Lipstick on an old media business model doesn’t make it new media

- - Blog News

The “next, new” media company will disintermediate all these “current, new” media companies by demonstrating the common-sense and obvious fact that continues to allude otherwise smart people: Today, all companies have the power to be media companies.

Moreover, any new media company that is created on the old notion that they sit between sellers and buyers is only temporarily new. They’ll be gone faster than you can say, “ Speedy Alka-Seltzer.”

So, enjoy your day, all you new media companies that send out daily deals to people who are in constant search of a better deal on a day spa. One day, those day spas will figure out how they’re a new media company themselves and will figure out what they really need is to invest in media that helps keep those customers coming back, instead of becoming itinerant day-spa-ists.

via Rex Hammock’s RexBlog.com.

I realized that this is a picture you take once in a blue moon

- - Blog News

Believe me, when I looked at the pictures on the screen, my hands were shaking. My heart was beating. I realized that this is a picture you take once in a blue moon. It’s being there at the right time, at the right moment, at the right place, with the right lens. If you want to shoot artsy stuff, you never have the lens for this. If you’re covering the war with a 35-millimeter and a 50-millimeter lens, you’ll never have this.

via Patrick Baz Is in His Element in Libya – NYTimes.com.

Journalists Recount Days Of Brutality In Libya

- - Photojournalism

The New York Times journalists–photographers Tyler Hicks and Lynsey Addario among them–recount their ordeal after being captured in Libya:

“Shoot them,” a tall soldier said calmly in Arabic.

A colleague next to him shook his head. “You can’t,” he insisted. “They’re Americans.”

They bound our hands and legs instead — with wire, fabric or cable. Lynsey was carried to a Toyota pickup, where she was punched in the face. Steve and Tyler were hit, and Anthony was headbutted.

Cameras are now seen as weapons and the dangers of photographing conflict seems to be on the rise.

If he died, we will have to bear the burden for the rest of our lives that an innocent man died because of us, because of wrong choices that we made, for an article that was never worth dying for.

No article is, but we were too blind to admit that.

Read the rest of today’s A1 story (here).

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Judge Rejects Google Books Settlement

- - copyright

Judge Denny Chin of the US District Court rejected a deal google reached with publishers to split the proceeds from books who’s authors could not be found. Sound familiar? Yeah, that’s basically orphan works for books.

Google reached the settlement in 2008, agreeing to pay $125 million to establish a registry to allow authors and publishers to register their works and get paid when their titles are viewed online. The deal resolved a consolidated lawsuit in which authors and publishers sought to block the company from scanning books and making them searchable online.

The plaintiffs alleged that Google’s book-search project violated copyrights.

The judge said it went too far in granting Google rights to exploit books without permission from copyright owners.

He did have a solution for the publishers and google. Rather than opt out the copyright owners should be given the chice to opt in. “I urge the parties to consider revising the [settlement] accordingly,” Judge Chin wrote.

UPDATE: The full opinion is here (PDF).

Read more: NYTimes.com WSJ.com, thx David Laidler.

Cass Bird – Wrangler Campaign

- - Photographers

From Creative Review (here):

Fred & Farid ad agency in Paris has created a striking series of images featuring stunt men and women in its latest campaign for Wrangler.

The ads feature Hollywood stunt people performing daredevil acts including jumping from windows, being set on fire, and falling through panes of glass. The performances were all captured by photographer Cass Bird, and together form a striking set of advertising images.

Cass has a great sense of humor and you can see in that video why everyone loves working with her. That along with a great body of work is solid gold.

MOTION FLYING MAN

more:
http://www.stunt-campaign.com/
http://www.wrangler-europe.com/we-are-animals/

How do you get somewhere in photography ?

- - Blog News

Making money at photography is a difficult thing to do. I don’t want to discourage you from your dreams, you should always pursue whatever it is that you love doing. The fact is that in the last three years the business has changed considerably. It has gone from being hard, to being very very hard. Success requires considerable luck, a vision that is relevant to the market, business sense and most of all perseverance. There is a certain Darwinian element to it, those who try the longest and the hardest survive.

via Blog: David Harry Stewart.

