There is no evidence that we are on the verge of a great new glittering cultural age, there is evidence that we may well be on the verge of a new dark age in cultural terms … where the creative world is destroyed and where all we have is cacophony and self opinion, where we have a crisis of democratised culture.
Here’s an email conversation I had with a reader about cold calling I thought you might be interested in.
Reader: I was reading over one of your past posts => “Photo Editor And Art Buyer Survey” http://plain-glass.flywheelsites.com/2010/07/08/photo-editor-and-art-buyer-survey/ => and noticed that calling potential clients is a bad idea! However, all the agents, ADBASE writers and others really push this as a successful way to get future work. ADBASE constantly posts blogs that really push this as a great way to follow up email promo campaigns. Send out your promo, check back to see who opened your promo and then follow up with that person via a phone call. I was speaking with [redacted] at an LA APA event and she was promoting calling and asking to be put through to voice mail. That way, you don’t bother the person with an awkward phone call. My feeling is that I don’t want to cold call either; on the other hand, I do want to generate business. So what is the right approach? I’m new to the game and I don’t want to come out sucking.
APE: Ok, so tell me what you will say to the person when they pick up the phone?
Reader: I have a partial script worked out. But truth be known, I’d rather not call. It’s as much of a problem for me as it seems to be for them. However, if it’s necessary to get hired then I’m willing to try. My confusion lies in all the things I read online, in mags and listen to at the photo lectures. There seems to be contradicting viewpoints. Which is correct? I don’t want to misstep and come out creating a bad first impression. For example, I have been collecting a database of people that have been showing interest in my ADBASE email promo campaign. The data is tallied from the last six months. Anyone that has opened my email more than 50% of the time (whether they just open the email, click directly to my website or both) seem like a potential candidate to call. I was planning on doing this today for the first time. I was constructing what to say based on various blogs. Then I came across your survey and changed my mind. I then remembered the APA event at Chiat Day. Both the AD & AB said they hate calls. If calling is taboo, then the real question becomes: How do you get hired? Are email promos and direct mailers enough (coupled with all the FB’s and Tweets of course)? After all the emails and mailings, should I just sit back and wait for the right ad campaign or editorial story to pop up in my favor? In essence wait for my phone to ring?
APE: What I’m trying to get at, is do you have a reason for calling them other than they looked at your work? Obviously if they liked it and had a job they would call you. What are you going to say on the call that will move things forward?
Reader: Good point. I guess nothing.
APE: This is how those calls went on my end.
caller: Have you been receiving the promos I’ve been sending you?
caller: do you have any questions?
“can I have a job”
The better way to do this is call and ask if you can send in or show your portfolio. If that’s not a possibility you need to produce some targeted promos that will grab their attention. There were plenty of times when the first time I ever talked to a photographer was when I called them up to give them a job. Of course waiting for the phone to ring is a ridiculous proposition so you’ve got to get things under their nose in mail, email, magazines they read, blogs they check out contests they follow that will get them interested.
Reader: Thank you for the advice. Makes sense. What you’re saying is kinda what I was/am planning. I just figured that the “Follow Up” call was a necessary, yet unsavory element to the marketing process. I’m actually relieved that I don’t have do this.
I’d love to hear from anyone who advocates cold calling since this is my very myopic point of view. NOTE: I checked out the readers work and it’s good stuff so those “opens” are real interest and this is not just someone clawing at the wind.
A reader asks:
I’ve had a strange situation crop up. I went to your blog to find guidance but the closest I could find was this article on the breakdown of fees for shooting video vs. stills:
In this particular case, I’ve been hired by an ad agency to shoot stills for an annual review, and video for a mini-doc – shot concurrently. So far I followed the structure from the article above – having consulted a few different producers and agents (all of whom are doing their best guesswork since this stills-and-video space is so new). Video was work for hire, and the stills I shot required fees for their use in the review and elsewhere. But here’s the new snag: the client wants to take the annual review in a different direction and fill a portion of the review with stills we’ve pulled straight from the 5D video footage.
