A Photo Editor

UK Close To Approving Orphan Works

Several readers alerted me to The Digital Economy Bill (here) in the UK which contains Orphan Works language that “will allow the commercial use of any photograph whose author cannot be identified through a suitably diligent search.”

Photographer Simon Crofts has a post about it (here), where he says:

“The Government’s idea is to take control of licensing and pricing of orphan works away from copyright holders and give it instead to one or more central licensing bodies.”

Hopefully it can be stopped, but judging how things have been going for photographers over there it doesn’t appear the government cares much for photographers.

UPDATE: From a reader.
http://www.copyrightaction.com/forum/uk-gov-nationalises-orphans-and-bans-non-consensual-photography-in-public?page=1

I know it’s a bit of a long read but the salient points are that in the UK new law:

1) Enacts orphan works without any definition of a. what constitutes an orphan work and b. what a reasonable owner search is
2) Makes it a crime to photograph in public if *anyone* who appears in the image objects to their image being taken!

WOW. WTF UK.

Ask Anything – Should You Tell Your Clients If You Are Pregnant Or Have A Life Threatening Illness?

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.

If a woman freelance photographer is pregnant and wants to continue working, how should she proceed? I’ve been told by many NOT to tell your clients as they will take you off the call list for a while. Either thinking that they are doing you a favor, figuring you don’t want to work, or thinking they are protecting you. A couple said it wouldn’t effect them, but it seems the majority think it’s not a good idea. In relation to this, is there a difference between editorial clients, corporate or commercial clients, private clients, etc.? It seems when the male photographer announces he is expecting, everyone is excited and wants to give him work for his family but the female photographer, because she’s the one carrying, gets the congrats, but not the work. Are there other experiences out there?

Amanda and Suzanne: So we reached out to our contacts and got their advice–we went to women art producers, women photo editors, women photographers and women reps. We started to get some great responses, but it got us thinking about a deeper topic-a life threatening illnesses. I (Suzanne) was diagnosed 7.5 years ago with breast cancer. I thought it would be good to have the support of the community, so I told everyone, but what I didn’t realize is that while folks were supportive, my consulting business dropped and it took me over a year to rebound. I did have cancer assurance, AFLAC, and that helped me pay some of my bills. But the financial strain of getting ill and having months of treatment with very little work, made me wonder, should I have told. So I reached out to friends who have faced the same thing and furthered the discussion by asking, “Should you tell clients when faced with a life threatening illness”?

Pregnancy

Amanda:

When I had my baby 9 months ago, my business slowed down, as well. My clients were very cautious to not to bother me. It took 3 months to pick up to the pace that I was used to (of course I was uncomfortable with this considering the economic climate). My advice is to be open about your situation as my clients were thrilled to be part of this exciting time for me and they were eager to get back on my calendar at the first opportunity. It is definitely easier being able to look back and see what worked best for you at that time, so listen to your gut and do what is best for you at this moment. I am an eternal optimist and believe all will work out as it should (even when it seems as though the light at the end of the tunnel is non-existent or dim).

Established Art Buyer/Producer #1

As an art buyer, past clients, creatives and I never had any hesitation hiring pregnant photogs. Perhaps if I knew someone was working a week or two before their due date, I would be a little cautious.

That being said, I would never begrudge them for not telling if they felt it would influence them negatively. As you said, some people say it’s not a good idea probably because that was their experience.

As any shoot goes, there is always a chance of some emergency. A male photog would probably not set up a shoot on his wife’s due date as well.

I think we need to hope that when you hire a professional, they will come through for you. If for some reason, something goes wrong that was their doing, I expect them to correct the mishap.

Established Art Buyer/Producer #2

This is no different than when a woman applies for a job at a company. The company is not allowed to ask if the woman is pregnant and she is not required to disclose it unless her pregnancy is a detriment to the job she will be performing. For example, if she is applying for a job at the Fed Ex loading dock and she cannot lift more than 5 pounds, she would not be able to perform the duties of her job.

