Tomas Van Houtryve Tries Alternative Funding Methods

Photojournalist Tomas Van Houtryve has been testing alternative funding methods for his photography projects and I asked if he would give us a report on how it’s working out for him. His latest project is called “21st Century Communism” and he’s using Emphas.is to fund it (here). Here’s what he had to say:

I realize there are a lot of gripping and important events unfolding around the world at the moment, but I want to share my first experiences on the beta version of Emphas.is. A few weeks ago I put up my project pitch, and then I hit the road for Laos.

It’s a bit like being a test pilot for an exotic new aircraft: I can feel the huge potential and the power of the platform, but I’ve also had to adapt and cope as the site engineers have worked through fixing the early technical glitches.

I had been eyeing Emphas.is and other alternative funding models for months, and I really wanted to be one of the first photographers to give it a try. Based on the launch dates that they initially announced, I cleared my schedule for several weeks to dedicate to fundraising, followed by a trip to Laos timed with key events on the ground. Unfortunately, the official launch of Emphas.is was pushed back as the developers raced to finish the site. Days of delays turned into weeks, and eventually I risked missing the events in Laos if I kept my plans on hold for the launch.

Running out of time and options, I decided to post an early call for support on my own website. I put up a project synopsis and video on my site and sent out a flurry of emails and Facebook postings. Within 3 days, $1935 worth of pledges from supporters rolled in. It was far short of the total $8800 budget that I still need to finance the project, but I had enough to book my plane ticket for Laos.

Then, just one day before I got on the plane, the Emphas.is beta site finally went live. For the first 24 hours there were reports that people were having trouble registering. Regardless, I crossed my fingers that it would start working smoothly, packed my bags and headed for the airport. The area I was heading to in Laos was extremely remote. In addition to an 11 hour flight, it took another 12 hours by night bus and then two full days on a riverboat before I finally got to a town with an internet connection.

Thankfully, when I logged on I saw that contributions were starting to add up on my project page. I quickly sent out my first exclusive update to the project backers, with details about crossing the border into Laos and photographing a shady Chinese casino in the Golden Triangle.

Then, it was back on the road to photograph Hmong villages in the mountainous hinterlands.

Now, I’ve finally made it to a major city with a solid internet connection. I’m just past half way through the time limit for my funding drive, and I’ve got 60 backers onboard contributing roughly 40% of the total budget.

For any folks that want to give Emphas.is a try, I would certainly not recommend such a tightly compressed schedule where I have to juggle shooting, fundraising and a withering travel schedule all at the same time. Its been very intense keeping all the elements on track.

On a positive note, the great thing is that there is something very intuitive about using the Emphas.is model, now that everything is finally up and running. Backers have started to pose relevant questions in the “Making Of Zone” where I post my updates and comments. As my project proposal has made its way through social networks and attracted support from strangers, I’ve made some really interesting and fruitful new connections. In addition to generous funding contributions, several individuals have stepped forward with key contacts and very precise and helpful advice for my subject. I have already managed to make stronger photos due to their input. This is a pleasant shift over the lone-wolf existence that I’ve experienced on many of my previous documentary photo trips. I now have got a crowd of very supportive people behind me, and it is clear that they have a stake in the project’s success. It’s very inspiring.

Emphas.is isn’t a magic bullet that will solve every problem plaguing visual journalism, but I think it is turning out to be a good model for long-term documentary projects.

All the best,
Tomas

Ask Anything – Photographer Rep Fees, Relationships and Responsibilities

Former Art Buyers and current photography consultants Amanda Sosa Stone and Suzanne Sease have agreed to take anonymous questions from photographers and not only give their expert advice but put it out to a wide range of photographers, reps and art buyers to gather a variety of opinions. The goal with this column is to solicit honest questions and answers through anonymity

QUESTION:

I am wondering if we might hear from some reps, consultants and photographers about what they think the rough breakdown is for rep commissions and what a photographer should be expecting in return for these fees. I currently pay 25% of my fees on jobs my agent negotiates. My rep is not participating in social media AT ALL and is often unavailable to do quotes leaving me to either do them myself or revise them myself if I want the deal closed. I am not entirely sure how many meetings they go on every month, but would love opinions on what I could reasonable expect here. I am also not sure there is much beyond e-promos being done on my agent’s part, I do a LOT of my own promotion and do not rely on my agent for much in that department. Since I am very active in promotion myself we are often bidding with clients I have been pursuing through my own efforts for years before I started working with my agent. Perhaps this is just one of the many struggles of the photog/rep relationship but I am wondering at what point I ask about a percentage reduction if I can’t get certain things from my agent, and what might some others in the industry feel those standards are?

