It’s your creativity. It’s what sets you apart from every other photographer; it’s the distinguishing value that is added to any great image you create. Without it, you could be replaced by a machine.
Ironically, this extremely valuable asset can’t be covered against loss by an insurance policy.It’s up to you–and only you–to take precautions that you don’t lose your creativity.
Read the rest on Strictly Business.
A number I recently heard someone throw out as the amount a photographer can expect to make on a picture in a major stock photography company’s collection is, $10.
via Greg Ceo Blog.
Speaking with an agent recently (small to mid-size, top shelf roster) who told me that last year 20 or more books would go out the door each week and now it’s more like 2.
Also, 80% of jobs now come with requests to see a video reel. They commented that it reminded them of when the internet got hot and everyone wanted web rights but they had no idea what they were going to do with it.
Finally, they told me last year’s profits were up. This was chalked up to clients wanting to go with safe, proven photographers.
The books slowing down I would have predicted but that’s a pretty dramatic drop. I didn’t really think video woould take-off so quick but it makes sense that clients are asking for it even if they don’t need it or have any clue what to do with it. The profits? There are still big campaigns up for grabs each year so I’m guessing while most people are flat or down if you are a small shop and land a few of those, things are looking pretty good.
I received this note from a reader:
Hi Rob,
I’m a photographer, regular reader and occasional commenter on your blog. One thing that I have been struggling with since starting my freelance career is legal issues. Two specific problems that have plagued me in the last six months are
– A top national news organization reprinting my work (at least four times that I have caught) and not paying, or responding to my calls.
– A Dutch Bank buying one of my photographs for a calendar and promptly stopping communication after receiving the file.
Today I emailed several photographer friends about this and all said that they have to use attorneys regularly to deal with the frequent use without compensation and misuse of their work. Given that this is a larger problem, I’m interested in your thoughts on it and gathering resources/recommendations for lawyers who specialize in copyright law in general and photographers in particular. I’ve seen your posts recommending the Online Media Legal Network who I am currently attempting to work with and discussion of fair use on the internet. This is an important, increasingly complex and ongoing conversation as the rules continue to shift and social networking makes digital images all the more ubiquitous and difficult (if not impossible) to control.
Any thoughts, referrals or opening up the discussion to the group at large would be very helpful.
All the best,
[Redacted]
So, I contacted Carolyn E. Wright, Esq. of the Photo Attorney Blog to see what she thought and wow, she did not disappoint:
Infringements are rampant these days, both because it’s easier for the infringers to find and copy your images and because too many people think that they have a right to use your photos when they don’t or think that they won’t be caught. Fortunately, you can take steps to combat infringement. But the steps you take may limit your ultimate remedies so be sure to first understand what are your options.
Make Copies of the Infringement
If you think that the use is likely an infringement, make copies of it – both in electronic and print forms. Once the infringer realizes that she is caught, she will do what she can to get rid of the evidence of the infringement. You may need that evidence later.
Make Sure That the Use Is an Infringement
Not all uses of your photographs are infringements. Do you use a licensing agency that may have authorized the use? Could the user be related to an entity to which you authorized the use? Is the use a fair use? While only a court can ultimately decide what fair use is, the law gives us guidelines as to what may qualify and an attorney can help you with the analysis. You also may check Stanford’s Copyright and Fair Use website (here) for explanation and examples. While some uses by newspapers are fair use, others are not. The NPPA reports on a case where CBS’ use of Christopher Fitzgerald’s photo was not fair use (here).
Research the Infringer
Next, find out what you can about the infringer. Research the infringer’s website to find their name and contact information. If the infringer is a corporation based in the United States, you can find information about it on the website of the Secretary of State for the state where the infringer is based. You also may be able to find a contact name by searching the website’s “who is” information (here).
Option #1 – Do Nothing
Now that you’ve documented the infringement and have some information about the infringer, you always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement.
Option # 2 – Request a Photo Credit
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving them the right to use the image. Be sure to designate the parameters of that use and include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website.
Option #3 – Prepare a DMCA Take-Down Notice
Pursuant to the U.S. Digital Millennium Copyright Act (”DMCA”) enacted in 1998, the Internet Service Provider (”ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Use this great tool to stop an infringer whose ISP is in the U.S. from using your work.
Option #4 – Prepare a Cease and Desist/Demand Letter Yourself
When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.
Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee.
There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”
Option #5 – Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery. Or the fee may be a combination of both.
