As a long standing ASMP member I highly respect their opinions on the matter (see Beware Facebook’s New Terms of Service), but the alarm is really too late. They should have read the tea leaves (that were pretty well spelled out) in the class action lawsuit settlement noted above. The email alert I received from ASMP highlights how even the savviest of photographers and associations missed the boat long ago.
Read More: JMG-Galleries – Landscape, Nature & Travel Photography.
I generally prefer if the photographers do not know the budget since the estimates are often an indication as to how the photographer likes to work. If I say, “we have $100,000” then all the estimates pretty much come in at $100,000 and I don’t know if perhaps the photographer could have done it for $75,000 and they are just padding it since we seem to have the money.
via Sharing Estimating Insights from Amy Rivera of DDB LA | Notes From A Rep’s Journal.
Guest post by Mason Adams
Compared to print and web, mobile advertising is cheap. A print insertion can cost $40 CPM (Cost Per Thousand) while popular sites like Gawker sell banners for $10/thousand. Mobile averages $2.85.
This summer Mercedes hired 5 Instagrammers with the mobile-centric agency Tinker Street to shoot their own road trip in the new CLA class - the person with the most likes at the end of the trip won a 3 year lease on the car.
“Take the Wheel brings together some of Instagram’s most influential photographers including: Paul Octavious(432,000 followers), Tim Landis (523,000 followers), Michael O’Neal (487,000 followers); Alice Gao (538,000 followers); and Chris Ozer(503,000 followers). Each “like” from their followers will bring them closer to the car.”
It’s a direction many brands and agencies are experimenting with and it begs the question: are the photographers being paid for their images or for access to their followers?
According to the Mercedes social media lead, the CLA Instagram campaign reached almost 90 million impressions (number of photos multiplied by the number of followers on the 5 accounts). At $2.85 CPM that comes to a media buy of $256,500, or a minimum fee of $50,000 per photographer (on top of the normal creative fees and expenses). Except that engagement on Instagram is normally 18 times higher than other mobile services. On the upper end, that’s $900,000 per photographer. Even without knowing the exact numbers, it’s easy to speculate that by hiring Instagrammers, Mercedes got the deal of a lifetime in advertising.
Photography is still the most important and impactful tool for advertisers to spread their message. This isn’t just an opinion, it’s reflected over and over in the statistics of companies that use photos to promote their products online. If educated about the true costs of advertising, I imagine that photographers with a large online audience would think twice about selling their followers out for a 3-year car lease.
The only reason that I can think of that other people may not do this notification [on the outcome of a job] is that some overbearing reps want a detailed description of why the job did not go their way. It just happens, and it may be awkward to explain. No one wants to say, “the client hated the work” or “the other bidder was $100 less.” The reasons may be stupid, but it is the business. If the job didn’t go your way reps just have to say, “Well thank you for letting us know and giving us the opportunity to bid. Maybe next time!”
via Sharing Estimating Insights from Amy Rivera of DDB LA | Notes From A Rep’s Journal.
Cristina de Middel used to work for a Spanish newspaper as a photojournalist until early 2011, when she had had enough. “I was disappointed with photojournalism. I’m very passionate about everything I do and when I don’t get the feedback that I expect, I’m disappointed,” she says. “I really believed, when I started being a photojournalist, that I would help change the world by taking these images. Then when I started working for a newspaper, I realised that truth is built by advertisers, political parties and corporations – at least that’s the case in Spain.
Back in the days, I used to go to New York and see everyone I wanted to see with a few phone calls and emails. Now I had to send over 2,000 emails and make hundreds of phone calls and still not manage to connect with all the people I was expecting to see. What happened? The answer is simple. The industry has changed.
Digital photography has inundated the market with photographers and all of them, me included, are bombarding art directors and editors relentlessly.
First of all, the Conscientious Portfolio Competition (CPC) is free to enter. There are no costs involved for you other than the time it takes to decide about and send in your work.
CPC is aimed at emerging photographers. We could probably argue about the term “emerging.” What it means here is that photographers not represented by a gallery will get preferential treatment. But of course, the quality of the work plays the most important role.
