Field Report:

The Non-Glamorous Side of Photography

Reasons Why Professional Photographers Cannot Work for Free

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.

Reasons Why Professional Photographers Cannot Work for Free

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.”

Please Follow-Up
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.

Wrap Up
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.

Creative Commons License

October 13, 2011 Posted by | Photo Business, Photo Industry News, rants, stock photography | , , | Leave a comment

Shady Photo Contests

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.

July 3, 2011 Posted by | Marketing, Photo Industry News, rants | , , | 2 Comments

Balancing Your Photography Career with Family

I’ve been thinking of this topic for quite some time starting when I realized a while back how lonely it was to travel alone. I don’t always travel alone but when I do, the photography is at it’s most productive but the trips are rarely the most memorable because there’s no one to share the highs and lows with. I’m currently dating someone but don’t want to end up like a lonely, old photographer someday so I’m going to do everything I can to avoid being that type of photographer. At the least, I’d want to have someone to come home to and grow old with. That’s how I came up with my latest article published over at Black Star Rising:

The Photographer’s Life Should Start with Family

June 28, 2011 Posted by | Photographers | , , | Leave a comment

Getting Found by Photo Buyers

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.

May 10, 2010 Posted by | Marketing, Photo Business, Photo Industry News, Web | , , , | 3 Comments

Son of an Environmental Photography Pioneer, David Leland Hyde Interview

One of the primary photographers for the ground-breaking Sierra Club exhibit format series that helped establish the modern environmental movement, Philip Hyde dedicated his life to defending Western American wilderness. His son, David Leland Hyde, has been working hard to keep his father’s legacy alive and introduce the work to a new generation.

Your father, Philip Hyde, played an important role in the preservation of many western landscapes. What was it that drove him to pursue this line of work?

DH: Dad made a spiritual connection to wilderness when he was a young boy partly through the Boy Scouts, partly through his family. His father painted landscapes and was a known modernist painter who studied at the famous art school in Paris, L’ Ecole De Beau Arts. Beau Arts since the 1500s has not charged tuition but is extremely competitive to get into. Dad hiked in the hills of San Francisco that still had a few wild areas left in the 1920s, in Marin County and in the Sierra Nevada Mountains in Yosemite for the first time in 1938 just before he turned 17. On a map of Yosemite Valley he wrote “Home” in big letters after one trip. He was in love with mountains and while stationed at Great Bend, Kansas during World War II, he would drive to Denver just to get a glimpse of the Rockies. He had taken some photography courses before the War and just before his discharge he wrote to Ansel Adams and asked his advice about photography training. His timing was good because Ansel was just arranging the funding to start a photography department at the California School of Fine Arts.

“The Minarets From Tarn Above Lake Ediza, now the Ansel Adams Wilderness, Sierra Nevada Mountains, California, 1950” by Philip Hyde. Ansel Adams said that he liked this photograph better than his own of the Minarets. Part of several major museum collections.

“The Minarets From Tarn Above Lake Ediza, now the Ansel Adams Wilderness, Sierra Nevada Mountains, California, 1950” by Philip Hyde. Ansel Adams said that he liked this photograph better than his own of the Minarets. Part of several major museum collections.

At what point did you get involved with running your father’s business, and how was your transition into this industry?

DH: I started to help run Dad’s business, finances, care, make him meals, find his clothes, everything in 2002 after my mother passed on and some other caregivers didn’t work out. I left a six-figure job to become his primary caregiver. He was quite healthy at that point except for being newly blind and depressed about losing his ability to photograph and losing my mother in rapid succession. I used to read the world news, environmental news, his mail, and books to him every day. Besides reading and discussing what I read to him, and interviewing him for my book that I had just started, the photography was the most interesting of my duties as you might imagine. I had offered to work for Dad before, but he didn’t think I could make a living working for him. He was probably right and is still. I put everything I have into this project with little return so far. I will probably do well over time, but anyone who knows photography knows this is not certain at all, that at the least it will take a long time.

Photography is a tough business. My father had helped, mentored and inspired a lot of people. He was very likeable, had a good sense of humor and loved to socialize. He had a lot of friends in the industry. In that respect it was easy for me to get started in promoting his work as long as he was around. However, after he was gone, some people kept supporting my work, some did not. For some people it only makes sense to support a collection of work while the creator is in a body. Fortunately others do understand the value in helping it perpetuate. Even so, other photographers have their own knitting to tend. I am gaining more respect than I had at first, now with the blog, by working very hard and doing my homework to learn all I can.

