AFP v. Morel – Oral Arguments

There’s a transcript available from the oral arguments in the case where Agence France Press, Turner Broadcasting/CNN, ABC, Getty Images and CBS are suing Daniel Morel after they stole his images from Twitter immediately after the Haiti earthquake (Read all about this on BJP).

The transcript is available on the duckrabbit blog (here) and I would encourage you to visit and see what he’s got to say about it. He’s also done an excellent job engaging JF Leroy (Director of the Visa Pour L’Image photofestival) in a debate over Daniel Morel’s posting of valuable news images on TwitPic/Twitter. JF told the British Journal of Photography (BJP) “Photographers have to accept their responsibilities. You can’t put your images on Twitter and not expect them to be taken up by others” and duckrabbit has hounded him about this statement and gotten several responses (latest one here).

Obviously this is going to be an important case for photographers so I’m posting the latest developments as they come here. Of great interest to me is how content distributors are suffering because of the ease at which content moves on the internet and they’re fighting hard to claim some kind of right to distribute un-credited things floating around. Obviously this is not how copyright law works so they’ve not got a leg to stand on but it’s interesting to see how their lizard brain works in the oral arguments:

THE COURT:  What should I do about the language that says, All images uploaded are copyright their respective owners?
MR. KAUFMAN:  That’s true.  There is a difference between owning a copyright and having a license granted.  No one says that Mr. Morel lost his copyright by posting his images to Twitter/Twitpics.  We have never argued that.  We are saying that by accepting the terms and conditions, he accepted — he granted a license, and the terms of the license are what is set out in Twitter as to the use of third parties. Twitpics doesn’t talk about third parties.  It is silent as to that.  So you look to the other part of the equation, the Twitter, which does specifically talk to Twitter’s use, its partners’ use, and the user’s use. And it says when you put — other social networks and other sites don’t have this language.  You can — if you look at one or the other, this language happens to be very broad. It is what Twitter and Twitpics are all about.  It is the broadcast — re-twitting has become part of the lexicon, because these when you post these things up here, it happens again and again, it’s what people do at these sites.  It is not matter of stealing.

I don’t expect someone holding a photography festival in the south of France where content is shown to prospective clients in person to like or understand what is going on here just as I would expect AFP to be very aggressive in finding a way to make money off distribution of content, even if that mean stealing it. I only hope Twitter takes notice to what is going on here and that photographers rally around Daniel and that we try to turn these new social tools into something useful and profitable for photography.

There is the conclusory assertion that ABC removed copyright management information, but all of the exhibits in the complaint itself or in the counterclaims themselves show that there was no copyright management information on the photo, there was no copyright management information that would have come along with it when you download it, and therefore nothing was removed.  There is no case that says that you have to reach out and add additional information that may have appeared elsewhere on the page, and that allegation of violating through the removal of copyright management information doesn’t state a claim absent something there that was actually removed, which couldn’t have happened.  And if we downloaded and saved, we got what was there.  Whether we should have taken it or shouldn’t have taken it is a different issue and will come up later in the case.  But for the purposes of copyright management information, if you look at all of the exhibits depicting the image, there is no copyright management information on it and no case says we need to also pull information from elsewhere on the page.

MS. HOFFMAN:  The only thing I wanted to say is that all of the defendants here aggressively defend their own copyright and that the — that the claim that I just said, that Mr. Morel — and it probably is not worth repeating — but when Mr. Morel put up those images, it is not really any different than ABC, CBS, CNN wanting everybody to come to their sites to watch the Olympics or the tennis championships, and they aggressively defend copyright in those programs, even though they want all the world to see it, for the purpose of selling sponsorships.

Oh, the irony.

Why Chipotle Ditched Ad Agencies

For Chipotle, advertising agencies have, for the most part, outlived their usefulness. The burrito chain has churned through four shops in five years, garnering it an unflattering reputation in adland, and even Mark Crumpacker, its chief marketing officer, admitted that Chipotle’s a tough client during an Advertising Week event.

via Advertising Age – News.

Budget Promo Mailer

Greenville, SC photographer Clint Davis used to be an Art Director at a national magazine and having been on the receiving end of photographer promos figured he needed to create something that would stand out. His budget was $800 for 40 pieces. Here’s what he came up with:


Here is everything involved in 1 mailer before any folding, gluing, plucking, sticking and stamping.


“Without advertising, something terrible happens… nothing.” Once this famous statement became rooted into my brain I started my project. Creativity, personalization, and budget-friendly were key in building these mailers. Each mailer has a different message along with a different set of cards to view. A small idea turned into a 3-month long project. Now I feel confident with what I’ve sent out to my prospective clients, and hopefully, they give me a shot!

Journalist Works For Free, Produces Great Work, Asks To Be Paid…

Must be that time of the year/decade, because I can smell the schadenfreude in the air.

