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.

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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."

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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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Wednesday, November 11, 2009

dpBestflow - A Comprehensive Resource

dpBestflow - the culmination of a multi-year project between the Library of Congress and the American Society of Media Photographers, was officially launched during Washington DC's FotoWeekDC celebration, and using superlatives like "comprehensive", "all-encompassing", or "world class" seems to still under-state the herculean effort that Project Director Richard Anderson, Senior Project Manager Peter Krogh, and others, undertook to make this vision a reality.

ASMP has been able to research in great detail and through extensive investigations, thanks to the grant by the Library of Congress, best practices for digital photography. From image capture to ingestion, image management and archiving - it literally is all here - at the website.

Have a question about camera or printer profiling? How about file formats, or metadata standards? In fact, I'll just stop here and tell you that you that everything you ever wanted to know about every aspect of workflow, in simple and easy to understand visuals and videos, is ALL THERE. FOR FREE.

Check out this video to learn more. (RSS readers click here to view it on Vimeo).

StartHere from ASMP dpBestflow on Vimeo.

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Friday, November 6, 2009

FotoWeek DC 2009 - Copyright: Protecting Your Images and Creative Work and Why it's So Important Presentation - MONDAY

Once upon a time, I was the Vice President of the American Society of Picture Professionals (ASPP) in our local chapter, and have always been a fan of the organization, so when they asked me to share the stage in a moderated conversation with a noted attorney, and take questions from the audience in an effort to dispel many of the myths surrounding copyright, I was happy to oblige. You will walk away from the presentation having a far better understanding of how to register, and I'll be walking you through the actual steps of a registration (in a non-boring way!) Here are the details:
Lecture - Copyright: Protecting Your Images and Creative Work and Why it's So Important by the American Society of Picture Professionals DC/South Chapter
The American Society of Picture Professionals DC/South Chapter presents a compelling evening of Photographers and Legal Professionals that will take you on a journey of Copyright Law, How to Prevent Image Theft, Register your creative work and a Panel discussion of recent copyright news stories that have brought this issue to light. This affects not only professional photographers and artists but anyone who posts their photos online.
Presenters: John Harrington, President of the White House News Photographers Association in 2009; Brad R. Newberg, Senior Counsel, Holland & Knight

Registration is from 6:30pm-6:45pm
Lecture starts at 7:00pm

You must register online here - don't wait!
Last year's event SOLD OUT!
To contact ASPP click here

LOCATION: US Navy Memorial, Burke Theater, 701 Pennsylvania Avenue, NW, Washington, DC 20004

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FotoWeek DC 2009 - "Art of the Deal" Presentation - TOMORROW

As a part of FotoWeekDC, tomorrow, Saturday, November 7, I will be presenting a two-hour program on business practices, including how to value your work and place it (and you) in the best light, as well as handling client negotiations. Below are the details - oh, and it's FREE!
1:00pm - 3pm
John Harrington - The Art Of the Deal
From the long-term value of client relationships, to real-world client interactions, The Art of the Deal will give photographers insights into how to be better at the business of photography. In this abbreviated version of John Harrington's longer-form presentation, he will discuss the finer points of client relationships, and dissect some of his own client interactions. What are the factors that go into determining a photographers' rate, and how a license gives both the client and the photographer clarity and peace of mind when it comes to image uses.
Location: 3338 M Street, NW, Washington, DC 20007
Other program information is available here.
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Thursday, November 5, 2009

FotoWeek DC - Awards Ceremony

Last night was the awards ceremony for the second annual FotoWeek DC contest here in Washington, which officially kicks off tonight, Friday night. The event was about an hour in length, however we've done some fancy footwork with the editing, so the whole thing can be seen in about 17 minutes. If you were among those in Japan, or elsewhere in the World (or, heck, in DC and just didn't make it), you can get a feel for the event, and see who else won! There were some amazing images in the contest, and the multimedia entries were amazing. We've really truncated those for this piece, but rest-assured you can see not just the winning entries, but learn about all the other happenings in FotoWeek DC here.

FotoWeek DC 2009 Awards Ceremony from John Harrington on Vimeo.

