You are currently browsing the archives for the Business category.

August 21st, 2014

Has a Textbook Publisher Trampled Your Copyrights? There’s a Solution for That.

Photographers and stock photo agencies have filed dozens of lawsuits against textbook publishers in recent years, alleging reproductions of photos the far exceed the limits of usage licenses. Courts have ruled in favor of photographers in many of the cases. Robert Frerck, for instance, won summary judgment this month on his copyright claims against Pearson Education, and won a settlement from McGraw-Hill last May on another claim. Despite all the claims and settlements, new claims continue to surface.

Photographer Joel Gordon recently filed his third copyright infringement lawsuit this year against a textbook publisher. The first two claims were against McGraw-Hill and Pearson Eduction; both cases are still pending. Gordon alleges in his newest claim, against Houghton Mifflin Harcourt (HMH), that between 1990 and 2008, he granted photo usage licenses that “were expressly limited by number of copies, distribution area, language, duration, and/or media.”

HMH ultimately violated those limitations, according to Gordon’s claim. He does not specify the extent of the alleged infringement, explaining that only HMH has that information. But he cites a previous claim against HMH by photographer Ted Wood, who had limited use of his photographs to 40,000 copies, only to discover that HMH had published more than 1 million copies. Wood won his case on summary judgment.

Gordon goes on to cite another 25 claims of copyright infringement against HMH, and he accuses the publisher of having a business model “built on a foundation of pervasive and willful copyright infringement [that] deprived Gordon and hundreds of other photographers and visual art licensors of their rightful compensation and unjustly enriched HMH.”

He is seeking unspecified monetary damages, and an injunction to bar the publisher from further use of his photographs.

Attorney Maurice Harmon of Harmon & Seidman LLC, the lawfirm that represents Gordon, Frerck and many other photographers for claims against textbook publishers, explained via e-mail why these types of claims persist, and how photographers who believe their copyrights have been violated by textbook publishers can protect themselves.

PDN: Why do these claims by photographers against textbook publishers continue to trickle out?
Maurice Harmon: Photographers have only gradually come to realize their photographs have been infringed. Once they know of the individual infringements, the photographers have three years to file a case.

PDN: Do any publishers make good-faith efforts to settle the claims before photographers sue, or before claims go to trial?
MH: That varies greatly—but we always try to negotiate a fair settlement at every stage and 98% settle before trial.

PDN: What must a photographer be prepared to endure, in terms of an investment of time and money, and/or mental anguish—to take on a textbook publisher with one of these claims?
MH: That also varies greatly. Some cases are resolved quickly without anything more than sending us the invoices. Other cases require more documents and a deposition. We advance all expenses, so there is no out-of-pocket cost to the photographer.

PDN: What is required for a photographer to make a strong claim?
MH: Invoices/licenses with terms that identify the specific licensed photographs that limit the uses a publisher can make of those images. Each photograph must also have been registered or can be registered with the Copyright Office.

PDN: What can photographers expect to recover if they win in court?
MH: That depends on the extent of the unauthorized uses, the license terms and conditions, the registration status of the photographs, etc., but it has proven to be well worth our —and the photographers—time.

PDN: If a photographer never registered his or her image copyright, or registered after a textbook publisher misused them, does that make an infringement claim more difficult than it’s worth? [editor's note: Filing registration before a proven infringement makes copyright holders eligible for statutory damages, which are often much higher than actual damages.]
MH: Sometimes, but not always—it depends on the number of infringements after registration and the license terms and conditions.

PDN: Aren’t these claims subject to a statute of limitations? When is it too late to make a claim?
MH: The photographer has three years from the date he or she knew, or reasonably should have known, about the specifics of the infringement to file a case.

PDN: What percentage of these claims are successful? What are the most common reasons they fail—ie, they’re dismissed by a court, or a photographer recovers little or nothing in the end?
MH: The cases we bring have all been successful unless the plaintiff is determined by the Court to lack standing; that is, to lack ownership of the photographs.

PDN: How have textbook publishers changed their license agreements to avoid these claims in the future?
MH: The textbook publishers are now demanding rights so broad it is almost impossible to overrun the license.

