January 6, 2011 by pmelcher.

Right on the heels of the decision made by Judge William H. Pauley of the United States District Court of the Southern District of New York in the Morel VS AFP case ( read all about here ) , things are heating up. According to a press release published by photoarchivenews , news photo agency WENN has made a deal with photo sharing site, PIXLI.

Hold on tight here as things could get complicated. According the succinct press release : “Celebrity photo agency WENN has announced an exclusive worldwide arrangement with the social photo sharing service PLIXI, to represent images posted by celebrities through their platform to Twitter and other social networks.”

PLIXI ( ex Tweetphoto) is a TWITPIC wannabee.  That is, anyone that would like to post an image to TWITTER would have to upload it here before, as Twitter does not host images. There are many sites like these ( yfrog, twitgoo, mobypicture, or img.ly). As per their site, PLIXI is also a member of Celebuzz, a division of BUZZMEDIA ENTERTAINMENT, a deal recently sealed ( November 2010). BUZZMEDIA is in the business of Celebrity news blogs and properties ( more info here).

Still with me here? you can take a break if you would like. I’ll wait.

Ok, what is important to retain here is that they are all in the celebrity news business with a heavy  penchant for photography. Except PLIXI, who happens to host a few celebrity Twitter photo accounts.

So, if you are a celebrity and you or someone uploads an image on your account, WENN becomes de facto the exclusive worldwide licensor of those images.  As the PLIXI Terms of Service specify :

With respect to Content you submit or make available for inclusion on publicly accessible areas of Plixi, the license (with the right to sublicense) to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content, whether on the Service, or through other media. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or Plixi removes such Content from the Service; provided, however, that if Plixi distributes or authorizes distribution of any Content prior to your removal thereof from the Service, Plixi’s (and it’s sublicenses’) rights with respect to such Content shall be in perpetuity.

Yes, in perpetuity, even if you don’t like it.

There is no mention of compensation to the photographer or celebrity. However, you can be sure that Plixi will certainly retain a part of the WENN obtain license fee.

It’s a smart move for both companies. WENN secures itself intimate photo feeds of celebrities while PLIXI generates revenue and publicity. The question is whether the celebrities will continue to use the service knowing  this. It will also be interesting to see if AFP or Getty makes the same deal with TWITPIC after the Morel fiasco, enabling them to legally license images from anyone.

The irony is that Twitter, the company that makes all this possible, does not see a penny.

Ok, you can go outside now and breath.

Posted in magazine, celebrity, technology, Tweet, Social Media, copyright, license, transaction, editorial, finance, prosumer, web 2.0, getty | Print | 2 Comments »

December 29, 2010 by pmelcher.

Along with publications refusing to pay any additional licensing fees for Ipad usage, declining space rates, horrific day rates for assignments, the new trend in photography is the legal mumble jumble that now accompany  emails from researchers and photo editors looking for images.

Example ? sure :

” By agreeing to this request, you grant Microsoft a royalty-free, worldwide, non-exclusive, perpetual license to use the Image on Microsoft’s MSN, Windows Live and/or Live Search websites, and you agree Microsoft’s use will not infringe the rights of others or give rise to any third party payments.  You agree this email is our entire agreement regarding this license, and merges all prior and contemporaneous communications. ”
More and more, photo agencies and photographers are receiving emails requesting specific images along with dictatorial usage terms.

“All requested photo licenses are for **Company Name** magazine and any digital replica thereo “.  What if you do not want your images on any “digital replica”

or you could get this along with a request for invoice :

” for editorial purposes on its web site now known as ****.com  and on its affiliated online services and to promote the editorial content in which the photo(s) are used, for the life of ***** Online for a fee of $xxx per photo, for a total fee of $xxxxx.  Please indicate your approval by  sending a return email approving the license request or sending an invoice for the above usage. This email exchange constitutes our entire agreement with respect to ****’s license for the photo(s) and supersedes any other agreement, discussions or terms regarding the photo(s). ”

Does that means that even if you had a contract or previous agreement with that company with different terms, should you reply by sending an invoice, all bets are off ??  If you invoice them you are screwed since it means you agree to these new terms, if you don’t you are screwed, as you will not get paid for your images. Nice.