If we continue to think of still photography and motion as being two separate entities in the business of visual communications, it will be our demise.
via Journeys of a Hybrid.
We emailed Art Buyers and Art Producers around the world asking them to submit names of established photographers who were keeping it fresh and up-and-comers who they are keeping their eye on. If you are an Art Buyer/Producer or an Art Director at an agency and want to submit a photographer anonymously for this column email: Suzanne.sease@verizon.net
Anonymous Art producer: I nominate Jeremy and Claire Weiss of Day 19. They are established but their work is nice and fresh. They also are very low key to work with and create no problems on set. They are very flexible when things change. I recently worked with them a campaign. There were a lot of problems on my side with the talent, which were musicians due to legal matters, and they sailed through drama free and accommodated the production 110 percent.
How many years have you been in business?
I don’t know how long I would call it a legitimate business but starting getting some paying gigs around 2000 when we moved to Los Angeles. Claire and I didn’t start shooting together until 2006 and she waited tables up until 2007 and I would do movie extra work (it’s an easy gig in LA) and go on tour with bands selling merch and make little photo ‘zines with the tour photos and sell them to pay rent. I did that up until 2006 when we got a pretty big advertising job out of the blue, but that money went fast paying off debts so we were broke again in 2007. So to take an easy question and give it a difficult answer we have been making a living solely off of photography since 2008. I think people always saw us as bigger than we were really because we shot some pretty popular albums for friend’s bands but that paid pennies.
We both realized very early on we would never make great assistants, I tried twice and both times it ended pretty badly and I don’t think Claire ever even tried.
Are you self-taught or photography school taught?
Both. Claire and I met while we were both attending a county college in New Jersey where I was taking a photo class because I had shot a roll of film at a concert and this fanzine Anti-Matter wanted to publish it but only if the print had a black border around it. I had no idea what that even meant so I took a printing class to learn how. A teacher named Charles Luce showed me the magic of a filed negative holder at County College of Morris in 1998. I urged Claire to start taking some photo classes too and she fell in love with the darkroom. I miss the black border; it was like a badge of honor that you didn’t crop.
Who was your greatest influence that inspired you to get into this business?
The influences to start taking photos and to get into the business of taking pictures are totally different. I am from NJ and grew up taking the train into NY to skate every day and go to shows. I would always see guys like Ari Marcopolous, Chris Toliver, Tim Owen, and Larry Clark taking photos and I was intrigued by them but always too shy to talk to them. I got a camera from my mom and starting taking photos of my friends hanging out like I imagined their photos looked like. That’s what got me to start shooting and the eventually led me to take that class so I could make better prints than A&P was giving me.
Strangely enough the person who turned us on to the commercial world of photography we are in now was a photo rep who seeked me out because of the photos she had seen in one of those many photo ‘zines we had made. I guess someone showed her one and she called me and wanted to meet. She asked to see my portfolio but I only had photos taped into these black sketchbooks. It was her idea for Claire and I to work together because when she was helping me build a proper portfolio she wanted to use a photo of Jack Black that Claire had taken backstage at Coachella, so we ended up building a portfolio of both of our work in it. We didn’t really realize our work could fit into the advertising world, it wasn’t even something we aspired to until we started getting some advertising gigs and realized the clients and agencies just wanted us to shoot like we were shooting our friends.
How do you find your inspiration to be so fresh, push the envelope, stay true to yourself so that creative folks are noticing you and hiring you?
I think we are each other’s biggest inspiration. We get a kick out of bouncing ideas off of each other and there’s a healthy competition between the two of us to get an amazing shot. We only know how to shoot the way we do so we are always being honest with ourselves. Advertising came to us; we didn’t change our way of shooting to cater to the ad world. I’ve seen a lot of people, assistants and others; completely change their style to what the trend happening was. We had an assistant shoot in that super sharp ultra realistic whatever its called style when it was hip a couple years back and now they shoot “lifestyle”. Such a terrible word.
Do you find that some creatives love your work but the client holds you back?