Amanda and Suzanne:
Having a rep requires open communication. Does a rep relationship change over time, of course it does. But you have to both have an understanding of what each of you will do. Many of our clients assume that marketing can cease once a rep comes into play. In our opinion, a rep’s goal #1 is to be there to negotiate, projects and land the job. A rep’s 2nd goal is to help you keep up your exposure, but it’s a role that is not one sided, both parties need to commit to a plan that works for everyone.

ANSWERS:

AGENT 1:
While every agent/artist relationship is different, the one thing that is constant is that you are partners working toward a mutually beneficial goal. You are a team and there are times each one needs to help the other. It is reasonable to expect your agent to go on appointments and be available for estimates. There is no set number of meetings every month and getting appointments is much harder than it used to be (many creative shops are limiting portfolio reviews to once or twice a year).

As for social media & other forms of promotion, it sounds like you both need to have a conversation and discuss/define each others expectations and who’s handling what. If after that, there is no clear cut definition, then a percentage reduction is probably not the answer. It might be time to sever the relationship.

AGENT 2:
As I am sure you know, every rep/photographer relationship is different. It is important to discuss expectations at the onset of the partnership. These questions should have been answered prior to the agreement. That being said, I think it is critical that the agent be involved in the estimating and negotiating process. If your agent is good, this is where they earn their commission. I find it strange that the agent in question is not involved during those critical times. As an agent, I love this part of the job and know that I create a lot of value for my artists in this area. Rather than a percentage reduction, I would suggest a serious discussion regarding responsibilities and expectations. Even if the agent in question agreed to a percentage reduction, I would imagine that their level of commitment and actual work for you as an artist would subsequently be “reduced.” If a discussion doesn’t work or is not desirable, it may be time to look for a new rep. Good luck!

AGENT 3:
Regarding our respective obligations, we first and foremost view our relationship with all of our talent as a collaborative one and feel that to be successful, we must have great communication, mutual trust, a shared vision and a firm belief in the value of both parties’ contributions towards realizing that vision. We are fortunate to have had longer lasting relationships with our talent than normal in this business and are quite proud of that fact. While there have been and will be challenges, we’ve worked through them due to our shared interests, respect and trust.

We strive for excellent communication and complete transparency with regards to what we are doing on our talent’s behalf. To that end, we provide quarterly call report summaries to each party detailing all of the calls that we received pertinent to them, the source of the calls (if that can be ascertained) and the results. In addition, we also provide follow up summaries after all of our portfolio shows, specifying where we went and who saw the work. We also encourage anyone in the group who is free and interested, to join us for the shows (locally or out-of-town).

Our financial arrangement is consistent with all of our photographers, as we feel that a common agreement is most fair. Our commission is 25% of all negotiated fees (travel/prep/shoot/post) and any retouching fees not being expensed to either an outside or studio staff person. We are the exclusive representatives for all of our photographers in North America, and worldwide for those who don’t have international representation. We would assume the same would apply to you, specific to your print/still photography business. We are also interested in bringing you motion projects, and given your relationship with outside production companies, need to work out the specifics on how that might work to the satisfaction of all.

Our photographers cover 100% of any individual marketing efforts they do or have us do on their behalf, plus the cost of creating and updating their portfolios/sites and any general mailing/shipping specific to them.

Historically, out of pocket expenses for each talent have been in the $8k -11K range per year, but have been reduced significantly lately as everyone is more concerned about expenses. Whatever the budget ends up being, payments are spread out over time, so there aren’t any major surprises. Of course, I get everyone’s approval prior to making any group marketing commitment, and they all have input along the way.

We see the AGENCY’s primary responsibilities are as follows:

– To build awareness for our photographers’ work through consistent and well-coordinated direct sales, promotion and PR efforts.
– To identify and pursue market opportunities for individual photographers as feasible.
– To develop production budgets with input from photographers and producers and negotiate those budgets with the clients to which they apply.
– To review all contracts/purchase orders and handle all billing and administration duties related to our photographers’ productions.
– To provide timely feedback/input from our sales activities, in-coming calls and pertinent results.
– To provide input on portfolio imagery.
– To aid in the development and execution of any individual marketing efforts done in addition to the group campaigns we coordinate.