PDN: What’s your parting advice to photographers who license images to textbooks?
MH: Act immediately to find out and protect your rights.

Related:
Appeals Court Upholds Copyright Infringement Damages Award to Louis Psihoyos
Judge Refused to Let Book Publisher Weasel Out of Copyright Lawsuit
 After Flouting Print Run Limits, Publishers Face Dozens of Lawsuits

August 4th, 2014

In Image Library for American Airlines, Erik Almås Discovers His Other Style

It’s a challenge for photographers to evolve creatively and keep up with the changing tastes and expectations of the market, while maintaining their brand identity. But photographer Erik Almås happened upon a new style while shooting for American Airlines, and he’s now using it to reposition himself.

Over the past 18 months, he has shot a number of assignments for the airline’s print campaigns and corporate image library, photographing everything from interiors to runway and in-flight beauty shots of jets. The shoots included two days with a Boeing 777-200. It was a big deal for the airline to take the plane out of service, Almås says, so he took advantage of it. “I had the camera going whenever I had the chance,” he tells PDN through his rep, Bennie de Grasse at Vaughan Hannigan.

An image for American Airlines' branding campaign. ©Erik Almås

An image for American Airlines branding campaign. ©Erik Almås

The images he produced for AA campaigns are tightly controlled, and reflect the hyper-real style for which he’s known. But while he was re-visiting his AA archive in search of images for his portfolio, he discovered that he had two separate bodies of work: the “studied” work used for the AA branding, and “more random shots” that amounted to unintentional personal work. The latter are quiet, contemplative images that Almås recently described in his blog as “the moment between the moment[s]” that comprise an “alternative narrative” to the campaign images. They were “somewhat unexpected for my style of image making,” he wrote.

He’s been posting those images on his Instagram feed every time he boards a flight to an assignment, which is frequently–he traveled 270 days last year. “Instead of posting the classic pictures of clouds out of the plane window with the wing in the corner on social media I would go through the American Airlines images and post some of those instead,” he tells PDN.

©Erik Almås

©Erik Almås

The process of reviewing his files with Instagram in mind “has brought a great awareness to how I edit,” he says. And Almås and his agent are now capitalizing on his more personal style.

The interest among advertisers in an “amateur” (i.e. “snapshot”) style “is accelerating due to the advancing of smartphone and camera technology,” de Grasse explains in an e-mail. “People are beginning to get used to this look and feel,  which creates a growing need for more images for more platforms.”

Almås adds that clients now expect photographers to shoot motion, behind the scenes images, and social media content–in addition to images for print campaigns. “If I can [let clients know] that I can give them all of this as a content provider I’m in a good place for the changes we already see happening,” he says.

©Erik Almås

©Erik Almås

©Erik Almås

©Erik Almås

July 29th, 2014

How Much Do Editorial Clients Pay? “Wiki” Gives Names and Fees

Editorial clients are reluctant to publicize information about rates for photo assignments. But photographers need to know who pays what, in order to figure out which clients are worth shooting for, and to help them negotiate assignment fees.

A Tumblr site called Who Pays Photographers? helps bridge the information gap with a wiki-inspired spreadsheet listing fees paid by numerous publications, both online and in print. The site also provides information about whether the client pays expenses, how long they take to pay, and what photographers like and dislike about the client. All the information is uploaded anonymously by photographers who have shot assignments for the clients.

But users, beware. The spreadsheet, which lists clients more or less in alphabetical order, is disorganized, and a challenge to scroll through (and it can’t be downloaded). The client list is long but not exhaustive, updates are infrequent, and some of the reports are several years old. Moreover, the information provided is unverified.

Still, Who Pays Photographers? can be a useful starting point. Photographer Anastasia Pottinger says she came across it when she was trying to figure out what to charge photo blogs to publish her portraits of centenarians, after the project went viral.

“[The site] gave me a better idea of what to expect.  I had read a few blog posts out there where people were getting $150 per image and maybe that’s true when it’s just one image, but I was not sure what to charge for a whole set of images,” she says. For online publication rights to ten of her images, she says she negotiated a $375 fee from Huffington Post, after Huffington Post asked (as it usually does) to publish the images for free.

