Oh, The Places You Won’t Go (as a photographer)


Screen-Shot-2013-11-08-at-9.13.41-PM

If you’ve read some of my past posts on licensing and copyright, you know I try to spread the gospel on why copyright is so important. You might remember my debacle with a contractor working for Applebee’s who wanted my images for free. So you can imagine my chagrin when I come across photographers who are giving their work away. It not only hurts them but it hurts other photographers.

Take a look at the screen grab above. Notice the line that reads “we will provide copyright free photos”. I really don’t think they understand the concept. Let’s review. When anyone takes a picture, be they a professional or not, they have created a unique work of art and the copyright remains with them. Copyright means just what it says: the right to copy. You decide who has what right to your work. By giving away your work, you are leaving money on the table and allowing someone to do whatever they want with your work.

Wedding photographers have long made a living by up-selling. Let’s say they charge $2,500 for a wedding which includes a few prints and maybe an album. If the couple or their families want prints or additional albums, that’s an extra charge. This is a form of licensing. The photographer is saying, you have the right to the prints and album I promised you, but if you want more products you may not print them yourself which would deny me income. You must pay more for more copies of my work.

The classic example I give is of the Harry Potter books. When Hollywood made the movies based on the books, do you think they did so without asking J.K. Rowling? I live in Orlando, home of theme parks like Universal which has a section dedicated to the boy wizard. In 2011, The Wizarding World of Harry Potter boosted the theme park’s revenue by 8.2% to $393 million. There are plans to expand the park next year. Do you think Ms. Rowling just gave away the rights to her work? Every toy wand, Halloween costume, DVD sale, etc. means more money in her pockets. That is the power of licensing and copyright. Imagine if she had given away her copyright and companies made millions of dollars from her work and did not have to give her a single dime!

Notice also, in the example above, how they are willing to undercut another photographer who might charge less. This is another sign of unprofessionalism. Only you can know what your business costs are. How much does it cost to keep the lights on and feed your family? That varies from person to person. If you charge less than normal, you are in essence making less than what it takes to pay your bills. How can you expect your business to survive? Read my post on figuring out what to charge.

website screengrab

Here is another photographer who is giving away his copyright. Let’s take the last example of “Shoot the Band”. OK, I’m in a band and hire him to take our photograph for some promotional items. It goes on our website and flyers we post around town. The marketing attracts people to our concerts which means more money for us. We release a CD and use the images on the cover. That’s more revenue for us and none for him. Let’s say we make it big and sign a big record contract. We use the images on the new CD. The pictures are used in Rolling Stone magazine (which makes money from subscriptions and news stands). Again, money for us, money for the magazine and NOTHING for the photographer.

Are you familiar with the album cover of Maroon 5’s “Hands All Over”? Here’s the story: a 19-year old took that picture. The band’s management found it on Flickr and contacted her. They did a reshoot based on the photo and viola! She’s gone on to do major shoots for clients like Elle. But let’s say it had worked out a little differently. Let’s pretend she took that photo for a little-known band called Maroon 5. The band makes it big and uses the photo on an album cover that sells millions of copies. If she had given away her copyright, she would not be entitled to any further compensation.

Remember, when you download a song, buy a DVD or book you don’t own that work. You are purchasing a license for personal use. If you want to profit from it; like using a song in a YouTube video, charging people to watch a movie or making a film based on a book, you have to pay the artist.

Look, it comes down to getting paid for your work. You go to work Monday through Friday, 9-to-5 and you get a paycheck. That’s fair, right? So why would a photographer not want to get paid for their work? The more money someone makes from your work, the more you can charge.  You are not only leaving money on the table but you are degrading the industry. Clients like Applebee’s will expect “free” photos. Perhaps you heard about how the National Association of Realtors asked renowned blogger and educator David Hobby for free photos. It cheapens photos and trains the general public to devalue the work. I can’t tell you how many times a client has asked or argued over why they can’t use my photos for whatever purpose they want. They say “well the other photographer just gave me all the images on a disk and let me do whatever I want with them”. That is the difference between a pro and an amateur. A pro knows that being a professional photographer isn’t just about taking pictures. It’s a business and you have to know about pricing, licensing, copyright, insurance, taxes, marketing, etc.

