With the majority of image distribution taking place on the internet these days, photographers should take steps to identify their images. One of the most important things for a professional photographer is not only to register their images with the U.S. Copyright Office, but to also tag their files with photo metadata. This serves a number of purposes including auto-populating the data fields when uploading images to stock photo distribution sites such as Alamy Images and Photoshelter. But most importantly, when you distribute the image to a client, it identifies you as the copyright holder in addition to vital photo caption info. Many photo buyers deal with hundreds if not thousands of images per day you can’t expect them to remember who each image belongs to so it is advisable to include basic contact info such as your name and website within the image at the minimum.
A number of programs such as Photoshop, Lightroom and others allow you to enter in this data but for the purposes of this post, I will include screen caps from Photoshop CS4 because that is what I am most familiar with. If you haven’t done this before, you need to go to File < File Info within Photoshop to access these screens.
I am by no means an expert on this topic but most of these are meta data fields that I use regularly and they seem to fit within my digital workflow and current distribution methods. Though I have been doing this for several years, I wish I had known about this when I first started. There is a percentage of my image library that lacks adequate keywording, caption info, and contact info as a result. For photographers that have been selling images for longer than I have, I can only imagine how much work it would be to catch up on entering photo metadata. My suggestion would be enter in the metadata as needed, or to use a program like Lightroom 2 where you can batch large groups of similar images together.
When all of your image meta data is entered properly it makes it the rest of your work flow easier too. Check out my Downtown Los Angeles at Night photo in my Photoshelter Archive for example. All of the basic identifying info is there from my image ID#, name, caption and keywords. All I had to do was upload my files then batch select pricing profiles and place them into galleries then I was done.
I was looking through some professional photography industry websites and came across this white paper that ASMP made available for syndication. I don’t know when it was written but here it is:
An ASMP white paper by Richard Weisgrau
Publishers control the day rate that they pay to photographers. In 25 years they have failed to increase the day rate to a level that would allow photographers to maintain the standard of living of 1973. In spite of this failure, many publishers seek more and more rights from photographers for the same low and continuously eroding fees. The situation is out of control. Photographers feel that they cannot control the day rate. They perceive that they have little individual clout in a negotiation with a major magazine. They cannot collectively bargain, since they are independent contractors and not entitled to the collective bargaining power of a union. The simple fact is that the publisher has all the advantages, EXCEPT FOR ONE. If the situation does not improve, good and reliable photographers will eventually be forced to refuse editorial assignments, since these will not support the photographers’ costs and commitments to their businesses.
While the picture may appear bleak, there is one advantage that the photographer has over the publisher. Photographers provide the content that the publishers need. Although individual photographers cannot bargain collectively, if enough individual photographers refuse to work for inadequate pay, publishers will have no choice but to react to the forces of the free market system and increase their payments for photography. ASMP cannot force a photographer or a publisher to do anything. It cannot organize a boycott or a strike. It cannot set a wage, fee, term or condition for photographers. But, ASMP can express its opinion and give its advice. This paper provides that opinion and advice.
In 1973, the per capita income in New York State, where many photographers reside and work, was $5,969. In 1997, the per capita income in New York was $30,299 or five times greater than that of 1973.
In 1973, the minimum wage was $1.60 per hour. In 1998, the minimum wage was $5.15 per hour or 3.2 times higher than the rate of 1973.
In 1973, the average day rate for editorial photography assignments with one-time rights was $200. In 1998, the average day rate for the same editorial assignment is $450 or 2.2 times higher than the rate for 1973. The editorial day rate has fallen behind even the rate of increase in the minimum wage.
These statistics show that the compensation paid to editorial photographers is forcing their living standard down faster than that of the general population. They also show that untrained workers have experienced a greater rate of wage increase than highly trained and skilled photographers. How can publishers get away with this? The answer is simple. Publishers use their economic clout to dictate fees to photographers who, like most of us, need to work. The “take it or leave it” position of most publishers leaves most photographers in a position where they have to choose between inadequate compensation and none at all. Necessity dictates the choice.
