Morel vs AFP and Getty: New Developments

- - copyright

For those of you following the case of Daniel Morel vs AFP and Getty there’s been a not-so-surprising ruling by the judge (on December 23rd) after AFP/Getty asked him to throw out the case.

To recap, Daniel Morel photographed some of the first images from the Haiti earthquake and posted those images on Twitter using a service called TwitPic (twitter has no images). All news agencies monitor twitter for breaking news so when AFP saw the images they tried to license them but were unable to reach Morel so they downloaded them and distributed them anyway (allegedly).

AFP hilariously tried to argue before the judge that they had a license to distribute the images because of the Twitter and TwitPic terms and conditions grants 3rd party licenses. In the transcript you can sense some incredulity coming from the judge as he questions their reasoning on this:

THE COURT: What should I do about the language that says, All images uploaded are copyright their respective owners?
MR. KAUFMAN: That’s true. There is a difference between owning a copyright and having a license granted. No one says that Mr. Morel lost his copyright by posting his images to Twitter/Twitpics. We have never argued that. We are saying that by accepting the terms and conditions, he accepted — he granted a license, and the terms of the license are what is set out in Twitter as to the use of third parties.

THE COURT: Mr. Kaufman, were there a number of news sources who asked Mr. Morel to pay for his pictures?

MR. KAUFMAN: Um-hmm.

THE COURT: Is that a yes?

MR. KAUFMAN: Yes, that is a yes.

THE COURT: Oh, good. All right. So if you want to apply your argument about what everybody else is doing, there were numerous news sources who were paying, right?

In this latest ruling Judge Pauley writes:

By their express language, Twitter’s terms grant a license to use content only to Twitter and its partners. Similarly, Twitpic’s terms grant a license to use photographs only to “ or affiliated sites.” AFP and the Third-Party Defendants do not claim they are partners of Twitter of affiliates of Twitpic licensed under the terms of service. Moreover, the provision that Twitter “encourage[s] broad re-use of Content” does not clearly confer a right on the other users to re-use copyrighted postings. Rather, that permissive language stands in contrast to the express, mandatory terms conferring a “license” and “rights” on Twitter. (See Twitter TOS at 2 (“you grant us a worldwide, non-exclusive, royalty-free license”); Twitter TOS at 3 (“you agree that this license includes the right for Twitter to make such Content available to other companies….”).) Although courts may find a license on a motion to dismiss where “[t]he terms for the governing contracts are clear,” Jasper, 378 F. Supp. 2d at 339, Twitter’s terms of service do not meet that standard. Accordingly, AFP and the Third-Party Defendants do not meet their burden to establish that they had a license to use Morel’s photographs.

and further down

However, AFP and the Third-Party Defendants do not claim that they were partners of sublicensees; rather, they characterize themselves as “users.” Moreover, the fact that Twitter “encourage[s] broad re-use of Content” does not “necessarily require” a Twitpic user to license his photographs to other users. That language is ambiguous and insufficient to establish on the pleadings that Morel “understood that the promisee [Twitter] had [the] intent” to confer a license on other users.

You can read the ruling here.

I’ve argued here before, that sitting on the sidelines as these new technologies develop is bad news for photographers. The founders of Twitter and many other social media applications create these services with the intent of shaping them to fit their users needs. That’s become business 101 in the 21st century. The more professional photographers use these services the more they can represent the needs of those users.

For further reading on the subject I recommend the BJP Blog, Photo Attorney and David Walker.

The 10 Biggest Marketing Blunders of 2010

- - Blog News

#10 Magazine industry spends millions preaching to the choir

The campaign, funded by five leading publishers, seeks to convince people that “magazines remain an effective advertising medium in the age of the Internet because of the depth and lasting quality of print, compared with the ephemeral nature of much of the Web’s content.”

And how are they going to get this message across? “Nearly 1,400 pages of the ads will be sprinkled through magazines including People, Vogue and Ladies’ Home Journal this year.”

Let me get this right – you’re going to tell magazine readers that reading magazines is a good thing? Maybe it’s just me but I’m pretty sure they already know. Aren’t the people you want to reach the ones who aren’t trying to discern the difference between the ads and the articles in GQ?

via, Collateral Damage, thx suzanne.

