Running for cover

August 22, 2008 by pmelcher.

I am no friend of fair use.  “Fair Use is a USA law that provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test.  In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantially of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.”

This law does not even require that someone get a permission from the author or, at least,  informed them of such usage. Guess common courtesy does not exist in US copyright laws. Obviously, “non- licensed” means free. Fortunately, most people do not abuse this law that is widely open to interpretation.
This law has been in existence for a long time and is to me, much more damaging then the potentially upcoming Orphan Work Bill. After all, in this case, one knows the copyright owner but is still allow to use his/her work for free and without having to be polite about it.
Created to help scholar use reference work without going bankrupt, it has become the principle doorway to common copyright infringement.
Why not offer a small $1 licensing fee for those poor scholars that cannot afford paying full price. Or a special “education” fee, like Apple does with its computers. ( mmm…you have to see how much the US University charge per year/per student . Wonder what they do with that money instead of paying artists).
The idea is that every work used should be compensated, regardless of the amount. There has been work done thus compensation should be applied.
However that is not the worst. A famous blog situated on one of these new community based portal ( no, not DigitalRailroad) has been using an insane amount of images. At first, it seemed that since it is a professional blog, created with the obvious intend to drive traffic to its Collection, it would be properly licensing these images.
Imagine my shock ( and awe) when I heard that it does not. It recently used an image from a very well known photo agency that it ripped from another online legitimate publication and used it, along others, on its blog. No permission and no money exchange.
When asked why they would use images without licensing them when they are in image licensing business?  they  responded, “I can’t answer that question.”
They did pull the image down, only to be replaced by another from another agency. Probably without permission. What compels a company that is itself in the image licensing business to not pay for images that they clearly use for promotional usage?  Especially after screaming loud and clear they would be spending over $1 million in marketing this year. Is there no % in that budget to pay for licensing other people images ?

It would be nice, and honest, for that company, to clearly define their policy on the usage of photograph and stop claiming their are the defenders of the photographers when they boldly rip images from other sites like cheap second hand robbers.

Posted in copyright, technology, license, No sense, editorial, transaction, law | Print | 3 Comments »

Let’s crack the shell

July 15, 2008 by pmelcher.

The truth about your photo organizations is that they have either no idea what they are talking about or they have no idea  what they are doing. Either way, they are slowly becoming obsolete and useless.
Take PACA for example. The Picture Archives Council of America is preparing for its next “international” meeting to be held in New York sometime in October of this year. One of the panel they have organized for their members   is called ““What Role Will Technology Play With New Business Opportunities?”.
I had to read it twice. Does it say “will” ? Like in the future “will” ? Has anyone at PACA looked around and noticed what is already going on here and now ? How technology is running their business already. For an industry that currently runs 95% on technology ( it always did , by the way) it is a weird panel to have. But this is not the worst part.

The worst part is that they are “excited” to announce that they have secured the participation of  Ben London/Executive Director, Northwest, of the Recording Industry Association of America (RIAA). Now, I do not know this gentleman and I am sure he is a fine person but inviting the RIAA to explain what opportunities exists in technology is like asking a bear what to do in winter.

I wonder what went into the PACA committee’s collective brain who set that up : “lets find an industry that has completely missed the boat on new technologies and is currently gasping for air, for what they think about new technologies and opportunities ?”

I mean, makes complete sense, no ? The RIAA is now known worldwide for its smooth aptitude to deal with change and a prime example of what the photo industry should do. Let’s see what we can take from the RIAA lessons:

Do nothing and then sue everyone.
Desperately refuse the introduction of new technologies and stubbornly hold on to antiquated business models.
Install technology that alienates your customers so intensively that they prefer to break the law then license anything from you.
When desperation comes, jump on any new business model around and dramatically slash your prices ( think iTunes). Regret your decision 2 years later.
Keep on suing. Maybe that will cover the losses
Alienate you artists until they also leave you for new business models
Merge or die.