Richard Prince Loses Fair Use Argument

- - copyright

In December of 2008 photographer Patrick Cariou filed suit against Ricard Prince, Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications in federal district court (here). The suit came about after Prince appropriated 28 images from Patrick’s Yes Rasta book for his Canal Zone exhibit at the Gagosian gallery. Several of the pieces, as you can see from the comparisons below ,were barely changed under the “artist’s” hand.

Yesterday, US District Judge Deborah A. Batts ruled on the cross-motions for summary judgment:

Defendants Richard Prince, Gagosian Gallery,  Inc., and Lawrence Gagosian seek a determination that their use  of Plaintiff’s copyrighted photographs was a fair use under the relevant section of the Copyright Act, 17 U.S.C. §§ 107(1)-(4), and that Plaintiff’s claim for conspiracy to violate his rights under the Copyright Act is barred by law. Plaintiff seeks summary judgment in his favor on the issue of liability for copyright infringement.

She found that the use by Prince was not Fair Use, the conspiracy claim was found to be barred by law and Patrick’s issue of liability for copyright infringement was granted in its entirety. In other words, Patrick won.

I’m sure there will be an appeal, but this is quite a victory for photographers and the judgment is fascinating reading for fair use buffs (download it here), What I really found interesting is how badly most people (myself included) interpret the transformation part of appropriating works. Everyone talks about adding value through transformation but the reality is that you must be commenting on the original image or expression in some way. This line quoted from Rogers vs. Koons puts the nail in the idea of adding value as some kind of transformation “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.” Transforming a picture of President Obama into a poster does not qualify nor does commenting on commercial advertising by taking close up shots of cowboys in cigarette advertising images.

I’ve included some highlights from the 38 page filing:

Some of the paintings, like “Graduation (2008)” and “Canal Zone (2008),” consist almost entirely of images taken from Yes, Rasta, albeit collaged, enlarged, cropped, tinted, and/or over-painted, while others, like “lIe de France (2008)” use portions of Yes, Rasta Photos as collage elements and also include appropriated photos from other sources and more substantial original painting.

In total, Prince admits  using at least 41 Photos from Yes, Rasta as elements of Canal  Zone Paintings

Other than by private sale to individuals Cariou knew and liked, the Photos have never been sold or licensed for use other than in the Yes, Rasta book. However, Cariou testified that he was negotiating with gallery owner Christiane CelIe (“CelIe”), who planned to show and sell prints of the Yes, Rasta Photos at her Manhattan gallery, prior to the Canal Zone show’s opening. Cariou also testified that he intended in the future to issue artists’ editions of the Photos, which would be offered for sale to collectors.

when CelIe became aware of the Canal Zone exhibition at the Gagosian Gallery, she cancelled the show she and Cariou had discussed. CelIe testified that she decided to cancel the show because she did not want to seem to be capitalizing on Prince’s success and notoriety, and because she did not want to exhibit work which had been “done already” at another gallery.

Defendants assert that Cariou’s Photos are mere compilations of facts concerning Rastafarians and the Jamaican landscape, arranged with minimum creativity in a manner typical of their genre, and that the Photos are therefore not protectable as a matter of law, despite Plaintiff’s extensive testimony about the creative choices he made in taking, processing, developing, and selecting them. Unfortunately for Defendants, 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. See,~, Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 {1884}

From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of Science and useful Arts ….” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const., Art. I, § 8, cl. 8). At the Constitutional level, while the “Copyright Clause and the First Amendment [are] intuitively in conflict, [they] were drafted to work together to prevent censorship” such that “the balance between the First Amendment and copyright is preserved, in part, by the idea/expression dichotomy and the doctrine of fair use

although “the monopoly created by copyright … rewards the individual author in order to benefit the public[,]” on the other hand “the monopoly protection of intellectual property that impeded referential analysis and the development of new ideas out of old would strangle the creative process.”

