March 1, 2011 by pmelcher.

The fire has been put out, at least for now. According to an article on the BJP, maitre Gorrias has clearly said he will not destroy the images that are now under his control.

It  still remains very important that those photographers who suspect they have images in the Sygma archives ( and who have not signed an agreement with Corbis) to reach Maitre Gorrias and ask for them to be returned.

Maître Stéphane Gorrias

SCP BTSG

1 place Boieldieu

75002 Paris – France

Posted in finance, france, law, corbis | Print | 2 Comments »

February 25, 2011 by pmelcher.

In an interview given to the french blog A l’Oeil, the court appointed administrator of the defunct Corbis Sygma , the french company set up by Corbis after its acquisition of Sygma, declared that he is about to destroy millions of Sygma’s photographs.

You might remember that Corbis, during its heavy acquisition years, purchased the legendary French news photo agency Sygma for about $20 million in the hope that it would give them the reportage-news cachet it was missing so much. After strikes, mismanagement, business bloopers and other incongruity, Corbis forfeited this summer and declared total bankruptcy. They used the pretext of a lost lawsuit by a french photographer as the reason and very quickly closed everything.

You might also remember that they had open an archive facility amidst the cows of Normandy, similar to the underground facility they have in Pennsylvania . All the negatives and originals were transferred there to preserve them for eternity.

Well, apparently, eternity is now partly over.

Maitre Gorrias, legal administrator of the defunct Corbis Sygma and in charge of its dismantlement,   announced on February 8 that after a failed attempt to sell the images at auction he will destroy them. Yes, you read well : destroy.

What are we taking about ? According to Dan Perlet « Global Director of Communications of Corbis » : The Preservation and Access site  contains approximately 50 million photographic elements which about 75% are under the control of Corbis Corporation (photographers who signed a contract with Corbis Corporation) and 25% of photographic elements remaining under the control of liquidator (photographers without a signed contract with Corbis Corporation and is represented by Sygma). We have no precise figures on the number of photographers. “

The images about to be destroyed are the last 25%.  That is 12 million images !

Maitre Gorrias apparently doesn’t have any issue in returning those images to the photographers who took them. However, he doesn’t have the resources to try to find them.

Thus, if you or someone you know might have images in the Sygma archive, please urgently contact :

Maître Stéphane Gorrias SCP BTSG 1 place Boieldieu 75002 Paris – France

and tell him you would like your images back.

More on this story on the excellent french photography blog written by Michel Puech , A ‘L’oeil ( In French)

Posted in photojournalism, license, copyright, transaction, editorial, corbis, law, france, Uncategorized | Print | No 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 »

October 28, 2010 by pmelcher.

Seems like all the news is coming from France these days. You would think they were all out in the streets protesting against having to work two more years, O but no, they are actually busy. Well Getty Images is busy.

Via a grandiloquent press release, they have just announced the distribution of the Gamma - Keystone collection for the whole world, besides France. For those of you who were not paying attention, Gamma Rapho Keystone used to be called Eyedea no longer than a year ago before sinking into bankruptcy. After weeks, months of negotiation, the discovery of a trust fund, alliance and dis-alliances, the liquidators managed to find a buyer in the  person of  Mr Lochon. Ex-photographer from Gamma in the 80’s, Lochon used his personal money to buy the company with the promise he would resuscitate it from the dead.  His plan ? Well, give it to Getty Image. As if Getty needed more content to distribute.

It’s a great deal for Getty. They didn’t have to buy anything thus no risks of being investigated for monopoly . They don’t have to scan, edit, or deal whatsoever with cranky mostly french photographers. Just sell the images and keep a cut . If they don’t sell anything, well, they don’t care, they haven’t spend a dime. For Lochon and Gamma - Keystone ? Well, not so good. Getty already has the Hutlon-Deutch archives ( some 80 million  images) as well as  what is left of Archive Images; Both trump Keystone historical content in size and content. Gamma’s content ? Well, it all depends on what gets scanned and how well.

The reason this deal went through ? Probably because Getty was to only one to ask. It is doubtful that AP or Reuters even approached Gamma Rapho . Corbis, freshly out the of dubious bankruptcy of Sygma, will probably never deal with anything French for centuries to come. What happens next? Little to nothing. Getty is now apparently in an aggressive strategy to represent as much content as possible, if only to take it out of its competition hands.