We could go on and on with many variations of these.

( Disclaimer:) THE FOLLOWING IS NOT LEGAL ADVICE. If you need legal advice, please contact an attorney directly. Do not go to court with my blog as it will get you nowhere, besides maybe in more trouble.

You should know that these “end of emails agreement” do not constitute a viable agreement. However, if nothing else was agreed upon in a more formal way, then it could be used as bidding terms. What does this mean ? Well, if you had not previously or afterwards agreed in a more formal way on the terms, then you should, immediately.  Have them agree to your terms.

What used to be an informal hand shake between two people or companies is now  turning into a legal tug of war between lawyer-obese companies and legally uneducated  photo agencies.

Posted in copyright, Corpocrates, license, transaction, editorial, law | Print | No Comments »

November 6, 2010 by pmelcher.

Always dreamed to be a Getty contributor but could get yourself accepted? Or did you wish your images screamed “come and purchase, this is dirt cheap ” ? Or you simply thought the Getty Images logo was so beautiful that you had to photograph it over and over ? Well, so did Getty.

Thanks to those genius in marketing,  you can now include a 3D plastic glass self-supporting Getty Images logo in all your images and thus give them your rights without even signing anywhere. In the spirit of ” we own your every images, everywhere”, they built this ugly little logo holding stand that they then decided to place in front of famous landmarks  photo motifs so that anyone could include their logo in their images. How cool is that ?

Instead of your girlfriends, kids, parents, best friends posing in front of a famous building, you can have the Getty Images logo posing.  We couldn’t think of anything more desirable than that. “look honey, I went to Berlin on vacation, visited all these famous places, euh..sorry Photo motifs, and captured them with the Getty logo in the top left of the frame !!!”

We can just imagine how the reaction of your peers will make you feel like a real, honest to G~d photographer.

“Why are you looking at me like that ?” ” Honey ? Honey ? say something..”

We have a tip for Getty Images : Why don’t you buy all famous monuments in the world and encrust your logo on them once and for all ? Not only you get credit every time someone takes a picture of it ( after all, didn’t you guys invented the Pyramids ?)  but you could charge exorbitant property releases . Why not have all your employees tattoo your logo on their foreheads ? If you dispatch them in all the happening places of the world, you can be sure no one can get an image of any event without having your freakin’ name in the frame? Why not beam your logo on the moon  a la Batman ? Is there any limit to your pathetic arrogance ?

Video here :

On a side note, the banks who own Getty images debt ( JPMorgan, GE Capital, Bank of America, Merrill Lynch and Goldman Sachs ) have lowered the interest rates due to strong investor demand. ” Getty Images, a provider of photographs and music ( ..and super cool free standing plastic logos..), plans to use the proceeds from the $1.27 billion term loan, along with a $100 million revolver, to refinance debt and fund a dividend payment to its private equity owners, Hellman & Friedman and Farallon Capital Management.”

So, if you work at Getty and do not get a bonus this year, you should rejoice yourself by knowing that the owners of the company will, however, receive dividend on your hard work. Hey, and who knows, they could even let you pose next to their super cool free standing plastic logo  and become a photo motif yourself…..

Posted in commercial stock, Corpocrates, lens, technology, No sense, copyright, getty | Print | 2 Comments »

October 27, 2010 by pmelcher.

While the French are busy protesting about how many years it will take them to retire, the French Parliament is about to also pass a law governing orphan work.

Up to now, a publication could just slap the credit “DR” ( Droits Reserves: Right reserved)  under an image and ignore any licensing fees. This worked well when those images were handouts send out by publicist for promotion. However, in the last few years, the practice has extended to any and all images where a credit was not immediately identifiable,regardless if a search for the copyright owner was done or not.