Mayhill Fowler is a Huffington Post blogger who claims to have written the “one big story out of the last presidential election to live on.” She understands that the business model for HuffPo is to “provide a platform for 6,000 opinionators to hold forth,” but you see, she did a piece of real journalism and would now like to be paid.

When Mayhill contacted Arianna and founding editor, Roy about making such a deal and was rebuffed she reproduced the email exchange on her blog and proceeded to wax on about citizen journalists getting preyed upon by millionairesses touting new-journalism puffery. Here’s your weekly dose of schadenfreude:

The dignity pay confers upon work.  I think this about sums it up.  So let this be a warning to you, citizen journalism enthusiasts.  In the end, what you are doing really is enhancing somebody else’s bottom line.  And think for a minute what it means when you throw yourself into working for a place, as I did, without first walking into the company’s human resources office to sign some paperwork that legally binds you and your employee to a relationship.

Read it all (here).

Apple Continues To Hold Out On Subscriptions For Publishers

New Yorker editor David Remnick has said he wants to give readers the option of paying for a premium subscription that includes access to the magazine in print, online and on devices like the iPad. However, Apple could be months away from introducing an iPad subscription offering, and publishers remain uncertain about the terms that will govern sales.

via WSJ.com.

Using Photography To Create Tipping Points Around Conservation

One of the highlights of last weekend’s Telluride Photography Festival was seeing the work of Robert Glenn Ketchum and learning about the International League of Conservation Photographers. If your photography had the kind of impact Robert’s has just once in your career you would die happy. He does it over and over again with a multitude of grants from people who understand the impact photography can have in changing peoples minds. What really brought this idea home for me was watching the presentation by Christina Mittermeier, president of the iLCP, where she said the goal of their RAVE (rapid assessment visual expedition) projects was to “create tipping points around conservation issues using the power of photography.” Seeing the successes of both Robert and the iLCP emboldened my thoughts about the vast power of photography and its place in our future. Not just for conservation, but as a tool for reaching people in an increasingly crowded media space.

Daniel Morel And AFP Go To Court Today

Photographer Daniel Morel whose Haiti images were swiped off Twitter by Agence France-Presse is going to court today “in a case that could set precedent in online copyright legislation and impact photographers around the world.”

AFP has been joined in its claim against Morel by Getty Images, CNN, ABC, and CBS. Together they’re asking the court to rule the the photographer should not be allowed to pursue his claim that they stole his Haiti earthquake images.

Read about it on nppa.org and also my previous post (here).

James Mullinger, Photo Editor, GQ

Every day is manic, as we are constantly juggling up to 30 shoots at a time, sourcing thousands of pictures, and there are just two of us on the picture desk. I find it satisfying when the issue comes in each month and we can marvel at how on earth we managed to pull it together. It’s a real balancing act trying to remember all the little details when you are handling that many shoots at once. Every studio has to be booked, every car ordered, every crew member there on time, every prop in place, and it’s all down to you. And when I get through the month without dropping a ball, I feel satisfied for a second or two. And then it all starts again…

via Wonderful Machine Photography Blog.

The Recession Of The Industrial Age

These two stories seem to go together.

Seth Godin asserts that while one recession is over, the recession of the industrial age is here forever.

The networked revolution is creating huge profits, significant opportunities and a lot of change. What it’s not doing is providing millions of brain-dead, corner office, follow-the-manual middle class jobs. And it’s not going to. (story here)

Over in AdAge we have the story of a mass exodus from large agencies:

Since the beginning of the year, a veritable Cannes jury worth of senior creative talent has shrugged off the leashes of big agency networks for their own start-ups or for creative pursuits outside the ad industry. (story here)

I’d like to believe this is the end of the brain-dead office job, but I really doubt our love affair with corporations is going away any time soon.

7 Year Old Exhibits Her Work At Photo Biennial

Seven year old Carmen Soth will be exhibiting her work at the Brighton Photo Biennial, October 2– November 14 2010. The Biennial, entitled New Documents is curated by Martin Parr.

alecsoth_1720076c

Of course there’s more to it than that, but I thought I’d bait you with a sensationalist lead. Carmen is the daughter of Alec Soth and while she is the author of the photographs, many were taken under his direction. He also edited the 2000 frames she took in Brighton, into a cohesive body of work.

It all came about after he was told by customs officials in Heathrow that he could face up to two years in prison if he was caught taking photographs without a working visa. If this seems like a giant FU to the UK for not allowing him to work Alec isn’t saying so, but instead asserts that “working with Carmen reminded me that the greatest photography is vernacular. Sometimes, not being professional can be an asset…” In the gravity defying art world I tend to agree with him on that. In The Guardian, where the story on all of this appears (here), he was asked if her photographs are any good to which he replied “Yes, I think they could stand alongside any other professional work.”