(Note - the ceremony was Thursday, 11/5, but the intro graphic says 11/4 - apologies for the typo).

(Coments, if any, after the Jump)

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Dim-witted Ideas from The Copyright Registry

Advising photographers that you should only ever register a single image at at time is just as dim-witted as advice to someone to never go across the street because you might get hit by a car. Yet, the brilliant minds parading around as experts-in-residence at the dubiously named Copyright Registry are telling you to do just that, when they suggest, in their poorly titled blog piece - Best Practices Copyright Registration Quantities - "Best Practices for governmental copyright registration dictate that you should only publish and register one image at a time." We previously wrote about the dubiously named Copyright Registry - What the....? C-Registry = Con Registry?

The "diminished value" advice in this article may - and I emphasize heavily *may* - be just as technically correct as the notion that you should never cross a street or you might get hit; or, you should avoid flying because you might crash; or, a la Howard Hughes - never interact with another human because you might get germs. However, photographers are not producing a few oil-on-canvas works of art each year, they are producing tens of thousands of images a year - often thousands of images from one day. You do the math - $45 per registration multiplied by 500 images and guess what? You're essentially convincing photographers that it is not economically sound to register.

It's easy to sit in a Park Avenue apartment dreaming up ideas that you shill like a turn-of-the-century snake-oil salesman, as the owners of the dubiously named Copyright Registry seem to be doing. Yet this ivory tower mentality has almost no real world application, and is not rooted in reality.
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It seems they are trying to scare you into using some poorly thought out product they offer that will somehow automate the process of "governmental copyright registration", as if there is any other type! They suggest
"A la carte, individual registration eliminates the efficiency of bulk registering all the images of a photo shoot or project or calendar year and adds a significant logistical burden to creators."
And then in the next sentence hold themselves out as the solution
"This is one reason why image registries like are growing rapidly."
Filing images in any way, either by somehow uploading all your images to their system or an online gallery (as if these are not a logistical burden in and of themselves!) does absolutely NOTHING to protect your images from infringement. The only proper protection is actual registration at the accurately named Copyright Office. It sounds misleading at best to say in a video tutorial "Site Protector is the easiest way to register your images with the Copyright Registry". Someone who doesn't know any better could be duped into thinking that doing this actually gives you "copyright registration". It DOES NOT. By writing "governmental copyright registration" they seem to be suggesting that "copyright registration" without the modifier "governmental" is somehow worth anything, and thus, they suggest with language like "register your images with the copyright registry" you should be using their service, almost to the point that you might actually think you have actually filed a real copyright registration that is actually worth something. YOU HAVE NOT.

Statistics speak volumes about the realities of copyright registration. Fewer than 5% of all professional photographers have ever registered their work with the US Copyright Office, and fewer than about 2% register with any regularity. This blatantly unrealistic and bad advice about registering one image at a time just further demonstrates how out of touch the dubiously named Copyright Registry is.

Let's start with a "Best Practice" that the dubiously named Copyright Registry and I can agree on - you should be registering your work. Second, we both can agree that, as they admit about the two ideas put forther in their blog article "neither of these approaches is practical". Let's be perfectly clear here then - you are suggesting a "best practice" is NOT PRACTICAL? That then makes it not a best practice, since you can't practice it practically. This idea isn't just out in left field, it's standing with its' mitt in the parking out outside the stadium wondering why no pop flies are coming over the stadium walls.

To paraphrase the game Monopoly, which, when sending you to jail says "do not pass go, do not collect $200", I say "Do not spew forth impractical and inaccurate advice to photographers on copyright. Do not draw photographers into an ill-conceived flim-flam of an idea that is almost certain to fail them when they would most need it. By then you'll be on to your next money-losing charade."

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Wednesday, November 4, 2009

Getty Images and Bloomberg - Futurescape

Let's say you're Getty images, and you have to pay a staffer $350 a day, plus gear and other overhead, to cover an event, which would amount to about $600 a day. From that event, let's say you have fifteen $25 sales of your wholey-owned content, or, even worse, 100 images fit the bill for a subscription model, where the per-image attribution is $1.50. That's maybe about $200 in revenue from your wholey-owned content. Couldn't you cut out that $600 expense and do it cheaper?