When you shoot for a client you have to specify how they can use the images. Can they post it on social media? Can they take it to Walgreens to make prints? Is it personal use or will they profit from the work?

Protect your copyright. It’s worth something.

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Will Applebee’s Let Me Eat for Free?


Bobby Blackmon

In 2011 I attended an outdoor concert and took a few pictures of the band.

The other day I was contacted by a company called Gate 3 Design. They are designing the interior of a new Applebee’s restaurant. The contact person wants to use three of my images, including the one above, she found on Flickr for a digitally printed mural. Here’s a quote from the email:

The murals are compiled of digital images that represent the community from festivals, landmarks, events, sports, etc.

When I asked which images and what size/resolution so I could determine a license fee, she said:

We are not asking to license the image (you may retain all licensing/rights to your photos). We are requesting a one-time use. We are happy to display a photo credit with your name and website alongside any images that are selected for the final design. If you agree, please sign and return the attached photo release form granting us permission.

Uh, let me get this straight: Applebee’s wants to use my images for commercial use but is not willing to pay for them? How about I go to Applebee’s and instead of paying for the food I give them “credit” by telling my friends how great they are or maybe wearing an Applebee’s T-Shirt?

Look, I get it. It seems nice on the face of it. “Hey, let’s get pictures of the community taken by members of the community! When they come hang out at the local Applebee’s they can see pictures taken by their friends and neighbors! Cool, right?”

It’s this kind of behavior that has degraded the photography profession. People think pictures are free. Anyone with a cellphone can snap a picture. But if that picture has value to someone or a company, shouldn’t you be paid for it? It’s no different than an art buyer buying a painting for their home. Or if you go to Target or Wal Mart and buy a poster to hang on your wall. If you want the art, you have to pay for it. It has value.

The “one-time” use is a permanent or semi-permanent display of my work no matter how many times it is used. That release form, by the way, states that my photo may be used “incidentally” if a picture of the interior of the restaurant happens to show my images in the shot. Great, so my images could be used to market the ambiance of the business, which is a factor in drawing in patrons; but Applebee’s cannot afford to pay a dime.

I’m not sure if Applebee’s is to blame here or the company they hired to do the design. But that’s no excuse for a corporation not to ask where the images are coming from and it is certainly deplorable that Gate 3 wants to use images without paying for them. They “favorited” my images they want to use so I assume the other images in their “favorites” are also ones they want to use. You can see them here: http://www.flickr.com/photos/23746554@N04/favorites/. It’s clear they didn’t choose crappy cell phone pictures but rather quality images taken by people with skill.

Credit is nice, but it doesn’t pay my bills. Even if you are not a professional photographer, if you have something of value that someone wants, wouldn’t you expect something in return?

Misappropriation of Photography Credit


Take a look at this picture:

Erica Shain of Two Becomes One

I took that picture last October for Central Florida Lifestyle Magazine.  The story, with a different picture, ran in an article a few months later:

Article in Central Florida Lifestyle Magazine

click for larger image

A month or so ago, the editor contacted me and wanted additional photos from the shoot. I sent her the picture above (the first one).  Well, on Tuesday I noticed the magazine’s Facebook profile picture was from one of their edition’s cover*:

Cover of Central Florida Lifestyle Magazine

Look familiar? It’s the same picture I took, only the subject has been cut out and placed on a different background. At first, I was excited to see one of my pictures on the cover. But my heart sank when I saw the photo credit was given to another photographer. I contacted the editor and the Facebook image was corrected immediately; but the printed issue went out with the other photographer’s name. Apparently the other photographer took the image of the background. The editor said she would print a correction in the next issue.

On the same day, she asked if I wanted to take on another assignment. Here’s where I need your opinion. My gut says “no”. I’m still a little hurt and peeved by the mistake. A tiny correction inside the magazine which most people won’t read or care about does not compare to the COVER of a magazine which another photographer got credit for.  So, right now, I’m inclined to not take any more assignments from them. What do you think? Should I burn that bridge? Or am I overreacting? I understand it was an honest mistake (read below), but it deprived me of a lot of exposure.