Option #6 – File a Copyright Infringement Lawsuit
Your most aggressive option is to pursue your legal remedies by filing suit. Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys’ fees.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.
In most jurisdictions you need to have received your registration certificate to file a complaint. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court. To file suit, it is best to hire an attorney to help you because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.
When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees.
Additional Claims
While many photographers place “watermarks” including their name and/or their copyright notice on their images or in the metadata of the file to prevent someone from infringing them, it’s fairly easy to crop or clone over the mark, or to remove metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to the infringement claim when the infringer removes your CMI to hide the infringement.
Additionally, when you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. “Willfulness” means that the infringer either had actual knowledge that it was infringing the owner’s copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.
What You Can Do to Best Protect Your Images
To be eligible for maximum damages for copyright infringement and violation of your DMCA rights, put your copyright notice on each page of your website and put your copyright notice on or at least adjacent to each photo as well as in the metadata of your files. Further, register your photos with the U.S. Copyright Office so that you will be eligible for statutory damages. It’s also important to put all of your licenses in writing, even if by email, and make the license contingent on payment of your invoice in full.
Where to Get Help
Legal help is expensive, but there are alternatives. First, an attorney is more likely to be willing to help you on a contingency basis (for a share in the recovery) when you are eligible for statutory damages. So be sure to register your copyrights timely. Some photography organizations provide legal assistance, as well, with educational materials and/or personal assistance.
As mentioned, the Online Media Legal Network is an option. In addition, most states have Volunteer Lawyers and/or Accountants for the Arts (”VLA” )organizations. As in New York, they serve “low-income artists and nonprofit arts organizations. VLA’s many other programs are more widely available to the entire arts community.” Each VLA organization provides a variety of services, such as a lawyer referral service, free legal clinics, mediation and arbitration, wills drafting, and a speaker program in Georgia. St. Louis’ VLA’s website provides a list of helpful publications and other great links, including other states’ VLAs. Find a VLA near you by searching on the Internet for “Volunteer Lawyers for the Arts” and your state. Some VLAs, such as those in Kansas City and Massachusetts also provide accounting services.
Also check with photographers in your area for recommendations for who they use. Since infringements have increased, more photographers have retained legal assistance.
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Carolyn E. Wright is a licensed attorney dedicated to the legal needs for photographers. Get the latest in legal information at Carolyn’s website, www.photoattorney.com.
NOTE: The information provided here is for educational purposes only. If you have legal concerns or need legal advice, be sure to consult with an attorney.
Of course, he stressed, he expects the publishing division to show earnings growth and make significant progress in its digital transformation. Long story short, Bewkes will hold on to Time Inc. — or any other asset — “if it fits Time Warner.”
But what if Time Inc. doesn’t meet his objectives?
“If they can’t,” he said with a shrug, “they’re better candidates for private ownerships.”
I decided to move the updates from the post on “How Much Money Do Commercial Photographers Make?” here and add a few more that have been submitted:
Photographer 1:
My individual gross revenue* from assignment and stock photography was $362,000
I had $57,000 in out-of-pocket assignment expenses*
I had $120,000 in fixed overhead* costs
My net profit* on my photography was $185,000 ($362k – $57k – $120k)
I’ve been in business for 24 years (started out as a photojournalist working for newspapers and wire services, now I shoot portraits for magazines, corporations and ad agencies). I share facilities, staff, equipment, supplies and insurance with a number of other photographers. The number I quote above was my share of the fixed overhead.
While it’s useful to know what “the budget” is for a particular project, and to know your “cost of doing business” as background when you’re putting together an estimate for a job, those numbers don’t have any impact on the value of a project for a particular photographer. They simply determine whether the photographer is going to be too expensive for the client, or whether the job is going to be too cheap for the photographer.
The value of commercial photography is dynamic. It changes moment to moment, and varies widely depending on who the client is, how unique the photographer is, how busy the photographer is, how badly the client wants that photographer, how badly the photographer wants the project, how much time, energy, and money it will take to accomplish, and of course what the usage is. A smart photographer is going to take a fresh approach to each estimate, just as they would expect to take a fresh approach to the assignment itself.
gross revenue* is the total amount of money you collect in a given tax year
out-of-pocket assignment expenses* are your actual costs for subcontractors, travel, props, rentals (that are specific to an assignment)
fixed overhead* are the costs for your rent, utilities, business insurance, supplies, portfolio, advertising, accountant, etc.
net profit* is what’s left over after you pay all of your business expenses in a given year – it’s what you pay income tax on
Photographer 2:
2009 kinda sucked, I made 30% of 2008!