Since no legislation was in place, it became  a common practice, some using it to avoid paying for any fees at all. Not so anymore. The law will define how and when DR can be used, as well as creating an organization whose role will be to monitor and collect licensing fees to redistribute to legitimate copyright holders. It will receive the money for usage when the copyright owner cannot be immediately found and will have up to 10 years to redistribute the funds to the owner. If never found, the money will then go to help a project involved in helping photography.

The Union des Photographes Professionels, the main union of independent photographers in France is 100 % behind the bill.

This bill could be a good example for the United States to follow while it still awaits a resolution on it’s own Orphan Work legislation.

Posted in copyright, commercial stock, license, transaction, france, law | Print | No Comments »

October 20, 2010 by pmelcher.

We have been advocating the emergence of the “intelligent image” here for many years.  Images that are able to call back home to deliver pertinent data, images that can automatically find their way to the expecting viewers, images that can self edit according to viewership and a lot more.

Some aspects are already in circulation in one form or another. Companies like Fotoglif or Embedanything, for example, already allow licensors to track number of visits on a published image and eventually reap revenues from associated  advertising.

Daylife, partly owned by Getty Images, allow sites to bypass photo editors and have images edit themselves based on surrounding content.

Now, thanks to a company called Netbat ( What’s with all the horrible stupid names ?),  images can be linked to any and all relevant information, thus making them even more informative.

The process is simple. When a image is published, it is also populated with links for more information on the subject, being at Youtube, Wikipedia, or any other sources. Thus the image becomes the starting point for a relevant web-wide search on the topic.

 The company apparent business plan is to sell that search link space to advertisers so that topic/subject can be linked to a brand. Already Pepsi has signed up. Instead of advertising on random images, netBat can make sure a brand is always associated to a personality or a topic and nothing more/less. It’s not a big surprise as the parent company of netBat is in the business of selling celebrity endorsement. But that is not what is interesting here.

What is interesting here is how, once again, a company from outside the photogrpahy space, find another way to monetize images . While countless of photo agencies and independent photographers are moaning and bitching about the declining space rates/ day rates  / whatever rates being offered in the traditional licensing space, other companies are hard at work in redefining paying usage of photography.

NetBat, like Pixazza, another image monetizing company (this one partly owned by Google), has no intention of splitting revenues with image licensors. For them, once an image has been licensed by a publisher, the licensor is out of the profit sharing scheme.

Thing is, photo agencies should be the ones offering these services to their clients, not third party companies. It would make sense for a photo agency to offer a tool like NetBat that would allow visitors to go  beyond the metadata.  To transform their offering to a vast array of option that are up to pace with current and upcoming technology.

Currently, besides having painfully switched from analog to digital, none are being pro active in redefining image delivery and licensing. Some have timidly put a toe into third party initiative but none have taken a full plunged into uncharted territory.

We are not saying netBat will be a success. Actually, it is so heavy, it is doubtful it will ever be. However, the idea of helping viewers to go beyond the image is a great concept. One that fits perfectly  with the unstoppable maturing of photography into an intelligent experience that can take you places far beyond it’s current solitary confinement.

Posted in copyright, celebrity, magazine, technology, license, Search, transaction, finance, photojournalism, google, editorial | Print | 2 Comments »

October 5, 2010 by pmelcher.

It’s not there yet but it is certainly starting to look like one. The Morel Vs. AFP lawsuit has all the ingredients of a circus stage, without the tent.

Morel, if you remember, shot some images of the earthquake in Haiti, put them of Twitter/Twipics, only to see them taken by AFP to be sold world wide. Both parties are now suing each other, provoking many public debates, to which we would love to add our voice.

To be a photojournalist is to be a witness.  Those who become the best of the best and pursue a life time career in photojournalism are driven by one passion that is stronger than photography: The urge to report what they see. Photography is only a vehicle to that passion.