The question now is, am I able to charge usage on those frame grabs as well? My thought is yes; If you’re hired to shoot stills and video and decide to shoot it all on the epic and pull your stills from the footage, then those stills require their own usage fees. Though the client is suggesting differently.
It seems with better and better technology and the ability to shoot entire photo jobs with 90fps video bursts, usage would have to defined by their use and not by their method of capture.
I reached out to Vincent Laforet to see what he thought. Here’s his response:
Unless he specified it FIRST in his contract that no stills could be grabbed from video without further compensation, and a detail of how that would be dealt with – the client can grab as many frames from the video as they desire, because that video is WORK FOR HIRE.
Happened to me once and it will never happen again. That’s going to be in all of my contracts from now on.
via, Some Clever Stuff
Creative Director: Rockwell Harwood
Contributing Photo Editor: Ashley Horne
Photographer: Christopher Griffith
Heidi: Of course the fish was dead. Was there anything challenging about that shoot for you? How did you get the fish to model for you?
Christopher: All this stuff got shipped to my studio in NYC 2 days prior to the shoot so storage is always entertaining, not to mention the smell.
The shoot was to be “whole” fish and the and then the Escolar arrived filleted because it grows to 6ft in length and it was impossible to get a whole fish shipped.
I refused to shoot fillets because they looked really dull but the skin was like leather and was great as a full page.
The adjoining image required impaling the poor creature head to foot with 1/2 inch armature wire, to facilitate the curve. Then glycerol on the skin to retain the sheen.
Contributor Jonathan Blaustein interviews Sidney Monroe owner of the Monroe Gallery in Santa Fe, NM.
JB: How did you get involved in the business?
SM: It was accidental, almost. After college, I worked at the Metropolitan Museum of Art. Then, I started working in contemporary galleries in New York.
JB: Were you in the photo department at the Met?
SM: I was not. I was in the retail department. It was a fascinating time, because it was at the time of the Tutankhamun exhibition, and it was the first time they put a satellite retail operation in the exhibition, as opposed to just in the gift shop. It spurred their entire retail model. I can’t remember the numbers, but in the three years I was there, sales went from like $3 million to $50 million, because of the expansion of the retail model. This was before they had the retail stores in airports and such.
JB: So is this in the 80’s?
SM: This is in the early 80’s, yeah. I had been a business and economics major in college, and always had an interest in the arts. My circle of friends was always artistically inclined. I was completely talentless…
JB: Entirely, perfectly talentless?
SM: Entirely talentless, but I was always in a circle of creative people. When I took that job at the Met, it was a beginning opportunity in the retail department as they were expanding. Within a year, I became a manger of the book shop. In the book store, you could take anything you wanted to read, you could purchase at at discount, and I immersed myself in learning about art. The Metropolitan Museum of Art is an incredible place.
JB: It’s my favorite museum in the world. I studied art more there, when I lived in New York, than even in graduate school.
SM: Anyone who’s been there knows you can spend hours, days wandering, and still not see it all. And I had access to the catacombs, because there’s storage under Central Park. You go down in there, and there’s a Rodin sculpture with a tarp over it. Crates with you can’t imagine what might be in there.
JB: I would kill for a chance to see that. If any of your people end up reading this, I want a secret tour.
SM: I’m sure it’s all changed. Especially in a Post-9/11 world. This was the 80’s, things were very loose, and it was a great training ground.
JB: So you moved from there to the photo gallery world?
SM: The contemporary gallery world.