The anonymous owner of Who Pays Photographers? said in an email that he (or she?) is a working editorial photographer, with limited time to maintain, improve or promote the site. (The Who Pays Photographers? Twitter feed and archive were last updated in February.) “I welcome input and any help in running” the site, the owner says.  See our earlier Q&A with the owner for more information.

July 10th, 2014

PDN Video: Mary Virginia Swanson on Selling Prints to Corporations

Mary Virginia Swanson on Selling Prints to Corporations from PDNOnline on Vimeo.

The corporate market for fine art prints has expanded on two fronts, says art photography consultant Mary Virginia Swanson. Corporations and corporate art consultants are both big purchasers of art, including photographic prints, for the walls of hotels, healthcare facilities, office buildings, and other business settings. In this video, Swanson explains the markets, and offers advice about how to tap into them, and price your prints for corporate buyers.

Related:
What to Expect from the Photographer/Gallery Relationship
Mary Virginia Swanson: How to Get the Most Out of a Portfolio Review
What Collectors Want (for PDN subscribers)

June 18th, 2014

NY Times Highlights Instagrammer Working For Met, Other Institutions, For Free

There was an article in the Art & Design section of the New York Times yesterday highlighting the social media photography that an Instagrammer, Dave Krugman, is doing for the Metropolitan Museum of Art, The New York Public Library and other cultural institutions in exchange for special access.

The article is full of language that suggests it’s Mr. Krugman’s great privilege to work for these institutions for free. “The Metropolitan Museum, for instance, allowed Mr. Krugman and his band of Instagram stars into its halls outside of normal business hours,” the author writes. She also quotes Krugman’s own post thanking the Met for the “opportunity.”

These are institutions with resources to pay for the social media communications work they do. Krugman isn’t a photographer by trade, he’s a retoucher, the article says. But he’s allowing these institutions to pay what the market will bear for this work: zero.

It would be interesting to know what the photographers and photo editors on the New York Times‘s staff think of this article devaluing the work of photographers.

“With his growing reputation, Mr. Krugman has begun thinking about charging money for his Instagram services,” the article concludes. Will these venerable and wealthy institutions pay, though, or will they just hire the next person with a big Instagram following who doesn’t know enough about the business of advertising and communications to charge for his or her work?

June 12th, 2014

Todd Hido Shoots Fall 2014 Campaign For Victoria Beckham’s Fashion Line

An image from Todd Hido's campaign for Victoria, Victoria Beckham's Fall 2014 collection.

An image from Todd Hido’s campaign for Victoria, Victoria Beckham’s Fall 2014 collection.

We never thought we’d mention Posh Spice and Todd Hido in the same sentence, but here goes: Victoria Beckham (previously known as pop singer Posh Spice) enlisted fine-art photographer Todd Hido to photograph ads her Fall 2014 collection of women’s fashion.

The images of models wearing Beckham’s looks recall Hido’s fine-art photographs of women in motel rooms who appear to be living on society’s fringes. In images on the fashion designer’s website we see models posed on bare mattresses or in rooms with shabby carpeting and unmade beds. Hido’s work for the label also appears to include video pieces. In one video we see a model standing against a wall in a dark room while fuzz flashes across the screen of an old-model television set.

Hido didn’t respond to our request for comment. According to W Magazine, Beckham herself said that, “Working with a photographer who doesn’t traditionally shoot fashion really enriched how I could portray the collection this season.”

Related: The Prevailing Wind: Todd Hido’s Excerpts from Silver Meadows

June 3rd, 2014

Photo Agencies Test Consumer Market with Prints–and T-shirts

One of seven images offered for sale in "Seven x 7 x VII-Print Flash Sale" this week. Photo © Ashley Gilbertson.

One of seven images offered for sale in “Seven x 7 x VII-Print Flash Sale” this week. Photo © Ashley Gilbertson.