Thus, how can one be surprised that a photojournalist would use social media ? It is a witness tool. Jean Francois Leroy, Kriegmaster of Visa pour l’image, self-proclaim Pope of Photojournalism,  has been decrying the lack of space in magazines devoted to these images. Yet, in an interview in the BPJ, he criticizes those who use social media as a vehicle for their images, including Morel. In a nutshell, he is happy Morel got his pictures stolen by AFP. That will teach him, and others, a lesson. He probably believes that photojournalism belongs only in the pages of magazines and in his Festival. Nowhere else. How so quaintly XX th century of him. Can someone hand him a computer and show him how it works ?

While Morel pavlovian’s reaction was to, of course, share his image with the world (Not AFP) via Twitter, it was also AFP’s duty to take that image and distribute it. Let me explain: Similar to a photojournalist, a wire service intravenous gut reaction is distribute images that show a news event. As quickly as possible. Not only because of the competition, but because of the urgency of breaking news, especially in the first few hours when little or no visuals are available. AFP did not take that image out of greed ( they are partly owned by the French government and will probably never go bankrupt). They took it out of duty. They, also, had to inform the world.

Morel and AFP were build to work together. They think the same way. Except, in this instance, they had not reach any agreement and both acted on instinct.  Who was right, who is wrong?

Let’s do an experiment. Put a table full a brand new Ipads in the street with a sign next to it saying ” Free, Take one”. Sit next to the table and wait. What will happen ? People will come to the table, read the sign, see you next to the table and ask you ” Can I take one ?”.

On the Internet, because no one is visible, no one asks anymore. You take. Everybody takes. No questions asks. Regardless if you have an contact info clearly marked. It’s a free for all. Especially photography. It is one of the most used asset of the internet, yet no one thinks they should pay for it, let along ask permission.

And this is where AFP is terribly wrong : Regardless of the terms and conditions of Twitter/Twipics, they should have asked. Common Courtesy.

They should have resisted their instinct and remain human : just ask for permission.

Instead, they turn to their sharks lawyer and desperately try to make a legal case of what should be a human courtesy case. The worst is that other photographers seem to take their defense and claim proudly ” The law is above human courtesy”. That is sad.

No “terms and conditions”, whatever they are, should prevent one company, one individual to politely ask another the permission to use a photograph. Ever. No one should hide behind these “Terms and Condition” and forget the most  basic laws of human interaction.  Especially if they have a common goal : Inform the world.

Considering the financial discrepancies between the two parties, it is quite obvious that AFP will prevail in this issue. That is the way law works in the  USA ( well, the world actually). The one who throws the most money on a trial wins. Laws are made for the rich and powerful. Quite frankly, it is not that important.

What is important is the role of social media and photojournalism. Twitter has been many times labeled as  the new journalism destination for breaking news ( see the Hudson plane landing, Iran,  Michael Jackson death, etc). It has become faster than news outlet, including the wires.  The confusion comes from misinterpretation of what social media is : A end product and not a distribution platform.

Morel, and many like him, use social media as a means to inform the world.  Morel posted pictures on Twitter/Twitpic for the world to see. AFP does not beleive that Twitter/Twitpic can do that properly. They still think  that, in order for the world to see these images, they had to go on the AFP wire.

What is important here is that AFP are, like JF Leroy and others, misunderstanding the role, the reach and impact of social media. Morel lives in the present, they live in the past.

Everything else is a comedy.

Posted in magazine, copyright, technology, Tweet, Corpocrates, Social Media, license, Search, editorial, law, transaction, wire service, photojournalism, news | Print | 1 Comment »

September 21, 2010 by pmelcher.

The rule is simple : be where your customers are. Applying it is much harder.

Sure, you can have a twitter account, and Facebook, and Linkedin and all that . But is that where your customers are ? Not really. They don’t really follow you on Twitter because they don’t want to, nor do they wish to exchange personal stories with you on Facebook ( if they even know you), they log into Linkedin once every few months  to find a number and quite frankly would really appreciate if you would stop spamming them with your blast emails.

Sure, you have a website. But so does billions of other people/companies/schools/institutions/churches/ airline companies and so on. A drop in the ocean doesn’t even begin to describe where your website/blog is right now. You can make that two drops in the ocean if you have a really good SEO.