Many photographers see other photographers as competition. I don’t think they saw Dad as competition but inspiration, and he was not all that aggressive about approaching venues for exhibitions. By the latter part of his career, he mainly lived on referrals and organizations that approached him to do shows, or for stock licensing. Now that a lot of photographers see me out beating the bushes, they see Dad’s work as potentially taking exhibitions that they could have, at least some people look at it that way. What they don’t understand is that Dad’s work has been and will be a major force for advocating nature photography and photography for conservation, which can expand the possibilities for everyone. What they also don’t know is that I have hardly even started yet. I am still mainly focused on writing the book and now the blog, which is a way of getting a lot of the book material out in rough form. It’s not rough per se, but the material is posted in random chronological order without unifying narrative drive or theme.

What role do you see photography playing in future environmental legislation and in which ways can photographers get involved?

DH: Gary Braasch, who has become well-known as an environmental photographer, back in 1975 interviewed Dad for a Backpacker Magazine Article. Gary Braasch asked Dad, “How can other photographers—skilled amateurs—use their creativity for conservation?” and Dad answered, “Off the top of my head, they’d do a lot better by going to law school because it looks to me as if the fight is now in lawyer’s hands. But on a local level, an individual can do a lot by becoming familiar with a place that needs protection and by studying the issues. The camera can be an important tool to him. The person can make himself an ad hoc committee on a project and carry it along until something gets done.” This is exactly what many photographers are doing. There is still a place for photographers in conservation even on big projects. Dad’s photographs still participate in environmental campaigns, though he can no longer go on location to help save a certain area.

Dad was a conservationist first. The photographers who are the most effective environmentalists know the current issues and know what campaigns might need the services of a photographer. I’m sure there have been conservationists who were photographers first, just like there are doctors or lawyers, or whatever else who are also environmentalists. Anybody can become an environmentalist, all he or she has to do is do it. Join the groups, read the news, get involved. The uses of photography to help will come. For example, because I am constantly reading about what is happening, I have found out about a few local issues. At some point when I get the chance, I will probably approach each of the campaigns and find out how I can help raise funds through print sales, which will get more exposure for the prints and Dad’s photography and help fill the group’s coffers too. I’ve found some groups are highly receptive to this kind of thing and others are not. But it is what I can do even though neither Dad nor I am making new photographs for use in the media. I can only go in so many directions at once. To echo what Dad said, the most effective conservation work is whatever you can do in the areas you care about the most.

“Cathedral In The Desert, Glen Canyon, Utah, 1964” by Philip Hyde. Named by American Photo Magazine one of the top 100 photographs of the 20th Century. Of historical significance because the location is now under Lake Powell. Made after the completion of Glen Canyon Dam while Lake Powell was filling.

“Cathedral In The Desert, Glen Canyon, Utah, 1964” by Philip Hyde. Named by American Photo Magazine one of the top 100 photographs of the 20th Century. Of historical significance because the location is now under Lake Powell. Made after the completion of Glen Canyon Dam while Lake Powell was filling.

You have a great blog, Landscape Photography Blogger, and have written several posts in regards to your father’s photographic education having being mentored by the likes of Ansel Adams, Edward Weston and Minor White. Given the high cost of education these days, what advice can you give to young photographers who might be thinking of studying photography in college?

DH: Dad was lucky because he had the G.I. Bill and as a result, Uncle Sam paid for his photography education. I am not sure of all the ins and outs but right now the U.S. Government is doing it again for just about everybody. Now is the time to apply to that expensive school you always dreamed of attending. I personally don’t know a lot about the various programs, but if I were to choose a school, I would go with the one that had the best possible name for the type of photography I would want to do. Names and educational lineage count for a lot in photography as in many professions. A Columbia degree in photography for example, could open many doors, provided your work is better than the other great photographers you are in school with and you make the most of studying at such a place. Short of going to college or grad school, I might seek out the very best photographers today and take workshops from them. Having the right mentors is very important in photography. I find that I am already very well equipped to be a photographer, if I wanted to focus on it more than writing, because I obtained the right attitude and perspective on how to look at photography from my father. That goes for all aspects, from the business side of it that has totally changed technologically but not necessarily in substance, to the photography and seeing itself, which has also changed, but not as much as people might believe. The main thing that has changed is that there were hardly any photographers or any market for photography when Dad started. He had to help establish it. Today the challenge is to stand out from the hoards. This is where having the right mentors comes in because they have already discovered how to stand out from the masses of other photographers.