Years ago we did. Our book would get us in the door but clients would always seem scared away probably because we had photos of a guy with Slayer carved into his back or a girl with a bloody nose in there too.
These days we have enough pretty successful campaigns under our belt that it makes it easier for clients to look past the tattooed lip photos etc.
What are you doing to get your vision out to the buying audience?
Honestly, we don’t do much self-promotion. We need to do more for sure. Our agency Giant Artists makes a book once a year that includes everyone on the roster that people seem to dig and we send out an email every couple months that maybe 3 people click. I’d say its mostly the work we’ve done speaks for itself and word of mouth gets us most of our work. We’ve had art buyers tell us that a creative director would put one of our photos on their desk and say, “find out who shot this” more than a handful of times. It’s flattering.
What is your advice for those who are showing what they think the buyers want to see?
Maybe it works for them, who knows? Our motto has always been show what you wanna shoot.
Are you shooting for yourself and creating new work to keep your artistic talent true to you?
We have an ongoing Polaroid Project that we do when we get a chance that’s more of an excuse to meet people doing cool shit than anything else. It’s pretty much the same photo of different people, Claire shoots one and I shoot one.
We don’t see much of a separation though of what we shoot for clients and what we shoot for ourselves. Maybe the stuff we shoot that’s not commissioned is a bit darker but that stuff usually gets referenced for an upcoming shoot when we end up showing it. Our goal going into every job is to want to completely redo our portfolio with the images when we are done. We’ve been lucky too that any idea we have outside of something we’ve gotten hired to shoot we’ve pitched to a magazine ahead of time and they gave us space to print it.
We’ve never done a “test shoot”.
How often are you shooting new work?
Never not shooting.
Jeremy & Claire Weiss split their time between Los Angeles, CA and Big Bear Lake, CA with their 5 year old son Eli.
studio@day19.com
Represented by:
Giant Artists
323.660.1996
info@giantartists.com
APE contributor Suzanne Sease currently works as a consultant for photographers and illustrators around the world. She has been involved in the photography and illustration industry since the mid 80s, after founding the art buying department at The Martin Agency then working for Kaplan-Thaler, Capital One, Best Buy and numerous smaller agencies and companies. She has a new Twitter fed with helpful marketing information. Follow her@SuzanneSease.
Looks like I missed an update to the Richard Reinsdorf’s $250 million dollar lawsuit against Skechers from February of this year (thx for the tip Josh). To recap from my previous post “Skechers Sketchy Defense For Ignoring License Terms“:
The suit started when Reinsdorf discovered that images he took for Skechers from 2006-2009 and licensed to them for very specific terms–six months use in North America for point of sale, magazines and certain outdoor advertisements–were being used for several years and included in ads overseas and on packaging and other unauthorized media. The suit states that Skechers “completely and utterly ignored the terms of the license.” (source)
First reported by TMZ back in September of 2009 it took an unusual turn in 2010 when Skechers filed a motion to dismiss claiming ownership of copyright because of “alterations they performed on the images from slight modifications in models’ skin tone to the substitution of models’ body parts and the addition of substantial graphic effects.” They asked the judge to dismiss because they couldn’t possibly have infringed on their own copyright.
If you want to read the motion to dismiss you can download it (here). It certainly would set a disturbing precedent in the photography world if something like this were to be allowed. In the discussion the judge states that “Skechers is correct that a co-author in a joint work cannot be liable to another co-owner for infringement of the copyright” but that’s not what’s at issue here because “Contrary to Skechers’ assertions, the evidence in the record does not indisputably establish that Reinsdorf intended that his photographsbe incorporated into a joint work.” He simply gave them a limited license to their use. The motion to dismiss was denied.
A ruling on Skechers Motion for Summary Judgment dated February 6, 2013 (download it here) states:
Skechers has not demonstrated that the parties intended to be co-authors of the finished marketing images, which are, therefore, not joint works. Nor has Skechers demonstrated, as a matter of law, the lack of a copyright license agreement or breach of such argument. Accordingly, Skechers’ Motion for Summary Judgment is DENIED in these respects.