SM: I started at a gallery that’s no longer in existence, and quite frankly I can’t remember the name. Then I went to The Circle Gallery, which was a commercial galley specializing in contemporary prints. For a while, they were kind of legendary for having a retail model for a gallery, opening different branches in other cities. That’s where I cut my teeth in the art business. That led to an opportunity to meet Alfred Eisenstadt. He was in his 80’s, and had done some museum exhibits. But he had never done a gallery/selling exhibit. Somehow he had gotten in contact with the owner of The Circle Gallery. I was then the director, and became involved in talking with Eisenstadt about doing an exhibit. My wife-to-be and I got to go up to the Time-Life Building, and sit across from Eisie at his desk. We were both in our 20’s, he was in his 80’s, and it was like a lightbulb went off. I was sitting across from a man who has witnessed history.That’s when I got hooked. We did this exhibit, it traveled nationally, and was huge at the time. It was on CNN, Good Morning America, all the morning talk shows.
JB: Had any of the LIFE photographers shown their work in a gallery context before that?
SM: Not so much. Time-Life had a small gallery in the building, and they would routinely do exhibits for the photographers, but nowhere near the scale of a public gallery. Eisie was a very, very smart man. Of all the LIFE photographers, he published dozens of books. He was ahead of his time in that he understood that photojournalism should be more broadly available to the public, as opposed to just existing in a magazine. I firmly believe this drove the last 10 years of his life. He worked on supervising his prints, traveling exhibitions, doing interviews, meeting the public, from the time he was 85 until he died at 96.
That set off a spark for me, and within a couple of years after that, I had two partners and we opened a gallery in Soho on Grand St. It was just devoted to photography, with an emphasis on photojournalism. That gallery opened in the fall of 1996. We did several shows with LIFE magazine photographers, and presented the first ever exhibition from the archives of Margaret Bourke-White’s estate. Fast-forwarding, after 9/11, being in that location was no longer viable for commerce. My wife and I decided to leave Manhattan, come to Santa Fe, and start over.
JB: Why did you choose Santa Fe?
SM: It’s a good question, and we’re just realizing that we’ve been here 10 years, now, and it’s gone by very quickly. We couldn’t find a location in Manhattan quick enough to relocate. The location we had on Grand St was the quintessential Soho gallery. Cast-iron columns, 16 ft ceilings, everything you would want in a beautiful gallery. Already the migration had already started towards Chelsea. We looked, and all that would be available, if you weren’t one of the big players, would be on the 6th, 7th, 8th floor of a building in Chelsea, and I didn’t like that model. We have always believed in photojournalism, and that it needs to be seen by the public. We’re very passionate about spreading the message, so the public is integral to what we do.
We’d visited New Mexico, and I have family roots here. We knew there was a vibrant art scene in Santa Fe. We did some research, and depending on the data, it was either number two or three art market behind Manhattan. Quite frankly, we took a leap of faith. 9/11 happened. We decided in October, we moved over Christmas break, and we opened the gallery in Santa Fe in April of 2002. We honed down very tightly on photojournalism. That’s all we’ve focused on showing here.
JB: Are there other galleries now that have followed your lead and do what you do, or do you still feel like you’ve got a unique position in the market?
SM: I think we accidentally found a unique niche. Accidentally, because it followed from a passion. Something sparked, and that’s the direction I went in, and at the time nobody else was really doing it. Now there have always been some photo galleries that show some photojournalism in with their other programming, but to my knowledge, there is still nobody doing pure photojournalism, and that’s really become what we’re known for. Both within the collecting and museum community, and the public gallery-going community as well.
JB: I’m sitting here in the gallery, surrounded by artifacts of American history, and I know you said already that you developed a relationship with Alfred Eisenstadt, and that was the catalyst for the gallery, but how did you develop relationships with the other photographers whose work you show? Especially because I’ve got to imagine you’re working with Estates, because many of these people have passed on.
SM: That’s correct.
–(editor’s note: Right here, we were interrupted by a strange woman who took the time to complain that there were no photographs of dancers on the wall. She felt slighted. Mr. Monroe patiently answered her questions, and treated her with respect, despite the fact that she was behaving like a complete nutbar.)