On a related note, the director of the French office of Getty Images continues in the tradition of making false statements when he proudly announces that Getty was the first agency to license an image online in 1995 . He’s got a good excuse, he wasn’t at Getty at the time so he’s just repeating what his corporate communicator told him to say. Finally, the real amusing part is that his portrait used to illustrate the article is credited “DR“. At least there is one constant : Corpocrates will remain corpocrates.

Posted in transaction, photojournalism, Corpocrates, editorial, france, corbis, law, 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 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 12, 2010 by pmelcher.

Just when you thought it was safe to go outside and shoot again, a new threat has appeared. Under what seems like a very benign press release lies another attempt from Getty to turn the photography world into it’s own private playground.

This is the press release :

“Getty Images, Inc., has signed a multi-year agreement with McClatchy-Tribune Information Services (MCT) to license its award-winning editorial imagery from their network of McClatchy and Tribune papers. From today, the strategic relationship will provide customers around the world with access to imagery captured by one of the most-respected news conglomerates, McClatchy-Tribune Information Services, and enables Getty Images to offer the most comprehensive editorial imagery for U.S. and world news, entertainment, sports, business and lifestyle.“

Seems like another one of these distribution agreements that Getty already has with a thousand plus companies and it is. Until you know what was the motivation behind this deal :

McClatchy and Tribune papers own 30 daily newspapers in 29 U.S. markets.. These local newspapers like to cover local news. Among the local news are, of course, local sports teams. At first, Getty images, owner of mutli deals with sport leagues like the NBA ( BasketBall), MLB ( Baseball), USGA ( Golf ), USTA ( Tennis) , NHL (Ice Hockey), and so on, tried to get  “local” photographers out of the games. After all, in Getty’s perspective, they are the official photographers for these sports and thus should be exclusive.

Especially since McClatchy  newspaper then licensed those images via MCT to other newspapers and via agencies to the whole world.

That didn’t work. You cannot prevent local newspapers to cover local sports . Just imagine if the Chicago Tribune would not be allowed to cover a Bulls game ? or a White Sox game ? The whole foundation of US democracy would have been in shamble.

So what did Getty do? They went to McClatchy and said, let us do your distribution of images. Why ? so we can grab your sports images and add them to our own coverage, or sit on them, thus making us practically exclusive on all these sports game. Except for AP and Reuters who have yet to understand against who they are fighting.

Sports photography is big business and shows no sign of slowing down. Getty images is on the path to controlling every image that you will see coming out of a US sports competition, and everything around it. ( remember, Tiger Woods first public appearance ?)

This is not about fair competition anymore, where the best image wins, this is becoming a real monopoly. Heard that, Justice department ?

Posted in newspaper, license, magazine, finance, editorial, news, law, getty | Print | No Comments »

July 8, 2010 by pmelcher.

 Breaking news: Getty backs off the Rex Features deal..

See Getty’s internal email:

From: Nick Evans-Lombe, Chief Operating Officer and Adrian Murrell, SVP Global Editorial

Hello,

As you know, in April we announced our intention to purchase Rex Features. We decided to voluntarily go to the Office of Fair Trading in the UK for them to review this acquisition, and today they have released their findings. Their decision is that the deal should be referred to the Competition Commission and, as such, we shall not be pursuing this acquisition any further.

Below you can find the statement we are giving reactively, to this news:

“We are disappointed that our proposed acquisition of Rex Features has been referred to the Competition Commission and we respectfully disagree with the preliminary concerns expressed by the Office of Fair Trading. Given the distraction that this next phase could potentially bring to both Getty Images and Rex Features, and the parties’ desire to focus their business resources on the production and delivery of high quality services to their customers, we have decided not to pursue this acquisition any further. We still believe Rex Features to be a strong and valuable business and we wish the Rex Features team the very best in the future.”

Also attached is an FAQ document outlining some potential Q&A’s that may be helpful, particularly to sales, who may get asked about this decision/news. This document is confidential and is not for external distribution.

Any further questions, please do not hesitate to contact Adrian or myself. Should you or your team receive any questions from media, please refer them immediately to Alison Crombie.

Regards,

Nick Evans-Lombe & Adrian Murrell

—————————— This was written prior to the email above —————————————————

Apparently the swallowing of Rex features by Getty Images is not going so smoothly. The Office of Fair Trading in the UK has issued a press release ( see Below) stating that it will review its position on the acquisition and decide if it can move forward. The verdict will come at the end of this year, in December.

