Combating Online Infringement and Counterfeits Act

Dear Copyright Advocate,
This letter is about a bill that has been introduced in the Senate that will combat online infringement of copyrighted works. It’s called the “Combating Online Infringement and Counterfeits Act” or “COICA”. ASMP encourages you to sign a petition in favor of the bill.
Though some photographers have already done this, our efforts have not been enough.
The opponents of this bill have been active in mobilizing the masses to speak out against it. The result of their efforts is that it seems like the public is against this bill. Yet, we all hear everyday about how websites are illegally posting your creative works for others to take and how this affects your livelihood.
This bill would benefit all artists and creators! TAKE ACTION TODAY! Stand up for your rights!

WHAT CAN YOU DO?

  1. Speak up on blogs and listservs. Artists who speak out in favor of the bill on a website are often verbally attacked. Musicians, photographers and other artists need your support on this effort. Post blogs and comments on your own websites or on websites where you see these attacks.
  2. Contact your Senator and House Representative. Tell your congressional representatives to vote YES to the bill. Tell them your story and how piracy and infringement affect you.

    To find and email your Senator, go here.
    To find and email your House Representative, go here.

  3. Tweet this: Stop online piracy of art, music, movies, books, all creative works. Vote yes to Combating Online Infringement and Counterfeits Act #COICA
  4. Facebook this: The U.S. Congress is debating a bill that could help millions of artists around the world. If passed, the bill would allow the government to target and shut down “internet sites dedicated to infringing activities” which are “primarily designed” to access unauthorized copyrighted material. Tell your representatives to vote YES to the Combating Online Infringement and Counterfeits Act (COICA).

WHAT IS THIS BILL ABOUT?

  1. Check out this short video by independent filmmaker Ellen Seidler as she talks about how websites that are illegally hosting her movie are profiting. Yet, she is losing money. This bill will help shut down websites like these.
  2. The bill will not target minor violations of copyright. It will target “internet sites dedicated to infringing activities” that are “primarily designed” to offer or provide access to copyrighted material “without the authorization of the copyright owner.”
  3. The Attorney General will be able to request a court order to suspend the domain names of U.S.-based infringing websites. For non-U.S.-based websites, the Attorney General will be able to request a court order to require the ISPs to block the website. Credit card companies and networks providing ads to these sites will also suspend all activity with the infringing sites.
  4. A list of all the domain names that are found to be infringing copyright protected content will be posted on a “publicly available Internet site, together with other relevant information, in order to inform the public.”

REMEMBER PILFERED MAGAZINE?
Last February we made you aware of Pilfered Magazine, an online magazine that freely took images from photographers without their permission and didn’t credit or compensate the photographers. Because of your emails, Tweets, and postings on blogs and Facebook, the magazine was shut down in a weekend and has never reopened.
It is important that we take collective action on this bill too. Pilfered is not the only website that hosts and offers infringing material. This bill will help remove other websites like Pilfered from the internet.
ONE VOI©E: SPEAK UP FOR CREATORS’ RIGHTS

via, Jock Bradley

Mike Kamber: Military Censorship

This exclusive audio slideshow interview featuring Michael Kamber is from BagNews. If you haven’t visited Michael’s site, where he provides analysis of prominent news pictures, take a look, it’s a daily read for me.

5 Questions For Fraction Magazine’s David Bram

Jonathan Blaustein, our man in the field, caught up with Photographer David Bram: editor, publisher and co-founder of fraction magazine ; recipient of the 2010 Griffin Museum Rising Star award; and a curator of exhibitions for several commercial galleries and non-profit photo spaces.

Jonathan: Do you think that more people look at photographs on a screen than on paper, and if so, does it change the way people think about photography?

David: I look at almost everything on a computer screen, so if that is an indication, then I would think that photographs are mostly viewed on a computer of some sort at this point. I’m not sure how many laptops are sold each year, but over 8 million iPads have been sold since April 2010 and nearly everyone has a cellphone that can make pictures as well. I think what has changed most about peoples’ perception of photography is that everyone has a camera, which then makes them think they’re a photographer. The computer age and the internet revolution, has taken the tangibleness out photography, we used to handle film, load cameras, handle negatives, handle paper, etc. I think this is the biggest change.