SM: Partly, it was fortunate timing. When we began, many of these photographers were still alive. Eisenstadt introduced us to many of his colleagues at LIFE magazine, Carl Mydans was still living, as were many of the other LIFE photographers. It’s almost like a fraternity. One of the things we’ve been so passionate about is getting these photographers to make prints while they’re still alive. As a photojournalist, unlike a lot of other photographers, they never considered making prints during their lifetime. They were on assignment. They had a job to to. They got their assignment from LIFE or LOOK or whomever, they went out in the field, shot their work, sent their film back, and chances are they never even saw it. It was edited, and used or not used in a magazine.
When we met some of these other photographers, particularly with Carl Mydans, and we suggested that they could go back through the work and see it fresh. He’s seen it in a magazine, or a book, but to sit down with a negative and a printer…the printer would say, “Carl, you can make it this big or that big, we use different paper, crop it this way or that.” It opened up a whole new possibility for them in doing their work. We’ve met these photographers, we’ve encouraged them to do this, but a lot of times they’re hesitant. It’s just not something that’s in their thought process.
JB: Then. But probably we would say that’s changed.
SM: That has changed. And now you get a lot more photographers who say, “I want to do what he did.” It really was like a fraternity, and one by one, we either knew about photographers, sometimes we’d talk to them and they’d be resistant. I knew Eddie Adams way back when in New York. Eddie was infamous for refusing galleries. I never really approached him, but I’d always talk to him about it. Within a few months of his passing, his wife came to us and asked us to represent the Estate. It’s a combination of people coming to us, people we’ve put out feelers to, and it’s a very close-knit community. Almost all of our photographers are colleagues of some sort. Sometimes to almost a humorous point. We did an exhibit once, and a photographer found out he was hanging next to another photographer, and he said, “Son-of-a-bitch, I hated him then, and I don’t want to hang next to him in your gallery.” So we moved the exhibit around a little bit.
JB: You did?
SM: We did. My wife likes to say “We work for them.” And that’s true. A lot of times they’re elderly, and we feel very privileged. It’s important to get their work represented, particularly while they’re alive, and to get prints made that will represent a legacy for the future.
JB: You developed a relationship with a network of photographers who knew one another, and as your reputation built, they came to want to work with you. But what about the collectors themselves? How did you develop a relationship with a network of people who wanted to buy these prints.
SM: It started very innocently. This is what we were passionate about. This is what we put on the walls. This is what we want to talk about. And it was slow going in the beginning. We had many times where we had exhibits up, and the established photo collector would be like, “Gee, I don’t know about your gallery,” and then they’d look at it, and they’d say, “But this is photojournalism?” And we were like, “Yeah, isn’t it great?” A lot of what we’ve done, is that we’ve educated people about photojournalism.
Moving to Santa Fe was very liberating, in a way, because in the New York art world, there’s a tremendous pressure. What’s hot? What’s the next big thing? More so in the art world, but it does also permeate into the photo world. So seeing old history on the wall isn’t very sexy. Moving to Santa Fe, there’s more freedom, it seems, of peoples’ perceptions of art in general. We’ve tried to create an environment where the photographs speak for themselves.
JB: So most of your collectors have been into the space? Are most of the people local to Santa Fe?
SM: No. We have a very wide base. Fortunately, having been in business in Manhattan for so many years, a lot of those clients follow us. Of course, so much can be done in the virtual world now. It doesn’t replace the experience, but certainly they can follow the imagery. We also do photo fairs in New York and Los Angeles. Often, it comes from the first conversation you have with a person about why they’re having a visceral reaction to a particular image. Being complete academic nerds, we can recite everything that was ever vaguely relevant about a particular photographer. It’s about cultivating relationships and knowledge. You touched on the retail model. I believe it’s an important model for a photography gallery. And by retail, I don’t mean retail selling.