This is not good news, either for Getty or Rex Features. Rex finds itself as a sitting duck, unable to invest or retreat as it has to wait in position for the final verdict. In an economy that shifts brutally, that is not a good position to be in. The longer this drags, the longer it gives suppliers, which Rex highly depends on, to move somewhere else, as the future of Rex is uncertain.

For Getty, this is the first time that they are seriously starting to feel the Monopoly barrier. It is expected, that after purchasing so many of its competitor, that Getty, one day, will be denied any new acquisition by government eager to protect a fair market. Maybe this will be the first time. And if it is, this will certainly be a precedent for all other countries investigating Getty for monopolistic attributes.

Finally, for both, this will certainly mean a huge distraction, full of lawyers, filings, paperwork and money being spend in trying to convince the Office .

What is particularly interesting is that customers are complaining about the merger more than other competitor. Getty’s dream of becoming the absolute one stop shop of photography in order to better serve image buyers might also be hitting a brick wall of discontent. Well it is certainly helpful to find all of your images needs in one location, the fear of monopolistic pressure in price, and offering, is becoming stronger .

This is certainly not good news either for Hellman & Friedman, the private equity firm that purchased Getty images for $2Billion a few years . ago. As they always do, they had purchased  Getty in order to sale it later. If the company becomes branded as a pre monopolistic  business than no one will want to even want to remotely approach it.

OFT refers Getty/Rex merger to the Competition Commission

The OFT today referred the anticipated acquisition by Getty Images, Inc. of Rex Features Limited to the Competition Commission for further investigation.

Getty and Rex are two of the largest suppliers of photographic images for editorial use by publications in the UK. Getty has significant strength in the supply of both archive and current entertainment-related editorial images. The OFT is concerned that, if the merger is allowed to go ahead, the loss of Rex as an independent competitor could enable Getty to increase prices for customers.

During its investigation, the OFT heard a significant number of concerns from third parties, which supported the view that the profiles and extensive image archives of Getty and Rex mean they are close competitors.

The OFT considered carefully whether there would be sufficient constraint on Getty from existing agencies and/or new entrants into the market. However, the evidence available on this was inconclusive, and therefore there remains a realistic prospect of a substantial lessening of competition.

Amelia Fletcher, OFT Senior Director of Mergers, said:

‘This merger would bring together two of the largest and closest competitors for the supply of archive and entertainment images within the UK. A number of publishers, the key customers in this market, are concerned about the potential impact of the acquisition.

‘Some of the information available to the OFT in this case was patchy and inconsistent. We have not been able to rule out competition concerns on the basis of this evidence, and so the right course of action is to refer the merger for a fuller investigation by the Competition Commission.’

The Competition Commission is expected to report by 23 December 2010.

NOTES

1. The Reference Test - The OFT has a duty to make a reference to the Competition Commission if the OFT believes that it is or may be the case that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
2. Under the Enterprise Act 2002 a relevant merger situation is created if two or more enterprises have ceased to be distinct enterprises; and the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £70 million; or as a result of the transaction, in relation to the supply of goods or services of any description, a 25 per cent share of supply in the UK (or a substantial part thereof) is created or enhanced.
3. The Competition Commission may extend the 24 week period within which it is required to publish its report by no more than eight weeks if it considers that there are special reasons why the report cannot be published within that period.
4. The text of these decisions will be placed on the Office of Fair Trading’s web site at www.oft.gov.uk  as soon as is reasonably practicable.

Posted in finance, license, celebrity, commercial stock, transaction, editorial, Royalty free, getty, law, Microstock | Print | 1 Comment »

July 6, 2010 by pmelcher.

So, the French minister of Culture ( at least they have one) descends to the Arles photo festival like a conqueror and announces, probably very proud of himself, that he and his photo committee he created a while back,  will create a photo portal. A French one, in three languages ( French , English and ???).

70,000 images are supposed to be made available to the public and amateur thanks to this portal. Nothing is said about what photography, from where, edited by whom, for what purpose ? Just 70,000 images; Et Voila. Packs his stuff into his limo and goes back to take a early afternoon nap in his hot office in Paris.

And we are left to wonder: From the country that has laws banning street photography, from the country that has created  social laws responsible for the death and suffering of many photo agencies and their photographers, from the country that has banned citizen photojournalism, that is all they could come out with ?