Jonathan: Fraction offers photographers a great deal of exposure in exchange for publishing their images for free. As online media begins to develop sustainable income streams, do you see a future where you are able to pay for publishing rights?

David: I am not paying the artists that are showcased because there isn’t any real money generated from it. Like most websites, money can be made with advertising and if you have the proper content there’s an audience for the advertisers, but for now, I do not see paying for content. And, I am not sure I will ever have to. As a photographer, I would love to be paid for having my work on someone’s website, but it’s not realistic at this point in time. Fraction is not an online gallery that aims to sell work and make money. Fraction merely introduces the artist’s work to the Fraction audience, free of charge.

Jonathan: Between portfolio reviews, internet research, and Fraction submissions, I would imagine you see thousands of photo projects a year. Are there any subjects that you feel have been done to death and you wish would just go away?

David: I’m not sure anything needs to go away because every artist, hopefully, has their own way of seeing the world. Also, I’m not sure it’s fair for me to say what needs to go away. I am finding that photography subjects are cyclical in nature, and who knows what everyone will love next week. There’s a difference between poorly executed work and tired subject matter.

Jonathan: Fraction is based in Albuquerque, and I’m based in Taos. You and I know that northern New Mexico has a lively and broad photographic community. Why do you think photographers are drawn here?

David: I think artists come to NM because of the weather and the light. Everything in New Mexico is dramatic, from the way the weather moves across the landscape to the politics. For me, the best time of year to photograph in NM is October and November. The air is cool and the light is amazing, especially in the hour before sunset. For photographers, there is a great sense of history as a number of great photographers have come through here at some point in time; Ansel Adams, Edward Weston, Paul Caponigro, Paul Strand, Lee Friedlander and Laura Gilpin, as well as a long list of contemporary, well established photographers who call New Mexico home.

Jonathan: It seems like we’re entering an age where the traditional boundaries that existed between artists, curators, dealers, editors and publishers are coming down. I can think of dozens of people who are doing more than one thing. Do you think this has any serious implications for the photography industry?

David: It just means that some of us are more busy than others. I’ve been busy working with Fraction, doing portfolios reviews, the occasional talk, and yes, I am trying to make new work as well. I think this can only help the industry since some of us know how hard it is to make a living making photographs. I think technology has made things easier as well. Email gets us in the door a little faster and our own personal websites let the dealers and publishers see what we’re up to a whole lot easier then sending around books or portfolio boxes.

My emotional instinct was to throw a complete hissy fit

Believe me, we don’t do these jobs for the money. We do them for exposure and credibility. As soon as you realize that you’ve become committed to something that threatens that credibility then you better understand what’s personally at stake. A million people will see this and I can’t afford to allow one of them to look at the end result and say “Wow, that’s a bit shit.”

via Clean Living Under Difficult Circumstances..

Ask Anything, Live – Photo Plus Expo

When: Thursday, Oct 28 from 3:45 pm to 5:45pm

Where: PhotoPlus Expo in NYC

What: Myself, Amanda and Suzanne will moderate a panel of industry pros:

Kat Dalager, manager of print production at Campell Mithun

Greg Lhotsky, agent and partner at Bernstein & Andriulli

Jennifer Pastore, DOP at Teen Vogue

Nick Onken, Professional Photographer

Jim Krantz, Professional Photographer

Why: I thought it would be fun to take the ask anything format and make it live which boils down to this: Amanda, Suzanne and I have all the tough questions you would love to put to these people, but we all know this industry is small and who wants to ask Kat Dalager “Why do agencies tell me to cut expenses and then treat a photoshoot like an all expenses paid vacation for the agency and client? Your catered lunch would pay my assistants rent for a year.”

We’re going to ask those questions.

I hope to have a live feed setup as well so stay tuned to that if you’re interested.

The Ongoing Revolution in the Media Economy

Despite the downturn and the persistence of legacy thinking, the future for the production and distribution of compelling stories and important information is bright. The creative possibilities enabled by digital technologies, the open web and the app economy – in association with those legacy publications now looking to a future beyond print – are being continually enlarged. If we pursue multiple modes of distribution and make them serve the modes of information, then, in conjunction with new ways of thinking about business models, we are in for an exciting if bumpy ride.

via David Campbell.