JB: Well, that was my next question. Because we’re in downtown Santa Fe, and during the course of this interview, I’d say 25 people have already been into the gallery, and an additional 40 have been looking at pictures through the window. I think some people believe that people come in and buy things off the wall, and other people think that’s a fantasy. I was hoping we might be able to address, from your own standpoint, how it actually works.
SM: Personally, our goal is to spread the gospel of photojournalism, so getting the work seen by the public is critical. It’s a part of what we do, and another part is to educate. That doesn’t mean we preach, but I’m available to anyone who wants to ask questions, as we saw earlier, from mundane to serious. There’s no screening process of who gets to talk to me.
JB: Is that because we’re in Santa Fe? I wrote some things that were critical of some of the galleries in Chelsea for that reason. The approachability factor is nil. Here you’re talking about the fact that you’re almost perfectly approachable.
SM: That was our posture in New York. It’s just who I am and the way I work. It is bothersome sometimes, but that’s just the way it is. And I have to say that it has resulted in some incredibly long-term relationships with very important collectors. I think it’s a thing in the art world, and everybody has their model, and they can do it the way they want. But by design, I want the work to be seen, I want people to be able to ask questions. The retail model for us is that we’re open to the public, and we’re here to show photography. Both in New York and Santa Fe, we’re connected to schools, workshops, communities. Santa Fe is wonderful because of the Santa Fe Workshops, and Center as well. Many instructors bring their classes in here.
JB: You’re talking about retail as a way to engage with the public and have an exhibition space that enables the work to be seen. I’m curious, a bit, about the alternative way of viewing the concept of retail. The idea that people are going to walk in off the street, buy something off the wall, and take it home with them. As opposed to sales coming through built-up relationships over time. How often do you find that members of the public cross over to become collectors, as opposed to the public being appreciators?
SM: It’s hard to quantify, but obviously it’s a very small percentage. But just yesterday, a young couple came in and asked about a Margaret Bourke-White photograph we had exhibited seven years ago. They got married here seven years ago, and came back again on vacation. They asked about the photograph and they bought it.
JB: So it happens, but it’s the exception. It’s not the basis of your business.
SM: No. It’s not the basis of our business.
JB: Nor could it be?
SM: No. Nor could it be. Or should it be.
JB: Right, but in a sense, we’re talking about the exhibition divested from commerce. The exhibition is about getting the work seen, which is not that different from a museum or a public space.
SM: That’s exactly right. A lot of people, as they exit the gallery, say this is like a museum.
JB: As you said before, by design. You could be a private dealer with a small office, if you wanted to be.
SM: Absolutely. And we curate based upon our agenda, which is to tell a story. A lot of times, you get comments from the public, “How do you know which one’s going to sell?” Well, that never even enters into the equation. And on the flip side, there are a lot of times where we have controversial pictures that upset people, and they say, “Why do you put that on the wall?” Because it’s part of the story. It’s very important.
JB: It’s a perfect opportunity to ask, you’re opening your big summer exhibition called “History’s Big Picture” on July 1st. It’s not on the wall today, so I thought you might be able to tell us a bit about that.
SM: Curating is always interesting, because you’re juggling dozens of ideas. It occurred to us that this year is our 10th year anniversary in Santa Fe, during which time we built our photojournalism focus. And it occurred to us that we’ve got this incredible stable of photojournalism that we could curate from and make “History’s Big Picture.” The hardest part is editing, because we could do ten exhibits called “History’s Big Picture” and not duplicate any images.
JB: Really? How big an archive do you have? Given what you just said, how many pictures do you have access to?
SM: Jonathan, I couldn’t even tell you…
SM: Thousands. We have archives in the gallery, we have off-site location here and in Manhattan, and we have our photographers who maintain archives.
JB: Sure. I interrupted, but you were talking about “History’s Big Picture.” As a curator, that’s kind of a broad theme. What did that mean to you?
SM: The pictures that tell the story of history. You have to edit your timeline for history, of course.