My billings were $90,000
My net was $54,000
I am an advertising & editorial photographer, lifestyle & portraits
stopped assisting in 2002, so been in biz 8 years.
2010 is starting out much better……… knock on wood.
Photographer 3:
as a commercial photographer who has made between $600,000- 1,000,000 in fees every year for the past half dozen years, i think there are aspects of how you run your business to keep it lean and minimize overheads. as previously talked about, running a corporation allows you to fund and write off capital investments, cars, flights, employees, production and even some ‘entertainment’ pre tax. so it becomes very difficult to judge the true bottom line of where your company expenses end and where your personal income begins. the lines are perfectly and legally blurred. so determining your actual salary is not an exact science.
again, as stated, we all try to make it look as though we make as little as possible and write off as much as is legal, but be for warned, when you then go and try to buy your 2 million dollar dream loft in tribeca, it will really work against you as although your company has billed much, your personal salary will appear to be much smaller. this is a good catch 22.
keeping it lean and not ‘doing an annie’ is critical. for example, i run a still life studio where we have preagreed flat rate fees on studio, cameras, digital capture. so if i use 1 flash head or 20 it is the same price. clients love it cause there are no surprises, but i love it cause there is no cataloging of what was used. no studio manager spending endless hours logging in equipment and then making invoices. people cost money.
i also suggest not doing your own production. in my experience, there simply is not enough of a margin to be made (if at all these days) in doing production and it is a waste of a photographers time to attempt to suck 10-15% out of a budget. you are a photographer. be a photographer. if you are making 50K fees on an ad job and the production is say another 50K, it is simply not worth trying to make another 5K out of the production. as you are holding a lot of overhead which if it goes wrong and/or over budget, you and your business will be held responsible. not to mention the headache. production is for producers.
Photographer 4:
I am a commercial photog in Brooklyn shooting editorial, publishing, some advertising and now doing video producing with partner. I have been in business for myself for 6 years. I do not have a studio, or employees, so overhead is fairly low. I still feel like an “emerging photographer” :) This year has been better a bit because of video work, which is new to my business.
2009 – gross fees: $113k, net will probably be 40-50k – hopefully I can get all my deductions so I am not taxed crazily. I am not incorporated. The past few years have been approx gross 70k fees and net 30-50k.
BASIC INFORMATION
With the current US copyright laws as they are applied now, artists own all rights to their created images and sell/transfer rights to agencies and their clients. All questionable negotiations have historically defaulted in favor of the artist. Technically, even minor modification of the art requires the artists’ permission. You are RENTING, not buying an image unless explicitly stated on the contract.
Generally, think of usage costs reflecting the amount of exposure a particular image may receive. The more exposure, the higher the price. Exact terminology may differ, but the semantics remain the same if all of the information is included in each negotiation. You can phrase it any way you want, but be clear about the INTENT by including information from all categories outline below. Talent usage is similar, but there are differences in how each medium is priced out: talent usage tends to be much more specific. Again, it is based on exposure. European terminology will differ from US terminology, particularly in the “Print” category. In Europe, “Print” includes anything that is not broadcast.
Usage is defined by the following:
TIME PERIOD or LENGTH OF TIME
This is the length of time an image or images will be used: one year, two year, one time, etc.. It is best to specify “from date of first use” when negotiating a contract for an image. Standard use generally defaults to one year use {from shoot date} in a specific medium unless terms are otherwise negotiated.
RIGHTS/QUANTITY
This is the number of times within the time period that the image will be used.
Limited: A limited number of times such as “2 insertions” or “run of 5,000” within the time period purchased. By the time you reach multiple insertions in publications such as People or USA Today, you may as well buy unlimited rights.
Unlimited: Can be used an unlimited (unspecified) number of times within the time period purchased. This does not allow a transfer of copyright to you or to your client, nor does it mean the same as “unlimited time.” You both have only the rights to use the image, not to resell it or allow a third party to use it.
Total Buyout: You have purchased the copyright to the image and have full rights to do whatever you want with the image. You own it, basically. In the case of illustration, you own the rights, but you do not necessarily own the final art. That usually requires a very specific, carefully worded purchase agreement. Expect to pay dearly for this usage!