Now, looking into the 4 factors that make up fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(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.

The judge weighs each one:

1. The Purpose and Character of Prince’s Use of the Photos

i. Transformative Use

the fact that a work “recast[s], transform[s], or adapt [s] an original work into a new mode of presentation,” thus making it a “derivative work” under 17 U.S.C. § 101, does not make the work “transformative” in the sense of the first fair use factor.

The cases Defendants cite for the proposition that use of copyrighted materials as “raw ingredients” in the creation of new works is per se fair use do not support their position, and the Court is aware of no precedent holding that such use is fair absent transformative comment on the original. To the contrary, the illustrative fair uses listed in the preamble to § 107 ­ “criticism, comment, news reporting, teaching [ …], scholarship, [and] research” – all have at their core a focus on the original works or their historical context, and all of the precedent this Court can identify imposes a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works.

“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 Court therefore declines Defendants’ invitation to find that appropriation art is per se fair use, regardless of whether or not the new artwork in any way comments on the original works appropriated. Accordingly, Prince’s Paintings are transformative only to the extent that they comment on the Photos; to the extent they merely recast, transform, or adapt the Photos, Prince’s Paintings are instead infringing derivative works.

Prince testified that he doesn’t “really have a message” he attempts to communicate when making art.

ii. Commerciality

As a result of these and other marketing efforts, Gagosian Gallery sold eight of the Canal Zone Paintings for a total of $10,480,000.00, 60% of which went to Prince and 40% of which went to Gagosian Gallery. Seven other Canal Zone Paintings were exchanged for art with an estimated value between $6,000,000.00 and $8,000,000.00. Gagosian Gallery sold $6,784.00 worth of Canal Zone exhibition catalogs.

This Court recognizes the inherent public interest and cultural value of public exhibition of art and of an overall increase in public access to artwork. However, the facts before the Court show that Defendants’ use and exploitation of the Photos was also substantially commercial, especially where the Gagosian Defendants are concerned.

iii. Bad Faith

Prince’s employee contacted the publisher of Yes, Rasta to purchase additional copies of the book, but apparently neither Prince nor his employee ever asked the publisher about licensing or otherwise sought permission to use Yes, Rasta or the Photos contained therein legitimately. Nor did Prince attempt to contact Cariou by email and inquire about usage rights to the Photos, even though Yes, Rasta clearly identified Cariou as the sole copyright holder and even though Cariou’s publicly-accessible website includes an email address at which he may be reached. Under these circumstances, Prince’s bad faith is evident.

Moreover, since the record establishes that the Gagosian Defendants were aware that Prince is an habitual user of other artists’ copyrighted work, without permission, and because the record is equally clear that the Gagosian Defendants neither inquired into whether Prince had obtained permission to use the Photos contained in the Canal Zone Paintings nor ceased their commercial exploitation of the Paintings after receiving Cariou’s cease-and-desist notice, the bad faith of the Gagosian Defendants is equally clear

2. The Nature of the Copyrighted Work

“The statutory articulation of this factor derives from Justice Story’s mention … of the ‘value of the materials used.’ Justice Story’s word choice is more communicative than our statute’s ‘nature of,’ as it suggests that some protected matter is more ‘valued’ under copyright that others. This should not be seen as an invitation to judges to pass on [artistic] quality, but rather to consider whether the protected [work] is of the creative or instructive type that the copyright laws value and seek to foster.”

Here, the Court finds that Cariou’s Photos are highly original and creative artistic works and that they constitute “creative expression for public dissemination” and thus “fall[] within the core of the copyright’s protective purposes.”

3. The Amount and Substantiality of the Portion Used

In a number of his Paintings, Prince appropriated entire Photos, and in the majority of his Paintings, Prince appropriated the central figures depicted in portraits taken by Cariou and published in Yes, Rasta. Those central figures are of overwhelming quality and importance to Cariou’s Photos, going to the very heart of his work.