Unless the pregnancy will affect how the photographer does her job, then there is no reason to disclose it.

Established Art Buyer/Producer #3

When I was working, as a Photo Editor, And I would hear a photographer was pregnant and it really wouldn’t effect my decision to hire them. If I needed them to travel then may It did a little bit only because if they were far along putting them on a plane might not be feasible. But if I wanted to hire them I would ask them rather then making the decision for them. A pregnant photographer doesn’t have anything to do with their talent! So to me, it doesn’t make a difference!!

Established Photo Rep

Several years ago, I represented a photographer through her pregnancy and there wasn’t any negative impact on her work. She was actually shooting a job for the San Francisco Opera right up to her due date.

Established Female Photographer #1

I think the relationship you have with the client matters much more than what sector of the market the client works in and the way we handled this reflects that. For long-term clients, we were very open – we knew that they would want to share in our excitement and that it wouldn’t affect our working relationship negatively. In fact, we felt that keeping the news from them for too long would do more damage – imagine working with someone closely and finding out that they kept that kind of news from you.

Now, in that initial conversation, we were very careful to stress the fact that I’d continue to shoot up until I went into labor and that we had lined up a photographer we trusted to handle any projects that might come up while we were actually in the hospital. So our clients knew that no matter what happened, continuing to assign us work wouldn’t place them at any risk.

We did not raise the issue with new clients until the third trimester as up to that point, it was really a non-issue – we didn’t have enough of a relationship for them to feel one way or another about it personally and it had no impact on our ability to get the work done. When booking projects for the latter half of the third trimester, though, we did start telling people our due date and explaining that we had a photographer lined up to step in if I went into labor. We felt that we had an ethical obligation to give people the option to go elsewhere if that made them uncomfortable. Most people didn’t seem too troubled. Our daughter was born December 28th so my last shooting day was about a week before she was born but that had more to do with the holiday than my pregnancy.

Established Female Photographer #2 (Expecting)

Ok, so I only have a few thoughts about this one … since I am not really sure what to do myself.

So far – I have been keeping pretty quiet about the whole thing. I have been feeling pretty good during my whole pregnancy, so in that way I feel that I have been very lucky. But now, I’m at the point where when I show up for jobs and it’s pretty obvious – I just entered my third trimester. I have been telling clients (all types) after I book jobs but before the job itself, I put it out there while finalizing details of the shoot. I will also mention that being pregnant isn’t affecting my work – which is true, at least for now. That way if a client feels uncomfortable with a pregnant photographer, he or she has time to make other arrangements. The last thing I want to do is show up and have somebody worry that I can’t do the job. I also think that if I show that I’m not too worried about it, they shouldn’t be either … right?

But for the jobs where I know the I won’t see the editor or art director face-to-face …. I haven’t mentioned it at all. I figure that if it hampers my ability to do the job, then I’ll mention it. But if it isn’t really affecting my work – then it really doesn’t matter. If I had some other impairment that wouldn’t affect my ability to do a job – like a cold or my car was in the shop – I wouldn’t mention it either, but find a way to work around it. I kind of feel like this is similar.

For the most part my clients have been just fine with the whole thing. Many have been very sweet about it & encouraging. But then again – this is all new for me. And honestly – my biggest worry is taking off time after the baby is born — I know I am going to have to take time off and turn down jobs … I just hope my clients call me when I’m ready to get back to work.

Established Female Photographer #3

Sorry, my 2 kids are adopted

I can’t really weigh in. My gut says, don’t tell anyone in the bizzzzzzzzz. I never tell my clients that I am on a 5-week holiday, they don’t need to know

Established Female Photographer #4

Working while pregnant: I went ahead and told a few people early on and that news quickly spread around town. It didn’t seem to hurt too much on the front end, I did still shoot some assignments, and I even shot one assignment on location with 5 days to go. My client was concerned but hung in there with me.

And I found myself on a plane with an eight week old and an art director for an out of town shoot. People were still hiring me to do work when I was pregnant, and even shortly after the baby had been born.