EXCLUSIVITY
I recommend purchasing exclusivity of all images to prevent the resale of any images during the time period you’ve purchased. Unless otherwise stated, an artist has the right to sell an image to another client at any time—even if it is one currently licensed to your client. Usage defaults to non-exclusive of the selected images only if not otherwise stated.
Exclusive: The image (and the outtakes, if specified) cannot be sold to anyone else during the time period purchased.
Exclusive to Industry: The image cannot be sold to anyone else within the same industry (Liquor, Banking, etc.)
Non-Exclusive: The image (and the outtakes) can be sold to other clients at any time
GEOGRAPHIC REGION
This is the area in which the images will be seen.
National: US only. Includes provinces of the US such as Puerto Rico and the Caribbean.
North America: Includes the US and its provinces, Canada and Mexico.
Global or International: Throughout the world (internet is automatically global).
Local: Specific city or area (San Francisco Area, etc.)
Regional: Specific region (Midwest, Southeast, etc.)
Europe: Europe is often negotiated as a neat little package that includes Great Britain, Spain, France, the Netherlands, Scandinavia, Germany, Italy.
By Country: Specific countries can be purchased, but if the exposure is large, such as Europe, it may be wiser to go with Global to make sure you are covered.
MARKET
This category also gives the artist an idea of the degree of exposure. Consumer advertising generally receives more exposure and at a premium cost. Trade is not as expensive, nor as far-reaching in exposure. Editorial is relatively cheap.
Consumer: Markets to “people who buy things”; it is purely commercial (sells things) in nature and the artist want a piece of the action because of the high degree of exposure.
Trade: Markets to “people who sell things to others”; it is lower down on the food chain, and therefore not as expensive.
Editorial: Informational in nature, not commercial. Magazine layouts and textbooks fall into this category.
USAGE REALM
This category further defines how the images will be used. These categories are then segmented even further by defining specific mediums for each.
Advertising: A medium that sells something, like an ad or an outdoor board.
Promotional: A medium that promotes something, like a poster for an event like a concert.
Public Relations: Similar to Promotional, but more awareness-driven and less commercial.
Corporate: Annual reports or internal materials like sales kits.
Editorial: Again, informational in nature, not commercial. May accompany an article or be included in a textbook.
MEDIA
Media usage describes where an image will be seen and can be defined as precisely as you choose. As with photography, when negotiating with talent the specific media included will directly affect your price. Broadcast use is seldom needed, but can be purchased if necessary. Remember that sometimes being TOO specific may come back to bite you later.
Any And All Media: Covers EVERYTHING: all print, OOH, POS, Electronic and Broadcast. “Any” and “All” are somewhat redundant, but it drives home the idea that everything is covered.
All Print: Generally, anything printed onto paper that you can hold in your hand: newspaper, magazine, collateral, direct mail. You may expand your negotiations to include POS or OOH by adding it specifically, otherwise they are generally not included under this category. Exceptions may include GO cards or similar limited exposure items.
Newspaper: Use this category in conjunction with Geographic Region. Size also plays a role.
Magazine: Use this category in conjunction with Market and with specific publications.
Collateral: Includes anything in print that “goes along with” the campaign but is of secondary importance. Things like brochures, some mailers and bill stuffers fit under this category.
Direct Mail: Pieces that are mailed to people. Quantity of pieces and Geographic Region affects pricing. Where the image is seen also makes a difference, whether it’s on the cover, envelope, etc.
Point-of-Sale (POS) or POP (Point-of-Purchase): Things that will be seen where the product is sold. Banners, signage, counter cards, displays, in-store posters, table tents, hang tags.
Out-of-Home (OOH) or Outdoor: Virtually anything seen outside of your home: outdoor boards, bus sides, trans stops, rail cards, GO cards.
Trade Show: Trade show booths or materials used in a trade show. Show attendance and how the image will be used must be discussed.
Electronic: Media that is not printed: Internet, C Ds for distribution, Asset Management System, screensaver. Unless rights are specifically purchased, images cannot be resold.
Internet: Global internet use. Where it will be seen (home page or inside page)may affect pricing. Sometimes numbers of hits makes a difference also.
Miscellaneous: Things like Ad Planners must be negotiated apart from the other media because of the potential for wide-spread, undetermined use.
BODY OF WORKS
This means all of the images shot for the project, not just the selected image or images. Some photographers will automatically sell you the rights to the entire body of works, but most will sell you the rights to only the selects. You will need to clarify at the beginning of the negotiation because usage will default to the selected images only if not specified. You will also want to include a clause that outtakes may not be sold as stock until the rights on the selects expire.