Personally, I would have preferred to find out the work was shot by a 7 year old after the exhibit had started and the reviews had come in. That would have been a fascinating experiment.

Real World Estimates – Regional Hospital Ad Campaigns

by Wonderful Machine producer Jess Dudley

I recently helped two different photographers quote on two very similar projects, so I thought it would be interesting to present them together (see estimates below).

Shoot A was a series of simple, tightly-cropped portraits on a plain background, with no props and minimal wardrobe needs, depicting “everyday” people. Shoot B entailed a series of pictures of people engaged in various athletic activities (like bowling and yoga) to show that the hospital could provide treatments to help people stay active.

The Similarities

  • both projects entailed creating a series of similar (relatively simple) pictures with a number of different people
  • the clients in both cases were regional hospitals
  • the intended use for both was primarily local advertising
  • both required just one shoot day
  • both shoots would happen on a plain background in a studio

The Differences

  • client A wanted to be able to (theoretically, at least) use the pictures anywhere in the world, while client B just needed local use
  • shoot B needed a pre-light day and a digital tech
  • shoot B required a lot of compositing and retouching after the shoot
  • shoot B required a series of test pictures ahead of time to help nail down the concepts
  • shoot B found professional models through traditional casting and model agencies, shoot A hired models from a “real people” casting company
  • shoot A happened on the West Coast, shoot B on the East Coast

The Creative Fees

The overall scope of the two projects was very similar, but the fact that we ended up quoting exactly $18k for both creative fees was just a coincidence. Client A originally asked us to quote six tight portraits for “unlimited use, anywhere, forever.” Client B wanted four action shots (showing bowling, yoga, jogging and swinging a baseball bat) for “unlimited use, locally, forever.”

The “creative fee” covers the work required to make the pictures plus the licensing to use them (I normally bundle them into one number). Licensing is made up of the type of use (advertising, collateral, publicity), geography of use (local, regional, national, international) and the duration of use (one-time, one year, forever). Clients sometimes ask for broader licensing than they actually need, just for the convenience. The trick is to judge what’s reasonable to charge for the unused portion of the licensing. In this case, Client A is essentially asking for international use of the pictures. But since they’re a local hospital chain, they’re simply not going to have an occasion to use the pictures outside of the area they serve. Broader licensing is always worth more than narrower licensing, but it’s not worth nearly as much as if the client could actually take advantage of it. Both clients wanted to use the pictures forever. But as a practical matter, the pictures are going to have a lifespan of a couple of years. Both clients were asking for publicity, collateral and advertising use. The advertising part will have the most impact on the price. So I do my best to get my head around the likely use of the pictures, then assign a reasonable premium to account for the actual licensing.

I figured that in Project A, the first picture was worth $5k and each additional was worth about $2.5. I rounded it off to $18k. The broad use certainly adds upward pressure on that price, but the simplicity of the pictures adds downward pressure (there was very little pre- or post-production required, and the degree of difficulty and specialization of the actual shoot was pretty basic. So on balance, I was comfortable with the $18k.) The client said they would pay $18k, but asked us do eight pictures instead of six. Deciding how much to concede in any negotiation is difficult. A basic rule of negotiating is to never give something up without getting something in return. The weak economy is a factor generally, but a bigger factor is how busy the photographer is. In this case, the photographer wasn’t busy enough to risk losing the job over those extra two pictures. So we agreed.

Project B was only four images, but the pictures were more complex. The ads each needed to show a series of pictures to demonstrate range of joint motion with a recognizable sport or activity (like swinging a baseball bat). Initially, the client asked the photographer to do some test pictures to show what a range of motion would look like for a bunch of different activities. After a day of testing everything we could think of (for which we charged 1800.00), we settled on bowling, batting, yoga and jogging. We decided to depict each action with three pictures to illustrate the range of joint motion. So compared to Project A, the actual work to make the pictures happen was somewhat more involved, but the licensing requirements were a bit more modest. So I figured on 6000.00 for the first and 4000.00 for each of the other three, for a total of $18k.

Another influencing factor for licensing fees is whether the pictures are simply promoting one product among many, or whether they are promoting the entire company’s brand. There are times when promoting a small company’s entire brand is worth more than promoting a small part of a global company.

The Expenses

You’ll see variations between the two quotes for support services. They’re less about the regions where the shoots took place and more about the individual photographer’s idiosyncrasies. Photographer A likes to say, “Digital Capture Day”, the other says “Digital Tech Day”. The costs for the assistants, hair/make-up, wardrobe stylists varied just because of what those individual subcontractors charged. In both cases, the demands of the support staff were pretty modest. But certainly in situations where there’s more of an emphasis on the wardrobe or props or other element of the shoot, the photographer would be foolish to skimp. If you’re shooting a cosmetics ad, you’ll want to get your hands on the best make-up artist you can find, and you’ll have to be prepared to pay for it.