The table below shows that editorial fees have simply deteriorated over the years to the point where the very existence of editorial photography on a professional level is now threatened. The day is quickly approaching when competent and properly equipped photographers will not be able to provide publishers with those images which inform readers, bring events into their consciousness and help them get a better picture of our world. The chart applies changes in the consumer price index to the 1973 day rate. The adjusted day rate shows what the day rate should have been in 1998, if it had been adjusted for inflation.
Editorial Day Rate Analysis
Base year: 1973, 1986, 1990
Average day rate: $200 $350 $400
C.P.I. factor (to 1998) 3.671.521.25
The above chart clearly demonstrates that, not only is the day rate woefully behind its 1973 base, it even has failed to keep pace with the inflation of just the last ten years, when they are taken as a base rate. A recent survey of ASMP members shows that the current average day rate for one-time editorial rights (print media only) is $450. Interestingly, this average is higher than the rates paid by many major magazines, like Time and Business Week, which pay base day rates of only $400. The average is pulled up because some specialty magazines pay higher rates to the best photographers, and ASMP members are more often in this group.
ASMP anticipates and acknowledges the argument that many publications went through very traumatic times in the early to mid-seventies. Television took its toll on advertising revenues and readership. Famous magazines closed their doors forever. A few were later resurrected with a new look and approach. In spite of this decline, however, the fact is that there are more magazines and print publications than ever before. Certainly, the economics of magazines have changed, so ASMP will concede that it might (but only might) be unrealistic to conclude that magazines can afford to pay at least the same level of fees that they paid in the early 1970s. However, it is also not unreasonable to point out that the publishers’ and editors’ and other staff salaries have been more than adequately adjusted to meet the economic realities of today. This is not true in the case of photographers.
Certainly, by 1986 magazines had economically reestablished themselves and found their way to profitability. But, even if we concede that the day rate of 1986 ($350) was fair compensation in light of economic conditions, we see that publishers have not seen fit to raise the day rate to a level that paces it with inflation. Indeed, the past seven years have seen the economy grow to record levels, and magazines profits have grown with it, but the day rate paid to photographers has once again fallen behind the decade’s rate of inflation. It does not take an economist to see the trend. While photography is every bit as important to publications as it ever was, the reward for it continues to decrease.
There is another factor that is easy to lose sight of when considering the unfairness of the rate of compensation paid to photographers. For each day that a photographer is paid for, he or she spends additional time performing tasks related to the work done on the paid day. ASMP’s survey shows that, for every day of photography, the average editorial photographer spends a total of 10.2 additional hours on assignment preparation, post production work, administrative duties and travel time. The result is that it takes 18.2 hours to earn a single day’s rate. At $450 per day, the photographer is actually earning $24.72 per hour. Keep in mind that most photographers must maintain in excess of $50,000 in equipment in order to do their work, have to have business insurance, must pay their own medical insurance premiums, etc. Photographers have the same costs of doing business that any small service business has. Many of them are also paying off college loans for the education that is a necessary prerequisite to be a successful photographer today. There are few businesses in the USA that can support their owners and meet their overhead on $25 per hour in revenues.
Considering the above facts and recognizing that this situation is unlikely to change without some dynamic force being applied, ASMP offers its opinion that publishers should raise their editorial day rate to a MINIMUM of $550 in 1999, with subsequent raises to $600 in 2000 and $650 in 2001. These rates would include one time use in print media and would not include electronic rights, foreign language rights, or English language rights outside of North America, or any reprint rights. ASMP also believes that photographers have good reason to adopt these recommendations of ASMP in their individual negotiations with publishers, and that, while free to ignore ASMP’s opinion and recommendation, doing so would only further threaten their economic futures.
The eroding economic position of editorial photographers must be stopped and reversed. It seems clear that publishers have no intention of changing it as of this writing. So photographers must either change it or face further degradation of their earning power ever year. How can you, as an editorial photographer, motivate this change? ASMP suggests the following. Copy this paper as many times as you wish. Give copies of it to every editor you work with, every time you work with them. Send ASMP the names and addresses of every publisher, managing editor, photography editor, etc. in the magazines you work for, and we will send them this paper for you. Tell the publishers that you agree with ASMP’s opinion and recommendations. Be conscious of what is happening to you and how poorly the trend bodes for you. Change your fate by insisting on fair compensation. Do not give away your future.
Note: Permission to copy and distribute this white paper was granted by the author and ASMP.