If they really wanted to help photography, the French government would do a few things : Repel the law that forces everyone to blur faces of people in public spaces, repel the law that makes illegal to photograph a news item if you are not a professional, repel the law that makes photo agencies responsible for more than 75% of free lancer contribution to social security. This is what is killing photography in France, not the lack of a “tri langual pro/amateur photo” portal.

If they really wanted to save photography, wouldn’t they help photography live and breath instead of creating a useless on line museum that will cost millions and sit unused. France already has one huge portal of photography for professional called PixPalace. Why create a state sponsored competition ?

Why don’t they rather make an institution that gives out grants and supports young ( and not so young photographers) in their projects? Why don’t they reward websites or print magazine for their usage of photography? Why don’t they create incentives instead of museums ?

There might be a long time before this online photo portal ever sees the day of light since everything take a long time in France ( years, decades). It is just so very frustrating  to see a minister who made a movie about the Rapho agency, who contains such great  photographers as Robert Doisneau, Édouard Boubat, Denis Brihat, Jean Dieuzaide, Bill Brandt, Izis, André Kertész, Yousuf Karsh, Jacques Henri Lartigue, Janine Niépce, Willy Ronis, Emile Savitry, and Sabine Weiss, continue to support a law that would have made these photographer unable to practice their trade.

Furthermore, in a society that is about to ban the wearing of Burqa’s because it hides women’s face, it is quite ironic that they force publications to hide the face of people in photographs.

I have an idea : Let’s go on strike.

more , in French

Posted in Search, celebrity, magazine, technology, No sense, photojournalism, france, editorial, filter, law | Print | 1 Comment »

July 5, 2010 by pmelcher.

There is more than oil spreading in the Gulf of Mexico. There is also a veil of secrecy slowly being pulled upon the effects of the spill. In the pure tradition of “If you can’t see it, it doesn’t exist”, more and more rules and regulations are being implemented in order to block photographers .

“According to a news release from the Unified Command, violation of the “safety zone” rules can result in a civil penalty of up to $40,000, and could be classified as a Class D felony. Because booms are often placed more than 40 feet on the outside of islands or marsh grasses, the 65-foot rule could make it difficult to photograph and document the impacts of oil on land and wildlife, media representatives said. ”

This rule, made by the Coast Guard, not BP, comes on top of an already existing rule that  no media flights could go below 3,000 feet, due to restrictions from the Federal Aviation Administration.

Those restrictions are all to the honor of photography and it’s power. They are instituted out of fear of the impact that photography has on the collective mass. The same way as the Bush administration had banned any images of US soldiers coffin, or the Sri Lanka government had succesfully blocked any images of the war on the Tamils, this administration has no problem putting limits on what and how events can be photographed.

If you thought that the long awaited emergence of citizen photojournalism would come to the rescue, think again. Out of hundreds of images posted on Flickr, all are from GreenPeace or Nasa. None from the common man. As if the problem did not exist.

Photojournalists, more and more, are forced to break the law in order to get the right images. Not only their standard of living has plummeted, making it harder to be motivated, but they are now faced with either jail time or extremely steep fines. There is a war being waged against photojournalism at a time it is already at its weakest. If the forces of photo censorship succeed, our world will become we can forget about democracy. We might not understand it fully, but these are our eyes that they are trying to cover. It is a our ability to make a sound judgment that is threatened forever.

If photojournalists around the world are being blocked from taking pictures it’s because they are annoying.  They are revealing aspects of our lives that others do not want you to see. They  pull the curtains and denounce. If they are more and more being denied access, it’s because their images can do a lot of damages to an otherwise well kept lie.

There should be thousands and millions of images of the BP oil spill in the Gulf. Every American should go and take pictures of the situation. Post them all on Flickr or other places for everyone to see. A giant visual against BP, against blocking photographers and finally against a way of life that is killing us all.

No one should be allowed, ever, to restrict the work of photojournalists. There should be a fine for people preventing photojournalists to do their work and their safety and well being should be guaranteed by law.  They should have the same rights, and protection, as any other civil servant of any well balanced democracy. Instead of being restricted, they should be given extended special privileged access to news events.

They say the tree that falls in the forest where no one hears it makes no noise. Could we say the same about events happening away from cameras? soon?

Posted in web 2.0, magazine, lens, flickr, photojournalism, law, editorial, news | Print | No Comments »