JB: American history?
SM: Primarily history as it relates to America. We chose 1930 as the starting point, and wanted to come as close to the present as possible. We have several images from 2006, 2007 and 2008.
JB: Am I correct that for the recent work, you’re showing Nina Berman’s pictures?
SM: We are.
JB: At APE, we spoke to her earlier this year. She’s fantastic. How did you come to get her work in the show?
SM: She is fantastic. She’s somebody I’ve admired. For photojournalists today, they’re obviously working in a challenging environment, and a changed one as far as the media goes. In the heyday, you had vehicles like LIFE or LOOK, where that work was published, the photographer became known, and the public saw the work. In today’s media world, getting images shown is very challenging.
JB: You mean getting images seen?
SM: Yes, getting images seen.
JB: It’s a distinction we could probably talk about for an hour, but I think most people reading this will probably know the difference.
SM: Of course. The visual clutter that’s prevalent today. And the change of the economy of scale of the media. So Nina is one of the many contemporary photojournalists that I’ve known about, followed and admired. I wasn’t sure how we could show her work and do it justice, but in the context of this exhibit, I felt that we’ve got to have it. She was so gracious and accommodating, and it was an honor to have five of her photographs in the exhibit. We’ve got two from “Homeland Security” and three from the “Marine Wedding” series.
JB: Including the Ty Zeigler wedding portrait?
SM: Including the wedding portrait.
JB: Which I saw on the wall in New York last year, which led to the interview with Nina. So we’ve come full circle. That picture will now be on the wall here in Santa Fe all summer long.
SM: And I’m prepared. That picture’s going to elicit a lot of, I don’t know if controversy is the right word. But in the context of a public exhibition, in summer, which is high traffic tourist season in Santa Fe, the good side is obviously this show will get a lot of exposure. And the other side is that there are some very difficult photographs in this exhibit. But that’s history. That’s reality.
JB: Sure. Well, I know that everyone hates to be asked what’s your favorite, or what’s the best, or this or that. But I thought maybe if I put you on the spot, you might be able to pull out some old-school war story from back in the day that somebody told you that you still tell at dinner parties when you’ve had four glasses of wine.
SM: There’s a few.
JB: I’m sure there are many. But can you give us one?
SM: One of my all time favorites happens to be about Eisenstadt. This was at an opening for one of Eisie’s shows. He was a small man, and he was very confident of his success, shall we say. So this was at a big opening, and lots of big collectors were invited. I had a collector who’d bought several of Eisie’s pictures, and he said he’d like to meet Eisie. I said absolutely, and he asked if his son could come too. I said “Sure,” and made the introduction. Eisie was always very gracious, but he didn’t like to hang out with people too much. So the man said, “Mr. Eisenstadt, I just bought my son a camera, and I told him, now you can take pictures like Eisenstadt.” And Eisenstadt just stopped and gave him this stare, and he said, “My dear sir, I have ten fingers, and I cannot play the piano like Horowitz.” At that point, I said thank you very much and escorted him away.
JB: It’s kind of dry.
SM: It’s very dry. There’s the face value that says anybody can take pictures. And it’s a very good point, especially nowadays, where everybody’s a photographer. It’s the topic du jour now. I’ve seen so many articles about it.
JB: Me too, so we don’t even have to go there. But if you don’t mind, I’d like to ask one more question. What advice would you give to someone who wanted to get into this part of the business? What do you think is the pathway into the gallery industry in 2011?
SM: First and foremost, it has to be your passion. Unfortunately in the world we’re in today, a lot of people glamorize the business. They think it would be so glamorous to have a fancy gallery, and it has to be your passion.
JB: So not everyone gets to blow lines with Naomi Campbell?