Photographer A worked out of his own small studio space, so quoted a modest 400.00 for it. Photographer B worked out of a more substantial rental studio, plus the client asked us to bundle the catering charge with the studio fee in order to “get it past accounting.”

Client B was comfortable working with the usual modeling and casting agencies to find the talent. Client A suggested we use an agency that offers “real people” at a much cheaper rate. So they were able to get models for about $630.00 each. Project B paid 2000.00 for each model, plus 1000.00 for the casting day. Just like any business decision where you’re trying to get the best value or return on investment (ROI), you have to decide when you can cut corners and when it’s not worth the savings. We often have the models bill the client directly. Some clients want to see those fees in the photography estimate, others are happy to leave it off.

Photographer A likes to quote a line item for a hard drive for archiving. Photographer B doesn’t bother.

In both cases, the equipment demands were pretty basic, so we chose to bundle the equipment charge into creative fee. However, it’s perfectly reasonable to break that out separately.

I normally don’t split hairs by quoting 6.5 hours of retouching. But we were so close to $30k that I decided to dial that number back just enough to keep us under that amount.

Photographer A chose to do his own production. Since there was a bit more to manage, Photographer B had me handling all the pre-production and I was on set the day of the shoot to make sure everything went smoothly.

Quoting wardrobe is always a crap shoot. A wardrobe stylist will generally pull a lot of options and return whatever doesn’t get trashed. But it’s a hard to predict.

In both of these cases, we were charging for production time and we were also getting a 50% advance payment on the entire quote. So we billed the client actual cost on the out-of-pocket expenses. I find that it’s customary to get expense money upfront on projects like this. But in cases where we don’t get an advance, I’ll normally mark up my expenses 15-20% to float that money.

Photographer A didn’t need a separate certificate of insurance because he was using his own space. Photographer B needed to provide one to the rental studio, so we charge 100.00 for that.

Photographer A charged a fairly typical 150.00/hour for his retoucher. Photographer B used his in-house retoucher, for which he charged 100.00/hour. Of course, just because you have someone on staff doesn’t mean you should charge more or less for it. Price is more a function of the value you bring to the client rather than the cost to you. In this case it was just another item that would allow that photographer to be a little more competitive on price.

If you have any questions or if you need help pricing and negotiating, or producing one of your projects, you can reach me at jess@wonderfulmachine.com.

The Strange Case Of The Modeling Polaroid

contra-vampire-weekendLast month Vanity Fair had a web exclusive on a fascinating story over a disputed model release. The ultra-hip band Vampire Weekend, who perform their concerts in Ivy League-style getups, seemed to have stumbled upon the perfect image for their new album Contra. Months before the debut on January 12th this year, a photograph of the ultimate prepster: blond hair, blue eyes, popped collar, made its way around the internet linking to a site called, I Think Ur a Contra. When the album finally dropped the picture was the cover and became an integral part of the bands website and tour.

How they acquired the Polaroid is where this story gets fascinating. According to the band they bought it off New York photographer and filmmaker Tod Brody for $5000. He says that he took the photo in the summer of 1983 during a casting session for a television commercial. But, Vanity Fair has an interview with the model, Ann Kirsten Kennis, who alleges that the photograph was instead taken by her mother and somehow picked up by Brody. According to VF she has a similar looking Polaroid of she and her sister framed in her house. Ann, apparently tired of seeing her picture plastered all over the place filed a $2 million misappropriation-of-image lawsuit in LA against Vampire Weekend, Tod Brody, and the band’s London-based label, XL Recordings.

But, here’s where it gets real interesting. According the Vanity Fair:

“If the Contra case does go to trial, the outcome could hinge on a key document: a model release form that appears to be dated July 30, 2009. (The date is crossed out and re-written.) The form is from Vampire Weekend Inc. to someone named “Kirsten Johnsen” (spelled “Johnson” elsewhere on the form), who signed her permission for the band to use her image for a fee of $1. The form contains no mention of Brody, but it does include an address named in the suit as Brody’s residence. No release form from the 1980s has yet been presented in court.”

To me this is a clear example of a photographer providing a model release where one didn’t exist and having it blow up in his face. $5000 bucks in the pocket from an old casting picture that nobody will notice… To make matters worse, there is an entire website dedicated to uncovering Tod Brody as a fraud: http://www.todbrodyfraudblog.com. This is not looking good for Tod. My guess is that this thing will be settled out of court and we will never know what really went down. What’s interesting to me this idea that companies are somehow responsible to fact check a release that’s given to them. I’m sure there’s some legal precedent that could be established if this goes to trial or maybe it already exists. Either way it’s a fascinating story to read.