I should note that I don’t get paid, per say, for the assignments. Each hour is worth a certain amount of ad space in the magazine.

I’d love to hear your thoughts….

*the magazine has several editions targeting different areas in Central Florida. Each edition is very similar but has a different cover image. So I understand how the mistake was made. They just replace the image and the accompanying headline, but leave everything else, including the photographer’s credit, the same.

Tips for Writing Licenses and Contracts for Photography


Pen and legal forms

I’ve said it before and I’ll say it again: If you want to make money from photography, you need to have a contract and a license signed by you and the client. A contract is just an agreement between you and a client that specifies the scope and nature of your work. A license is the document that grants a client certain rights to use your image(s). I’ve seen some wedding contracts, for example, that include a model release and specifies what the bride and groom can and can’t do with the images. So in essence it’s a contract, model release and license all in one.

Now, I’m no lawyer. That means two things; I can’t give  you legal advice. Second, it means writing and reading contracts and licenses give me a headache. I’m a college educated person, but sometimes I have to re-read a statement several times and sometimes I still don’t know what it says! If you think about it, writing “and” instead of “or” can have serious implications in a legal document.

So my first solution was to buy “Business and Legal Forms for Photographers” by Tad Crawford. The book comes with boiler-plate templates on a CD-ROM in various formats that you can use. The book walks you through what each line means and covers everything from model releases to wedding contracts and more.

Then I read something on the American Society of Media Photographers (ASMP) blog, “Strictly Business“.  In it, Judy Hermann writes,

 “Licenses don’t have to be complicated.  They don’t need to include a lot of wherefore’s, whereby’s or other legalese.   What they need to do is to outline – clearly, simply and in plain English – what the client can and can’t do with your images.”

She goes on to say that licenses can be written in list form. That got me thinking. I’m now in the process of writing up a contract in plain english. It’s not that easy though. I’m referring to the legalese in the book as well as the ASMP web site and translating it into plain english. In the end, I think this helps both parties. Would you want to give a bride a 2-to-3 page legal paper to sign? Seems a little intimidating, I think.

So my advice is to talk to your client and find out what their needs are. Then incorporate that into the contract. The  contract I’m writing now, for example, really only has three core principles. First, granting limited use to the client. Second, protecting my copyright and by extension; Third, not allowing them to give my images to anyone else.

If you’re serious about making money from photography you’ve got to learn about releases, contracts and licenses. Fortunately, the ASMP site is full of free information. On the homepage click on “Business Resources” then “Tutorials and Forms“. There you’ll find info on copyright, releases, an example of a bad contract and a terms and conditions example that you can include in your contracts.

Three Ways Photographers Can See Who’s Using Their Images


Computer and Magnifying Glass

If you publish images on the Web then you might wonder if someone is using them without your permission and violating your copyright. There are three services that will search the World Wide Web and let you know where it finds your images.

The first is TinEye.  It’s a reverse image search engine that uses “image identification technology rather than keywords [or] metadata” to find your image. It’s free to use for non-commercial uses. It’s pretty easy to use; just upload an image or enter an image URL and hit search. I entered a URL of one of my images on Flickr. The site came back with a few of my Flickr images and had me select the correct one. It then searched 1.6 billion images looking for a match. It didn’t find one and the site says it may be because it hasn’t crawled the site where it appears yet.

The second service is ImageRights. They’ll search 80 million web pages a month looking for your image even if (according to the site) it’s been cropped, altered or embedded in another image. Then, they’ll help you recover settlement fees. How much you get depends on a tiered system. You can sign up for a free account and get half of all fees recovered.  For $295 a year you’ll get 60% of the fees; and for $595 a year, you’ll get 65%. When you consider that statutory damages can be 150-to-200 thousand dollars, plus actual damages and attorney fees, you could be looking at a nice chunk of change. They’ll even register your copyright for you. Personally, I say register yor images yourself. It’s $35 for as many as you can upload in an hour and it doesn’t take that long.