Our photographers’ primary responsibilities are:

– To maintain updated, professional portfolio materials (individual and group books).
– To provide a minimum number of portfolios needed to meet market demands.
– To provide timely updates to their individual web sites, and rep website.
– To provide the necessary files and and proofs for any promotional efforts we coordinate, in a timely manner.
– Oh yeah! – to handle the communication and creative challenges of high level advertising productions with great aplomb!

In addition to all of the above, the only other item we need to discuss is whether or not we will be involved with any of your existing/current clients or “house accounts”, and either way, detailing who they are and how we intend to work with them. Normally, I would a define a “current client or house account” as someone with whom you’ve worked with within the past six months, or on a regular basis over a longer period of time, but am open to your interpretation.

AGENT 4:
Obviously every relationship is different but it is important to communicate with each other regularly. Both photographers and agents wear so many more hats these days and must keep up with the new frontier, which includes social media. Both need to get on this bandwagon, but need to coordinate their efforts. Coordination with emails blasts, social sites, portfolio shows and estimating projects is so very important.

Both photographers and agents need to speak up if either feels something is missing. It sounds like this artist is pissed but may not be expressing his concerns to his rep. This is the first think you need to do. NOW! Frankly I can’t understand the quote thing. That’s what we live for. Maybe it’s time for a new relationship? A fee reduction, no matter who’s offering it, is always insulting.

PHOTOGRAPHER WITH AGENT:
I’m sure others will say, a rep relationship is like any other partnership, including marriage, and is based on trust and mutual respect. Without these things there isn’t much you can count on. I am working with my second rep, the first was not successful in my eyes based upon their lack of participation in promoting their own brand (and therefore my brand) outside of email blasts. They did not seem to have a plan for marketing and advertising but instead saw the possibility of success based upon adding more talent to their roster, cheating their current core talent of resources already in shortage.

With the second rep, it is the polar opposite. There is a strong communication, dollars invested in making our target audience aware of our talents, and respect for ideas expressed.
I have also seen the rep relationship up close when working as an assistant. What I have come to expect is that the talent and the rep should all be contributing to the marketing efforts, and it costs money for everyone. As far as I know 25% is still the norm though I have seen 30%. A photographer cannot expect a rep to handle all of these costs or efforts, and neither can a rep expect the photographer to do it alone (otherwise why would you need a rep?). Once you have a rep, you still have to be as diligent as ever in keeping contacts alive and well.

PHOTOGRAPHER 2:
The contract that my ex agent had drawn up spelled out everything I had to pay for, but didn’t specify what they would do. We went on to have a successful run for quite awhile, but it was never spelled out specifically what they would do other than generalities like “best efforts” or “best judgment”…. that was a mistake. Seems like that could be the source of your problem in that it’s not mutually clear what their responsibilities are. I think what you’re describing is reaching the point where it’s time to move on. If your confidence in them is questioned, it’s tough to rebuild that through revising compensation. Once you start taking money away through less of a commission, you’re removing incentive. What makes you think they will be equally or more motivated by working for less money?

PHOTOGRAPHER 3:

What I would expect from a rep is the same thing I expect in a relationship with a significant other. Honesty, Integrity, an ally, loyalty, protection. When I was with my old agent I felt I was easily sold out. More like someone to fill in a hole. It was more about him and the photo editor/art buyer then me and the work. I once had to call a client to tell them sorry the job had been under bid by my agent and could not be done for that fee. Then I had to rewrite the estimate. A huge chunk of change taken out, but I was not able to buy into their health insurance plan. I had to pay for photo insurance and all expenses up front, yet any type of mark up was frowned upon. I had to find my own support staff, i.e. assistants, stylists and do all of the billing which they retyped up. Managed rights were caved in on faster then a mine in Chile. In the end reps know 98 % of us are disposable and they get what they can out of us. I found more empathy/ support comes from art directors and other creatives.

I am capable of buying AD/ AB picture editors, lunch or a nice gift at the end of the year myself.

PHOTOGRAPHER 4:
Let me start by saying that I am leaving my current Agency this week because I have realized that we are not a proper fit. I too am frustrated by an even more unfair split and even more lack of communication and involvement on my agency’s part with my marketing and promotion.

Currently my “Agency” is taking 35% from clients that they introduce me to and 20% for jobs I bring to them to negotiate. Then the billing is going through them if they negotiate which is also another issue. This split is not to my liking but at the time I joined the roster I did not feel I had too much to negotiate with as the economy was horrible and I felt the need for representation to expand from my editorial work into the commercial advertising market. I did not have to bring in any of my existing clients or current billing to them, which was a plus and has proven to my benefit over the past year. The arrangement was to grow, together, into new markets, both for myself and the agency. They did not have anyone that was doing the type of work I was doing or going after so I had no internal competition for assignments. (This might have been my first warning sign that we might not be a good fit.)