Rich (it is a very expensive proposition to attend this congress) and successful PACA members will come from the whole world to listen to this man explain how brilliantly the RIAA has handled technology and new business opportunities. And then, after a few drinks, when all is said and done, everyone will go home with the deep satisfaction that this was money well spend . Some will even dream of a potential merger of the RIAA and PACA,  strongly united against the advent of new technologies, new business models and plenty of lawsuits.

Mmm, I wonder why Getty Images decided to sponsor that one event ?

For the latest from PACA, please go here.

Posted in technology, commercial stock, CEPIC, PACA, getty, law, Microstock | Print | No Comments »

How to build an empire..

June 14, 2008 by pmelcher.

$54,000 ?… “Advertisers pay as much as $54,000 to run a one-day ad package on the site.” says the LA times article on Perezhilton.com. It is already a known fact that some agencies now license images to that site, in full knowledge of its past infringement and the current lawsuit. What is less known is that those images are licensed for a mere $50 or so. Some of these agencies are probably also screaming about microstock and  its low balling prices.

PerezHilton.com is not a small one person operation anymore. It is well staffed. It receives 7 million pages/view a day. A day ! that is 7 times the amount of readers that people magazine gets in a week. With a licensing system like gumgum.com, at .20 cents per one thousand views, that would be $1,400 per day/per image.

Yet, they pay much, much less for images.

When are photo agencies going to wake up ? Perezhilton.com, without photographs would not and could not exist. It is all about displaying photographs. Yet, they set the pricing rules and not the opposite. It is insanity.

Most say, “it’s for the publicity”.” If you sale an image to PerezHilton.com, it sells better elsewhere”. Why not pay them to publish your image, if you really believe that ? at $54,000 a pop.

There is no excuses for these ridiculous prices besides professional ineptitude. It is not the market’s fault if prices are falling, it is due to the incompetence of certain and their misunderstanding of the laws of pricing. It is due to the stubborn idiocy of some that believe that  a sale, any sale is better than nothing. No other businesses function like that. Imagine going to Tiffany’s and saying,”I will only pay $50 for that diamond necklace because, after all, I know a lot of people and when I wear it, I will tell them I got it from you”

Nike, Addidas, Canon, Sony, practically any company make you pay to advertise their product. People buy T-shirts with the brand displayed in big letters. Cameras have logo on them. It is almost impossible these days to leave a store with a product that does not carry the manufacturers name in big on it. And no one gives a break.

No one, no one goes to a clothing store and say: “I will wear your T-shirt that says Nike on it if you sell it to me for $1..”.Not even those that license images for around $50.

Yet, the photo agency world does it. At least some of its players.

At $54,000 a day on advertising, one should think PerezHilton.com can pay more than $50 an image. Especially when the site does nothing else but publish images.

Mario Lavandeira, the real person behind the site, “debuted a clothing line, sold exclusively at retail chain Hot Topic, last week. He also appears in a summer movie, “Another Gay Sequel: Gays Gone Wild,” hosts a syndicated radio show, is writing a book on celebrities and is in talks to start his own record label. “I want my own little empire.” ”

And he will succeed thanks to the helpful hands of some challengingly impaired photo agency people ( you know who you are)  who think they are outsmarting their competition by underselling. Or, hopefully, he will have to use the money he saved to pay for his blatant copyright  infringement of X17 and INF images.

Full article on Perezhilton.com here

Posted in celebrity, magazine, gumgum, license, transaction, news, law, editorial, getty | Print | No Comments »

About the Thruth

April 22, 2008 by pmelcher.

I would like to take a break and ask those of you who have, or will, threatened me with a lawsuit to please stop. In slightly more than a year since I have started writing this blog about the photo industry solely for my pleasure, I am now to the third lawsuit threat.

