi Moore's hip has been photoshopped in the latest cover of W magazine. Here are some resources for you to check out

Boing Boing's article - Was Demi Moore Ralph-Laurenized on "W" mag cover, with missing hip-flesh? - takes one look at it, and the Consumerist chimes in with - Somewhere, Out There, A Piece Of Demi Moore's Hip Is Looking For Its Home, and follows up with Fashion Photographer Offers $5,000 Reward For Demi Moore's Hip.

Interestly enough, Demi Moore chimes in with a tweet of what she purports to be the original, un-retouched image, here.
(Continued after the Jump)

From Moore's perspective, that may well be the original image that she saw. To her, it is the image before she provided any retouching guidance. Yet, it is entirely possible that the photo retouchers either in-house or sub-contracted out, were told which the best series of images were, and to do basic retouching before presenting them to Moore for approval and additional guidance. The last thing that W would want would be for Moore to kill the entire shoot and then not be available for a re-shoot in time for deadlines.

Here though, is where the photographer, Anthony Citrano, makes a mistake. In the infamous Ralph Lauren ad, it was a retouchers error, not the photographers, that caused the outcry. Generally speaking, celebrities have specific approved retouchers that they know will make them look their best, just as each celebrity and publicist has their own approved photographers that they will use. Whether or not the retoucher in question here was a Demi-approved one or not, we don't know. However, what I do believe is that the photographer should have just stayed out of this. Yet, he hasn't. He sent Consumerist a high resolution version of the photo (which could a breach of his contract with W), and he tweeted an offer of $5,000 to charity "f that's really the original." (tweet here).

I am of the opinion that the photographer made a mistake because he's highly likely to have done damage to his reputation with W in speaking out against them and making them look bad in a public manner. He could have included some language requiring his approval of final art before it being published, however I highly doubt he would have had that kind of clout. Moore, no doubt, did, and he - the photographer - needed to have just let this go. Editorial publications can crop and manipulate images to whatever extent their editorial policies allow. Some publications allow only for contextual cropping (i.e. cropping so that the message of the image is made more clear without subverting the original context) and reasonable dodging/burning, and others allow for wholesale manipulations. W, which holds itself out as:
"W is the only pure luxury fashion and lifestyle magazine."
Might be in breach of the modifier "pure", if they allowed retouching. However, with an audience that does real-world retouching (i.e. Botox, etc) perhaps the modifier "pure" refers to something else, and their audience doesn't care? The next sentence in their advertising section suggests:
"The magazine's journalistic heritage provides the ultimate insider experience an original, provocative approach to fashion, beauty, society, art, culture, travel and entertainment."
"Journalistic heritage?" Really? That suggests a higher standard then, where retouching should be verbotten.

The continued use of Adobe's Photoshop has become so commonplace that it is becoming a verb, and Adobe isn't happy. Their guidelines state:
"The Photoshop trademark must never be used as a common verb or as a noun."
and goes on to note:
Trademarks are not verbs.

Correct: The image was enhanced using Adobe® Photoshop® software.
Incorrect: The image was photoshopped.
This makes sense, as Xerox had one heck of a problem with people saying "I need a xerox copy..."

In the end, W joins the list of publications where it is a part of the public discourse that they use Photoshop to modify images that are not honest, along with many other publications. The photographer, however, should have stayed out of the fray.

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.

Wednesday, November 18, 2009

TEDx - Not Playing Fair?

TED - the group behind the Technology, Entertainment, Design events, is massive in scope, and contribution to the collective genius and information sharing in a way that is here-to-fore unheard of.

To grow the TED initiative, a one-time funding effort apparently evolved to create TEDx events in communities around the country. The website suggests "TEDx was created in the spirit of TED's mission, "ideas worth spreading." The program is designed to give communities, organizations and individuals the opportunity to stimulate dialogue through TED-like experiences at the local level."

Even you can host a TEDx event, just check out the guidelines here. All of the messaging in the "how to host" section is all about volunteerism. As for speakers, TED advises "TED does not help TEDx partners identify and secure speakers. TED does not pay speakers and neither should you." Hmmm, okay. I can say I've given my fair share of free speaking engagements. There's a hint of brand-building, where also on the TEDx page, is says "As a TEDx licensee, you are vested with helping to grow the TEDx brand." So, we are talking business here, right? For larger events (defined as 50+), sponsorships could occur. In the responsibilities section, it suggests "Soliciting sponsorship (if needed): If you're holding a larger event, you may require financial support from sponsors."