In a week-long “flash sale” intended to raise cash for operations and test new ways of engaging with audiences, VII is offering signed 8×10″ prints for $100. Meanwhile, Magnum has announced a 67-hour flash sale of its own, offering signed 6×6″ prints for $100 starting on June 17. In addition, Magnum has struck a deal with Photo.Clothing to emblazon works by various Magnum photographers on t-shirts.

The ventures reflect a new reality for the venerable photo agencies, which have until now steered clear of mass consumer markets to protect their elite brands, and the high value of their members’ work. But their traditional markets and existing streams of revenue may no longer be enough, forcing them to test consumer markets.

“We had a pretty animated discussion about this at the [VII general meeting] in Paris, [and] some questioned whether their prints would lose value if they were to be involved,”  says VII Photo member Ashley Gilbertson.

“Many of us don’t believe that we live in a world that demands we choose to be squarely in the museum / collector side or selling to the public at a far more affordable cost. We can do both, and have been diligent in this sale and will be in the future to protect the higher end print market with edition prints and such.”

For one week only, VII Photo is offering signed prints by six photographers for $100 each. The photographers participating in the sale are Gilbertson, Antonin Kratochvil, Gary Knight, Ed Kashi, Christopher Morris, Anastasia Taylor-Lind, and John Stanmeyer. The sale began May 30 and ends June 6.

Gilbertson says all proceeds from the sale will go to support the business operation of VII, which were recently “slimmed down to give us a chance to grow in different ways.”

The sale lasts only a week because the agency doesn’t have the staff resources to sustain it on an ongoing basis. “Additionally, I think it’s more interesting as something that pops up and then disappears - the prints are an open edition, but there is an inherent value in the photographs only being offered for a short window,” Gilbertson says.

The agency is planning to do two more sales, each featuring the work of different photographers, “to eventually include everyone at the agency,” Gilbertson adds.

Gilbertson says selling images directly to the public expands the audience for VII photographers’ work. “Why should our work live in major collections alone? It shouldn’t. These images have just as much power on the wall, or even on the ‘fridge, in the home of a citizen. Communication is our game, and this is the right move that supports that goal.”

For its part, Magnum has announced a special offer of signed 6×6″ prints of a selection of photos to be announced in the days prior to the start of the sale on June 17. The agency, which did not respond to PDN’s repeated requests via phone and email for an interview, says the 67-hour sale is intended to commemorate its 67th anniversary.

Magnum has also struck a deal with start-up company Photo.Clothing to provide images by several photographers for reproduction on t-shirts. The t-shirts offered for sale so far through Photo.Clothing’s Kickstarter page feature images by Martin Parr, Chris Steele-Perkins, Bruce Gilden, Richard Kalvar and David Alan Harvey, according to the UK-based magazine Creative Review.

So far, seven backers have contributed about $400 toward Photo.Clothing’s Kickstarter goal of $20,000.

May 21st, 2014

Advice From the Trenches for Graduating Photography Students

Classes in photography can be a leg up to landing a job as an assistant or getting started in the photography business, but real-world experience often teaches practical lessons not taught in photo schools. What are the important lessons photographers didn’t learn in school, that photographers found themselves scrambling to make up after college?  We recently rounded up some advice for recent graduates (published on PDNOnline). We also asked photographers David Brandon Geeting, Cody Cloud and Andrew Burkle for their perspectives.

Geeting, a Brooklyn-based editorial photographer, graduated from the School of Visual Arts in 2011, and worked as a photo assistant and did other jobs before going into business for himself in 2012. Burkle, a food photographer shooting advertising for national brands, graduated from Ohio University in 2009, and worked as a photo assistant in Chicago before opening a studio last year in Cleveland with photographer David Hagen. Cody Cloud shoots fashion in Los Angeles with his partner, Julia Galdo. He earned his MFA from San Francisco Art Institute in 2005.

Here’s what they told us about the things they wished they’d learned in school, and their advice for new graduates.

What skills do you wish you’d learned while you were in school–but didn’t– that would have helped you most when you got out?