SM: No. But we had a great exhibit back in New York with a good friend of mine named Mick Rock, who’s really become quite successful now. He was known as the man who shot the 70’s. He did all the rock and roll photography. He was Bowie’s photographer and Lou Reed’s photographer. I got to know him, and I convinced him to do an exhibit. So when we did the show, we had Bowie, and Iman and Lou Reed hanging out. I would always say, “I’m never going to get rid of that desk chair,” because Bowie and Lou Reed sat in that chair.
But that’s not why you get into the business, is my point. If you’re passionate about the work, it will be rewarding no matter what, because you’re doing what you enjoy. And that’s the bottom line. It’s a job, and it’s work. It’s a fabulous job, and it’s fabulous work, but it’s a job.
If you’ve got the passion, the first step is to find your photographers. There’s a partnership between a gallery and the photographer/artist. You’re in it together. It’s not one or the other, it’s both. When I sell a print and call up the photographer to tell them, that’s a celebration we share. The next thing that follows is the relationships with your clients. And then you take it from there.
All of the publications are edited by women in their 20s who first built a following by blogging. It may seem strange for young creative types to be starting online publications that so closely mimic traditional magazines, particularly when that means adopting the conventions of print in such a literal — some might even say unthinking — way. But in the blogosphere, it turns out, many see print as conferring a sense of legitimacy and distinction.
Ok, sorry I’m now on a complete jag here, but someone sent me this Cass Bird cover awhile back that has a nice lineage of the exact same idea.
I don’t want to get on a jag about copyright infringement here, but a lawsuit filed this week against Ryan McGinley illustrates how copyright can potentially impinge artist’s creative expression if taken too far.
Artist Janine “Jah Jah” Gordon has filed a lawsuit in the U.S. District Court for the Southern District of New York against photographer Ryan McGinley for copyright infringement, arguing that 150 of McGinley’s photographs, including several used in an ad campaign for Levi’s, a co-defendant in the suit, are “substantially based” on Gordon’s original work.
There’s a lot of emotion wrapped up in this case as Janine and Ryan have both shown at the Whitney and several prominent galleries where Janine says he had “access to view and examine” her images. Additionally, when ArtInfo.com contacted Janine (here) she says she has been begging McGinley to stop copying her work since the 1990’s through dealer and close friend Chris Perez. Also, noted was an incident according to the complaint in 2003, when she ran into him at a PS1 opening and he responded with “a fearful gasp and speedy retreat into the crowd.” Like I said, it’s very emotional. McGinley’s prints also sell for 4 times the amount of his older more established counterpart.
The complaint alleges that he copied her subject matter, lighting, composition and ideas:
There’s no doubt in my mind that seeing Ryan McGinley come up on your heels and churn out similar looking images would be a painful experience. But, this is where copyright hurts photographers. There’s nothing that hasn’t been done before so if you’re not allowed to draw inspiration from and take little parts of other photographers and artists work there’s nothing to take pictures of. I think the case will be impossible to prove in court, but I would guess the point is not to win but to raise awareness, get him to stop and go somewhere else for inspiration.
Unless the problem is not really the “mythologizing” or the “exploitation” or whatever other aspect of photography we’re having trouble coming to terms with. Let’s face it, it’s a very obvious statement to say that photography exploits its subjects – but making that statement does not automatically lead to any insight. It’s almost like saying that if you print out a photograph it will be a flat piece of paper. Any real insight can only be gained by taking matters further, by exploring that exploitation, by questioning it, etc.
A few weeks ago there was news that Jay Maisel had successfully defended his copyright against someone claiming “transformation” by turning his original Miles Davis cover photograph into pixel art. It was another victory for photographers in the fight over “fair use,” an idea that is very important but also extensively misused by people who don’t understand it. Millionaire internet entrepreneur Andy Baio and stockbroker Andrew Peterson (AKA Thomas Hawk), of San Francisco investment company Stone & Youngberg, are a couple of those people. Andy made a chiptune tribute to Miles Davis’ Kind of Blue called Kind of Bloop and he used Jay’s cover image to create his own to go with it. Maisel sued and Baio settled instead of going to court to “cut his losses.” He wrote a post on his popular blog waxy.org entitled Kind Of Screwed, where he tries to explain how his cover art would qualify for fair use.