Ahh, so there could be money involved, somewhere, somehow?
(Continued after the Jump)

Further, TEDx events require you to upload photos to Flickr tagged "TEDx." However, according to the site here:
"Before you upload anything, you must confirm that all the images, music and video clips used in your speakers' presentations are cleared for re-distribution on YouTube and Getting the initial clearance is the responsibility of the speakers; collecting documentation of the licenses (and providing it to TED hf necessary) is the responsibility of the host."
Ahh, yes, once again, the value of intellectual property and rights clearances arises. Nice of them to respect that.

As of right now, there are over 7,000 photos tagged on Flickr with TEDx, as seen here. So it is with these insights now shared, that I wanted to bring up that a colleague and friend of mine tweeted out a month or so ago that TEDx was coming to Baltimore to host a TEDxMidAtlantic event, and they were looking for volunteers. I challenged the notion of shooting the job for free, and my friends response? "The whole event is being done on a volunteer basis. They're not even charging admission." When I asked of the venue "Is the lighting tech or AV tech at MICA working for free? Is the security guard there working for free? Is the electric company donating the electricity to light/cool the building?" I was met with the response "Maybe people should just never volunteer for anything, ever again." Well, I have it on good authority that one group of people got paid - the three videographers working the gig.

Set aside the donation of the space by the Maryland Institute College of Art (MICA), the people organizing the event (a salaried employee of the Baltimore Sun by the way), and even the speakers, who all donated their time. Why is it that the videographers got paid a fair rate, and the still photographers had to do it for free? That just doesn't seem fair. Photographer Christiana Aretta uploaded 479 photographs from this event, engineering student Jeff Quinton uploaded 34, and student Seth Nenstiel uploaded 29. It looks, from my review of these three top image providers, that Aretta covered the event like an assignment, and surely, she should have been paid if her motion-picture-producing counterparts were paid. Why wasn't she?

In the end, I didn't see the benefits of providing to an organization intellectual property that would be disseminated far and wide long after the speakers left the stage, yet your images are part of the ongoing benefit enured to TED that requires that your images fulfills the obligation of the host who is "...vested with helping to grow the TEDx brand." It's now just salt in the wound that video apparently got paid, stills apparently did not. Aretta looked like she did a professional job, as did the video team, with 19 videos, as seen on YouTube here. I call shenanigans on the payment front.

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Tuesday, November 17, 2009

Wedding Photography Contracts - A Cautionary Tale

As PDNPulse recapped here a New York Post article here, a bride has filed a lawsuit in the Manhattan Supreme Court alleging she instructed her photographer, of the highly regarded wedding photography studio Christian Oth Photography, to refrain from taking photographs of her while getting ready, and in some degree of undress.

The suit also alledges that Oth posted the photographs, according to PDN for "all to see." So the question is - what are the photographers rights and obligations? Let's take a multi-facted look at the circumstances surrounding this issue.
(Continued after the Jump)

First - let's assume, just for the moment, that the allegation of the bride is true, in that photographs of the bride in some state of undress/preparation, are online and viewable to the public. Since Oth no doubt had the bride and groom sign a contract, the contract most likely includes the right granted to the studio for them to be able to use images from the wedding for promotional purposes. The sample contract made available by the Professional Photographers of America (here - membership required) to its' members, includes the clause:
"The Studio/Photographer reserves the right to use negatives and/or reproductions for advertising, display, publication or other purposes. Negatives and previews remain the exclusive property of this Studio/Photographer."
Thus, if the images appeared on Oth's website, and Oth used recommended contract language, they would be legally covered.

The second statement that the bride alledges, is that (according to PDN) the photographer was ordered " refrain from taking photos of her in a state of undress but that the photographer kept snapping away anyway." However, there are no stipulations in the contract for this to take place, if Oth used the standard PPA contract. Two terms would cover this:
"It is understood this Studio/Photographer is the exclusive official photographer retained to perform the photographic and/or video services requested on this Contract."
and this term:
This Contract incorporates the entire understanding of the parties. Any modifications of this Contract must be in writing and signed by both parties.
Thus, the bride could not modify the contract verbally with an "order", and this is again, assuming some variation of the PPA recommended contract was used.