REUSE
It is in your best interest to include verbiage in your initial use statement that covers future reuse. Legally, unless otherwise indicated, an artist can sell an image to another client at any time, with an increased risk after the original use expires. Because the exact date of first use may not be known at the time rights are purchased, it follows that the date of expiration may not be exact. With the proper verbiage, you can create a checks-and-balance system to at least have an opportunity to decide if you want to purchase reuse before your client sees it in another ad. I recommend stating that your “client reserves first option of reuse upon expiration of current rights.” If you and your client do not renew your option, then there is a possibility that the image will be purchased by someone else.
MISCELLANEOUS
You will want to include the right to use images for your agency to use in self-promotion. Those rights are technically not granted past the original usage period without express authorization. Although usually not a problem, it doesn’t hurt to have it stated officially. To get the maximum amount of usage time of an image, include the phrase “from date of first use” or “effective date of first use.” That way, if an image is not used for several months, your usage won’t begin until then. Otherwise, it may be a point of contention a year from the shoot date. This is especially important with talent. If the photographer is coordinating the talent, do not automatically assume that the usage for the talent matches the usage you are contracting with the photographer. You must clarify talent usage at the estimate stage.
EXAMPLES OF USAGE VERBIAGE
Here are some samples of how to phrase your usage statement:
One year unlimited exclusive international advertising and promotional rights and usage in any and all media for entire body of works, effective date of first use. Artist retains self-promotion rights forever, as does the agency. Client reserves first option of reuse upon expiration of current rights.
Two years unlimited exclusive regional (Minnesota, Wisconsin and Illinois) advertising and promotional rights and usage in any and all media for entire body of works, effective date of first use. Artist retains self-promotion rights forever, as does the agency. Client reserves first option of reuse upon expiration of current rights. Image will be
digitally enhanced in post-production.
Unlimited exclusive global advertising and promotional rights and usage in any and all print for an unlimited time. Includes entire body of works. All images, including outtakes, may not be sold as stock until all usage expires. Client reserves first option of reuse upon expiration of current rights. Artist retains self-promotion rights forever, as
does the agency. Total buyout of rights, usage and copyright. Artist retains self-promotion rights. {The word ‘buyout’ by itself is meaningless and will not hold up in court}
This information was provided to me by Former Art Buyers and current photography consultants Amanda Sosa Stone and Suzanne Sease. Usage terms guide created by Kat Dalager.
“Show some balls”
“There’s absolutely no reason for you guys to be indexed on Google News … if they don’t pay you,”
Mark Cuban addressing publishers at a New York OnMedia event.
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 explore more of the commercial side of photography (not my area of expertise) and to solicit honest questions and answers through anonymity.
Established Photographers
Photographer 1:
I don’t think photographers could ever pull off a Union type situation. Never in a million years.
It is like trying to organize a million man march of independents. They are too much the loner mentality.
Many can’t even follow loose guidelines for rates or usage.
Photographer 2:
I would even love it if we could just get some standard licensing language and standard estimating forms like the film industry uses. Art buyers are already use to standardized forms from the film world. Why can’t we at least do that?
I am a member of the Director’s Guild, and the company I work through is a member of the AICP, which is a very strong and effective union. They have fantastic representation, and they are well respected by the Advertising agencies. They have a very strong voice, and they are quite successful at getting their voice heard and their agenda’s addressed. Witness the whole dust-up when a few of the agencies announced that they were no longer going to approve advances and they were going to go to a third party payment guarantee. The AICP President immediately announced that they would not support it, and that their members would not abide. Photographers on the other hand did nothing. In short it is a very good model, and there are many benefits for their members. Most of the (National) commercial on air … are Union spots. Most of the advertising agencies are Union Signatories, and therefore CAN NOT shoot non- union spots. Usually, only very small shops, and local companies can get away with non- union. So that said, I have no idea of the history, or how it got started. But one of the reasons that photographers are always dealing from a point of weakness is because they have no good solid representation. Here is a quick, off the cuff summary of issues that are already resolved by the AICP:
1. They have a standardized bid form.
2. Mark-ups are accepted and the norm- therefore when the scope of the job is increased, there is some additional profit, even if the fee is not increased.
3. Billing for Payroll tax and Insurance are standard.
4. AICP looks at and approves contracts.. No weird indemnities and other issues being passed off will nilly by the agencies to the backs of the photographers.