It is getting annoying. This is a blog, not a news outlet. I do not have the time to verify my facts and very often, I just go with my guts. I might be wrong, In which case a simple, polite email will do the trick. I have no problem admitting that I am wrong and making a correction. I have done it in the past and will do it again. Piece of cake.

This just shows the state of our industry where some companies feel that suing a blog like mine will change the perception that the world has of them. I have news for you : the world doesn’t care. They don’t even know we exist. When people open a magazine, they certainly enjoy the pictures they see, but they really, really do not care where they came from or how they made it in the magazine.  They hardly know what a photo editor does and even less what a photo agency is.

And they do not care. So all these claims that have made irreparable damages to your business are just stones in the wind. If you have great pictures to sell, they will buy them, regardless if I said you are a schmuck or not.

Furthermore, 90 % of the time, I just write about what everyone is talking about. It is no secret. And when people ask me not to repeat something, you know what ? I don’t.

So keep you hard earned money in your pockets instead of hiring an expensive New York lawyer who will have a hard time going after the first amendment of the United States  constitution. What happened to the ancient Greek  arts of dialogue, debate and healthy  conversations ? Why hire someone else to do your speaking on your behalf ?

If you have a problem with something I wrote, you have three options :

- stop reading my blog, nobody forces you to.

- send me an email  telling me where I have been wrong and if it is proven right, I will promptly make the correction.

- post a commentary. I have, to this date, never censored a comment, how nasty it might be.

But please remember that this is my opinion and nothing else. It is intended to trigger a reaction and a healthy debate. It is not the absolute truth but just my personal take on it. And for the sake of everyone else who do enjoy reading what I write (the majority, fortunately), please keep your lawyers handy for copyright infringements and other real threats to your business. Suing me and forcing  me to shut down my blog will NOT make your business profitable. And that is the truth.

Posted in magazine, copyright, editorial, law, news | Print | No Comments »

Orphan Work Bill - It’s good for our neighbors

April 14, 2008 by pmelcher.

 Ever since I wrote the piece “orphan work is good for you”, I have been slammed with emails which all pretty much revolved around the same issue : Orphan work bill is a open door for Copyright Infringement and the legalization of free usage.

First and foremost, I keep on refering my readers to a very concise and readable link created by the Copyright Office . In no way do they propose or would facilitate free usage. It is not their intend. It is also quite admirable that they have, and will continue to hold hearings  to listen to all and everyones concerns.

But the most important, to me, is to see that Canada has had a Orphan Work bill in effect since 2005. Quite effective, it requires the potential user of an Orphan image, after proving its good faith in researching the copyright owner,  to be granted a license by the Copyright office. It has happened  only 19 since  then. Granted, Canada is not as big as the United States, but 19 is almost not worth a second look.

Furthermore, the Canadian law leaves 5 years after the license has been granted for the owner to retrieve his/her license. It is still early to see if this provision has ever been used by anyone.

The copyright office, and any all serious image licensor know very well that technology can be a very serious ally in copyright protection. Regardless of any petition and whining, the bill WILL pass.

As said before, It will be a great  incentive for everyone to respect metadata more seriously  and for the photo industry to finally grow up.

Posted in idee, Canada, focus, technology, copyright, license, web 2.0, keyword, IPTC, law | Print | No Comments »

The same battle…

March 8, 2008 by pmelcher.

I doubt I could have ever said it better myself…you will understand the reference..

Posted in Midstock, copyright, technology, prosumer, transaction, law, editorial, Microstock | Print | 1 Comment »

Lost and found

March 5, 2008 by pmelcher.

French photo agency Gamma, now under the umbrella of Eyedea,  recently lost a judgment for the lost of 9 210 originals. Catherine Leroy, Legendary war photographer, will receive 1,381,500 €  ( that is $ 2,108,909.49). About $228 dollars an image.

Catherine Leroy died in 2006 and was represented by her mother.