Oth has responded to the PDNPulse article, with a statement (in PDF form) here, and makes the point that "We have never posted any images of Mrs. Bostwick on our public website or any other public venue. Client images, such as Mrs. Bostwick's, are posted on our proofing website and are always password protected." Some research shows that Oth uses Pictage, long considered a leader in providing online galleries and proofing/print ordering for wedding couples. Oth's studio page on Pictage is shown here. As someone who has in the past used Pictage for all manner of client deliverables (including weddings), I can say that the back-end ability to limit public viewing is very powerful.

Pictage recommends that the bride and groom be given "owner" status of their galleries. As such, the gallery would be transferred to the owner, and the owner in turn has the right to "make private" images they don't want their guests to see (yet they can still see.) As such, before the owner releases the images to friends and family to browse, they have had the ability to edit their gallery of images. At all times, owners, friends and family either have to log-in, or have a password to establish an account specific to that gallery and then log-in, before being able to see images. In the end, Pictage has the ability to protect client and end-client images very well. While it is possible for a Pictage user like Oth to have granted "public" access to a wedding, it is made very clear that you are choosing this option when you are setting up an account, so I would doubt that this was the case.

As someone who has photographed weddings, (and as a male), my discussions center around "the bride putting the final touches on her gown", which usually refers to primping and the affixing of the veil/train, just before dad comes in to see his daughter. This time is usually where a few candids of the bride with bridesmaids, and so on can be made, and those images are nice for the beginning of the album. For a female photographer (and I am guessing here), it might be normal/more comfortable for her to be in a bit earlier when there might be a bit more being revealed, as could have been the case given that the Oth photographer is Carolyn Monastra, almost certainly a woman.

So, with the assumptions regarding legalities and likelihoods out of the way, what remains? Reputation. The Knot has a forum post here with praise for Oth, but as this lawsuit makes the rounds, it could show up on the boards. With the article on the New York Post, it wouldn't surprise me if more than one bride/groom who was considering Oth has opted for another photographer. For those who have already signed a contract, they could well be contacting Oth for assurances, or making attempts to get out of their contracts. With Pictage listing Oth weddings in the $3,001-$5,000 range, this will likely have an economic impact on them even if the suit is dismissed in short order.

Could it be that the bride was unhappy with the results, or wants more for free? Of course - both of those things happen frequently. Thus, this could just be a way for an unhappy bride to get back at the photographer. We won't know, of course, until this is settled, one way or another.

In the end, it is imperative in this world where clients are expecting white-glove treatment at every turn, and reputations are on the line, that contracts clearly spell out what's allowed and what's expected. Further, with Oth, who was likely sub-contracting photographer Carolyn Monastra making sure that vendors are customer-service focused is key. It may be that Monastra and the bride were just being light-hearted about it, or perhaps all was well in the beginning and Monastra did not get direction as the bride suggested, but later the bride decided to revise history. Either way, it is imperative to listen to what the bride is - and is not - telling you. I submit that scantily-clad images of a bride are likely of little use for a wedding album that you'll be showing the parents/in-laws, and eventually your children, so don't bother shooting them until it's all about the "final touches" and the makeup check in the mirror.

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.

Monday, November 16, 2009

** UPDATED ** Newsweek, Sarah Palin, and Photographers Rights

There can be a lot of discussion about the appropriateness of Sarah Palin's appearance on the latest issue of Newsweek Magazine. It's possible to tie this cover to the photo editor Simon Barnett's departure, and select choice of words - “Pictures tend to be used as part of an overall design conceit" (as reported at PDNPulse here), although we have no idea if it was this cover, the loss of key staff, or a combination of both.

What's missing here, is a discussion of the business side of the photograph.

(Continued after the Jump)

Runners World commissioned photographer Brian Adams to shoot their cover, and the broader take can be seen at Rapport here, or you could check out Rapport Press' images of "Sarah Palin at home in Wasila" here, and frankly, if Newsweek wanted to choose a worse photo in terms of making Ms. Palin look bad, they could have. That of course, is not to say that I don't think the magazine had an agenda, I do. However, the important point is that photographer Adams had the right to re-license his work from Runners World, to Newsweek. Of value to note, is the obvious question when most people see the cover is "what was she thinking posing for this photo?" And Newsweek answers that question on the front cover when they write "A photo taken for Runner's World, June 2009."