I had two kids pretty quickly together and things became much more difficult for me mid-way through the pregnancy. I stopped showing my face at events and social functions, and completely backed off of my marketing efforts. At the same time my phone became ominously quiet, and did not begin to ring again until I made a very concerted effort to let people know that I was back in the game again.

That time out resulted in some of my regular clients establishing new relationships that to this day remain hard to rebuild.

My clients are primarily buyers and art directors from advertising agencies. Kids or no kids, I think my story is a testament to the fact that if you are not consistently reminding your clients that you are out there, they will forget about you and you will quickly be replaced by someone with a more aggressive marketing plan.

Life Threatening Illness With Treatments

Established Photographer #1

I wrote a letter that I sent out to loyal clients. Clients I had worked with for years. People I considered friends and trusted. I let them know what was going on and how I was doing. I was upbeat and positive and told them that I would beat this disease. I kept them updated throughout the process.

Several clients adjusted my shoots to fit my schedule around chemotherapy. Several postponed shoot until after my treatment had run its course.

I choose to not tell several clients including a national level magazine that I shoot for fairly often. I shot a major photo essay for them two days after receiving my first chemotherapy treatment and was maxed out on Prednisone. Two months later I shot a six-day story for the same magazine after finishing chemo but before starting radiation. They never knew until afterward.

The friends who faded away while I was sick and the ones who came closer surprised me. The clients who stuck by me have my loyalty till the day I die.

Established Photographer #2

Another photographer is currently dealing with this situation and has realized it is best NOT to tell anyone even their clients. As freelance people it is really scary to face not only a life threatening illness but the chance or lack of income.

Established Art Buyer/Producer #1

My answer to this question and anything similar is that a professional needs to know when they can perform a job based on their past experience and their portfolio.
Who are we to judge if a photographer is pregnant or has cancer is less able than a perfectly healthy photographer who had too much to drink (or whatever) the night before a shoot?

Established Art Buyer/Producer #2

That’s considered personal information unless it impacts the work.

Please Support One Of Our Own

Facebook – Give It Up For Loni Page

Here is her story:

“I was diagnosed on July 13, 2009 with a very rare form of cancer, and have been unable to work since then, unfortunately. But, I have a lot to say on this subject. Unlike some, I decided to fully disclose my circumstances (after debating about it for a time) to my community, including my clients. I do not regret my decision. If you’d like to talk, I can elaborate on why it was a great decision for me. Our photo community has restored my faith in humankind! …”

Loni was going to write more but the recent round of chemo has taken away a lot of her energy and required her to be admitted to the hospital. I (Suzanne) had the pleasure of interviewing her and getting some pointers to convey on this subject. She decided to trust in the generosity and support of her clients, as well as the photo community to understand her circumstances. She does not regret her decision, as the community, and especially her regular clients, have supported her beyond her wildest expectations.

As soon as she was ready to go back to work, they were there for her, with handpicked assignments that were appropriate for her energy level and physical limitations.

She truly feels that her trust in the community, gave the community an opportunity to trust her. She built her reputation over the last 25 years on honesty and never over-promising. She has been adamant about not taking assignments if she didn’t feel she would be able to deliver the job based on her high standards, as well as the standards her clients have grown to expect from her.

Because of her positive attitude, her friends and family have gone way above and beyond the call of duty to establish the “Give It Up For Loni” fundraising effort, which has produced some overwhelming results, not only financially, but more important, emotionally. The moral support has been invaluable.

Loni says, “The realization of the importance of friends, family and community caused me to begin to conceptualize about the yet-to-be-named “Foundation” which we hope to have launched by mid- summer 2010.”