Ask Anything – No Luck Applying Standard Rates To My Local Business

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

QUESTION:
I’ve been following your blog closely for some time now, and I’ve found it very helpful in seeing what others charge for advertising shoots, but I have had virtually no luck in applying the same sort of rates (scaled down) to my business. One of the requests I get most often from business owners and lawyers is for headshots, full-length portraits, environmental portraits, retouching either on-location or in-studio.

I’m finding that almost everyone who contacts me is confused by the idea that they must pay to actually use the images and that they don’t own them, so it’s this constant uphill battle to educate potential clients. I’d love to get a sense from you whether I’m going about this the right way, if I’m charging too much or too little, if I should be rolling the usage fees for specific number of images into the Photographer’s Fee instead of giving Usage it its own line-item… I need help here.

I’m in [redacted], TX and my work tends to be directly for the clients and not for ad agencies who understand how things work. For your reference, I’ve attached an estimate I sent out just today. When I was talking on the phone with the client, as soon as I mentioned that a ‘full buyout’ of the selected images would be more expensive than specific usage, I was told ‘Oh, well we may not be able to use you then’ – I sent the estimate and the response was simply ‘No thanks.’

Job Description
Fee for [redacted] to produce portraits of two lawyers on-location at a law firm in [redacted] in one half-day shoot and for the
following licensing to be conveyed to Clients: Unlimited Time Usage, Unlimited use of up to 2 photos, across all communication
vehicles/mediums/media, forever.

Fees
1 Photographers Fee @ 750.00 ea. (Half-Day): 750.00
2 Usage Fees @ 900.00 ea. (Unlimited Usage – Full Buyout): 1,800.00
2 Retouching Hours @ 125.00 ea. (Editing and Clipping Mask for Final Image): 250.00
Fees total: 2,800.00

Crew
1 First Assistant @ 100.00 ea. (Half-Day): 100.00
Crew total: 100.00

Sub Total: 2,900.00
TX TAX (8.125%) 8.125%: 235.63
Total (USD): 3,135.63

Amanda and Suzanne:
Advertising and Local Consumer (even professional type imagery) speak 2 different languages. It’s not that they do not understand the terms, but the different client types need usage terms to be addressed differently (less of a blow to put it mildly).

ANSWERS:

MARKETING DIRECTOR OF GLOBAL LAW FIRM:
The price really varies depending on the market, but an average would be about $125 – $150 per headshot. The rights that we negotiate are: unlimited rights for electronic use, but prints and reprints must be ordered from photographer.

ESTABLISHED PHOTOGRAPHER 1:
You are certainly not alone. I know of many photographers who have gone through this same “song and dance” with clients (me included). Recently I have found that many non-advertising/editorial clients (lawyers, business owners, etc…) are beginning to understand, or accept, the way photographers price their work. This might be due to the way we are organizing our estimates or explaining our pricing structure during the initial conversation.

The numbers in your estimate are certainly within the norm, but as you stated the client balked at the usage fees. As you probably know, photographers are now combining the usage and creative fee into one line item – which I think is a good idea. This doesn’t always alleviate the problem, but it’s a start. In the initial phone conversation I ask many questions – what type of portraits, studio or on location, etc… I also bring up the subject of usage by asking how long they would like to use the images and for what purpose. Their response usually is “forever and don’t I own them?.” Here is where I educate them on how photographers price their work. I explain that “my pricing for portraits is structured by how many people need to be photographed, how the images will be used and not based on how long it takes (1/2 day or full day). If they continue to be confused, I calmly explain to them that photographers price their work very similarly to how cell phone companies structure their phone usage – you can own the phone, but you have to pay to use it. You are charged based on how many minutes per month you want and how many texts you send, and even more if you want to use it internationally. Since most have cell phone, I always hear “oh, okay I get it.” If they then say it is too expensive, then I ask what their budget is and try to work within that. It’s all about creating a win-win situation. I will usually send two or three estimate with different usage rights and pricing – one year usage, three year usage and unlimited, with the option to re-license the images. This way they can see the breakdown. Most go with the three year estimate.