Yes, you have read this correctly. That is more than twice the price company Green Recovery paid  Hachette to purchase Gamma, Rapho, Hoaqui, Jacana, Explorer and Top last year. The purchase price was rumored  to be  € 600,000.00 or $900,000.00

Sipa has also been condemned to pay € 1,200,000 ( about $1,8 Million)   to photographer Gérard Gastaud for the lost of 43,331 of his originals. ( about $42.00 per image lost)

Apparently, if you are going to have your originals lost, you are better off moving to France first.

Seriously, however, neither agency would survive if they had to pay such penalty. Both are surviving right now and certainly cannot afford to part with more than $1 million dollar. Actually, besides Corbis, I do not know of any agency that could survive such a settlement.

I am all for compensating photographers whose images have been lost or mistreated. Especially legendary photographers like Catherine Leroy . However, I will question the intelligence of a judge who puts the settlement a such a high value that it endangers the jobs of 1,000’s of innocent people. Some common sense needs to also be applied here.

Both agencies have the right to appeal, which, in this case, I am sure they will certainly do.

More on these judgments here ( In French) : Photographie.com

Posted in SIPA, newspaper, copyright, magazine, photojournalism, finance, news, law, france, editorial, corbis | Print | No Comments »

It’s all cyclical, its evolved over 100 years

February 28, 2008 by pmelcher.

“my first (and probably my last, unless you tell me it is a good idea) guest post :”

How did it start?Was it the 1890’s ?Photographers took pictures, pushed the edge of the envelope but could not do everything, they needed agents.In the meantime copyright came along to try and stop the exploitation of artists, there where always those with money willing to exploit the talents of an impoverished artist.Come the 1950’sAgents came along and entered into a partnership with the photographers, 50/50 or whatever, photographers owned the copyright, agents sold and kept the collections in hard chemical form, their business grew in the center of cities, large amounts of real estate holding pictures.

Pictures where sold for 1st rights, 2nd rights, 3rd rights and so on, the sellers had a firm grip on the marketplace.

Photographers if they where good made money in editorial, rights managed, it was a financial meritocracy, the best made the most. Art and creativity was king.

Agencies like Sygma, Sipa, Magnum, Rex, and stock agencies like Tony Stone all flourished, not by employing photographers but entering into partnerships with photographers.

20 years went buy and they became big business.

It’s the 1990’s along came digital, Getty and Corbis.

Digital, binary code was an astonishing revolution allowing millions of images to be stored in a box the size of a car instead of a 10 story building, on top of that images could be sent thousands on miles in a few seconds and reconstructed to the original quality thanks to jpeg compression, opportunity was knocking and along came the bankers and big business.

Getty and Corbis knew with a few million spent wisely they could dominate the industry, they started their acquisitions

Most of the agencies sold out but this was the first knife in the back for the photographers, the content creators, whilst an agency owner pocketed the $ 20 million from Corbis the photographer got nothing and in Sygmas case an assumption by Corbis that they owned the archive!!! I think the lawsuits are still continuing. What did I last hear Microsoft has $ 40 billion dollars in cash, what chance does a poor photographer stand?

Getty, owned by bankers saw an opportunity for consolidation and cost saving, they also thought “ Art” could be created on a 9-5 hour day, a salary and no incentive. They went ahead and spent $ 500,000 million dollars acquiring photo agencies.

Bill Gates, he initially just wanted art on his walls digitally, constantly changing to fit his mood, this was when big screen plasmas cost $ 30,000

These where tough times for artists, creative photographers who ideas where stolen, their percentages crushed, financial ruin approaching.

The agencies new owners drove hard bargains and percentages to the photographers, if you did not sign, get lost, plenty to fill the departing artists shoes, plenty of styles to copy.

A typical business model bulk sold content on monthly deals, sending thousands of pictures a day to clients, 1st rights, 2nd rights, 3rd rights became a thing of the past, your pictures where likely to be bundled at a $ 100,000 deal a month for 200,000 images used, you do the math !