I’m going to pick apart Andy’s argument, but first I need to mention that the post got the internet all worked up over copyright and Jay Maisel’s name has been drug through the mud by people like Andrew Peterson (AKA Thomas Hawk) “Photographer Jay Maisel Extorts (Opinion) $32,500 Out of Andy Baio” and Hyperallergic “Breaking: Millionaire Extorts $$$ From Artist, Street Artists Strike Back.” The Russian photos blog has an excellent wrap up of the disgusting antics “The Photographer, The Entrepreneur, The Stockbroker And Their Rent-A-Mob” followed by Doug Menuez “SLANDER, STUPIDITY & THE MINDLESS MOB ATTACKS ON JAY MAISEL”
By far the best and most recent explanation of how fair use is interpreted by the courts can be found in the filing by Judge Deborah A. Batts in Patrick Cariou’s successful lawsuit against Richard Prince that I wrote about (here).
The 4 factors that make up fair use are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
i. Transformative Use
iii. Bad Faith
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Note: Only a court can determine fair use.
Reading what Andy Baio has to say about his cover art, he claims the transformation is the most important part of what he’s done, but fails to recognize that “the purpose and character of the use” includes transformation but also commerciality and bad faith. The cover was commercial so that rules out the obvious nonprofit educational use of copyrighted work. Then there’s the bad faith element which asks if they tried to obtain permission or a license in the first place. Evidently there was some bad faith involved, because Andy called Jay’s office but did not ask to use or license the image. Finally, the courts say a transformation must comment on the original and not simply use it as source material. Additionally, making a derivative work is not the same as transforming, so simply recasting it is not enough. So how did he transform the image? He claims that by using NES-style pixel art to capture the artistic essence of the original album cover with “a fraction of the resolution and color depth of an analog photograph” he transformed it. Here’s how Judge Batts would respond “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.” Rogers v. Koons, 960 F.2d at 310.
The final 3 factors are where Andy’s argument goes completely off the tracks. He says that Jay’s image “is creative, it’s also primarily documentary in nature” to which Judge Batts would say “it has been a matter of settled law for well over one hundred years that creative photographs are worthy of copyright protection even when they depict real people and natural environments. He used the entire image. And, finally he says that “It’s obvious the illustration isn’t a market substitute for the original” but Judge Batts would say “the Second Circuit has previously emphasized, the ‘potential market’ for the copyrighted work and its derivatives must be examined, even if the ‘author has disavowed any intention to publish them during his lifetime,’ given that an author ‘has the right to change his mind’ and is ‘entitled to protect his opportunity to sell his [works].'”
Yes, Andy you would have been screwed in court as well and given photographers another case to cite when protecting their copyright. The crazy thing about the whole debacle is that he licensed all the cover songs from Miles Davis’s publisher but didn’t do the same with the image. He didn’t think he would have any issues copying the images. That’s because you don’t mess with the music industry when it comes to copyright, now maybe the same will be said to photographers thanks to Jay Maisel.
UPDATE: Andy Baio and Jeremy Nicholl (Russian Photos Blog) weigh in on the comments of a TOP post (here).
The part that I don’t like is when photographers are stagnant (not shooting new work) and then to boot, their way of trying to get things going again is to ask us to set up a bunch of meetings for them. It puts me in an awkward position to set up meetings for someone who is going to show the same work that they have showed for the last year or more. On the other side, when they are shooting a lot of new stuff, the word gets out and people want to meet with them – they want to see the new work – and it isn’t a used car sales job to get them in for meetings. There really has to be a draw for the Art Buyer/Creative/Photo Editor and not just like… hey can I land this pile in your office?
— Agent, Deborah Schwartz of DSReps.com