ESTABLISHED PHOTOGRAPHER 2:
In my experience, when you are dealing with a small client like this one, it is best to combine the usage fee and the photographer’s fee into one, especially when dealing with a “buyout” situation. Most clients like this (and it is sad to say) do not want to understand or learn about usage. They just want to know if you can get in, do the job, deliver the images quickly and on time and on budget. Why complicate it by adding an additional usage fee? They are not an agency, they don’t pretend to be an agency, it’s not like there’s going to be a relicensing fee here ,because of the full buyout and to be perfectly honest, why should there be? What is the resale value on these images? They are not going to be put into stock, correct? Most likely they will be out of date in 2-3 years and the law firm will call again when they hire more lawyers or when the shots need to be updated. So, why risk alienating them by making your estimates more complicated than they need to be?

Secondly, why did the photographer not handle these questions and explain the fee structure before the estimate was sent and address the client’s concerns? As part of the sales process (and let’s face it, unless you have an agent, photographers are sales people) all of this should have been covered in the initial conversation and follow up conversations. An estimate should be a confirmation of the what was discussed and verbally agreed upon as to prevent a situation like the one that happened. Collaboration and mutual respect.

ESTABLISHED PHOTOGRAPHER 3:
Unless a client has commissioned media on a regular basis, it doesn’t make sense to do an itemized bid like this. A high powered law office is still on the consumer side of things, and they won’t be used to terminology or typical photo bidding practices. This isn’t good sales practice to itemize like this, because it draws undue attention to usage, mysterious line items such as assistants etc. Treat this sort of client like a wedding/portrait client: give one fee for the job. Explain separately what the usage rights are, but don’t break them out as line items. A headshot client is going to assume, much like any other consumer-level client, that they own the images (makes sense to them, they paid for them!). Better to state the usage without hitting them over the head with it, so the client doesn’t freak out.

And that’s a lot for a couple of headshots!

To Summarize:
Often it’s all in the wording, but it’s also what a specific market is used to paying. Often quantity can make a small fee multiply quickly. Ask the right questions and decide how to best approach this type of client. An estimate is a visual/verbal communication – make it as simple and clean to read as possible. Some need it very simple – while other’s need every detail spelled out – but it should all be kept to the point and clean.

Call To Action:
Use this scenario and create a plan for future estimates. Have your estimate template together/ready, along with your questions, so when that that job comes in you are prepared.

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.”

How Did You, How Do I, What Is, How Much?

Hanoi Photographer Justin Mott has a nice post about where to draw the line when sharing information: Friends and Competition: How much information should we share? Where do we draw the line? Consider this:

My first major published assignment came to fruition because Gary Knight gave me an editor’s contact at Newsweek and he was even kind enough to insist I drop his name in the email. People were wonderful to me as I started my career so I’ve always felt the need to pay it forward.

and his interpretation of an email he receives quite a few times that takes it all a little too far:

Dear Justin,
Blah blah random not well thought out positive comments about your photography because I’m about to be really rude but I’m trying to mask it with this sentence. I feel like I should be getting the work that you get in city X. I can save that publication some money and would love it if you could pass along their information so I can get the next assignment instead of you.
Thanks so much,
Photographer X

Now, in this new world of over-sharing online I can see people getting carried away thinking they have a right to any an all information and for the most part I agree with Justin earlier in the post where he says “there are no big secrets here” and the information given out on lighting, marketing and business practices will not harm your business, but there is a line to be drawn and there are still secrets that you want to keep away from the competition. Personally, I like paint broad strokes with the information (I also like it when the experts don’t agree) and hate getting into the nitty-gritty details, because everyone will have a slightly different approach and for crissakes, if you need every single detail explained and defined you’re in the wrong goddam business. Photographers are creative problem solvers. Also, I believe in the school of hard knocks. So, while I’ve obviously benefited from sharing lots of information with people that wasn’t previously available, I think everyone should fall on their face once in awhile to build a little character.

Do you want my photographer to shoot this job?

“Do you want my photographer to shoot this job?” That is how I start each conversation I have with an Art Buyer or Creative Director. The answer I get to this rather straightforward question is key to the negotiating process. From this moment on I know exactly where I stand and what my legitimate chances are in securing this project.

…The question could be answered in three ways; the first answer could be “yes, you’re our first choice”. The second answer might be “Well we’re not sure at this point we’re looking where the estimates come in”. The third response might be “to tell you the truth they really want to use someone else – I just need a third estimate”.

via Selina Maitreya.