By 2000 the creative photographer had been destroyed, art had become sterile, its becoming obvious bankers are not good for art!!!

Mix with this through the late 90’s early 2000 the growth of Google, a search engine with a bland front end. What the hell was this and it was free!!!

By 2004 we knew what Google was, an advertising agency who had managed to optimize the Internet and its revenue through click through revenues and who was being screwed the most in this, as if in a double whammy, creative photographers and newspapers, in fact anyone who published!!!

Those bulk all you can eat deals really paid of for Google with free rights in perpetuity as they displayed the web pages of most of the publications in the World, blatantly using fantastic images for free to drive click through revenue to their advertisers. The poor old content creator ( photographer) got nothing

Catching onto what was happening the media industry jumped on the Google band wagon and followed Getty’s lead and obtained pictures under tough contracts ,  New York Times, Tribune Group, Associated Newspaper, News International and almost every publishing group in the World started their own web sites, using pictures for peanuts whilst lamenting, “ We are loosing Money” they continued to make money off pictures through CPMs, “ accidentally” using pictures without paying  or sometimes purchased for ridiculously low fees.

Then came the blogs who where inspired by Googles claim to free usage under the The Digital Millennium Copyright Act of 1998 and other internet users of pictures, all claiming they where making no money, whilst the poor old photographer where having to spend money to apparently make nothing
Then came blogs and other internet users of pictures, all claiming they where making no money, whilst the poor old photographer where having to spend money to apparently make nothing.

In 2007 the World implodes, what happened to the American Dream ?

In 2008 when Getty Images sells for $ 2.4 billion with a failing business model they still do not understand what they did and their errors. Quite simply they where conducting business using digital with analog business models, they distributed full resolution digital images on a daily basis to hundreds of users, millions of asset files that could be stolen and used by everyone for free, whilst those users made millions on click through advertising revenue in perpetuity.

It all seemed hopeless and then along came GumGum, and they have suggested a solution that could get the creators back in financial control of their lives and the industry back on a firm foothold.

For in the end it’s the creators of new art that drives the marketplace but the industry must change the way it markets images in this maturing digital age. The artists have to be paid and then the flow of great marketable images will continue and big business through shared revenue will make even more money and survive.

And I suspect Bill Gates will still be rich!!!!

Paul Harris

Pacific Coast News
Celebrity Home Photos
Pacific Coast News Video
United States Head Office
BWP Media USA Incorporated

Posted in Midstock, license, multimedia, Search, newspaper, copyright, idee, Pacific coast news, gumgum, technology, magazine, keyword, google, editorial, law, news, corbis, finance, PACA, web 2.0, photojournalism, wire service, CEPIC, getty | Print | No Comments »

The Philosopher’s Stone

February 14, 2008 by pmelcher.

All other parameters set aside, it has always been the industry standard to price an image based on how many people would see it. And for a very good reason: If it was used in a lesser publication, in a small format, there was more chance that it it would be used again, by someone else, in another media. On the other hand, if it was used worldwide, in many media, it would fetch a “buy out” price.

Example of an advertising based image from GumGum and X17
We rely on circulation, printing run and languages to estimate the amount of potential views. Than came the internet. At first, the initial website where “tests” and minimum funding. As friendly as this industry could be, images where licensed for a flat fee, at an extremely generous price. Granted, the traffic was small and the promises big.

Agencies and photographers where eager to help and see this new market grow. $125 for a home page and $50/$75 for “inside” quickly became an editorial standard price as we all struggled to make it work. For commercial usage, price where, and are, in the thousand of dollar. Because they are licensed, they are even given a time frame, although the biggest majority of websites never pull out images but archive them. The images thus become licensed in perpetuity. Granted, harder to find and see, but still there.

Websites came and website went. New one appeared, funded by obscene amount of dollars, while other crashed and burned in a masquerade of quirky business plans. A lot didn’t even bother hiring real photo editors and relied on web designers or producer with no experience in photography, to license images. Prices remained the same.