David Brandon Geeting: I wish I would have taken more studio classes and learned more lighting techniques. I shoot a lot of work in the studio now, and everything I do is totally self-taught. When I was in school, I just walked around with a 35mm point-and-shoot camera and made C-prints of off-kilter moments and funny trash on the street. I had no plans of shooting commercially – I thought I would make a living as an artist. I thought I’d be having solo exhibitions and publishing weird books. That is still the goal, but in the meantime I am doing the best I can to survive with self-taught techniques that I could have learned before graduating.

Andrew Burkle: I really wish I had gotten more input on how to price myself and bid on jobs. The problem was that we learned invoicing but not bidding, [which] is a hard skill to teach and standardize. In the beginning I was probably under bidding and getting work, but vastly under valuing myself as well as inadvertently lowering the standard cost for other bidding photographers.  I think that is a common young photographers mistake though. It is an important step to start pricing yourself correctly.  Even if that means losing out on some work.  If you know your work has value, you have to stick to your price.

Cody Cloud: I wish we would have learned more technical lighting and more Photoshop. Where I went to school they didn’t emphasize the technical side, and coming out of school, my [Photoshop] skills weren’t up to par for jumping into the real world. I assisted a long time. That’s how I learned to light. Julia [Galdo] does the Photoshop so the partnership works out good.

What advice do you wish you had gotten (or heeded) before you graduated?

Geeting: The best piece of advice I got in school was from Joseph Maida, my junior seminar teacher. The thing he said that stuck with me was, “No surprise for the writer, no surprise for the reader,” which is actually a Robert Frost quote, but it applies so well to photography. I didn’t pay much attention to these words at that time – I was too busy being a self-righteous college kid – but they were always in the back of my mind. Today, I might have a pre-conceived idea before I start shooting, and even if that idea is illustrated exactly as I had imagined in my mind, there’s a good chance that it won’t be very interesting to look at. If you are not surprised by what you are shooting as you are shooting it, no one else will be. Being able to adapt is so important. Leaving room for change and happy accidents is something I have built my practice on.

Burkle: I learned this eventually on my own: Very few [people], if any, will appreciate you. You have to work hard, work often and keep your head up. You will most likely be poor for a while. However, once you’ve proven to people that you are hard working, persistent, talented and easy to work with, the world will start to take notice.  This process can take a few months or even a few years.  Unfortunately, your degree in photography is for your own peace of mind.  The photo world estimates your worth in real-world experience.

What professional advice do you have for students who are just graduating?

Geeting: GET A BLOG. And update it every day. Make something every day. If you really love what you’re doing, it shouldn’t be a chore. You don’t need to spend a bunch of money on a leather portfolio or promo cards or whatever people think will get them noticed. Just make the work. And then get up the next day and make it again. If you are putting in the work, good things will happen to you. That’s just how the world works – the energy you exert will come back to return the favor. I really believe that.

Burkle: Keep on top of your technology–cameras, capture software, photoshop, new equipment and techniques, archiving software, etc.–and shoot as much as possible for yourself.  The latter seems obvious, but I fell victim to this early after graduating. When you start working 60 hour weeks for someone else and you don’t have much access to studio time, shooting for yourself becomes a struggle  very quickly.  FInd the time.  Work on weekends.  No one will hire you for the portfolio you “want” to create.  Clients hire photographers, not assistant with potential.

Cloud: I would tell students to work on talking about their work. In every meeting, you have to pitch your ideas. Clients need to hear exactly what you’re going to do and the reason for it. You have to articulate it so they can get it. That’s going to help you get jobs.

Related stories:
So You’ve Just Graduated With a Photography Degree. Now What?
What I  Didn’t Learn in Art School: Life Lessons from 10 Photographers (for PDN subscribers)
Creative Pitches That Land Advertising Clients
The Money Issue: Estimating 2.0: Bidding on an All-Media Library Shoot (for PDN subscribers)

May 6th, 2014

New Free Web Service Claims to Offer Solution to Runaway Image Fakery

San Jose-based Fourandsix Technologies has announced plans to capitalize on “a growing distrust of manipulated images” with the launch of new forensic tool “to prove that hosted photos have not been modified with Photoshop or other tools,” according to a press release.