A Unique Way To Fight Photo Theft By Corporations

- - Social Media

Aspiring Pro Photographer Gustav Hoiland discovered that one of his images was being used without his permission by Saint Gobain Marine on their website. Since most corporations now monitor social media he decided to document the infringement in a video and throw it up on YouTube. He figures this is a unique piece of leverage photographers can use to fight corporations.

While I know there have been some infringements on Flickr and the photographers successfully used social media to shame the companies into doing something about it, I’m not so sure this is an effective way for a photographer who wishes to pursue a career shooting for corporations to resolve infringement. Social media works both ways and google never forgets. This kind of thing will show up when corporations are looking for photographers and it will have an effect on the hiring decision. Of course if the infringement is substantial it doesn’t really matter but in the smaller cases it seems like a long way to go for a little payoff.

A Fitting End To An Era: Kodachrome Is Dead

- - The Future

When Kodak stopped producing the film last year they gave Steve McCurry the last roll. He hand delivered that roll to Dwayne’s Photo in Parsons, Kansas the last lab on the planet to process Kodachrome. On December 30 they discontinued the processing forever. Here’s a frame from that last roll and more can be found on McCurry’s blog:

Picture 3

There’s a fitting tribute to the Kodachrome Generation over on David Burnett’s blog (here).

Truth be told, the last ten or 15 years were not easy for anyone what actually WANTED to shoot KR. Kodak slowly closed labs around the world, and the mere act of getting your film souped became Herculean. (Actually, Hercules shot tri-x.) So when the marketing people at Kodak (this actually happened ten years ago at a dinner in DC) would say that “there is no demand for the film anymore… no one wants to use it..” I had to remind him that at some point anyone using the film — or any film — actually wants to be able to SEE WHAT THE HELL THEY SHOT! You can’t expect people to wait a week to see their work. The technology existed to create small mini Kodachrome processing machines which could reasonably be installed at any good sized one-hour lab in the country. But for reasons known only to the geniuses at Kodak’s planning department, no serious consideration was ever given to supporting that project. They sure could have sold a lot of film if only we’d been able to see it in a timely manner. Perhaps it’s a parable for what technology is doing to our society.

Google Digital Newsstand

- - Blog News

Google is trying to drum up publishers’ support for a new Google-operated digital newsstand for users of devices that run its Android software. Google has told publishers it would take a smaller slice on any sales they make of Android apps than the 30% cut Apple typically takes on iTunes sales. Google has also proposed giving publishers certain personal data about app buyers to help with marketing related products or services.

via, WSJ

The Road Ahead or The Road Behind

- - The Future

The Road Ahead or The Road Behind
by George Joseph Moriarty

Sometimes I think the Fates must
Grin as we denounce and insist
The only reason we can’t win
Is the Fates themselves that miss

Yet there lives on an ancient claim
We win or lose within ourselves
The shining trophies on our shelves
Can never win tomorrow’s game
You and I know deeper down
There’s always a chance to win the crown

But when we fail to give our best
We simply haven’t met the test
Of giving all, and saving none
Until the game is really won

Of showing what is meant by grit
Of fighting on when others quit
Of playing through, not letting up
It’s bearing down that wins the cup
Of taking it and taking more
Until we gain the winning score

Of dreaming there’s a goal ahead
Of hoping when our dreams are dead
Of praying when our hopes have fled
Yet losing, not afraid to fall
If bravely, we have given all

For who can ask more of a man
Than giving all within his span
Giving all, it seems to me
Is not so far from victory

And so the Fates are seldom wrong
No matter how they twist and wind
It is you and I who make our fates
We open up or close the gates
On the road ahead or the road behind.

via, and John Wooden.

Here’s to 2011. May everyone achieve great success through hard work and perseverance.

Jock Sturges In The Internet Age

- - Photographers

This guest post is written by Elizabeth Fleming.