4. The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work

Defendants’ protestations that Cariou has not marketed his Photos more aggressively (or, indeed, as aggressively as Prince has marketed his Paintings) are unavailing. As 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].”

Finally after the judge ruled that they violated Patrick’s copyright and are liable:

That Defendants shall within ten days of the date of this Order deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, film negatives, discs, and other articles for making such infringing copies. That Defendants shall notify in writing any current or future owners of the Paintings of whom they are or become aware that the Paintings infringe the copyright in the Photographs, that the Paintings were not lawfully made under the Copyright Act of 1976, and that the Paintings cannot lawfully be displayed under 17 U.S.C. § 109(c)

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The End Of Free

- - The Future

If there’s anything that signals the end to the internet era of free it’s the long anticipated, much talked about, subscription plan for the New York Times. Announced on Thursday, visitors to the NYTimes.com website will be given access to 20 articles a month for free and to read the 21st article they will be given the option of buying one of three digital news packages:

$15 every four weeks for access to the Web site and a mobile phone app (or $195 for a full year), $20 for Web access and an iPad app ($260 a year) or $35 for an all-access plan ($455 a year). All subscribers who take home delivery of the paper will have free and unlimited access across all Times digital platforms except, for now, e-readers like the Amazon Kindle and the Barnes & Noble Nook. Subscribers to The International Herald Tribune, which is The Times’s global edition, will also have free digital access.

They have smartly decided to make some of their content available for free to take advantage of social distribution so that anyone can read an article someone passes along to them via email, twitter, facebook and blogs. The freemium model has really become the standard for making money on the web and it works quite well when you have a digital product that costs next to nothing to make a copy of.

Personally I believe this marks the end of an era where everyone scrambled to make something free and marveled at all the people who used it. Increasingly I’ve found myself looking at all the free options and then going for the higher quality paid option. That doesn’t mean that free will no longer exist, just that products you use heavily or want more quality/reliability out of will be paid. And historically, with new technologies, this has always been the case. As consumers begin to rely on something or competing products battle for attention the quality goes up and so does the price. I think we’ll all look back at this moment, forget about all the hand wringing that went into it, and talk about the genius behind hooking everyone for free and charging the addicts who want more.

Tyler Hicks and Lynsey Addario Missing In Libya

- - Photographers

UPDATE: Four New York Times journalists missing in Libya since Tuesday were captured by forces loyal to Col. Muammar el-Qaddafi and will be released Friday, his son, Seif al-Islam el-Qaddafi, told Christiane Amanpour in an ABC News interview. (story here)

The New York Times is reporting that 4 of their journalists are missing in Libya. Photographers Tyler Hicks and Lynsey Addario along with Anthony Shadid, the Beirut bureau chief and Stephen Farrell, a reporter and videographer. Bill Keller, excutive editor of The Times says, “We have talked with officials of the Libyan government in Tripoli, and they tell us they are attempting to ascertain the whereabouts of our journalists.” You can read the story on the Media Decoder blog (here). On March 9th Tyler told the NYTimes Lens blog that he had witnessed the “thickest fighting in a single day that he has ever experienced, with the most firepower — coming and going.” That’s pretty serious coming from a man who covers conflict for a living. Hopefully they’re fine and unable to make contact temporarily and will be found soon.

Here’s the last known photo of the two (confirmed here).

Paul Conroy / Reuters  Journalists, including New York Times photographers Tyler Hicks (right in glasses) and Lynsey Addario (far left), run for cover during a bombing run by Libyan government planes at a checkpoint near the oil refinery of Ras Lanuf on Friday, Mar. 11. Hicks and Addario, along with NYT correspondents Stephen Farrell and Anthony Shadid, were reported missing near lines of Muammar Gaddafi's advancing forces two days ago, the NYT announced on Wednesday.