5. Payment is customary advance and final payments are scheduled.
One issue for sure is shitty purchase orders with indemnity clause, and work for hire clause written in. Which I ALWAYS STRIKE, I might add successfully. I have two previous employees that have recently struck out on their own, bad timing huh? But even though they were worried about being a small fish, they are usually successful at getting amended p.o.’s
Another huge issue as you know, that I have been railing on about, it is how hard it is to get insurance, how expensive it is, and how many people in our industry go with out it. If photographers were banded together they would have more clout in this area. Health insurance too…
Well off my soap box for now. I feel real compassion for those starting out now.
Photographer 3:
Only employees can form and be represented by unions.
Independent contractors can be members of unions but cannot be represented by unions. No collective bargaining by independent photographers. Illegal.
The one way around it is for photographers to work as employees. But if photographers work as employees, their employers are the “authors” and copyright owners of any images created.
Short answer: unions are a not the answer.
Art Buyers – International Ad Agencies
Art Buyer 1:
I’ll be honest with you. I would be against a union for Photographers. Right now, print is in a precarious place. We fight to convince clients projects need a print aspect as well as web and broadcast. In my experience, unions bring fees that would deter our clients from entertaining print. I’m not referring to photographer or crew fees. We know what the industry standards are and do everything we can to ensure they increase with the changing times. The fees I’m referring to are union dues, insurances, 10 – 20% production costs.
Unions would also create an uneven playing field. Photographers of different calibers would have the same fees. This would eliminate work to those photographers whose skill set does not match the norm.
This could also negatively impact our local market. Sorry to ask this, but how could I keep some jobs local? My local photographers allow me to of bringing work to the area because they’re fees are less than a New York based photographer. The proper term for this is not “under cut.” It’s “lower cost of living.” I’m fortunate to have amazing talent in my backyard. If they had to meet a National Rate, my creative would ask to see all National photographers right for a project instead of me being able to convincing them to stay right here.
Art Buyer 2:
This would be a terrible mistake. Unions within the Broadcast industry are having a terrible time keeping members. Agencies all over the country are dropping their union signatory status and actors are taking non-union jobs just to stay alive while unions look the other way. This is NOT the right time…
Amanda and Suzanne:
To Summarize, a union would not be approved in our current times. But believe us, something needs to be done to encourage talent to charge appropriately and to be taken care of properly on the client side. We need Insurance for our talent (I “Amanda” paid $2k a month for a family plan under a group plan – Highway Robbery). Photography is a demanding career and takes a toll on the body, emotionally and physically. Union is not the answer, but comradery and other creative collectiveness is. Standardized forms and usage and creative fees across the board verses underbidding fellow photographers. It is crucial to understand Agency Advances and fee structure, to know the tax laws in the city you live and the cities you shoot in as tangible property has become very grey. It is important to understand payroll services, since freelancers are not true independent contractors and the potential liability to the photographer on taxes and workman’s comp. The question we have to ask ourselves: “Are we print photographers running our business as if we were in a Union, are we running our business not only effectively but lawfully to protect ourselves?”
Call to Action:
Brainstorm with your colleagues, organizational groups and create ideas that can be shared and eventually (possibly) manifested.
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.”
“Excuse the immodesty but News Corporation’s pre-eminence as a content creator comes as the debate over the primacy of content is over,” he said, referring to his campaign to get consumers to pay for online news and entertainment. “Content is not just king. It is the emperor of all things electronic. We are on the cusp of a digital dynasty in which our company and our shareholders will profit greatly.”
via The Australian.
“…not too far in the future blogs are going to drive new work to photogs more than websites – which are starting to look quite static and inert compared to the dynamism and fluidity of blogs.”
Most discussions about fair use revolve around people wanting to use photographs without paying or obtaining permission for the use. Of course there’s another side to fair use that photographers benefit from, which is when a picture has copyrighted or trademarked material in it.
Seattle photographer Mike Hipple found himself in the latter scenario when in February of 2008 he received a letter from the lawers of a sculptor named Jack Mackie. Apparently a photograph that Mike took 10 years previous and was selling as stock, featured a woman dancing along the sidewalk with a portion of Jack’s sculpture “Dance Steps on Broadway” visible. Mr. Mackie claimed copyright infringement in the letter.