The expert opinions of Frank Luntz and Jamie Turner do not satisfy the requirements of Federal Rule of Evidence 702. Accordingly, Skechers’ Motions in Limine to exclude those opinions are GRANTED. Skechers’ objection to the Supplemental Report of David Connelly is SUSTAINED.
Given Plaintiff’s failure to adequately demonstrate a causal link between Skechers’ profits and its allegedly infringing conduct, Skechers’ motion for summary judgment on Plaintiff’s indirect profits claim is GRANTED. Skechers’ unopposed motion for summary judgment with respect to statutory damages and attorney’s fees is also GRANTED.
I found what District Judge Dean D. Pregerson has to say about joint authorship in this case interesting. While both parties intended that their separate contributions be merged into a unified whole this is different than an intent to be co-authors. The parties behaved in ways uncharacteristic of joint authors:
Finally, you can see that Richard was unable to demonstrate a relationship between the images he took and the profits Skechers received from shoe sales. And… the kicker… “he failed to register his photographic works within the period contemplated by the Copyright Act”, so he’s NOT eligible for statutory damages and attorney’s fees.
I like business and growing things, and I love photography, so the job I had with MAC-On-Campus was the perfect job for me. It goes back to the old adage, If you do something you love, you’ll never work a day in your life. Once you know that photography is what you love, if there’s something else you can tie that into, you’ll have the same situation. When other people sense that passion, they’ll want to hire you to do the things you want to do and photograph the types of things you want to photograph.
A reader asks:
Hi Rob,
I’m an architectural/interior design shooter for the last 15 years and I’m still working in 4×5 film.
I’ve been approached by a stock company and they would like access to my catalogue of mid to high end residential exteriors and interiors. I’m usually hired by the architects or the designers, seldom the owners and the work has been for the clients “personal portfolio and marketing purposes”
I know I have the “copyright” because I was paid to photograph the residences with owners permission.
But, if one of the living room shots is licensed from the stock company and the property owner happened to come across “his” living room in a mag somewhere, can he drag me to the carpet and create a litigious tussle or a simple cease and desist.
I’d like to finally get a wee bit of money for potential stock usage.
I asked The Photo Attorney, Carolyn E. Wright if she could give us general advice on licensing images shot on private property for stock. Here’s her answer:
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.
When considering whether you need permission of the owner to use photographs of the owner’s property (often referred to as a “property release”), you need to analyze what claims the owner can make against you.
Assuming that the property is in the United States, any potential claims will based on state laws, not federal rights. So the claims may vary, depending on the laws of the state where the property is located. However, each state’s laws are similar.
While some buildings are protected by copyright, the US Copyright Act provides an exception for photography of architectural works:
The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place. See 17 USC 120. Therefore, you are allowed take and use exterior photos of a building or home when it is located in and is ordinarily visible from a public place. A home owner would not have grounds to keep you from photographing and using the photos for any purposes, including commercially. Such was the case when a California homeowner complained about photos of his home used to advertise mortgages: http://www.photoattorney.com/is-a-property-release-required-for-use-of-photo-of-house-for-an-advertisement/
When taking photos inside property, you are subject to trespassing laws. Specifically, your presence on another’s property is pursuant to a “license” to be on the premises. For example, when you invite someone to your home for dinner, that invitation does not extend to a “license” to drive your car or stay overnight, but would be specific or implied consent to sit in your living room and at the dining room table. At any point, however, you may revoke the license and ask your guest to leave your premises.
The ultimate question is whether the owner or manager of the property has given specific or implied consent for the photographer to take photographs there. You cannot misrepresent your purpose to enter a property and then take photos. For example, in the court case of Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999), ABC news reporters from the show, “PrimeTime Live” obtained jobs at several stores under fraudulent pretenses and then proceeded to surreptitiously film Food Lion’s unsavory food handling practices. After the program aired, Food Lion successfully sued the producers on the charge of trespass. However, if you are on the property and the owner sees but doesn’t stop you from taking photos, you have implied consent to do so.
