May 10, 2007 by pmelcher.

Wikipedia : “Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test. It is based on free speech rights provided by the First Amendment to the United States Constitution. The term “fair use” is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.”

The Fair use law is obscene. In a nutshell, it allows anyone to steal an image under the protection of the law. Since it is vague in its limitation, it is constantly being abused by copyright infringement specialists also in favor of the the Orphan Work law. Bloggers use this Fair use law to steal and post images for free. Individuals, under the same umbrella, will upload images they do not own to Photo Sharing sites. It is a ridiculous law.
In the print world, it was not causing too much damage. What was the chances of someone ever seeing a reference paper in a highly academical thesis in some corner of a unknown university. But with the internet, it becomes everywhere. Not because everyone starts reading more PH. D. thesis, but rather because if they like the illustrations, they will just grab it and put it on their site. So one Fair use becomes multiple abuse.

Furthermore, in a country where academia is not highly regarded, the argument becomes “why do they get to use for free and not me”. And numerous non academias, under the false pretext of review or analysis, social commentary and other “free speech” are taking advantage of this law. One good example is the infamous Perezhilton.com lawsuit currently going now. Although generating revenue ( some mention multi million dollars a year) with his social commentary of stolen paparazzi images, the owner of the blog refuses to pay any license fee. Fair use, he says.
If anything, copyright protection laws should be harsher. Advocate of free sharing, especially when it is something that doesn’t belong to them, should be dramatically punished. It frightens me to read blogs of photography professionals all in favor of free music file sharing. I do not think they realize that this can, and will apply to images.

This type of mis understanding and abuse of the law will only get more widespread if nothing is done.
Fair use is unfair. A copyrighted images should be treated as a copyrighted images for all usage. And if the owner of the copyright wants to charge an extremely reduce fee , or free, for scholarship and review, than it should be up to them, not up to the writers. This would be interesting topic for the professional associations to address (APA, ASMP, NPPA, PACA, CEPIC, etc)

Posted in law | Print | No Comments »

May 9, 2007 by pmelcher.

Photography used to be about creating that one image that would sell over and over again. Film, processing, archiving, duping was expensive enough that editors would harshly cut through a shoot to find the quintessential image. As we all know, with the advent of digital, both photographers and agencies have reduced their editing efforts in order to offer more choice and also purely out of laziness. The “you never know” editing approach seems to have taken over, recently supported by the “long tail” theory popularized by author Chris Anderson ( a must read).

For those who haven’t read the book, it explains that sites like Amazon make more money on selling a lot of small amount of products than a lot of bestsellers. Therefore although they keep selling top ranking products, the real gold is having as much choice as possible. If you haven’t read the book yet, you should.

Does this apply to the photography world ? It certainly seems to be the case for microstock who have based their business model on this idea, albeit probably not conscientiously. But it certainly does not apply to editorial photography. Since editorial is a limited market both in space and time, there is little room for a tail. Most events covered are not of historical proportion and there is nothing more that looks like a George Bush head shot than another.

The interesting part is why did traditional royalty free agencies have not followed suit? After all, there is almost no time, nor market restriction for a royalty image. And can this model be applied to RM ? Since the core definition of RM is to restrict use of the same image by other, you would think that photo agencies would plunged into long tail revenues. It doesn’t seem so. Rather, they produce more of what they believe are going to be a best seller than anything. Quite contradictory.

Posted in editorial, Royalty free, Microstock | Print | 1 Comment »

May 6, 2007 by pmelcher.

I hear a lot of talk about agency size. Not about how many employees they have, or how many square feet they occupy, or even the size of their profit but rather how many images they have in their database.

Agencies, these days, are caught in a numbers race to see who has the most images. Not the best, not the most relevant, not even some useful information like how many images they had published last year, but only how many images can they stuff in their servers.

And that has become, De Facto, the new measurement of an agency. Whoever has the most images is the biggest. Volume has become a replacement for search and editing shortcoming. Here is the thought: ” If we cannot build a really good search engine, then we will put as many images as possible so that the probability of returning the right image will be higher.”