Any upcoming business announcements or personal projects that you would like to tell us about?

DH: The idea was to get the book done and then develop relationships with galleries, set up major national touring exhibitions and talk to museum curators. However, now that I have run out of funds, everything has taken much longer to get set up and the book is dragging on and on, I need to do some marketing now to make a living while I finish the book. Juggling everything becomes a lot more complicated if you have to also make a living at the same time, as I’m sure you and your readers know, whether they are full or part-time photographers. It is also this raw edge that drives you forward and allows you to create great things out of desperation, I suppose. I have put over $100,000 into this project so now it is time to turn that around.

I will be making numerous announcements here and there regarding great exhibitions and new releases of images never before published or images that everybody knows, now translated into digital form and available as photographer authorized archival fine art digital prints. With many images, the Philip Hyde original prints are long sold out because he made so few of them that they are extremely rare. Speaking of rare, I will also hopefully be able to discover a way to change the large sized archival fine art digital prints into limited edition prints. I am working on this and there are some variables that need to be contained first but I recommend people look into acquiring the 20X24, 24X30 and 32X40 prints sizes now before they go up when they become limited edition prints. A portion of all print sales are set aside to go toward clean energy research and other environmental causes. I support 17 environmental groups.

“Lava, Flowers, Craters of the Moon National Monument, Idaho, 1983” by Philip Hyde. This Philip Hyde icon was widely exhibited and published including in the book, Drylands: The Deserts of North America by Philip Hyde, 1987.

“Lava, Flowers, Craters of the Moon National Monument, Idaho, 1983” by Philip Hyde. This Philip Hyde icon was widely exhibited and published including in the book, Drylands: The Deserts of North America by Philip Hyde, 1987.

Conservation changed into modern environmentalism in Dad’s day and it has now changed into a global consciousness about indigenous peoples, lands, climate and rare endangered species. With the upcoming exhibition opening May 8, 2010 and running through August of Philip Hyde’s photography at Mountain Light Gallery and at least one magazine article it is too soon to mention, sharing the differences and similarities between Galen Rowell and Philip Hyde, I have been reading a lot of Galen Rowell lately. It is interesting that with his being about 20 years younger than Dad was and inventing the genre of outdoor adventure photography, his brand of environmental activism was much more of the global variety than the regional land-based variety of my father. As you have mentioned, Richard, Galen Rowell was a great writer and captivating because he represented the transition from one type of environmentalism to the other. Philip Hyde and Galen Rowell if they were able to come back and have a conversation today might have been a fascinating discussion. By the way, here’s an announcement: At the Mountain Light Exhibition, we will be showing four prints that have never before been seen by the public. You have the exclusive on that information for several days, Richard.

Thanks David!

DH: My pleasure, thank you Richard for the opportunity.

Visit the Philip Hyde Photography website for more photos.

May 2, 2010 Posted by | Interviews, Photographers | , , | 6 Comments

Photography Business Books

Occasionally there are photo forum threads that ask for photography business book recommendations but one particular person’s question stood out to me. This photographer was interested in learning more about the business of nature photography and was complaining that all of the business books they had seen were about commercial or studio photography and thus did not apply to them. In my opinion, this is completely wrong.

The best book out there on how to run a successful photography business is John Harrington’s Best Business Practices for Photographers. It is a generalist commercial photography book yet I got a lot of useful info out of it and so have a lot of others judging from the reviews. It doesn’t matter what genre of photography you are involved with, the business principles are all the same. You have assignments, you license images, you have contracts, you deal with clients, legal issues, accounting, marketing, etc… All photo businesses have all or some of these elements.

This photographer probably drew a distinction between nature photography and everything else because of a romanticized idea of what it’s like to earn money as a nature photographer. The reality is that everyone from Art Wolfe down to the part-time wedding photographer has to treat what they do as they would any other business if they expect to stay in business. Without a solid grasp of business fundamentals then it is nearly impossible to make any sort of consistent progress.