My source for this information is a blog called “Mike Hipple Legal Defense Fund” (here) where Mike describes what happened and describes what he’s up against:
Interestingly, his brief flirtation with settlement came before my lawyer mentioned fair use. As soon as it was brought it up, Mr. Mackie refused to negotiate any further. Now I’m forced to fight this battle on behalf of myself and photographers everywhere—amateur or professional—who take pictures out in public. I don’t want to be here, but I can’t let Mr. Mackie bully away our important rights.
I should note that apparently Mike’s stock agency quickly settled with the sculptor using their insurance for these types of claims.
Without seeing the photograph in question this seems like an absurd case, but the problem with fair use as it exists now is that only a court can determine what constitutes fair use. That leaves Mike with the option to either fight it in court or settle. In an era where photographs are easily copied I think fair use needs a stronger definition.
More discussion on this case over at Photo Attorney. If you want to help Mike out, visit the legal defense fund blog.
See the list (here).
Some people are complaining because it doesn’t have a camera in it. Spoiled techno-babies, all of them. Just because something is technically possible, it doesn’t mean it has to be done. It’s technically possible to build an egg whisk that makes phonecalls, an MP3 player that dispenses capers or a car with a bread windscreen. Humankind will continue to prosper in their absence. Not everything needs a 15-megapixel lens stuck on the back, like a little glass anus. Give these ingrates a camera and they’d whine that it didn’t have a second camera built into it. What are you taking photographs of anyway? Your camera collection?
via The Guardian. thx marie-anne.
Interesting to see that several films at Sundance were centered around photography.
Restrepo
In 2008 Sebastian Junger (The Perfect Storm) and Tim Hetherington dug in with the men of Second Platoon for a year. Afghanistan’s Korengal Valley, a stronghold of al Qaeda and the Taliban, has proven to be one of the U.S. Army’s deadliest challenges. It is here that the platoon lost their comrade, PFC Juan Restrepo, and erected an outpost in his honor. Up close and personal, Junger and Hetherington gain extraordinary insight into the surreal combination of backbreaking labor and deadly firefights that are a way of life at Outpost Restrepo.
Ever wonder what it’s really like to be in the trenches of war? Look no further. Restrepo may be one of the most experiential and visceral war films you’ll ever see. With unprecedented access, the filmmakers reveal the humor and camaraderie of men who come under daily fire, never knowing which of them won’t make it home.
Smash His Camera
Paparazzi might be the norm in our celebrity-infested times, haphazardly snapping every movement of the rich and famous. Ron Galella, though, is the original paparazzo. He elevated the celebrity snapshot into art and, at 78, remains a stalwart in the business. Dogged in his quest to photograph celebrities in unguarded moments, he defines his passion for his work by the ups and downs of his career—documenting the parade of stars at a thriving Studio 54 and having the dubious honor of being sued by Jacqueline Kennedy Onassis (his favorite subject) and having his jaw broken by Marlon Brando.
Leon Gast (When We Were Kings) masterfully profiles Galella and places him at the center of the debate about the First Amendment right to privacy. Galella’s work and tactics have their critics, but his influence is undeniable. In a career defined by perseverance, he has created some of the most lasting, iconic photographs of our times.
Teenage Paparazzo
When precocious 13-year-old paparazzo Austin Visschedyk snapped a photo of celebrity Adrian Grenier (HBO’s Entourage), little did he know his life was about to change. Turning the tables on the juvenile paparazzo, Grenier stepped on the other side of the lens in an attempt to mentor a teenager obsessed with the lure of the Hollywood lifestyle. Grenier develops a meaningful relationship with his camera-clicking young friend as he attempts to reconcile their mutual exploitation. Indeed, Grenier puts himself on the line here, trying to make sense of his own recently acquired fame.
Given the success of Entourage and its place in the Zeitgeist, Adrian Grenier is the perfect person to explore our preoccupation with celebrity and the adolescent desire for fame. Exquisitely layered, Teenage Paparazzo moves beyond personal documentary, charting a cultural revolution of celebrity obsession that may have been born in the United States but stretches across the globe.
Catfish
Nev, a 24-year-old New York–based photographer, has no idea what he’s in for when Abby, an eight-year-old girl from rural Michigan, contacts him on MySpace, seeking permission to paint one of his photographs. When he receives her remarkable painting, Nev begins a friendship and correspondence with Abby’s family. But things really get interesting when he develops a cyber-romance with Abby’s attractive older sister, Megan, a musician and model. Prompted by some startling revelations about Megan, Nev and his buddies embark on a road trip in search of the truth.