Please see the web site, and especially the “Personal Message From Loni” to learn more about the idea and how it came about.

http://www.giveitupforloni.com

Many thanks,
Amanda & Suzanne

To Summarize: Coming into any personal situation like this puts you into protection mode. How can I take care of myself, my health, and business (maintaining existing clients) at the same time? We have all learned from personal experiences and from the generous insights above that you have to do what feels right for you and your clientele. To tell or not to tell, that is personal. But the number one thing we hope you take from this is to take care of yourself and your health and the rest will follow suit. But to be safe….MARKET THE HELL OUT OF YOURSELF while pregnant and during your maternity leave or while you are going through something deeply personal – so when you are ready to pick up the camera, clients will be ready for you. And the best worst case scenario – if the client calls while you are in labor, we would rather you be able to turn down the job, then not be offered it all.

Be well, happy shooting and safe deliveries

Call To Action: Please check out “Give it up for Loni” because she is not out of woods, she has a long journey ahead of her. We are all in this world together and sometimes our fellow man needs a little help.

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.”

Publishers Need To Put A Premium On Content

Now, I ask you—the publisher—whether you’re devoting enough corporate energy, resources and financial backing to your editorial staff in order to actually produce an indispensable editorial package? If the answer is yes, then why are you charging so little for such a valuable product? Ask the Economist how it feels about its edit and its worth. Why do you think it can charge a premium and you can’t? What makes it so special? You guessed it—its edit is worth that price, or so the reader believes, and that is all  that matters.

The answer to the publishing industry’s woes is to provide something worth paying for. For far too long we have been lured with the easy money and wicked ways of our advertising mistress. Well, in the past few years we got dumped. And it hurts. But I say we pick ourselves up out of the gutter and find our self-worth once again. Stop firing the editors and writers, and start paying for the production of excellence. There is no other choice.

via Publishing Executive.

The photographs are blurry, skewed, badly printed and in terrible condition

“If you want to be famous, you must do something more badly than anybody in the entire world.”

via Miroslav Tichy – NYTimes.com.

Printed Portfolio Videos

Here’s something cool over on Wonderful Machine again. They’ve got a handful of their photographers printed portfolios as videos on their youtube channel (here). Very cool for anyone wanting to see how books are put together and not a bad idea for reminding an AB or AD of a book they liked.

Time Is Running Out on Legacy Media Brands

Old media, even highly focused old media, simply cannot keep up. Look at almost any vertical and the story is the same: There are huge discrepancies between offline reach and online visitors. Too often the legacy publisher continues to think about the brand’s Web site as an extension of the base product and therefore something smaller in reach and ambition than the mother ship.

via AdWeek..

Negotiating The Editorial Contract

Bill Cramer has an excellent piece on negotiating an editorial contract with a new client over on Wonderful Machine (here).

It’s pretty amazing that people starting out on the publishing side know so very little about the appropriate terms to include for hiring photographer. Inevitably it starts with boilerplate language handed to them from some well meaning lawyer looking to protect the company but you got to wonder why companies think they need all these rights and all that protection in the first place. It’s not like there are examples where the lack of an indemnity clause took down a media company or the lack of all encompassing rights prevented them realizing their true profit center, selling mouse pads with cover photos on them.

When starting a new job photo editors have a couple big hurdles to sort out if they want access to the high end talent of the industry. Your rates and your contract are deal killers on all but the biggest of jobs. I’ve never had a problem raising rates after starting a new job but I always ran into insane roadblocks with the contracts. At one company I worked at they had such a lock down on contracts that any changes had to be run by a very busy lawyer who was in charge of multiple titles. And, they refused to pay an invoice if the company didn’t have a signed contract on file. We ended up knocking on the lawyers door so many times in the first couple months that she finally called a sit down meeting to modify the contract. Of course any changes we made had to be approved by the owner of the magazine so I was very careful to insert language where I could instead of wholesale rewriting because he would be less likely to strike the entire change if it was small words instead of entire paragraphs. Anyway, half the modifications were passed and half were rejected leaving me in the position to let photographers know the terms were only negotiable in extreme circumstances, because now the lawyer instituted a policy of once a week modification discussions (too much door knocking I guess). Combine that with the fact that editorial could be slow in handing over assignments for each issue and working with new photographers could become a real high wire act if they didn’t like the terms of the contract.