With that said, here are some great photography business books that I would recommend in addition to John Harrington’s book:

ASMP Professional Business Practices in Photography

Business and Legal Forms for Photographers

The Professional Photographer’s Legal Handbook

Profitable Photography in the Digital Age

Selling Your Photography: How to Make Money in New and Traditional Markets

2010 Photographer’s Market

Licensing Photography

March 29, 2010 Posted by | Photo Business | , , | 2 Comments

Black Star Rising

My first blog post for the Black Star photo agency’s business blog, Black Star Rising, is now up. It is based off of my previous blog post on blogging best practices. I will be contributing articles to their site periodically so if you like my blog you might want to bookmark Black Star Rising as well.

Here is the article: Seven Strategies to Ensure Your Blog is Worth the Effort

Thanks.

October 27, 2009 Posted by | Marketing, Photo Business, Web, Weekly Links | , , , , | Leave a comment

ASPP Event: Copyright / Copywrong in Image Licensing

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 Basics

– 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.

Fair Use

– 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.

Copyright Infringement

– 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.

1st Amendment

– 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.

At the end of the presentation, Nancy recommended visiting two sites: stockindustry.org and copyright.gov.

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.

April 5, 2009 Posted by | Photo Business, Photo Industry News, stock photography | , , , | 2 Comments

Developing Your Photography Brand Part VI – The Wine Label Test

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.

March 6, 2009 Posted by | Marketing | , | 5 Comments

Alaskan Photographer, Ron Niebrugge Interview

Based in the quaint fishing village of Seward, Alaska, photographer Ron Niebrugge and his wife, Janine, travel for up to six months out of the year photographing extensively throughout the Western United States. Niebrugge also has an MBA degree from UC Irvine, so let’s find out what he has to say about the business of photography.

Desert Sand Verbena and Dune Evening Primrose bloom on the sand dunes of Anza-Borrego Desert State Park, California

Desert Sand Verbena and Dune Evening Primrose bloom on the sand dunes of Anza-Borrego Desert State Park, California

Many professional photographers like to say that professional photography is 90% business and 10% photography. Since you have an MBA degree, in which ways did having this business education help you to get where you are now?

You know, that is an interesting question. I think it helped in a few ways. First, I think I may approach the business with broader, big picture perspective, more so then I might have otherwise.

I believe that one of the best things that my education has provided me with is confidence. Growing up in a small Alaska town, I kind of felt like the rest of the world was way ahead of us, and knew all this stuff that I didn’t. After obtaining a graduate degree and working in the business community for a few years, I began to realize that my business skills, abilities and knowledge were on par with others. Really we are all in the same boat. Before I might have looked at a Getty and Corbis with awe but now I realize that even these giant stock agencies are full of people that are trying to find an edge in a competitive industry, just like myself.

There are some photographers out there that dream of having a wife run the photo business while they handle the photography, while others would probably fight like cats and dogs if that were to happen. What is the secret to maintaining a successful business partnership with your spouse?

I think we both had some apprehension when it came to trying to work together. Most of my photographer friends have a spouse with a full-time job. This is nice for them because it does provide some financial security and maybe medical coverage. I’m really glad that we didn’t have to go this route because now we are able to travel and see so many amazing places together.

I think the secret is – we have a very distinct division of responsibility in areas where we could potentially have a conflict. One area that comes to mind is pricing. Frankly, I’m too attached to my images so I tend to be terrible at pricing. Whereas Janine really does a great job of negotiating licenses. So we have a deal that I never ever price an image. I can be very personable and enjoy visiting with clients, but when it is time to talk price I hand the phone over. This has really worked out well.

In other areas, we can share responsibilities without any problem. For example, we will both work from the same list when we adjust images, keyword, etc… This stuff we can do together without issue. We will often bounce ideas off each other or consult with each other about an image adjustment – “is this too much saturation?” that kind of thing. I think this makes us both better.

By the way, Janine doesn’t have any desire to be a photographer. That might be a good thing. I could just picture us coming across a wolverine and both racing for the telephoto at the same time!