Journalists, including New York Times photographers Tyler Hicks (right in glasses) and Lynsey Addario (far left), run for cover during a bombing run by Libyan government planes at a checkpoint near the oil refinery of Ras Lanuf on Friday, Mar. 11. Photo by Paul Conroy / Reuters

Newsweek and New York Times Magazine Redesigns

- - Magazines

Magtastic Blogsplosion has reviews of the Newsweek (here) and New York Times Magazine (here) redesigns. Newsweek is worth paying attention to as Tina Brown was named EIC after it was merged with The Daily Beast. Tina famously broke the ban on treating photography seriously in The New Yorker by hiring Richard Avedon. That was after she put Vanity Fair on the map. Of course that was a different era in magazines and now that we have the internet to contend with who knows if she can right that old ship.

Magtastic says the photo editing is well done and the journalism is solid but there’s some “poor-taste news-related gossip” sprinkled in there that weakens the whole package. Personally, I really like the idea of combining the far reaching seo baiting Daily Beast with serious journalism and photography of Newsweek. And, I agree they should stay separate. Online should up-sell the magazine and drive traffic to the newsstand for important stories. Now that the entire issue can be downloaded to an pad or phone, the online presence should drive that not invade it. Combining forces does not mean you have to mash it all up, instead attract the different audiences and sell them something.

The New York Times Magazine famously doesn’t have to compete on the newsstand with other magazine so they can do whatever the hell they want inside. That leads to outstanding journalism and photography within an “aimless” (as magtastic calls it) overall package. The review the review of the redesign goes on to say the there’s a surprising “lack of hard-hitting photojournalism” and the “images are small and feel distant, used more to break up the page than to illuminate the story.” That’s going to be a real shame if this redesign uses photography as decoration for some art directors grid. In this day and age printing images at less than full bleed in a magazine is a complete waste of time. Let’s hope they come to their senses.

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Elisabeth Biondi – New Yorker Visuals Editor

- - Blog News

When I work with photographers, it’s a collaborative process. My job is to translate the magazine to the photographer and the photographer to the magazine. It’s what I see as my role. I believe very much that personality is a factor, in addition to talent. I want to know the photographer so I can pair him with the right person for portraiture, for example. We work with artists, we work with photojournalists, we work with portrait and still life photographers. I’ve worked with all these different disciplines, if you want to call it that, and I love diversity.

via La Lettre de la Photographie.

How To Present Work To A Gallerist

- - Gallery

Reader Question:

“I am wanting to show some work to a great gallery in [Redacted] to see about doing an exhibit. I don’t know the first thing about how to present this to the gallerist. I have a good relationship with him and have talked about photography and bought works from him. I just want to avoid the pitfalls when I ask him to look at this new body of work.”

I contacted Laura Pressley, Executive Director at Center. They put on Review Santa Fe, which is well attended by gallerists, book publishers and photographers showing them work. Here’s her answer:

I would recommend bringing about 20 images in a portfolio box, same size paper, same process, consistent output, of a fully or nearly resolved cohesive body of work. Work that is tightly edited, intelligently sequenced and grounded by a well written project statement would be ideal.

Also, ask for advice, perhaps regarding next steps for the work, or sequencing and presentation preferences, which then engages and connects the viewer to the work.

Lastly, if you have two or more bodies of work then bring one other portfolio to look at in case the first one isn’t the viewers cup of tea.

Wall Space Gallery’s Life Support Japan

- - Gallery

Wall Space Gallery has created a wonderful project selling photographs @ $50 as a benefit for the people of Japan (go here). The money raised will go to Direct Relief and Habitat for Humanity Japan. Please visit the site and purchase a piece of art and help those in need.

All limited editions photographs are 8.5 x 11 inches, signed editions of 10 only.

This is the first of many auctions the photo community has pulled together asap, powered by Aline Smithson of lenscratch and Crista Dix of wall space gallery. Many more photographers are donating their work and more images are being uploaded every hour, so check back often!

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