In the two years that we have been working together, the first testing the waters and the second as a full time member of their roster, I have only seen a few emails that were promoting my work. The meetings that they have arranged and taken me to (less then 10) have only resulted in two or three small editorial job and two decent commercial jobs with an art director that I had known prior to signing with them. They only accounted for a disappointing 5% of all of my billings last year. I have found that they were only making phone calls on my behalf when I would call to complain and ask them directly to set up a meeting or follow up with an email that I had already sent to a photo editor or art buyer.

I had a meeting during the summer with them to address my disagreement with the split and was quickly dismissed by being told that everyone has the same split and that is that. I again had a meeting with them before the holidays to address the split and other billing issues. I have yet to see them address any of the issues. I have also mentioned many times in face to face meetings and phone calls a desire to form a clear joint marketing strategy that we can all work on together. There was a clear lack in desire to help me promote myself, and not the agency as a whole. Currently none of these issues have been resolved and don’t see them being addressed anytime soon.

I do not think that these problems are mine alone but I do not think that they are the norm. One of my mentors has a very up and down relationship his current agent that he has been with for many years. I have heard them fight over many different issues including splits and portfolios but in the end his agent has stepped up and fought for higher fees (and got them), stood behind him on expenses and picked up the phone for him. I believe his current split is between 20-25%. He has told me that there is no way he would have been able to handle negotiating some of the jobs he has be awarded in recent years without his agent there to close the deal. He, like me and most of us are not the best negotiators. We have agents not just to make us look more respectable and established but to do the dirty work of standing firm and being the fighter. They are our “bad cop” before the shoot and we are the good cop on set.

Personally I find it completely unacceptable for an agent to be unavailable to negotiate on a photographer’s behalf. This is their most important task as an agent, they are they to fight for our fees (so they can get paid) and to back us up on our expenses. They are there to close the deal even if they are not the ones to start the deal in the first place. We cannot depend on our agencies or reps to be picking up the phone every day just for us. They have to work with many photographers on a roster to stay in business themselves. We have to be able to pick up the phone, write an email, send out a promo and speak for ourselves. In my current search for a new agent I am looking for someone that understands me, my work, and will be a partner in marketing. Ideally I would like a split of less or equal to 20% on all new clients and a 10-15% split on all current clients. I would not be too upset with 25% but more is totally unacceptable to me. I think as a general rule it has to be a symbiotic relationship between photographer and agent, it should take both parties efforts to make things happen. If it is a one sided relationship you need to step back and evaluate the situation and see if you really benefit from it or are you even being hurt by it.

To Summarize:
Is one party guiltier than the other? No. The cliché saying “it takes 2 to tango” is really true. A rep is only as good as their communication, estimate deliveries, client support and marketing exposure delivered. The photographer is only as good their communication, the work they produce and their marketing efforts. When a photographer says my rep is taking 30% and they do nothing. Stop there and ask yourself what are they doing for that 30%. Who likes to talk money? 20, 25, 30% is an agreement to have representation that is there to truly represent you (it doesn’t mean a full-time assistant). On the other side, when a rep says a photographer isn’t doing their fair share, we hope they stop as well and look at what the photographer has time to do, what budget is realistic to their marketing plan. Sometimes just stopping and talking it out OVER THE PHONE or IN PERSON can really cover a lot of ground and educate everyone involved and open the eyes to both parties and then a common ground can be met.

Call To Action:
Put yourself in the shoes of that agent and see what their life is like and what it’s like to juggle the multiple positions and talents. I hope agents will do the same thing. Put yourself in the shoes of that one artist and see what their focus is and what truly worries and bothers them. Having had the role as a rep, it’s hard to juggle everything. Having had the role to consultant with both rep and photographers, both sides have it hard. It’s a tough industry and if everyone can see both sides of the coin – it can be a happier union. Basic call to action: Know what you want, express it, offer support where you can, and then put your goals into action, without depending on the other to get it done for you.

If you want more insight from Amanda and Suzanne you can contact them directly (here and here) or tune in once a week or so for more of “Ask Anything.”

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

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

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

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).

tylerlynsey

Judge Rejects Google Books Settlement

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

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 ?

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

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

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

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

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

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

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

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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