Real World Estimates – Corporate Portraits

By Jess Dudley, Wonderful Machine Producer

Corporations tend to use photography in two main ways: to illustrate their internal communications (like company newsletters whose audience is primarily employees) and in external communications (like annual reports, capabilities brochures, sales brochures and press kits whose audience is shareholders, clients, vendors or the general public). Before the advent of digital photography and desktop publishing, most big corporations had a steady need for professional photography and design for their internal communications. But advances in technology have made it easier for ordinary employees to do what they once hired professionals to do. And though the level of quality may not be the same, it is often considered good enough. That’s rarely the case for external communications which can often have a significant impact on the perception of the company, and ultimately their bottom line.

The following is an explanation of a simple portrait assignment for a Fortune 500 company, primarily for annual report use.

Our photographer first met the corporate communications director of the company when he was there on a magazine shoot. When the company replaced a member of their board of directors, they needed a new portrait to match the existing ones of the other board members. Our photographer was asked to bid on the job.

The client needed a waist-up portrait of one person on a white background. The picture had to match the others that they had shot previously using another photographer. They even had the background paper on hand. The client showed us examples of the other portraits they had done, which we were supposed to match. It’s sometimes awkward when a client asks a photographer to replicate another photographer’s work. Certainly, if there’s anything unique about the picture you’re copying, it would be a good idea to consider whether the client is asking you to infringe upon someone else’s copyright. In this case, the situation and the lighting were generic enough that there was no danger of that.

They needed the picture for a year, for a variety of non-advertising uses, including their annual report, related documents like their proxy statement, their website, and for press kits.

This client was sophisticated enough to understand how licensing factors into the estimate. Some smaller clients may not get why a photographer would want to know or care about how their pictures will be used. It’s very important for photographers to comprehend the licensing model of pricing well enough to explain it to clients in a way that makes sense and is not off-putting. When this conversation comes up for me, I explain that we need to grant a license in order for them to use the photographs. Sometimes I’ll explain further that a more narrow license tends to put downward pressure on the price and a broader licensing agreement adds upward pressure on the price. Once a client understands how licensing affects the cost, they tend to be more specific about their intended use. But it’s crucial for photographers to learn how to have these conversations.

Sometimes a client will know exactly how they want to use the photographs, and I can just put that language in the quote verbatim. However, in many cases, the client won’t be able to anticipate all the possible uses of the photographs, and they’ll want to license a range of uses. Though it makes it a little harder to nail down the value in those cases, it’s a perfectly reasonable thing for a client to ask.

I like to divide up the usage “universe” using simple terms that help the client get the flexibility they want without paying for usage they don’t need (or without unnecessarily driving up the price). For most commercial photography, usage can fit into the following categories: publicity, collateral and advertising. I define advertising as any time a client pays for placement to display a photograph. I call it collateral when a photograph is used in a publication that the client produces themselves. And publicity is when the client gives the pictures to an editorial publication (and is not paying for that use). Defining these types of usage makes it easy to grant a whole category of use for a specified time period, which provides a useful middle ground between one-time use and unlimited use. (See exact definitions below in the Terms & Conditions page.)

Fee

For this quote, the licensing was pretty clear. The client needed collateral and publicity use for one year. I tend to list the specific uses they ask for as well, to assure them that they’re included. By the way, you want to be careful not to think of “web” as a use, but rather a medium. After all, depending on the context of the use (and whose website it’s used on), it could be advertising, collateral or publicity. One way you can clarify this is to indicate the actual website that you’re granting use on.

My usual wording in the first line of an estimate indicates who the photographer is, what the picture entails, where the shoot is going to take place, how many shoot days are included and exactly what the licensing allows. Even in cases where I don’t have all the details, I’ll want to fill in my best guess of what they’re likely to be. When new information comes along, we can always update the estimate. But the estimate has to be as complete as possible. Since this is a simple job, I can describe the whole project within the estimate itself. More complex projects may require the photographer to summarize it in the estimate and then explain in more detail in a cover letter, how he’ll solve the problems presented by the shoot. Remember that the estimating process isn’t simply about presenting an appropriate price. It’s also your opportunity to convince the client that you’re interested in the project, you understand it, and you can handle it.