For two main reasons : The promise of massive usage and the impossibility to seriously track usage. Websites claimed that even if they were paying a small fee for usage, they would be using a lot of images, thus making the volume compensate for the low payment. Appealing for photo agencies, not so for photographers. Some companies, like Wireimage, even created baffling subscription plan ($1000 a month  with eonline.com for all you can eat images) just to gain market shares and kick the competition out of their space . The gold mine turned into a mine of chalk.

Then came the RF and microstock guys. Their model was to not even bother negotiating anything. Here is our images, here is the price, do whatever you want with the image. Perfect for the internet space and its web designer who could get images at 3 :00 AM and not have to justify its usage. Image tracking companies like Picscout or Digimarc just made the management of RM on the internet even worse for users and pushed then even more into using RF images. But it didn’t help the editorial world. Long gone was the accepted model of the more an image is seen, the more its price should be higher, exactly like advertising.

Finally, two guys from the West coast of America, not from the industry, looked at this and said : “this is insane !!!”. In a medium that can finally track exactly how many people actually see an photo, images are still priced with a scheme right out of the medieval ages. Ads are being sold on how many hits they receive, why not images ?

They launched GumGum, which became live today, first offering X17 content and with many more to come. You set your price for how much an image is worth per views ( or thousand of views) and there you go. The bigger the site, the more they pay. If no one visits the site, the image is free. You can also put a cap and decide you want to license an image for 1 million views. Once you reach that target, the image ads an advertisement. Thus you can archive the image while the owner still gets revenue.

This is the most refreshing and revolutionary idea to hit this industry in decades. It is not going to be an easy sell to publishers who had a sweet deal up to now, but it is the future of licensing online. It is fair, simple and automated. easy to understand, to use and to apply. No need for Plus coalition complex interaction and implementation, no need to add any salespeople, no need for drop down head banging menus and complex calculation. No need to ever figure out the pricing. The usage figures out the pricing. Its the ease of RF applied to RM. The Philosopher’s Stone.

More on Gumgum here .

Posted in celebrity, copyright, magazine, Plus, gumgum, license, web 2.0, news, Royalty free, law, editorial, finance, Microstock | Print | No Comments »

The next step

February 12, 2008 by pmelcher.

The most World Press awards this year and not a buyer. Shows that photojournalism doesn’t pay. It is quite ironic that the company that has grown through so many purchase cannot sell itself. But then again, it never said it wanted to. Johnathan Klein and the official voices of Getty Images never confirmed the selling option, referring only to a search for strategic partnership.

One of my readers, who would much prefer to remain anonymous, brought up an interesting theory. The upper echelon of management at Getty wanted this to fail. The false real leak to the New York Time ( sorry, but I have a hard time believing they have a staffer investigating Getty Images day in day out) helped fuel the news to shareholders. The stock is low, thus we will try to grant you a nice offering by putting the giant on the block. It certainly helped bounced the stock a little bit, albeit not for too long. What next ? well if no one wants to buy the company, we will, says the management. It is called a MBO, and it allows to take the leaking company private. With this failed sale, the company is evaluated and the shareholders, depressed. The cost to purchase the company becomes affordable since everyone would love to get rid of its useless shares.

Klein and co. had a good ride on public money. It allowed them to pay for the start up cost and alleviate debts. If they sold, which I am positive they did, they even made a nice nest egg. But now, it is becoming a burden. Not only for the bad press it is generating, but also for the huge amount of paperwork that it requires to keep. Finally, it makes management difficult as you have to keep an eye on Wall Street every time you want to make a decision.

Time to get rid of the public’s money . Time to regain control of the ship and become bold and aggressive again. Time to close the book on the financial that are too embarrassingly visible and charge full speed ahead.

I find this theory interesting and , like many others in this industry, cannot wait to see the next step.

Posted in Search, license, photojournalism, wire service, law, transaction, getty | Print | 3 Comments »