I had the opportunity to attend a fantastic lecture this past Saturday that was hosted by the American Society of Picture Professionals (ASPP) and Picture Archive Council of America (PACA). The featured speaker was Nancy Wolff who is an attorney that specializes in intellectual property law. There were quite a number of people packed into the venue which was a photography studio in Culver City. The audience appeared to consist of photographers, stock photo agents (including one of mine), publishers and filmmakers. I was told that that is what the difference between the ASPP versus the other photography trade organizations because it caters to everyone involved with in the photography industry not just photographers. I tried my best to take notes for those of you who might not have had the opportunity to attend. Keep in mind that I’m no legal expert but here goes:
- The event was sponsored by the Copyright Clearance Center and they wanted to promote their new image licensing platform called Ozmo. (I personally know nothing about this product or the organization so I have no opinions on this at the moment.)
- Nancy started off by listing several popular myths regarding photo copyright laws including, “If I remove my image after being served a notice, I don’t owe any money.”
- Copyright laws were founded to give incentive to creators to continue advancing the arts and sciences in the U.S. The incentive is exclusive rights to the work for the length of the author’s life + 70 years. For corporations it is the lesser of 95 years from publication or 120 years from creation. I believe this time period designation was established in 1978.
- Anything created 1923 is now part of the public domain.
- Works not protected by copyright law include anything created by the U.S. government. (I got the impression that this is not as black and white as it sounds.)
- Copyright laws were revised again in 1989 stating that copyright notices were no longer required to be displayed in order to claim ownership. This is purely voluntary but recommended. A proper copyright symbol goes like this – ©year, name.
- Freelancers by default own the copyright to their work. However if you are an employee (work-for-hire) then the employer owns the copyright.
- Allows for limited duplication of material for educational uses including criticism, news, teaching and research. A good example would be photocopied class handouts, short excerpts and quotes.
- Fair Use is not about merely choosing an image to illustrate a news story just because it might look appropriate alongside the words. The image must actually be the news story. (I’m trying to paraphrase this part.)
- Must be transformative. Not merely repackaging the work. Does it harm the creator in any way?
- Parody can be fair use such as the famous Annie Leibowitz picture / Vanity Fair cover of a pregnant Demi Moore being mimicked for the Naked Gun 33 1/2 movie poster.
Nancy proceeded to show more side-by-side comparisons of situations that claimed Fair Use.
- Social commentary can be Fair Use.
- Merely changing the medium is still an infringement because it is derivative works.
Most in the crowd seemed to believe that Shepard Fairey, creator of the Obama Hope poster, infringed on the AP’s photo by creating the poster without asking for permission. Nancy mentioned something interesting that when Fairey sued the AP, the AP countered by hiring the attorneys that had just defeated the Stanford University Fair Use Project in a recent case.
- Who is responsible if there is an infringement? The publisher, includes both companies and employees.
- One must show that the infringer had access to the original works. (I think this means that if the “infringer” has never seen the original work in question then it might not be an infringement and just merely coincidental similarities.)
- There is no hard and fast rule to determine “substantial similarities” as this is determined in court on a case-by-case basis. The judge will often compare two images then use that to decide if the case will go to a jury or not.
Nancy then showed an example of a photographer that sued an ad agency. The ad agency had contacted the photographer to use an image but apparently didn’t like the price so they went out and photographed their own similar version. The giveaway was the featured model in both had the same jacket on in both images carrying a briefcase. The photographer was rumored to be very happy with the settlement.
She then had a section about Scenes a Faire, which means that certain scenes or ideas can only be seen in a limited number of ways hence not being eligible for copyright infringement. An example would be photographing a well-known landmark in a public place such as the St. Louis Cathedral in the French Quarter of New Orleans. The more staged the original work however, the more likely it is to be considered an infringement.
- Why register your photos with the U.S. Copyright Office? You can’t get attorney’s fees waived if not registered. (This is one of many reasons to do so.) This can be done so now by electronic filing. Send thumbnails in large quantities marked as unpublished works. If the photo has already been published before filing, then mark as published works. Once an image is registered you never need to re-register it again.
- Avoid sending your registration via USPS because since 9/11 stuff just gets backlogged and lost due to anthrax scares. Send it via FedEx if you must.