Catfish centers on a riveting mystery that is completely a product of our times, where social networking, mobile devices, and electronic communication so often replace face-to-face personal contact. Henry Joost and Ariel Schulman’s grounded documentary is a remarkable and powerful story of grace within a labyrinth of online intrigue.
More at Sundance (here).
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 explore more of the commercial side of photography (not my area of expertise) and to solicit honest questions and answers through anonymity.
Our Second Question:
I sent out mailers and emailers to agencies recently and received asurprising amount of positive replies.
I recently drove for 9 hours after an Art Buyer seemed really enthusiastic about my work on the website and replied to my mail saying sure make the trip, I’d love to see your book. We sat down with two of his colleagues and things were going well.
About a third of the way in to the book he started to lose interest and then wandered off like a grazing dairy cow, I was bewildered but continued with his colleagues. He reappeared when the we’d already finished the book. Shook hands, said thanks for coming in and left. I exchanged a few more pleasantries with his colleagues and was left to pack up and let myself out on my own. Humiliated. Ok so this is the industry, not for wimps, fine. Maybe if the book and all the answers were perfect you might still get a jerk or get the right person on the wrong day. But how do you avoided blowing that valuable opportunity?
Our Response combined with the help of a very sought after rep and art buyer:
Just from reading this question – we see many red flags.
Our first thought when he said – “We were a third into the book and lost interest” and then follows up by saying “We had finished the book” – lets us know he was controlling the book viewing process and dialoging it the whole way through.
We think the first thing to remember is that every one can have a bad day and that may have been the cause. You never know what someone is dealing with on a personal level. Maybe the AB had bad news that morning, thought he could handle the meeting but just couldn’t. Since you don’t know, the best thing to do immediately is to send an e-mail thanking him for his time as you could see how busy he was and that you truly appreciate the time given. That you will send new work as you shoot it and would love to hopefully work together in the future. Okay, that being said after the fact what should you do in the future?
Kat Dalager of Campbell Mithun in Minneapolis has been especially kind to show you how to do this. The first thing I do is go to my Agency Access account and look her up. She is listed as the Print Production Manager, but over sees art buying and buys herself. So when making your list make sure you include art buyer, creative buyer , print producer and print production manager since Agency Access uses their titles but makes sure they purchase photography.
From this page, you have a live link to the agency as well as the map:
And you can see samples of their work:
You can also look at their work at www.agencycompile.com This is a free service but used for new business and marketing managers so it will not give you the creative personnel, hence the reason for a database.
After you have researched the company, research the person:
And you can find a video with her talking about the business:
When we went through more Google pages , we find this:
She is adorable and friendly. You can see that in the video as well. And this from Plaxo:
Read this and find common ground to create a non-invasive conversation- you don’t want to get too personal. But it is good to see who you are talking to. Suzanne found this info on her own and found a lot. You may not find this much information on one person but you can find plenty about the company where they work. Kat reviewed this and she said:
“One thing to mention is cross-checking sources because they are only as current as the information provided to them. For example, we no longer have H&R Block.
Also, since they can see we don’t have any car accounts, it would not be the best use of my time or theirs to send me a car book.
1 technicality: I go by “art producer” rather than “art buyer”
To summarize, some meetings go bad and that’s just part of the process. When I (Amanda) repped for a short period of time I experienced the same thing, so you are not alone. I flew to NYC to meet someone and at the receptionist desk I was told she was too busy to meet with me. I also had an AB look at the portfolio in the lobby. So there are no prejudices against particular people for meetings – everyone will experience a bad meeting in their lifetime. We say – good! That means one important thing – you are doing meetings. With every 5 bad meetings comes a great meeting. A client once had a meeting and was told “Great work, but we have no clients that need your style to ever hire you”. A week later – that same agency called to book him for a job with a new client. Go figure. Keep your chin up and just battle through it…it’s part of the game
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.”
…because nothing can save publishing as it’s been operating for the past several decades. The iPad does nothing to change the brutal mandate that has been pushing publishers to change for these many years; if anything it compounds the imperative.
via Subtraction.com.
I know I’m more of an optimist than most, but whenever I see something like this it makes me think that the free culture/attitude is less about “I want everything for free” and more about “I’m tired of being lied and tricked into buying something and I need a way to trust you before we do business.”
Video by Michael Hanson while shooting the story for the NYTimes (here).