Buffalo at sunset, Midway Geyser Basin, Yellowstone National Park, Wyoming

Buffalo at sunset, Midway Geyser Basin, Yellowstone National Park, Wyoming

We keep hearing about how the stock photography industry has been changing for the worse over the past few years due to an increase of images from digital cameras and how amateur photographers are de-valuing the art form by giving images away for pennies. Sounds like a modern-day Economics 101 case study. So what advice what you give to other photographers when it comes to getting adequate compensation for their work?

We are having our best year yet and have had a two of our largest individual sales ever, so I try not to get too wrapped up in all the industry talk. I think there have always been lots of people losing money and struggling with photography just that the Internet made it easier for them to be heard.

At one point in college back in the 80’s, I thought seriously about trying to pursue photography as an occupation. I was told back then that it was extremely competitive and very difficult to make a living as a photographer, so I didn’t do it. Today, all you hear about is how great it was back in the 80’s and 90’s!

I think a lot of people don’t want to spend the time and effort necessary on marketing, so they take the easy way out and turn to using royalty-free agencies. I think this can be a mistake. Once you create the perception that you are a source for cheap images, it can be hard to shake that reputation. Not to mention once you sell an image as royalty-free, it can’t ever be marketed in any other rights-managed model – not if you are ethical. Had I gone down that route when starting out, I wouldn’t be able to earn a living with photography today.

I’m starting to notice some backlash against the royalty-free licensing model by some of the better customers. They just don’t have time to try to find that one gem in the endless sea of royalty-free images. It is worth it for them to pay a little more and have someone who can provide the research, post potential images to a viewing platform, and provide quick service. For many buyers, time is money.

You have an interesting photo blog that is updated almost daily. Would you consider this to be a vital part of your business?

Another good question. So many people nowadays have a blog so the benefit has definitely been diluted. I have a feeling many of them will eventually go by the wayside because it is much more work than most people realize.

I don’t think it is a vital part of my business given the amount of time that I spend on it. There are probably many more vital things I could be doing but there are some search engine benefits. It is also a way to keep in touch with some of our valuable clients. A number of them have mentioned to me that they do drop by to see what we are doing from time to time. We have even made sales of images captured while traveling thanks to the blog. These are images that wouldn’t have appeared on our regular site for months. So there are some benefits.

The blog can be a time burden at times without a doubt, but I have actually found it to be fun and rewarding. I get lot of very appreciative emails. I used to spend time each day answer the same questions in emails over and over – now at least those efforts can be shared with others.

I should add that I’m a terrible writer and have never enjoyed writing before starting my blog two years ago. (I’m glad that you are helping me edit the responses 🙂 I like that blogging has forced me to work on this personal weakness.

Aerial view of Copper River Delta, Chugach National Forest, Cordova, Alaska

Aerial view of Copper River Delta, Chugach National Forest, Cordova, Alaska

Other than Seward, where would you recommend a first-time visitor to Alaska to go?

It’s hard to decide where to go because Alaska is so large but that doesn’t stop me from having an opinion.

I love Kenai Fjords National Park, so I think Seward is a must because it is practically right next door. Plus, it is about one of the easiest places to visit in Alaska.

I also recommend first time visitors to go visit Denali National Park. This will expose you to an entirely different ecosystem and will give you a nice variety of coastal rainforest, interior mountains, tundra and boreal forest.

A trip to where I grew up in the Wrangell-St Elias National Park is always rewarding, as would a bear viewing trip into Katmai National Park, or Lake Clark National Park. Alaska has 19 National Parks / Monuments and numerous State Parks, so it can be tough to choose – I haven’t even been to all the National Parks!

For an older, less mobile or adventurous visitor, you really can’t beat an Alaskan cruise. It is an easy way to see some amazing country in complete comfort.

Any photography business announcements or personal projects that you would like to tell us about?

Nothing too exciting. The last two years we have really had a heavy travel schedule that has kept us out of the office for well over 200 days each year. We may spend more time in the office this year, and address some of those things we never have time for. Having said that, we will probably take at least a short trip to the Southwest this fall, and maybe a two to three month trip this winter.

Thanks Richard.

To see more of Ron Niebrugge’s photography, visit his website: www.wildnatureimages.com

September 2, 2008 Posted by | Interviews, Photographers | , , , , | 6 Comments