I’ve found that a typical annual report shoot day goes for between 1500.00 − 3500.00 depending on how sought-after the photographer is, how busy the photographer is, how big the corporation is, how difficult the pictures are, how long the days are. For this one, the photographer was a “medium”. The corporation was large. The degree of difficulty was very low. And the day was short. To me that pointed to the lower end of the scale, but I bumped it up to 2000.00 to factor in the broad usage requirements.

Even though the client was unlikely to license more than one picture, I generally like to specify the cost for additional images in the original quote to minimize awkward negotiations later. Normally my additional image fee is prorated from the shoot fee, but in this case since any additional image would be the same subject against the same white background in the same clothes, I felt a reduced fee of 1000.00/additional image was appropriate. Had the images been environmental portraits, wherein the photographer could have created two very different images, I probably would have prorated the addition images.

Expenses

The expenses on this shoot were pretty simple.

“One assistant” to help set up and stand in for the subject.

“Digital captures delivered by web gallery for editing.” For editorial and corporate projects, we typically charge for a web gallery, then we charge separately for each file prep and for retouching. That way, we can scale the cost to the needs of the client. It protects the client from paying for processing they don’t need. And it compensates the photographer for time spent processing images. You could lump the web gallery fee into the creative fee, but since it’s actual time spent outside of the actual shoot time, I think it’s important to recognize it in the estimate. With advertising jobs, instead of charging for the web gallery per se, I charge for a digital tech who would be doing that work. And instead of charging for file preps, I simply lump the basic file preparation in with the retouching. (After all, there is no advertising photograph that doesn’t get at least a small amount of retouching.) I didn’t quote retouching because I figured that the basic file clean-up that we include in the file prep charge would suffice. The Terms & Conditions says that if the client requests additional retouching that it’s 150.00/hour.

“Miles, parking, tolls.” I charge $.50/mile for car travel, plus actual parking and tolls. On short days like this, I generally don’t charge for meals (though I do pay for my assistant’s meals regardless.) I usually only put in for meals on corporate or editorial jobs when they’re full days, and usually not when we’re going to the client’s headquarters. I hate to give the impression that I’m nickel-and-diming them.

“Seamless paper and groomer to be provided by client.” Any time the client opts out of any normal item, I like to say that in the estimate. That way there’s no confusion later when the subject’s hair doesn’t look great. In this case, the subject was a woman. But the client assured me that she would arrive camera-ready. So no hair & make-up artist. (It doesn’t hurt to bring a comb, mirror, powder and sponges.) Even though the client said they had seamless paper, I brought an extra roll just in case.

There are times when I’ll add a line item for equipment, and other times when I won’t. I do for just about any advertising shoot, and for medium to large corporate shoots. But for the smaller corporate shoots, I tend to bundle it into the creative fee. I don’t have a rule of thumb for editorial clients. I consider it on a case-by-case basis.

They did not require a certificate of insurance to shoot in their offices, so we didn’t provide one.

Sales tax varies from state to state. In some states, if you’re billing the end user, they have to pay sales tax on photography unless they are exempt for some reason (like if they’re a publication or a non-profit). Also, if your client is going to be passing along your charges (like in the case of an ad agency or graphic design firm), they will also be exempt. Either way, I find it’s best on estimates to say, “plus applicable sales tax.” That way, I’m covered and it doesn’t artificially inflate the bottom line.

These Real World Estimating posts are written by the fine folks at Wonderful Machine. If you have any questions, or if you need help estimating or producing one of your projects, you can reach them at jess@wonderfulmachine.com

Ask Anything – Simple Image Rights Explanation

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

QUESTION:
I’m coming across a pretty common problem (and finding a lot of my peers are as well) with the subjects I photograph not understanding basic image copyright laws. In the last three months I’ve had my copyright infringed multiple times. Or, a previous subject has asked for high resolution files assuming they have the right to use the images for marketing or advertising purposes when those rights were not a part of our initial agreement.

In many cases, because I’m still in the fledgling stages of my career, a lot of my clients, or subjects, are not well versed in how image licensing works. Therefore, I don’t believe that they are purposefully trying to steal the images or use them inappropriately, I just think they don’t know the rules. So, what I think would be really helpful is a simple, non biased, explanation of how copyright for photography works. One that explains photographer’s ownership of their images, and more specifically why we own our images. Most of the literature I’ve tried to find on the subject is either A. too complicated with dense legal terminology which bores me, and most likely will not be thoroughly understood by clients. Or, B. documents that photographers have written up that are condescending, accusatory and confrontational. I find these to be just as bad, and alienate clients.