A few editorial agencies have taken the other road, licensing only a small group of photographers, but for an extremely higher price point than the crowd of photo agencies. It is like walking through a market place, where you have these stand with a huge display of different products, and that guy at the end, with the small stand but really high quality vegetables.We all shop at both, I am sure, but who makes the most money at the end of the day?

With the advent of the corporate agencies, bragging about size has been at the forefront on how people measure the wealth and overall size of a photo agency. And it is a incorrect assumption. If I have 50 million crappy images, I am not bigger, better, wealthier than the guy next to me that has only 30,000.

An interesting thought behind this “size race” is that if my search engine cannot find the right image than at least I can display a lot of image so that the editor can complete the search himself. Instead of pointing to the fruit itself, it points to the department. And even more interesting is that with the digital evolution, it has now become easier to track the life of an image and adjust the collection accordingly. But no, most people seem to buy a big server, stuff a lot of images in them and wait to see if someone will purchase. All the great back-end data that could be used to corner more thoroughly a user experience seems to be lost in the wind of change. In a way, this is exactly the reason why some image buyers see no difference between Flickr content and some professional photo agencies.
And there is of course this senseless idea that one should try and capture every sale possible, regardless of the cost. If a photo editor comes to the site, he should leave with an image. Great thought for the big 3’s because that is what they always wanted to be . But does everyone have to follow? Is it that bad if an agency doesn’t have the right images, especially if it completely out of their field ? Does that mean the same photo editor will never return? Yes, if he/she is looking for pictures of Britney Spears in a RF agency, and that is a good thing. But otherwise, they will return if their experience was an agreeable one. Mostly, that is, if they immediately see that the agency does not have the image they are looking for.
So instead of comparing the size of their servers like high school boys, agencies should rather compare their volume of transactions. It would be a much more relevant measure of the success.

Posted in transaction, editorial, Royalty free | Print | No Comments »

May 1, 2007 by pmelcher.

Those who continue to believe that volume compensates for intelligence are heading for a painful awakening. I understand that social interaction and User Generated anything is very trendy these days, especially on the West coast of America where any new idea is a Great!! idea. But this belief that there is truth in volume is a frightening concept. Social interaction is not the magic key to everything.

Some people are misreading Google’s success by wrongly interpreting that the quality of it search result is based on user ranking. it is not. It is a very complex set of algorithm where social interaction has little input on the final result
I am afraid of crowds . Crowds are, by essence, stupid. They follow trends and peer pressure. There is no originality in a crowd. If anything a crowd is very conservative and resistant to change. A crowd panics much faster than a single individual, for example, because it is much more sensitive to emotions. And there is nothing worse than letting emotions be the purveyors of truth. For those who studied philosophy, they will understand immidiatly. The others should just ponder for a while and think of how many times they made critical decisions using their emotions. Social search, social editing, social content, everything is being fed to the eyes, ears and control of the social beast.

Those who did not vote for George Bush know how much the majority is not always right. Most dictatorship start with a nicely and fairly elected representative. Because, like a Hitler, they know how to play crowds and manipulate their emotions.

People become crowds when they are ready to drop their individuality. And we would like to see those people decide which image is the best, the most relevant? and then what ? every search will reveal the same content and the same type of images? Although I do not have the relevant data, I am 100% sure that best selling products were not create based on social interaction. The best images are produced by retro feedback of user interaction either.

As much as I am client-driven and believe in listening to customers needs, as much as I cannot agree to listen to a mob of faceless anonymous clicks. So, I will watch as web 2.0 junkies continue to submit editing, search, content to the multitudes of anonymous users and continue to using professionals for my needs.

If I was to build a photo search engine, I would mimic professionals photo buyers. If I was going to build an editing tool, I would also use professionals photo editors, and if I was going to offer images, I would more then certainly use the advice of someone who knows.

Computers have the capacity to mimic the human brain. After all, they were design for this and top researchers are currently trying to replicate human intelligence. That is what needs to be integrated in editing, search and content engines. I have yet to see intelligence come out of a crowd.

Posted in web 2.0, prosumer, flickr, Microstock | Print | 2 Comments »