Last month I had the pleasure of joining friend and fellow photographer Jonathan Blaustein on a tour of the Chelsea gallery scene as he conducted research for an APE article, which can be read in its entirety (here). We decided to stop by Aperture and wandered into their back room where, tucked into what was essentially a chink in the wall, several photographs by the controversial Jock Sturges were on display. Before I had my own children I never cared much about him one way or the other, but now his images struck me as distressingly sexualized and, frankly, unsettling. Jonathan puts it best in his piece when he says that: “even in a world of moral relativity, these images transgressed some basic taboo.”

I didn’t trust the work at face value, and I wanted to examine why: I began thinking in particular about the delicate relationship between creator and subject when a certain intimacy is involved; the questions brought about by the dissemination of such work in the internet age; and the fact that Sturges’ models are almost uniformly beautiful, raising issues about preoccupations with appearance. I soon discovered that my uneasy feelings were not groundless: I found Sturges to be strangely silent on the topic of how he feels his work functions in a contemporary setting, and I learned that he had at one point had an affair with an underage girl, making the question of age and beauty that much more suspect.

So with all that in mind I’ll throw out the following question: is it fair to expect any artist to recontextualize his or her work if the original frames of reference have changed due to technological advances and/or societal shifts? Is it fair to take into account an artist’s persona in general and, if there is a model involved, the specificities of the artist/subject relationship? Certainly images must first be viewed on their own merit, but after we have detached ourselves from preconceived notions about the meaning of the work based on the fame or notoriety (or lack thereof) of the maker and the particulars of place and time in which the work was made, there is always an underlying context. Ultimately art does not exist in a vacuum, otherwise typing “Shakespeare biography” into the search bar on Amazon would not return thousands of results.

Sturges is a photographer who is nothing if not notorious. Rather than join the already beaten-to-death dispute over whether his work is art or pornography or neither, I’ll try my best to stick to the issues noted above and ask again, as it pertains to Sturges individually, whether it matters that when he began exhibiting in the early 1990s, his pictures of preadolescent and teenaged girls would almost exclusively be seen by a selective crowd. Those who wished to view his images had to seek out gallery exhibitions or purchase one of his books or prints, which created a controlled system of distribution. Today things are very different, as we all know—any image that is put online will be around the world and back in a matter of minutes, if not seconds.

According to Sturges, the dignity of his models is his highest priority, and part of his way of preventing them from potentially feeling debased has been to give them final say over where their likenesses will end up, ad infinitum. In a 1994 interview he stated: “It’s not inconceivable that at some point in the future [the models] might decide that these pictures embarrass them; the control, the power to decide whether that happens or not, shouldn’t be mine—it should be the kids’, and that’s where it stays. It creates a very complex life for me, I promise you. When I want to use a picture in a book, I have got to call foreign countries, find people, explain the context.”

That is all well and good, but the establishment of the internet has fundamentally changed the conversation. The discussions we are having in 2010 are not the same ones we were having in 1994, and the idea of jurisdiction over one’s likeness is now a fallacy. (Quick note: Aperture itself does not show the photographs I saw in its gallery online, requiring any interested party to email them directly, but a quick internet search easily found pictures of the girl shown in the images elsewhere.) If a child grows up and decides she is uncomfortable with naked photographs of herself being shown it is already too late—her request exists in an entirely different world. If Sturges’ definition of dignity is synonymous with control, then dignity is stripped every time that girl’s image is propagated on websites far and wide, and once out there, there’s no taking it back. Despite much searching, I couldn’t find any reference by Sturges himself to a change of attitude in how he views the circulation of his images in the 21st century versus the 20th.

Then there is the question of recontextualization. While search returns for Sturges mostly directed me to fine art websites, inevitably there was some usage on erotica blogs and alongside pop-up ads for teen chat rooms and the like; a handful had once been displayed on actual pornography sites but had since been removed. Whether due to copyright infringement or because Sturges is being careful to try to keep his images out of such places is unclear, but this detail is at least heartening. Still, I would surmise that there are doubtless more than a few instances of his work appearing uncredited on pornography sites, particularly since, chillingly, they would be categorized as pedophilia which—being illegal—is underground. Should Sturges be concerned about this? I believe so, or I believe he should at least engage in a dialog about all of the facets of internet use. And yet he seems determined to stick firmly to platitudes about nudists’ lack of shame, about people’s general prudishness, and about how, while there may be some who will look at his work and have “impure thoughts” (his term), there are also people out there who, quote, “buy shoe ads, Saran Wrap, and all manner of things who have impure thoughts. I can’t really do anything about those people.”