The third service is Digimarc. For $49 a year, Digimarc will add a digital watermark to your image. This “fingerprint” identifies your image and communicates the copyright info. The “Pro” version is $99 and includes twice as many (2000 vs. 1000) images.

Of course these are only helpful if you register your copyright to begin with. Yes, you own the copyright the moment you took the picture; and yes, you have recourses to make the infringer stop using your image. But if they don’t/won’t and you want to take legal action, your case will be much stronger with that certificate that comes from the Library of Congress.

This post was inspired by a fellow photographer whos work I admire and follow on Facebook. She posted that one of her images was being used without permission for the second time in a month. She did not register the copyright. Judging by the comments most people thought A.) that watermarking your image would be enough and B.) That registering your copyright was expensive. To learn why both those comments are false, read my past blogs on the topics:

Ironclad Protection For Your Images At Rock Bottom Prices!

Failure to Register Copyright Cost Photographer $201,550.

Best Use of Watermark in a Photograph

I’ve also heard that professional organizations like American Society of Media Photographers and Professional Photographers of America can help members if their copyright has been infringed.

Aside from testing TinEye, I have not used the services I mentioned here; so take it as a suggestion only. I’d love to know your experience with any of the services or if there are others you know of.

Best Use of Watermark in a Photograph


watermark

If you’ve read my blog in the past then you probably know how I feel about watermarks. If you haven’t this past blog post explains why a registered copyright is really the only protection you have against someone stealing your image. Scroll down for the part about watermarking.

Bottom line is that I think it’s distracting and detracts from the image. You don’t want the viewer’s eye wandering around your image. They should focus on the subject. Moreover, any 12 year old with decent Photoshop skills can remove your watermark. Finally, as stated earlier, your watermark doesn’t mean squat in a court of law. These sentiments were reinforced to me recently in an episode of D-Town TV with Scott Kelby and Matt Kloskowski. In the epsiode, they go over how to easily add a watermark in Adobe’s Lightroom 3.0. Fastforward to about 4:45 and Scott, with tounge in cheek, explains why he wants someone to steal his image.

Recently, however, I ran across one photographer who makes clever use of his watermarks. Zack Arias is an Atlanta based photographer. He is pretty well known across the country, not just for his work, but for his willingness to teach others.

Check out this post  on his blog and see if you can spot the word “usedfilm” in the images. (While you’re there, get schooled on some lighting.)

Then check out this post. Again, look for the “usedfilm” watermark.  Now look at the second to last picture; the one with the band standing in a field. See the bird in the sky? Watermark.  You can see it again in the last image on the guitar case.

I think this is a very subtle and creative use of a watermark. Sometimes it’s obvious, sometimes it’s not. It’s not always in the same place and it blends in nicely…you have to look for it! If you saw only one of those images, you might think that the words were really on the guitar case or guitar strap. It’s also not placed somewhere where it can be cropped out without losing an important part of the image.

So as much as I don’t like watermarks, this takes the cake for the best use of one.

Failure to Register Copyright Cost Photographer $201,550.


gavel on top of laptop

Not to beat a dead horse but…my post on copyright didn’t get many reads. As I said, I know it’s not a sexy topic. But who couldn’t use an extra 2-hundred grand? And that’s just part of what one photographer could have won in his copyright lawsuit.

I’ll link to the article at the end; be warned, it’s got some legal speak. Here’s the breakdown: A painter works from photographs to make his paintings. Another artists allegedly takes one of those photographs without permission and makes a painting from it; in essence, a copy. That artist dies but his wife puts the painting for sale on a web site. The first artist (the one who took the picture) sues and wins $201,550 in “actual damages”. Because he did not register the copyright in a timely manner, he had to prove “actual damages” and was not eligible for “statutory damages” which could have been much more. In the end, a court found he had not proven “actual damages”, which is hard to prove, and threw out the award.

Here’s the article:

http://copyrightlitigation.blogspot.com/2010/03/4th-circuit-fine-art-paintings-from.html