This article has been has circulating around the photography community the past couple days and has gained a lot of traction. I’d like to share it in it’s entirety.
Dear potential photo buyer,
If you have been directed to this page, it is likely that you have requested the use of an image or images for free or minimal compensation.
As professional photographers, we receive requests for free images on a regular basis. In a perfect world, each of us would love to be able to respond in a positive manner and assist, especially with projects or efforts related to areas such as education, social issues, and conservation of natural resources. It is fair to say that in many cases, we wish we had the time and resources to do more to assist than just send photographs.
Unfortunately, such are the practicalities of life that we are often unable to respond, or that when we do, our replies are brief and do not convey an adequate sense of the reasons underlying our response.
Circumstances vary for each situation, but we have found that there are a number of recurring themes, which we have set out below with the objective of communicating more clearly with you, and hopefully avoiding misunderstandings or unintentionally engendering ill will.
Please take the following points in the constructive manner in which they are intended. We certainly hope that after you have had a chance to read this, we will be able to talk again and establish a mutually beneficial working relationship.
Photographs Are Our Livelihood
Creating compelling images is the way we make our living. If we give away our images for free, or spend too much time responding to requests for free images, we cannot make a living.
We Do Support Worthy Causes With Images
Most of us do contribute photographs, sometimes more, to support certain causes. In many cases, we may have participated directly in projects that we support with images, or we may have a pre-existing personal relationship with key people involved with the efforts concerned. In other words, each of us can and does provide images without compensation on a selective basis.
We Have Time Constraints
Making a leap from such selective support to responding positively to every request we get for free photographs, however, is impractical, if for no other reason than the substantial amount of time required to respond to requests, exchange correspondence, prepare and send files, and then follow-up to find out how our images were used and what objectives, if any, were achieved. It takes a lot of time to respond to requests, and time is always in short supply.
Pleas of “We Have No Money” Are Often Difficult to Fathom
The primary rationale provided in nearly all requests for free photographs is budgetary constraint, meaning that the requestor pleads a lack of funds.
Such requests frequently originate from organisations with a lot of cash on hand, whether they be publicly listed companies, government or quasi-government agencies, or even NGOs. Often, it is a simple matter of taking a look at a public filing or other similar disclosure document to see that the entity concerned has access to significant funding, certainly more than enough to pay photographers a reasonable fee should they choose to do so.
To make matters worse, it is apparent that all too often, of all the parties involved in a project or particular effort, photographers are the only ones being asked to work for free. Everyone else gets paid.
Given considerations like this, you can perhaps understand why we frequently feel slighted when we are told that: “We have no money.” Such claims can come across as a cynical ploy intended to take advantage of gullible individuals.
We Have Real Budget Constraints
With some exceptions, photography is not a highly remunerative profession. We have chosen this path in large part due to the passion we have for visual communication, visual art, and the subject matters in which we specialise.
The substantial increase in photographs available via the internet in recent years, coupled with reduced budgets of many photo buyers, means that our already meager incomes have come under additional strain.
Moreover, being a professional photographer involves significant monetary investment.
Our profession is by nature equipment-intensive. We need to buy cameras, lenses, computers, software, storage devices, and more on a regular basis. Things break and need to be repaired. We need back-ups of all our data, as one ill-placed cup of coffee could literally erase years of work. For all of us, investment in essential hardware and software entails thousands of dollars a year, as we need to stay current with new technology and best practices.
In addition, travel is a big part of many of our businesses. We must spend a lot of money on transportation, lodging and other travel-related costs.
And of course, perhaps most importantly, there is a substantial sum associated with the time and experience we have invested to become proficient at what we do, as well as the personal risks we often take. Taking snapshots may only involve pressing the camera shutter release, but creating images requires skill, experience and judgement.
So the bottom line is that although we certainly understand and can sympathise with budget constraints, from a practical point of view, we simply cannot afford to subsidise everyone who asks.
Getting “Credit” Doesn’t Mean Much
Part and parcel with requests for free images premised on budgetary constraints is often the promise of providing “credit” and “exposure”, in the form or a watermark, link, or perhaps even a specific mention, as a form of compensation in lieu of commercial remuneration.
There are two major problems with this.
First, getting credit isn’t compensation. We did, after all, create the images concerned, so credit is automatic. It is not something that we hope a third party will be kind enough to grant us.
Second, credit doesn’t pay bills. As we hopefully made clear above, we work hard to make the money required to reinvest in our photographic equipment and to cover related business expenses. On top of that, we need to make enough to pay for basic necessities like food, housing, transportation, etc.
In short, receiving credit for an image we created is a given, not compensation, and credit is not a substitute for payment.
“You Are The Only Photographer Being Unreasonable”
When we do have time to engage in correspondence with people and entities who request free photos, the dialogue sometimes degenerates into an agitated statement directed toward us, asserting in essence that all other photographers the person or entity has contacted are more than delighted to provide photos for free, and that somehow, we are “the only photographer being unreasonable”.
We know that is not true.
We also know that no reasonable and competent photographer would agree to unreasonable conditions. We do allow for the fact that some inexperienced photographers or people who happen to own cameras may indeed agree to work for free, but as the folk wisdom goes: “You get what you pay for.”