So basically I’m wondering if there is such a thing out there, or maybe with your vast readership, something can be made that fairly,
clearly and nicely says, “This is how photo images rights works, this is the reason, and when in doubt please contact the photographer prior to using these images.”

Amanda and Suzanne:
In regards to Image Rights it’s an area we have all dealt with or will deal with in our careers in this industry. We can’t expect our customers to always have knowledge about our careers. So we as professionals must first educate ourselves on the topic, second find a way we feel comfortable expressing the limitations of the artwork and lastly making sure it’s in writing and agreed upon by both parties. It doesn’t always mean the problem is solved or problems will not arise, but you have to do your best in the beginning to set boundaries with your clients.

ANSWERS:

ESTABLISHED PHOTOGRAPHER 1:
I have a foot both in the consumer portrait world and the fashion/commercial world. While the commercial clients who commission a lot of photography usually have a decent understanding of copyright, this is not always the case. And consumers generally have very little understanding. But to be fair, a lot of photographers don’t have a clear understanding of copyright either!

So here’s copyright law in a nutshell: whenever a photographer takes a photograph, he/she usually owns that image, and can decide what to do with it. It doesn’t matter if someone hired the photographer to take the image…the client pays for the service, not the copyright. Generally the client and photographer have agreed on how the client may use that image. But the client is only ‘borrowing’ the image, and doesn’t own it. Even if the image is actually of the client! The person who creates the image owns it, unless he/she gives up that ownership.

Portrait/wedding clients will often assume that, because they hired the photographer, and the pictures are of them, that they must own the images and can do what they want with them. Not so. They have paid for the services of the photographer, and whatever rights the photographer specifically gives them as part of the transaction.

The one exception to this automatic copyright is if the photographer has agreed contractually to give up copyright, or has created the images under a ‘work for hire’ of employment situation. That is a relatively rare occurrence though.

CELEBRITY PHOTOGRAPHER 2:
Yes, it’s simple, anyone requesting the file should be educated. If a photographer gives over a high res-file, and does not mention licensing, they are remiss.

ESTABLISHED PHOTOGRAPHER 3:
Simple answer is NO.

Part A:

I need to state I don’t believe we have any real copyright protection (points 1 through 5).

1. 1st of all you have to file with the fancy office in DC in order to technically own the copyright to your own images (That process took 18 months to complete in my case.) If you don’t file, you don’t own your images.

2. And when you do have an infringement (assuming you caught it somehow), you can only go after infringers who have clearly made $ off your images (you have to be able to quantify that loss amount).

3. If you do decide go after an infringer, plan on mortgaging your house and risking it all, as it will cost a minimum of $30k to litigate and you are not guaranteed to win anything. If you loose…well… you pay their attorneys fees as well as your own.

4. By the way, did I mention that if you don’t get the registration done in 90 days of the initial publication of the image, you can only go for “actual damages”? Basically the $ you should have been paid in the 1st place. If you file within those 90 days, you can go for $150k more….but don’t get too excited… look at item 5.

5. Winning infringement case is a whole different ball of wax all together. In my case, I had a great graphic evidence, a provenance of the mis-use, all emails involved between all perties, and a confession from the ex-wife of the infringer stating what happened. I won on the 1st round and lost in the appeals process… Did I mention this is a 4+ year process? I just gave up in the end…. So, if you can’t reasonable enforce it and collect $$, you don’t have copyright protection. Case closed. That’s my $.02 worth on copyright law.

Part B:

A lot of “green” photographers have been giving away their files. We all know that, right?… And other “seasoned” photographers have seemed to have forgotten what image ownership means, because of rough economic times. I have, on a daily basis, commercial clients asking (more like demanding) for unlimited, unrestricted usage rights to their files for FREE. Constantly, I find that I loose jobs to other photogs who do just give away the full rights to the images. I don’t understand why there is no clear answer to reproduction rights and usage fees, but there isn’t.. It’s been my biggest battle in the 10 years I have been a pro-photog.