If you as a photographer give publications the right to re-use, re-license - or even own all rights - you are losing out on significant income down the line. Be sure to present to prospective clients your contract, and negotiate on terms you are comfortable with. Also of note, is that PhotoShelter is the power behind the Rapport archive.

*** UPDATE ***: Runners World has spoken out, on their website here, where they say of the photograph that, in part, " was provided to Newsweek by the photographer’s stock agency, without Runner’s World’s knowledge or permission."

As to Runner's World having to have "knowledge" about a re-use: Some contracts preclude images shot on assignment for one publication from ever appearing in their competition. For example, Time Magazine's contracts specify (or they did the last time I checked) that images shot for them are "OUT Newsweek/US News", meaning they can't appear in those publications, even down the line. If this type of clause isn't in their contracts, then likely they have no say in what re-uses there are. Further, there would be no need to notify Runner's World about this.

As to Runner's World granting permission: The only permission I can think of would be the need for the photographer to get permission from them because of an embargo. It's not uncommon for publications to have embargoes, precluding images produced on assignment from appearing anywhere before a) first publication in the assigning publication; b) 1 week after newsstand date; c) 30/60/90/180 days after newsstand date; and so on. Interestingly, the date on the cover of Newsweek says it was shot June 2009, which would, with a common 90-day embargo, give the photographer the right beyond the embargo to re-license. However, if the date is August 2009, then it is likely that a 90 day embargo would have ended at the end of November, and as such, there would be a problem.

In the end, if there was no embargo, then Runner's World was not entitled to any advance knowledge, and they would have no right to give (or refrain from giving) permission. The photographer created a compelling image for Runner's World, and was rewarded by a re-use from another publication because of his compelling images' residual value.

All of this said, it appears that the photographer, Brian Adams, has posted a brief note in the comments section. I have not spoken with him, and respect his desire to "stay out of this topic as much as possible". I am not personally aware of payment issues with Rapport Press, as commenter Melissa Golden has suggested, however she is not the only photographer who is reporting payment issues with Rapport.

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.

Saturday, November 14, 2009

US Copyright Office - 23-Month Wait on Registration

I am someone who strongly encourages everyone to register their copyright. Doing so is your ticket to federal court when you are infringed, and provides for remedies like statutory damages and repayment of attorney's fees when you win. These added benefits make pursuing a copyright infringer far more likely to result in a positive outcome for you.

On December 21, 2007, I visited, in person, the US Copyright Office to deposit a copy of my images from a specific set of assignments that took place the month prior, in November of 2007 between the 5th and 27th of the month. Above, you will see a scan of the top of that certificate, which is one of hundreds I have going back to 1989. It is important to note that the effective date of registration, as noted there, is the date the US Copyright Office received the registration - December 21st, 2007.

Yesterday, November 14, 2009, 23 months later (695 days), I received the envelope with my formal certificate in it. Below is the return address and post-mark for the letter, dated two days prior:

I'd like to think that this would happen faster, however, in the end, I've been protected all along. If you'd like to see the online version of this same registration as displayed at the US Copyright Office, click here and enter "VA0001687427" (which is how you enter the VA number with a series of leading zeros and no dashes) as shown below:

If you've got your own registrations, check them out here as well - it's refreshing to see your listings, but they're not all online, so don't panic if you don't see it online.

Previously, we posted a walk-through of the entire process of a copyright registration - have a look at it here. To see our sample PDF that would help you process your own copyright registration, along with pointers/guidance, click here.

For those of you who are wondering if there is a limit to the number of images you can register, after the jump is more conversation on that.
(Continued, after the Jump)

You are not obligated to use the GRP/CON form when submitting your registration. Regulations give you that option, however, if you do, your registration will be limited to 750 images per registration. Below is one example of a registration I did for an entire year, for images produced between January 10, and December 31, 1999, for a total of 23,131 images on one registration. For 1997, for example I registered 15,915, and for 2000 I registered 28,999 images.

Now, go register your images, and protect yourself!

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.

Friday, November 13, 2009

C-Registry: "King Con" of the Photo Industry?