What he fails to address is the fact that shame or not, “impure thoughts” or not, any young model Sturges photographs should be aware of where her likeness might end up. There is a difference between someone looking at a picture in a “neutral” environment versus on a site amidst images whose sole purpose is to arouse. Whether the responsibility ultimately falls firmly on the shoulders of an offending viewer is somewhat beside the point—yes, one can’t control every off-the-books (mis)use of one’s images, but in Sturges’ case it’s inescapable that the scope of the misuse is potentially wide. I can’t help but wonder if a 10 or 11-year-old girl, no matter how emotionally mature, can fully grasp all of the issues involved.

Interestingly, in 2006 Sturges became a member of the site and soon after was (in my opinion, respectfully) asked by the administrator to remove images of anyone under 18. Here is his response: “Well, I will pack up and go. I am an all-or-nothing sort as I never censor my work in any part myself nor condone others doing so on my behalf. Your rules are what they are I suppose. I was naive in imaging [sic] that my work which is published and available world wide would not be problematic in your forum. It hadn’t even occurred to me that it would be. Silly of me. I leave with regret because I love writing about photography…So it goes.” When some commenters then raised the issue of context he never responded.

More than once Sturges refers to the naïveté expressed above—here is another quote from his 1994 interview: “I’ve always been drawn to and fascinated by physical, sexual and psychological change, and there’s an erotic aspect to that…It never occurred to me that anybody could find anything about that perverse. It was a total surprise to me, which is obviously evidence of my having been pretty profoundly naive about the American context. But over the course of my life I’ve spent so much time in this context that I’d forgotten that Homo sapiens isn’t always like that, which is indeed naive of me. I’m guilty of extraordinary naiveté, I suppose. But it’s a naiveté that I really don’t want to abandon, not even now.” He truly seems not to have abandoned said naïveté, given that 16 years after the previous paragraph was spoken he was on stating anew that it had never occurred to him that his images might be deemed problematic. Again, I am not speaking about people placing their own analyses onto his pictures, but rather am attempting to draw attention to Sturges’ personal reaction to the questions surrounding his work.

In my opinion it feels somewhat disingenuous for Sturges to cite his astonishment over the reception of his photographs in light of his own past predilections, which brings me around to the tricky matter of whether an artist’s history and persona should have any bearing on the interpretation of his or her work. In 1998 it was revealed—through the release of a semi-autobiographical film by a woman named Jennifer Montgomery called “Art for Teachers of Children”—that she and Sturges had had an affair when she was 14 and he was 28. Admittedly, we can dig through practically anyone’s past and turn up plenty of dirty laundry, but Sturges’ liaison with a minor applies so specifically to the nucleus of his continuing thematic motifs that for him to claim he is surprised when people view the children in his images through a primarily sexual lens seems suspect. I believe it is pertinent to mention that his current wife was also once one of his models, whom he began photographing when she was 11.

If we wish to hear Sturges defend his actions regarding his relationship with Montgomery there’s not much to go on—the only reference I could find was the following, from a 1998 LA Times article: “I’m not a philanderer. I’ve had four relationships in my life. That’s it. Period. She was the second. And it was at a point in time when I was getting divorced from my wife. I was vulnerable and making bad decisions. That’s obviously embarrassing now, but in light of my regard for her intelligence and the stature of her intellect—I’m human.” I would say that whether he’s had four relationships or forty is beside the point, the fundamental issue being Montgomery’s age at the time of the affair. Regardless, gleaning solid factual information via the internet is admittedly risky business (I can practically hear the stampeding horses of angry commenters approaching) so I won’t claim to know for certain what did or did not happen and instead say this: in the many hours spent researching this article and mulling over Sturges’ words I have come away with the overall impression that he does not fully address the scope and breadth of the origins of, and reaction to, his work.