What if you were distributing the images of Agence France Press (AFP) and Bloomberg who have their own photographers and wholey-owned content, and they wanted to use the Getty distribution pipleline to reach more customers? Getty recently announced here that they would be the editorial distributor for Bloomberg News images.

Now, as a Getty staffer covering an event, you need to be looking at both the AFP and Bloomberg photographers as your competition. Note - I am not talking about the healthy competition between, say, the AP and Reuters and AFP, but actually, competition for whether or not you get to keep your job. This is because, if you're not careful, some green-eyeshade-wearing actuary will do the math and realize that carrying editorial staff photographers just might not be economically sound, and as Getty recently shuttered their creative photography division (as we reported here), so too might the agregated revenue from AFP and Bloomberg prove that they can do without editorial staff photographers.
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While theses employees are a significant revenue stream for Getty, they may not meet the profit targets that Hellman and Friedman have for Getty before they try to sell their entire library to Google or Yahoo. Don't think it could happen? Dan Heller, just a few weeks ago wrote here - Might Picscout Ultimately Cause Yahoo to Acquire Getty? - about this very possibility. While Dan and I come at things from differing perspectives, I often enjoy reading what he has to say. Trust me when I say this - the ONE thing Yahoo/Google don't want to do, is have photographers on their payroll.

What about all those contracts with the sports leagues? Each of those teams has their own photo departments, and Getty under a Yahoo/Google could just become a distribution point for those pre-existing teams. I know, it's complicated, but when cost savings, and profits from IP are the topics of conversation, smart business people figure out how to cut costs. More than one time I have been at an event where there was a WireImage, FilmMagic, Getty, and AFP photographer covering an event, and everyone looks around scratching their heads - that is essentially 3.5 photographers covering ONE event, that normally would be covered by one. Why not scratch the WireImage, FilmMagic and Getty photographers, and be the distribution point for the AFP and Bloomberg images from that event? That's essentially the same revenue as 1 photographer. Don't think that the bean counters haven't thought about this.

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ACTA - Sounds Too Good To Be True

The ACTA, or Anti-Copyright Trade Agreement, on its' surface, and if all the leaks are to be believed, sounds too good to be true. The goal of the agreement is to fix the standards that are essentially broken in the copyright field. Frankly, from what little I have heard, it sounds great. The ddvil, of course, is in the details. Fortunately, the negotiations are taking place in secret, to minimize intrustions by those who want the entire internet to be free, and for anyone anywhere on the internet to use things like photographs they do not own, for free.

Wikipedia has done a good job of summarizing it here, but here's the reality about copyright...
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While you own the copyright to what you create the moment your image is fixed in a tangible medium (i.e. film, memory card, etc), your ability to get paid and punish infringers is minimal unless the image is registered. Estimates show that fewer than about 2% of photographers regularly register their work, and about 5% have ever registered. Sure, you can send a DMCA takedown notice, but the infringer can continue their infringing ways. How cool would it be if, like California's "three strikes" rule - which dictates that criminals after having committed three felonies, go to jail for good - you would experience an escalation of punishments - and fees - which would end in your being forbidden from using the internet? Gizmodo suggests here - " An example of a graduated response is France's "three strikes and you're out" law. There, you get two warnings if caught sharing music or movies, then you're banned for up to two years."

Thus it seems, your ISP would refuse to make available to you (presumably at your home) internet service. How would they police mobile internet cards, or your access at public libraries, etc? Obviously, there would be some challenges, but - and I stress this again - on its' surface, it seems too good to be true.

I don't expect, given the international coalitions that are negotiating this agreement, that any one organization or corporation will be able to stop it. The Berne Convention, for example, was initially unpopular, and the US didn't sign on until 1989, however there are still a few elements of Berne that the US does not accept, like the rule of the shorter term. Could this happen to elements of ACTA? Yes, but not to the degree that would gut the benefits that photographers would see from it.

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