We photographers have seen more than our fair share of fly-by-night schemes. We've seen it all before: companies that burst onto the scene and attempt to capture our attention by making grossly exaggerated claims, offering "free" services with promises of protecting our rights, connecting us with clients or monetizing our images, then burn out their funding sources, fail to attract a buyer, and then go belly up, leaving photographers feeling more like the suckers that they think we are.

The more insidious of these snake oil operations are nothing short of extortion schemes. They threaten photographers that our images will be stolen or that our businesses will fail due to ____________________ (fill in the blank: orphan works, microstock, the digital revolution, etc.) UNLESS we immediately __________________ (fill in the blank: submit images, pay subscription fees, join a licensing program, etc). From micro-stock organizations, to registries pre-selling their services on the fear of Orphan Works legislation, and so on, creative minds are often seen as easy marks by the corporate mindset. (Getty Images comes immediately to mind.)

Near the bottom of the barrel of the flim-flammers competing for photographers' attention (and for pieces of our copyrights) are the "bait and switch" scams, which launch with fearmongering extortion attempts and hidden agendas. Thus, formal "bait-and-switch" scams are actually illegal. Like wolves in sheep's clothing, they masquerade as one type of business, when they really are something very different. We eventually find that their "free" services were designed to draw us (and our images) into a corral, and once we are in, the gates close, and the shearing begins. We are told that if we really want to protect or monetize our images, we'll need to pay up -- either with a fee for services, a subscription fee, or a piece of the revenue generated by our images.

At the very bottom of the barrel are the charlatans that not only hide their agendas, but engage in campaigns of deception, putting forth outright lies about their services and their plans for the future, then later shedding their "we're here to help you"-disguise to reveal their true business plans, which almost invariably involve THEM monetizing OUR images once they have a critical mass of images corralled. After demonstrating that they cannot be trusted, how do these liars expect that we will entrust them with our images, our money or both? Are they really that dumb? Are WE really that dumb?

Case in point:

Where this organization falls on the continuum between upstanding photographer-friendly business and fly-by-night operation, I will leave you to decide.

After they launched in the Fall of last year, I noted here with great concern that although their site failed to mention any intent to license images submitted to the registry, the terms and conditions buried on their site revealed their plans to morph into an image licensing platform. I suggested that they were attempting to capitalize on the massive fears of photographers swirling around the orphan works legislation, in an attempt to rope photographers into submitting images (for "free"). At the time, I forecast (accurately) that C-registry was attempting to deceive photographers with this free offer, and that C-Registry would later solicit their captive audience of photographers into participating in an image licensing scheme. Other industry watchdogs and associations also picked up on this, and C-Registry's president, Randy Taylor, found himself in the hotseat.

The industry (myself included) expressed serious concern that C-Registry was actively seeking endorsements from trade associations and asking photographers to submit images to C-Registry for "free," while boldly lying to photographers about C-Registry's real intentions. Namely, C-Registry has always intended first populate their system with images, and then to sucker punch the photographers (and to leave the trade associations with their pants around their ankles) by springing a licensing scheme on us. Months ago, when I publically pleased with Randy to tell the truth about his licensing plans, Randy responded in writing, to thousands of photographers on the APAnet forum, and lied.

On APAnet, I re-presented my questions posed previously, asking Randy if there were any circumstances under which c-registry would require a fee, royalty, special paid subscription/membership level or other compensation to c-registry for:

Q: The act of facilitating a grant of license between the rights holder and the image user.

Randy Taylor: "NO"

Q: The granting of a license on behalf of the rights holder?

Randy Taylor: "NO"

A smoking gun reveals the undeniable truth. A month earlier, on February 23, 2009, Randy Taylor posted this message to the NY Tech Meetup Forum (emphasis added):
" We are the 'ASCAP of images', empowering creators and corporate rightsholders with copyright tracking, enforcement and monetization...With one click from any web site with images, video or mashups, regardless of language, The Copyright Registry™ guides users to the creator, permissions process, and U.S. Copyright record for that content. Conversely, creators use the registry to find the URL's where copies of their creative works appear. This technology supports creators and rights holders by enabling a tollgate for all visual content used on the Internet, which monetizes unauthorized use, mitigates infringement risk and addresses the Orphan Works Act."
Three minutes later, after realizing that he had revealed his licensing scheme on a public forum, Randy Taylor posted a second message:
"Sorry, I put this in the wrong place. It was meant for proposals for meetup presentation. Please delete."