In particular, he fails to acknowledge that the societal structures that exist alongside his imagery might be something other than simply “repressive” or overly politically correct. Putting the blame back onto society is an easy way out, akin to ending a heated argument with a defiant “it’s a free country.” Tellingly, his exchanges about certain issues—such as Puritanical attitudes, American prudishness, and how the people pointing fingers should look back at themselves—are vehement and precise, e.g., “if you read sexuality into my pictures, beyond what’s inherent to a human being, then the work is acting as a Rorschach, and you’re evincing sexual immaturity or sexual malaise in your own life. I have to tell you, I am sometimes deeply suspicious of the sexual mental health of some of the people who point their wavering fingers at the morality, the art, of others.”

In contrast, his opinions about other areas just mentioned (the internet, his sexual past, the fact that not all of clothed society is necessarily inhibited) are generalized or nonexistent. In examining the following quote, which is the closest he really comes to delving into the controversy, I find him to be rather vague: “As soon as somebody says that you might be x, you have to immediately say, ‘Oh no, I’m y,’ even if in fact the truth is probably somewhere in the middle…[I’ve had] to pretend to be something that, quite frankly, I’m probably not, which is a lily-white, absolutely artistically pure human being. In fact, I don’t believe I’m guilty of any crimes, but I’ve always been drawn to and fascinated by physical, sexual, and psychological change, and there’s an erotic aspect to that. It would be disingenuous of me to say there wasn’t. There it is; so what? That fascination pervades the species from the beginning of time; people just admit to it to varying degrees.” I’m sure given how often he has had to defend his methods over the years he is loath to delve too deeply into multilayered philosophical discussions about his themes, but if he wants to rail against the established system, he must also take into account all facets of that system without for the most part dismissing it outright or accusing his viewers of sexual immaturity when they dare question his work.

Continue Reading

Larry Towell – Crisis in Afghanistan

- - Photographers

Larry Towell seems to be the perfect candidate for a kickstarter project. As a highly regarded photographer with a track record of producing excellent work and well crafted books it would be a no-brainer for one of his legions of fans to advance him $250 for signed copies of two of his books or $350 for a limited edition 4.5×5 Mennonite print or $500 for an 8 x 10 from the current Afghanistan project or $1000 for an 11 x 14 plus a copy of the book with your name listed as a sponsor.

But, Larry’s a little off-the-back on cultivating his online audience. Currently and traditionally, the book publishers, galleries and magazines hold all the names, addresses, phone numbers and emails for the people who love his work and want to know when he does something new. The new way of doing business is that you keep those lists and collect those names by setting up a blog, facebook, twitter and email subscription accounts. That way your fans can find out when you’ve got something exciting cooking like this. Larry does have a facebook account (here) with 845 people on it and who knows how many are true fans but following the 1000 true fans rule, he would only need them to each pledge $12 to reach his $12,000 goal.

I think this is the business model for these types of projects because as Larry says “since the traditional venues for funding photojournalism have disappeared, I am appealing to you for help.” And, we only need to look to fellow Magnum photographer Alec Soth who is the gold standard for alerting your audience to your activities with his old blog and new Little Brown Mushroom Blog where books he publishes for sale are quickly sold out.

[I swear this is my last kickstarter post… these things come in 3’s]

Chicago Nanny Discovered To Be Master Street Photographer

- - Photographers

The story of Chicago nanny Vivian Maier is on the front pages of the blogs again because of a show at the Chicago Cultural Center, January 7 – April 3.

For further reading I recommend Blake Andrews’ (AKA, B) stories The Flame of Recognition

Assessing the field of photography is as self selecting as measuring the unemployment rate. Only those actively looking for work are included in unemployment statistics, and those who’ve given up aren’t counted. The fine art photo world operates in a similar way. It’s very good at monitoring the progress of motivated self-promoters, but that is only one piece of the puzzle. Quietly obsessive folks like Vivian Maier are not included in the equation.

and Thoughts on Maier.

While the basic outline of her life life is now fairly well established, Maier still remains something of a mystery. For me the most intriguing questions center on her photographic skill. How did she gain such a sharp eye? What training did she have? Which photographers or photographs did she come in contact with? Who if anyone helped her develop? Or was she a pure autodidact?

There’s also a kickstarter for a feature length doc:

thx, selina.