If you have consent to take photos of property, then the issue is whether the owner has a right to restrict the use of them. An owner would be able to stop the use of the photos if the photographer and owner had an agreement that the photos wouldn’t be used in certain ways. If the photographer uses the photographs otherwise, then the owner would have a breach of contract claim.
Absent a trespass claim or contract regarding the use of the photos, no court has recognized a claim for using photographs of private property. Some have argued that a homeowner would have a claim for conversion, trademark infringement, or violating the right of privacy. But, for example, a South Carolina court found that The College of Charleston Foundation had no claim against Benjamin Ham for invasion of privacy or conversion for his taking and selling photographs of the College’s property, known as the “Dixie Plantation.” Significantly, the court noted that if Ham had taken the “Plantation Road” photograph from off the property with some sort of high-magnification equipment, the Foundation would have no cause of action for trespass, either. http://www.photoattorney.com/update-on-the-lawsuit-against-benjamin-ham-for-photographing-private-property/. Neither did photographer Charles Gentile violate the Rock and Roll Hall of Fame’s trademark for selling posters of the museum. http://scholar.google.com/scholar_case?case=8775495145817703769&hl=en&as_sdt=2&as_vis=1&oi=scholarr. Likewise, a German court recently upheld the right for a photographer to license photos taken of property at a park: http://www.photoattorney.com/german-court-finds-no-violation-for-photographing-and-licensing-photos-of-property/. A subsequent owner of property would not be able to prevent a photographer from licensing photos that a photographer had taken, as no other claim would bar their use.
In sum, while some owners may whine about seeing photos of their property used commercially, the law won’t support their complaints.
Copyright Carolyn E. Wright, Esq.
When I got back into photography about 10 years ago, I was shooting musicians and artists, and I put a top-of-the-mountain goal up: I want to shoot a cover for Rolling Stone magazine. I’ve been plugging along for 10 years now and I still haven’t shot the cover of Rolling Stone, but it’s still something I want to do. That being said, I’m fully prepared for a day when I get an email from somebody that says, “Hey Zack, I went to one of your workshops years ago. I just shot my first cover of Rolling Stone and I wanted to thank you.” I feel like I’m going to be a Mr. Holland’s Opus kind of character, but I think I’m okay with that.
I ended up failing out of UGA’s art program within a year. I was not an ar-teest—I wanted to do photography as a job—but everyone looked at me like I was a whore. I wanted to make money with photography while the other students wanted to make art. I didn’t do well with art: I didn’t take pictures of naked girls laying on headstones, or talk about the “juxtaposition of life and death” and the “cold, hard granite of the headstone.” It sucked.
It is jaw-dropping as a photographer to walk out with a wearable camera that’s almost physically and literally attached to your eye. Believe it or not, it’s just like wearing a pair of sunglasses, and it’s a lot less intimidating for subjects. Nobody has objected. Every now and then I’ll hear somebody whisper, ‘Oh, he’s got Google Glass.’ But nobody has stopped me or said ‘don’t do that.’
We live in a culture where we don’t look each other in the eyes in public all that much, and since the camera is near your eye, not a lot of people are seeing it.
via Theater of the Streets, Shot On Google Glass – LightBox.
I recently did a four-day shoot for a client with planned scenarios and a shot list. We’d bang things out like “Let’s get the shot of Dad in the morning with his first coffee on a camping trip” and it would be like 1pm. We’d also have to light it like it was first morning light. So we’d light it with thick orange gels and then call Dad in, holding a mug with nothing in it, who needs to look like he just woke up, but didn’t. When you shoot from a script, nothing looks quite right. The mood, lighting, and even posture are off. You lose any sense of what was magical in the first place. I feel like that’s the definition of advertising these days, unfortunately.
via Q&A with San Francisco Photographer JAKE STANGEL | POP | Photographers on Photography.
Salmon concludes that “the art market, more than ever, is controlled by a handful of large international galleries.” But swap “banks” for “galleries” and “global financial system” for “art market,” and we get closer to a more relevant truth.
via Salon.com.
Everybody Street Trailer from ALLDAYEVERYDAY on Vimeo.