One other experience we have in common is that when we do provide photographs for free, we often do not receive updates, feedback or any other form of follow-up letting us know how the event or project unfolded, what goals (if any) were achieved, and what good (if any) our photos did.
All too often, we don’t even get responses to emails we send to follow-up, until, of course, the next time that someone wants free photographs.
In instances where we do agree to work for free, please have the courtesy to follow-up and let us know how things went. A little consideration will go a long way in making us feel more inclined to take time to provide additional images in the future.
We hope that the above points help elucidate why the relevant photographer listed below has sent you to this link. All of us are dedicated professionals, and we would be happy to work with you to move forward in a mutually beneficial manner.
Photo contests are among the more controversial topics within the photography community. One of the most common complaints is that some photo contests are nothing more than a “rights grab”; meaning that the sponsor of the contest inserts legal language within the fine print that essentially allow them the right to sub-license, redistribute and use all photos submitted however they wish while freeing themselves from any potential liability arising from the publication of the images. For the sponsor of the contest that’s great because they can build a stock photo library that they can profit off of for almost nothing because let’s face it, most contests award a measly amount of prizes compared to how many quality images they get in return. Photographers on the other hand are getting ripped off for submitting to such contests and not to mention can potentially open themselves up to legal liabilities for the publication of those images because they give up control over where the images will be published by agreeing to such terms. (note: I’m not a lawyer so take this with a grain of salt.) These contests aren’t small time operations either as some are sponsored by some very well known organizations. Not all photo contests serve as rights grabs however so there are some that are legitimately there to benefit the photographer such as PDN, Communication Arts Photo Annual and the ICP awards.
How much benefit photo contests are to photographers is debatable though there are some that milk the exposure for all it’s worth. One photographer claims to be “The Most Awarded Photographer in History”, several claim to be “The Master Photographer” and do very well when it comes to the sale of fine art prints to tourists. While the more common way that photographers use this exposure is to refer to themselves as an award-winning photographer in their bio. Another thing to consider when entering contests is who the judges are and the audience for the publication of the images will be targeting hence why I cited PDN and the CA Photo Annual. For editorial, commercial and stock photographers the readers of those publications are your target audience so there is potentially good exposure to be had from entering those contests though there are no guarantees of gaining additional business from the exposure.
As for myself, I believe I’ve entered only three photo contests to date but haven’t won anything. I’m selective about these contests for all the reasons listed above, not to mention that if you don’t feel the contest will help then it’s essentially throwing money away that could be best served for other marketing activities. The odds of winning the top prize in photo contests are not much greater than winning the lottery so consider how many other entries will be selected for publication because that is a more realistic goal.
And back to my first point… always read the fine print before submitting to photo contests.
I skimmed through an article in Photo District News (PDN) about Urban Outfiiters photography choices and the part that really caught my attention was a quote from their photo buyer recommending to photographers to stop wasting money on mailers and focus on web marketing. She specifically referred to blogging, Flickr, and social media because that is where she goes to find new photographers to photograph for her brand. She said she spends a lot of time seeking out new photography blogs so she knows who is out there shooting what.
From what I have read, these days there seems to be an equal mix of art buyers who say they still prefer traditional marketing methods versus those who actively seek out photography online via Google, Flickr, blogging, etc…. But in the coming years as a younger generation of art buyers gets into the workforce, we will probably see a majority swing to web 2.0 because younger demographics have grown up during the internet age and have less reservations about working with people they meet online.
Times are changing so fast culturally that it is only a matter of time before that day comes. It was just nine years ago that I had a college marketing professor state that no internet company had yet figured out a way to become profitable. Now, things that used to be taboo to talk about, such as online dating, have become a standard way to meet people. Photo buyers are people too and it is only natural that they consume social media just like anyone else. Photographers who haven’t yet accepted this cultural-shift or are too scared to jump into the web 2.0 world are kidding themselves. True, there may be some well-established photographers who can probably ride out the rest of their career without changing a thing but it is also no coincidence that there are a lot of pros who grumble about how good things used to be in the 80’s and 90’s.
Another way to look at web marketing is that it can open up a whole new world of opportunities. Within the traditional photo buying market, you have ad agencies / publishing companies / art galleries / etc… where you have every working and aspiring photographer targeting that same small niche of photo buyers. With the internet, anyone with an internet connection and a need for photos is a potential customer. Suddenly you go from competing in a crowded market where there are only several thousand potential customers to a market where you have tens of millions potential customers.
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.
Recently Photoshelter re-launched an updated version of their archive service. I have been with them for nearly a year and a half now am pleased with the updates. Among the cool features are widget-based slideshow galleries and licensing options that first appeared in the Photoshelter Collection. What I am most happy about though is that they finally adopted a suggestion that I made when I first joined and have inquired about several times.
Previously, the individual image pages would have a title like, “RW4986.jpg” on the internet browser. This was a problem because my images would show up on Google occasionally and have that listed as the webpage title. How does a title like that make someone want to click on the link? Not to mention that if the photo was ranking despite not having a good title tag then imagine what would happen if it actually had a relevant title tag. But now with the re-launch, my captions are in the title bar of the browser.
More than anything, what this says to me is that Photoshelter is serious about continually improving their product and doing what is best for photographers.