(Continued after the Jump)

A disgusting example of just how far some people will go to mislead both photographers and also attempt to mislead photography trade associations while revealing their true intentions to potential investors. This proves that while Taylor was busy sweet talking the trade associations and making blog posts denying to everyone he planned to generate royalties/licensing revenue off of the babks of photographers who register their images for "free" in his Copyright Registry, he was aggressively seeking funding and presentation opportunities to allow C-Registry to serve as "a tollgate for all visual content used on the Internet, which monetizes unauthorized use..."

In a two hour meeting with Taylor here in Washington DC this week, following his meeting with the Copyright Office where he learned that an API that would connect his - or any - system to some form of automated registration system was at least 2 years off, we asked him how he could claim that he was not involved in image licensing, while at the same time claiming to be the "ASCAP of images."

At first, he said "you've heard the phrase 'ASCAP of images?'", as if he was going to deny it. Then I said "I've seen it typed". He said "interesting. I'll have to dig that one out, where I said that."

To save Randy the trouble, I've included the text above, and here is the link to his post, and membership listing in a group promoted as an opportunity to"demo something cool to New York's tech community (geeks, investors, entrepreneurs, hackers, etc)", and a screen grab too:

When we pointed out to Randy that ASCAP is a non-profit, and that royalty collection and distribution in all industries is best managed by non-profits, Taylor acknowledged:

"there is a risk that we ramp this thing up, we sell it to somebody, and they begin to do a Getty...that somebody is going to take this thing over, and gradually reshape it once it's created into something that's less and less attractive to photographers".

We followed up and asked what he thought that the Copyright Registry might take as a royalty percentage for handling these images. Taylor answered 20%, presumably meaning that Taylor would take a 20% fee for managing the licenses transactions and resulting royalties.

I then asked Taylor how, given that he had so clearly always planned that C-Registry will be a licensing/royalty platform, he could justify his earlier repeated written statements that C-Registry would not engage in image licensing. Taylor responded that he was earlier "forced...cornering us into a denial that, to some degree is going to have to be reversed at a later date."

In other words, Taylor admits that he was "forced" to lie to all of us, and that "at a later date" he intends to tell the truth.

I am making an educated guess that the "later date" is today.

Taylor is going to learn that lying to his potential customers (especially lies of the repeated, BIG, BALDFACED variety) is not a great way engender confidence and trust. Especially when he expects that photographers, already punch-drunk from other shams so much so that they should be asking for a safe-word as a part of their contract, will trust him to license photographers' images and collect and accurately report royalties to us. Who knows what else he has up his sleeve? He seems to think that as long as he delivers royalty checks to photographers, photographers will trust him. Wrong. Would these royalty checks and the statements even be honest accountings? Photographers already have been bamboozled by stock photo agencies for under-reporting income to photographers.

Had Taylor and his C-Registry launched with an announcement that they intended to serve as a licensing platform, he would have been upfront about his profit motives, allowing photographers to decide if they wanted his organization to serve as a form of a post-use stock-licensing-resolution agency, and I would have no complaint. My complaint is with Taylor's dishonest, manipulative tactics, and his ongoing attempts to mislead photographers. Taylor has proven that he is not a man of his word, and is not to be trusted.

Taylor also claims that he informed certain trade associations of his ASCAP plans and that the association leaders signed non-disclosure agreements. In a follow-up letter to Photo Business News after our DC meeting, Taylor wrote regarding our assertion that he "...obtained trade association endorsements by lying to them about your core business plan.":
"I must respond in a way that will not violate signed NDAs between our company and third parties. You say we have "obtained trade association endorsements by lying to them". That is completely false. In more than one instance, we fully disclosed all details of our business plans, including trade secrets of exactly how we intend to execute our plans, in face-to-face meetings with key people of some trade associations, including the legal council, head people and some Board members of those associations. Those associations were not lied to in any way and do not "feel" lied to."
If that is true, and if those association leaders have stood by silently and even promoted C-Registry while allowing Taylor to continue to lie to trade association members and to all photographers, you will read more about it here at a "later date."

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