So what to do asks the wise man ? Well, there is a nifty smart why to put your images in the face of image buyers in a very subtle smart way. It’s called Image Exchange and it is brought to you by Israeli company Picscout, previously in the copyright infringement detection industry.

How does it work ? Very simple. You, the image creator, send small version of your images into their central servers where they are fingerprinted for detection. Image Buyers, on their side, download a small plug in for Firefox or Explorer ( Soon Chrome, hopefully). Every time your image is seen on any website at whatever format, a small “i” icon appears on top of it. All they have to to is click on it and they can be redirected to your website .

The huge misconception about Image Exchange is that  it only works with a Google Image search, which would be already not be too bad. But no, it works everywhere. Let’s say your friend post a link to an article that they like on Facebook. Automatically, a thumbnail of the picture on the page is rendered. Well, Image Exchange can recognize that image and tell you who the licensing right owner is.  Your images become viral and your best publicity without you doing a thing: Imagine that ! Wasn’t that one of the promises of the Internet ?

Image Exchange is somewhat free. They get paid for each recommendation that they bring to you after a certain amount of click-trough. You can purchase more, in advance, or stop whenever you want . That simple.

so, if you want your images to finally end up where your potential clients are, head on to Picscout and sign up.  You might actually see some more income without having to dump all your images into Istockphoto

Posted in license, copyright, commercial stock, Tweet, Search, photojournalism, editorial, transaction, finance, getty | Print | 5 Comments »

September 14, 2010 by pmelcher.

So, what do you do when you have a problem ? Burn everything ? Apparently , that is the new solution.

A year ago, French photographer, Jean Batiste ( sorry, couldn’t find his last name), decided that, in order to protest the harsh financial conditions some photographers face, he would burn his images. You can see the dramatic video here :

The result ? A lot of sympathetic press coverage on a slow news day and not much more. After all, if his images don’t sell, why would any care what he does with it ? Furthermore, he might have scanned all of them, making the burning of negatives ( remember those ?) barely symbolic.

He wanted to bring the attention of the French government on the fact that he was making little less than minimum wages with his pictures due to the financial mistreatment of photography. The French Government did not particularly react as they had to deal, like so many others, to a global meltdown of the economy. The financial trouble of a lonely photographer was no match to the global collapse of our banking system.So what does this Jean Batiste do ?

He is at it again. This time, he wants all photographers to join him in burning their negatives at the footsteps of a statue of Nicephore Niepce, the inventor of photography. Located in the remote town of Chalon sur Saône, somewhere in France, the event is schedule for January 11, 2011.

Surely, this is no Koran burning and it is doubtful that it will receive any of the obscene amount of coverage that we have recently seen. It is neither the self immolation of a monk, as we had dramatically witnessed during the Vietnam war. This is the tantrum of a unknown french photographer who like many of his fellow citizen cannot think of anything better than blame the government for his hard time and demand that they hold his hand.

We are aware of at least two photographers currently about to be evicted from their houses because they cannot pay their bills anymore. Do you think they are burning their hard drives in their back yard hoping Obama will notice ? No. They are hard at work trying to reinvent themselves in an extremely difficult time. Do they complain, bitch, cry, and kick. Sure.

But they certainly have no attention to walking in Washington demanding their rights to make a decent living. You know why ? Because they feel extremely fortunate to have been a living on a trade they love. Because they knew from day one of embracing this life that they would hit bumps and roadblocks.

Because they love photography too much to burn it.

Posted in license, copyright, Waste of time, No sense, finance, editorial, transaction, news | Print | No Comments »

June 13, 2010 by pmelcher.

Posted in license, copyright, commercial stock, prosumer, transaction, corbis, law, Microstock | Print | 1 Comment »

May 28, 2010 by pmelcher.

Photography, like most industries affected by a center of gravity shift to digital, has experienced more than a migration from film to data packets. One of the most fundamental shift, however,  is how the decision process moved from quality of content to cost. Let me explain:

For a long time, the key decision in purchasing a license for any photograph had been it’s quality, it’s relevance to the intended usage. Sometimes, the photograph even outperformed its intended use, it was so good.  Cost, because it was perceived as a tool of value, was not an issue. Magazines had absolutely no problem in spending a lot of money to send photographers around the world and back in order to get the best images.