On a side note; In addition to the still photogs who give away their image usage rights, we now have video guys with our same DSLR’s being asked to generate “stills” during a shoot. They are used to working on a “work for hire” basis, trade union, day-rate basis and they have always given away all rights to their work. They are just cogs in a machine. “You want me to push the button and give you the raw files…sure, I’ll do that!”

I personally have rules for my image’s usage fees, I try to explain them to my clients ahead of time… But do they care? Do they listen? Do they understand? Again, simple answer is NO. There is no standard for shooting fees. There is no standard for usage fees. There is no standard anything. The only thing that seems standard now is that our clients know that if we don’t just give up our rights, they’ll find another photog who will.

I think the question should actually be: “Given that residual income from usage fees for a photographers images is not standard, automatic, nor enforceable, will it be around in 5 years?” Having said that, will we even be in business in 5 years as photographers if we can’t charge for the use of our work?

Part C:

Here is one example of I’m dealing with. I do a fund raising program during the month of October. My clients are families who hire me for portraits, holiday cards, albums, etc… The sitting fee is $50 for a 30 minute sitting, and it is actually 100% a donation to an educational program (that has signed up and promoted my services). It’s a win, win, win situation (the school gets $50 per sitting they book, the family gets a discount from my normal fees and I get new clients ordering prints, etc). This year I have had a huge amount of people ask: “Do I get a disk with the sitting fee?” How many do you think have found someone else who will just give away their work? Plenty I’m sure…

Do I give away my images? No.
Do I charge for my images (prints and digital files)? Yes.
Is explaining usage a pain? Yes, huge..
Would I be in business without the income generated by the usage and/or prints? NO. NO. NO.

To Summarize:
The last statement is right, it is your business and it’s how photographers survive. Now, it doesn’t mean you have to formulate your business around any one direction; you have to educate your client on the limitations of the imagery set out by YOU. It’s never a comfortable topic to discuss money, let alone limitations set out on content you are delivering. But you have to decide what is important to you, what are your boundaries/limitations (legally and professionally) and how will you explain them. You can be professional, nice and creative – and still be a smart businessperson.

Call To Action:
Use this scenario and create a plan for future estimates. Have your estimate template together/ready, along with your questions, so when that that job comes in you are prepared.

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.”

Pay For Meetings?

I received this email from a reader:

I received an e-promo for a photography networking event hosted by nycfotoworks.com October 28-29th.

The event allows you to pay for “packages” of meetings with some pretty big names.
7 editors $399
6 agents $399
5 art buyers $499
14 editors $699
12 agents $699
14 editors, 5 agents $899
14 editors, 5 art buyers $999

What’s your take on this? Do photographers have to pay to get their book in front of someone now?

First off, let me say something about portfolio reviews. They should always be divided up into critical reviews and showing your work to potential client reviews. Critical reviews, in my opinion, are invaluable. To sit down with someone who hires photographers and get feedback about your work and presentation can really get you moving in the right direction. The more the better as well. You’re bound to get a few duds in there and if you can handle filtering through all the information thrown at you why not get as much as possible.

This NYCFoto Works event is billed as the latter. They claim:

First, photographers must apply and be accepted in order to attend the event. Because of this, reviewers know us as a source of professional talent and come to the event looking for photographers to work with.

Who knows how stringent they are on this. If there are slots to fill and bodies to fill them the level may not be as high as reviewers would like.

The list of reviewers is seriously impressive, to be honest, I wouldn’t mind meeting a couple of those people myself (list_of_attendees). So, what about this idea of paying to show your book? I don’t know about FotoWorks, but the reviews I’ve done in the past were unpaid, so it’s not like you are paying the photo editor, art buyer, gallerist, in some kind of weird kickback way to look at your book and talk to you for 20 minutes. If you already pay to create and ship your book, create and mail promos, then what’s wrong with paying the people who put this event together? I know doing this kind of event is hard work for the reviewers and for the most part they are all there to look at work and meet people. Why not support an organization like this that seeks to make it easier for people hiring photographers to meet a bunch of them at once.

If you’ve got a nice body of work, you’re getting some traction and were planning on making the rounds in NYC, $1000 gets you 14 editors and 5 art buyers in 2 days. Is that a bad deal?

Check out this video they made with some of their reviewers.