The tool is available for free to individual users at izitru.com. A developer API making it possible to integrate the photo authentication software into any website is available to third parties for a fee.

“Viewers are unsure of what to trust, whether they’re looking at a selfie on Facebook, an item for sale on eBay, or a dramatic storm cloud photo on Twitter,” the company says in its announcement.

The izitru.com website prompts users to upload their JPEG images, which are then subjected to six different forensic tests to distinguish original camera files from “subsequent derivations”–ie, files altered with Photoshop or other tools.  “Images that pass all six of these tests get the highest trust rating,” the company says in its announcement.

One of our first questions was, Can this tool be used to determine the authenticity of images already posted online–such as winners of major awards in photojournalism contests, or any other news images, for that matter? (more…)

April 2nd, 2014

In Copyright Infringement Case, A Defendant Ends Up Owning Disputed Photo

Desmond Howard's iconic Heisman Trophy pose. Shot by Brian Masck. Now owned by Desmond Howard

Desmond Howard’s iconic Heisman Trophy pose. Previously ©Brian Masck. Now ©Desmond Howard.

Former football star Desmond Howard, the subject of a well-known photograph and a defendant in a copyright claim over the use of that same image, will end up owning the copyright to the image as part of a settlement with the photographer who shot it.

That photographer, Brian Masck of Linden, Michigan, is still pursuing infringement claims against Getty Images, Sports Illustrated, Nissan, Amazon.com, Wal-Mart and others.

Masck confirms that he agreed yesterday to settle his infringement claim against Howard by transferring copyrights to the image over to Howard. In exchange, Masck got “a very generous royalty agreement on [Howard's] uses of the picture, including at [public] appearances by Howard,” according to his attorney, Tom Blaske.

“This allows [Howard] to use his favorite photo of himself and make money on it,” Masck told PDN. Blaske adds that Howard “has more resources to best use this historic photo” and thereby ensure that it “remain[s] part of the cultural currency.”

The photo in question shows Howard striking an iconic Heisman Trophy pose after scoring a touchdown against Ohio State University, when he was playing for the University of Michigan. Masck shot the image in 1991 as a freelancer, and licensed it to Sports Illustrated for publication.

SI allegedly never returned the original 35mm transparency to Masck; it ended up in the Allsport archive, and finally in digital format on Getty’s web site around 2005. From there, it “traveled through sports memorabilia channels” onto merchandise sold through retailers, Masck says, and it also appeared in Nissan ads published in Sports Illustrated.

Masck sued in January, 2013, claiming infringement against Howard for unauthorized use of the photo on Howard’s website. Masck claimed unauthorized use by other defendants for distributing the photo and using it in ads without permission.

But Howard counter-sued Masck for unauthorized commercial use of Howard’s name and likeness on a website called TheTrophyPose.com. Masck used that site to sell products featuring the image, including framed prints and life-size, cut-out stand up. He splashed Howard’s name all over the site, confusing visitors into thinking Desmond Howard was behind the site and its products, according to Howard’s counter-claim.

Masck says he’s prohibited by the settlement agreement with Howard from disclosing the financial details. But he says Howard, a TV football commentator who uses photos for publicity and marking, wanted to buy all rights to Masck’s photo several years ago. “At the right price and right terms I was ready to entertain that,” Masck says.

They couldn’t reach an agreement, however.

“What spurred the lawsuit was, after I had sent Howard a print [during their early negotiations] as an example of what the picture could look like, and he took that picture and put it up on his web site,” Masck explains. “That picture had some tells in it. I digitally altered it so I could track it.”

With a trial date approaching, they resumed negotiations and finally reached an agreement.

Meanwhile, Masck is trying to negotiate settlements with Nissan, Sports Illustrated and the other defendants before the case goes to trial. They tried unsuccessfully to have Masck’s claims thrown out on the grounds that he hasn’t done enough over the years to assert his copyrights to the image.

(Editor’s note: This story has been altered from its original version, which included two quotes from Brian Masck that he has asked PDN to remove.)