In fact, a lot of the magazines’ competition was done on newsstands with whom had the best cover. It was a badge of honor.

As images became easier and cheaper to transport thanks to falling memory prices as well as more readily available and cheaper bandwidth, the prices also started to drop. The cameras, the lens, the post processing, the traveling certainly did not drop. Just the cost of getting an image form A to B. Somehow, however, the belief that digital was cheaper to produce took root and, like a bad venom, infected  the whole industry.

Getting the best photographer to the location suddenly did not become a necessity. Getting the images faster took over. The best images was replaced by the fastest. Let’s just pick a photographer that is there already and get those images in. Assignment no longer included transportation to and fro. That lasted for a while as the still high cost of technology paired with the difficult technological learning curve kept the competition to a select few. However, that did not last long. Cost of equipment as well as it’s ease of use quickly lowered, allowing more and more to enter the competition for the fastest image.

Since it is impossible to transmit an image before it is taken, the competition hit a wall where everyone found themselves at the same level, transmitting as fast. So what happened ? prices dropped. The competition, as well as the usage decision, shifted again, this time to the cheapest.

Today, this is where we are : Decisions are no longer made on the quality of content but on its cost. It really doesn’t matter if your the next Cartier-Bresson, if you are too expensive, you won’t get published. If the photo budget is already spend on two or three subscriptions to photo agencies and your images are not part of the “feed”, forget it. You might as well go fishing. They will like your images, they just won’t use them.

What magazine readership do not see, is that they are paying to read publications that do not show them the best pictures but rather the cheapest. It is a very deceptive procedure. Don’t magazine attract your attention by the promise of delivering what they consider the best ?  Yet, as far as photography is concerned, they don’t. The rule has become to fit the image purchasing process within a pre-established budget. No longer do editors beleive that great images can boost readership. Instead, they beleive cheaper images will save them from oblivion.

How long would you continue to go to your favorite restaurant once you knew that they didn’t even try to purchase better product but just the cheapest ? This reminds us of those houses build with cheap dry wall imported from China that eventually made everyone badly sick. Sure, they were cheaper, and yes, cheap photography is not bad for your health. At least, not that we know of.

Photographs have a better chance to be published these days if they are cheap, not if they are good.

It is sad. Sad because there a great images being shot everyday that will never, never be seen because of this dictatorship of the wallet. Sad, because readers are being lied to by this money censorship. Sad because it is helping no one.

As magazine or website publishers continue to think in terms of broadcasting (One to many), our world is changing to social (many to many). Consumers are quickly evolving from passive participants to active contributors. As this migration is deepening, more will search for their own sources of photography that they will in turn grab and share. They will start invading the publishing world with images that they like rather than those that are being force fed to them by penny-pincher corpocrates. They will deconstruct and break the barriers of the conglomerate publishing world in order to resubmit their own vision of the world. It is already going in the world of text journalism, it will not be long before photography gets swept in.

It is no longer a viable proposition to beleive that image consumers will continue to just passively absorb cheap content. The barriers  that kept the suppliers of images invisible to the readers  have fallen, permitting them, for the first time in the history of photography, an unprecedented access to the source. They can now see where publications get their content from and make their own decisions. Ironically, as publications divert more and more what they use to the cheapest, the rest of the production become more and more visible, making their money censorship more obvious.

Obviously,  this uncomfortable situation is not going to last long. Photographers and photo agencies will soon be forced into finding lucrative ways to supply their images directly to the readers, by-passing those publishers who have refused to use them for monetary reasons. Some already do.

There is another revolution lurking here and once again, the photography world will never be the same.

Posted in copyright, license, multimedia, celebrity, magazine, E Reader, technology, newspaper, web 2.0, transaction, editorial, news, finance, wire service, prosumer, photojournalism, getty | Print | 1 Comment »