100 Portraits – 100 Photographers

- - Blogs, Working

As a Photo Editor there’s nothing better than running into a curated list of photographers when you’re out trolling the internet for ideas. On a snowy day when not much is going to get done in the office I would spend a few hours adding photographers and ideas to my personal list. Here’s one from Andy Adams of Flak Photo fame called 100Portraits. Also, worth visiting and the gallery section to see a ton of images that he’s published with links to the photographers website. Good stuff.


What I Learned This Year 2010

- - Working

Several Photographers sent me this piece from The Denver Egotist called “What I Learned This Year 2010.” They asked some “creative visionaries” in Colorado to contribute in any form they would like. The responses are fantastic.

Adam Espinoza, Denver motion designer/animator –

5. Logic stifles creativity.

Jim Elkin, Denver director/executive producer at Roshambo Films –

Sometimes it’s better to fight for the things you want. Creative arguments are healthy and good for the soul. Some of the best Creative Directors I’ve ever met around the world haven’t been insecure bastards who just want you to agree with them. They don’t necessarily want you to say yes…they just want to know why you’ve made certain choices in your work. Stand up for what you believe in and what you’ve created. Do not be afraid to say where you’re coming from and how you got there. Just don’t be a jerk about it and always remember when to back off. Or as the infamous Kenny Rogers once said, “You’ve got to know when to hold them and know when to walk away.” Umm… unless you’re North Korea.

Gregg Bergan, Denver co-founder/creative director at Pure –

You have about 25,000 potential days to work, but less than 1,000 weekends before your children will leave home.

Jessyel Ty Gonzalez, Denver photographer –

Although producers and art buyers have a plethora of stock options, the need for unique and original imagery is rising. Magazine work – print or digital – is coming up again now that the dust is settling. And with better technology and faster speeds, imagery is proving great for rich content mobile ads.

Good photography wasn’t needed because, “it was just for a web ad.” But as the importance of digital and mobile has risen, great agencies have evolved their productions and realize good photography is needed because, “it’s for a digital ad.” This is great to see.

Sean Leman, founder/director at Rehab in Denver –

It’s beyond cliché to say that this industry is changing at a breakneck pace, but there’s a truth buried in that. Change and progress and uncertainty are gifts. They remind us that no matter how fucking smart we think we are, we’re really not.

I’ve learned a lot seeing what happens when I start from that place. When I’m open to the fact that there’s much to be learned. That my first answer is not necessarily the right answer. Let alone the best one.

Tom Van Ness, freelance copywriter –

Enjoy the process. A wise author once said that everyone says they want to write a novel. What those people really mean is that they want to have written a novel. There’s a big difference. The process is the key. Those that enjoy the process as well as the goal succeed more often.

Kickstarter And Mossless Magazine

- - The Future

The website Mossless Magazine is looking to print a real magazine and they’ve taken to Kickstarter to try and fund it (here). The magazine itself looks pretty cool with four 50 page booklets each dedicated to “emerging photographers based in NY” and they’ve got 7 days left to raise a couple grand to make it happen.

What’s interesting is a recent project at Kickstarter that may have revealed the true use of a website that “helps people collect funding for creative projects.” Product designer Scott Wilson, founder of the Chicago-based MINIMAL studio, started a kickstarter project to build a watch out of an iPod Nano (here). When the new Nano launched geeks everywhere were murmuring about what a cool nerdy watch it would make, so Scott decided to do something about it. But, rather than follow the normal course of funding and developing the project in-house then getting it into stores and selling it he took to kickstarter to fund and pre-sell. He was initially looking for $15,000 to get it off the ground but by the time it closed last night he had nearly a million dollars pledged.

A similar project to build an iPhone tripod (here) had the same kind of success as they went 13 times past their pledge amount. So, what this reveals about kickstarter is that manufacturing projects put forth by people who have a track record of creating solid products, that fill an immediate need will be successful (provided the internet helps spread the word as well). I think there are photography projects that fit this mold as well, we just haven’t seen them yet.

Looking From The Inside Out

- - Photographers

Surf photographer Jeff Flindt shows us what its like to be in the thick of it. Just like Capa said “If your pictures aren’t good enough, you’re not close enough” which has nothing to do with proximity and everything to do with connecting with your subject.