- Internet Service Providers have a safe haven. When serving a take-down notice, you have to send to the ISP’s registered agent and give them proper time to address the situation? (Wasn’t quite clear in my notes.) You also have to identify the work in question, the location of where the infringement can be found, include either a physical signature or electronic signature on the document.
- The 1st Amendment offers much more protection for editorial uses including art, news, and exhibits. Commercial uses have much more limited 1st Amendment protection.
- A proper model release should contain the name of the model, date of birth and have a witness’ signature. This applies to the U.S. mainly because every country has their own laws. In some countries the model can decide at any time to invalidate your model release.
- Pets are considered property and require a release if they are well-known and has been exploited commercially in the past. (I think this is primarily to avoid brand confusion in the marketplace.)
- Buildings photographed from public areas do not require permission to publish commercially. Several property owners have tried to sue for trademark infringement such as the Rock & Roll Hall of Fame Museum in Cleveland suing a photographer for selling a poster of the city skyline. The museum lost because there was no obvious trademark apparent in the photo. Same goes for photos of the Empire State Building. There is no trademark confusion apparent.
Next they had a door drawing for three of her autographed books. I won the 3rd. For the record, I was planning to buy the book if I didn’t win it.
Question & Answer Session
- If a photo agency or an individual photographer wants to promote their own work are they allowed to use non-model-released photos in the promotional materials?
Nancy said there was not a lot of established legal precedent for this sort of situation. She thinks that if you have multiple images together in the promotional material then there is no confusion as to whether the model endorses your business. If you have a single photo depicted then it can more likely be questioned.
- Copyright doesn’t protect styles of photography. If you popularized photographing subjects on white seamless for example, then another photographer does the same idea then you can’t claim copyright infringement just because they used a similar style.
The PowerPoint presentation is available for download at the PACA website if you are a member.
Overall I would highly recommend attending a session like this if you are a professional artist or deal with intellectual property of any sorts. I learned new things and got some clarity on previously fuzzy concepts. You might think oh, law, boring academic stuff but this really was an interesting presentation and even entertaining at some points.
In the previous segment of these articles on photography branding I touched upon the concept of brand identity. The reason why I bring that up is because I heard a story the other day about two bottles of the same wine packaged with different labels. One label looked fancy meanwhile the other one looked cheap. When a group of ten people did a wine tasting test not knowing that both bottles had the same identical content, nine out of the ten people preferred the wine that had been poured from the fancy label. They felt that the fancy label wine tasted better so therefore the conclusion from that study was that wine with effective marketing tastes better than wine that isn’t marketed well. Taste is all a matter of perception after all. Perception is all in the mind. So where does that leave your photography?
It’s all about how you present yourself and your work. For example, if you aspire to be a luxury wedding photographer then it wouldn’t be in your best interests to have a website that looks like it dates back to 1998. You’ve got to present yourself as being relevant.
Prior to the internet, photographers were most likely to have discovered photo locations by consulting with topographical maps, scouting by foot, looking at photo books, postcard racks, taking guided tours or word of mouth. Those methods are still valid today but there are many more tools at our disposal now due to the internet. Google Earth is one of the more interesting tools.
Google Earth combines the geographical contours of topo maps with real life satellite imagery and pictures from photographers that have embedded GPS coordinates into their meta data. It is really amazing to be able to “scout” photo locations from the comfort of your living room or even while parked on a sidewalk if you can find a Wi-Fi connection. Anytime you pre-visualize a scene that you aren’t quite sure if or where to make it happen, you can type in the location in Google Earth and search around the landscape to see if it is possible. This can save you a lot of time and even help find locations you wouldn’t have found otherwise.
One of the most useful features for photographers is that you can set what time of day you want to see the landscape and the program will render the light to show you what you can expect to see at sunrise for example. You can also check the atmosphere option and it will take into account how the atmospheric conditions affect the lighting.
I played around with the program several years back but didn’t find much use for it because the renderings weren’t detailed enough. I took another look recently however and the satellite imagery appears to be much more comprehensive and detailed now in many locations. Google Earth is a tool that I intend to use more frequently when preparing for photo shoots. In fact, I found out about this scenic vantage point to photograph Morro Rock through Google Earth and intend to go there on my next visit.