Back to Bill Cramer’s piece (here), he shows incredible aplomb after striking the offending passages and receiving the loaded reply of “I know the photo editors are excited to work with you. Can you reconsider your positions and sign our standard terms and conditions ‘as is’?” and instead of flying into a rage, taking the time to calmly educate the client on why the changes are necessary.

In the end he prevailed, but it seems so insane that people would want to spend an ounce of time mired in contract negotiations defending terms that as far as I’m concerned have zero value to the media company instead of producing content that will attract readers and advertiser to their product.

SPD Finalists Announced

Photography awards after the jump. The whole list is (here).

Ask Anything – How Do You Get Started Photographing Fashion?

I would like to know the best strategies for non-established photographers pursuing fashion. I find it very difficult to find practical information about pursuing fashion specifically. Maybe you can touch on advertising as well.

If it helps, I will explain my path. My primary income comes from developing models with top agencies in NY. Modestly, I make $2000 – $3000 per month depending on seasonal variables. That’s not so much if you live and work in a studio in NY.

I started out assisting (for one year) but found it shockingly difficult to progress with my work. I knew assistants who had not shot anything of their own for 8 months and beyond. It was like that for me as well. I also knew assistants who were coming off 5 years assisting but they still had to develop their work. I have a really strong itch to work, so I cut my losses.

Beyond model development, what is the next best step for someone in my position? I mean to make money. I’m avoiding stupid magazines, and pursuing hip magazines, which fit my particular style. This however doesn’t really pay.

Emerging Photographer Help!

Established Photographer 1:

Anything is possible anywhere if someone is talented. Fashion is a very, very difficult thing to succeed in, sort of like the NBA. I can’t stress how hard it is. The person should start somewhere they can put a team together and make brilliant photos. They could be in Bangkok or Seattle or NYC. I have never ever known anyone to go from shooting model tests to the big time, but I have known several who have gone from assisting a great photographer to being a great photographer. It gives you the in that you need. But the photographer you work for needs to be a great one. The main thing is that you need to be ambitious to the point of it being worth more to you than anything in life, and then you may have a chance.

Established Photographer 2:

Are you talking about real fashion or small catalogs? If you’re talking about a real career in fashion I wouldn’t even think about it if you weren’t living in NYC, Paris, or Milan. LA is better than anything outside of those cities, but still nothing is close to NY. To be in the fashion industry you have to immerse yourself in it, and it all happens in NYC. I actually laugh when people live in any other city than the above try to be “in fashion.” Plus, these cities are the only cities you can even get top tier fashion models of which companies won’t even think about you unless you have them in your book. The high-level fashion world is very gay (literally) and concentrated in NYC. My straight climbing the ranks fashion photographer friend and I always joke about how you have to be “in the gay” to climb the chains of fashion. Even if you’re straight, you still have to play the game.

Just my 2 cents.

Established Art Buyer:

I think that expanding into Lifestyle or even non-couture fashion gives photographers more options to make money. Real (but good-looking) people in everyday situations; it’s that “aspirational” style that many clients ask for. And if you can test with any top models that you’ve developed relationships with, that’s even better. Based on the current economy, it means starting small, with a smaller hot agency. It doesn’t mean not continuing to build a fashion portfolio, but it means refocusing efforts on projects that will pay for groceries while your portfolio is evolving.

Of course, the questions that need to be asked are:

What is the current state of your portfolio?
How are you promoting yourself?
Have you established relationships with outstanding stylists and retouchers as well as with top models?

Do you know what is the most valuable asset you possess?

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.

Stock Photographers find other ways to survive

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.

Times Are Changing – Less Books, More Video and Profits Are Up

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.

Photographers- How To Deal With Infringements

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.

Time Warner’s Bewkes: perform or hit the road

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.”

via Jon Friedman’s Media Web – MarketWatch.

Commercial Photographer Income

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.

Ad Agency Guide To Photography Usage Terms

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.

Cuban Rails Against Google and News Aggregators

“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.

via MediaPost Publications.

Ask Anything – Should Photographers be Unionized?

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.”