tag:blogger.com,1999:blog-109262612024-03-13T12:27:01.214-07:00Dan Heller's Photography Business BlogThe photography world -- the business, the culture, the art, the politics, the technology.argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comBlogger131125tag:blogger.com,1999:blog-10926261.post-27014456146158287402012-07-01T12:57:00.001-07:002012-07-01T13:07:28.996-07:00Royalty Free no longer exists<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-family: arial, helvetica, sans-serif;">I have always gotten a continuous stream of questions about Royalty Free vs. Rights-Managed images, and I usually just send people to <a href="http://danheller.com/blogs">numerous posts</a> I've written in the past.</span></div>
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<span style="font-family: arial, helvetica, sans-serif;">But a recent email to me concerning Photoshelter's use of the terminology compelled me to post a short blog entry on the subject to try to make it even simpler to understand.</span><br />
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<span style="font-family: arial, helvetica, sans-serif;"><b>Royalties</b> are payments made to authors (photographers in this case) in exchange for the right to sell works (images). </span><span style="background-color: white; font-family: arial, helvetica, sans-serif; font-size: 12.666666984558105px;">The moment any photographer is ever paid anything by an agency, s/he has received a royalty. Even if it's a one-time payment.</span></div>
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<span style="font-family: arial, helvetica, sans-serif;"><b>Rights Managed</b> ("RM") means that someone has the right to say how a photo may be published. There's always someone that has the right to manage a work's usage terms. </span><span style="font-family: arial, helvetica, sans-serif;">Yes, "unlimited, unrestricted use" is still "managed" if that's what the <i>rights manager</i> wants. Even public domain and creative commons are terms stipulated by someone -- usually the author.</span></div>
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<span style="font-family: arial, helvetica, sans-serif;">By definition, <i>ALL images are Rights Managed</i>, even if the manager chooses not to assert those rights, or is very liberal about how others may use the photo.</span></div>
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<span style="font-family: arial, helvetica, sans-serif;"><b>Royalty Free</b> ("RF") refers to a special kind of license agreement that can only take place between two stock photo agencies. Here, the primary stock agency</span><span style="background-color: white; font-family: arial, helvetica, sans-serif; font-size: 12.666666984558105px;"> grants another agency the right to resell images, <i>and that <u>second agency</u> is under no</i></span><span style="background-color: white; font-family: arial, helvetica, sans-serif; font-size: 12.666666984558105px;"><i> obligation to pay royalties back to the photographer</i>.</span></div>
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<span style="background-color: white; font-family: arial, helvetica, sans-serif; font-size: 12.666666984558105px;">Why would such a thing happen?</span></div>
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<span style="font-family: arial, helvetica, sans-serif;">Before the internet (and up till mid-1990s), distribution of images to buyers was difficult. Smaller stock agencies that couldn't sell some supply of images started selling them to OTHER stock agencies with </span><span style="background-color: white; font-family: arial, helvetica, sans-serif;">better distribution channels (usually, the early internet adopters). Because these images were usually lower quality, the concern was that these images might not sell. In order for the deal to make financial sense for all parties, the photographer was paid a one-time royalty for the transaction, the primary agency got a single, lump-sum payment from the secondary agency, and that second agency was now on the hook to make some money. Sometimes they did, but often they didn't. But they could only agree to take this risk so long as they were not obligated to pay royalties back to the photographer</span><span style="background-color: white; font-family: arial, helvetica, sans-serif; font-size: 12.666666984558105px;"><i>. </i></span><b style="background-color: white; font-family: arial, helvetica, sans-serif; font-size: 12.666666984558105px;">These were royalty-free images</b><span style="background-color: white; font-family: arial, helvetica, sans-serif; font-size: 12.666666984558105px;">. </span></div>
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<span style="background-color: white; font-family: arial, helvetica, sans-serif; font-size: 12.666666984558105px;">At the time, photographers were finally making money from images that would have otherwise sat unsold, and the smaller agencies were often seen as tributaries to the main stock agencies, who themselves were taking advantage of a very quickly expanding base of buyers because of the growth of the internet.</span></div>
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<span style="background-color: white; font-family: arial, helvetica, sans-serif; font-size: 12.666666984558105px;">As the idea showed profitability, more agencies started selling and reselling the same images in the same way to many stock agencies, creating a huge market for RF images. Each time, the photographers would get royalties from each such sale. And, in each case, the "royalty free license" meant that each (secondary) agency down the distribution channel was not obligated to report sales or pay royalties to the photographer.</span></div>
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<span style="font-family: arial, helvetica, sans-serif;">The tipping point came when the ease and cost of access to the internet allowed those smaller agencies to sell directly to the buyer. And, for the buyer to find those images through better search engines. The need to feed the primary agency networked collapsed, which coincided with the time when Getty's stock price was plummeting from the mid-$80s to the low $30's, when they were finally taken private. Note: Getty's price didn't plummet <i>because</i> of the rise of RF images. The entire economy of images was falling precipitously because no agency could control (choke) the supply channel any longer. All agencies were hurting and RF was no safer than traditionally-licensed images.</span></div>
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<span style="background-color: white; font-size: 12.666666984558105px;">I am currently unaware of any <i>actual</i> Royalty Free Licenses being used in photography. I believe it no longer exists. (The practice is still used for clip art, icons and some other kinds of media (smaller music labels) where channel distribution is still difficult.)</span></div>
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<span style="background-color: white; font-size: 12.666666984558105px;">So, why are the terms, "RF" and "RM" still used? </span></div>
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<span style="background-color: white; font-size: 12.666666984558105px;">Remember how those secondary agencies were on the hook to monetize these images or lose money? They did so by enticing buyers with very liberal license terms, such as "unrestricted (use), unlimited (time)." Thus, photographers (and later, newbie agencies that didn't understand history) misunderstood RF as implying these unrestricted usage terms. For a long time, RF really did mean "unrestricted."</span></div>
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<span style="background-color: white; font-size: 12.666666984558105px;">But I rarely see such license terms anymore. Even the license terms used by today's agencies for their so-called RF images are often not as liberal as the original RF terms once were.</span></div>
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<span style="background-color: white; font-size: 12.666666984558105px;">Today, the terms "RF" and "RM" are interpreted mostly by PHOTOGRAPHERS to mean that they will make more money with RM images than RF, even though those economics are not as predictable. My personal opinion is that the terms remain simply to attract (and direct) photographers towards certain business terms with the agency. </span><span style="background-color: white; font-size: 12.666666984558105px;">Most buyers have no idea what they mean... nor do they care. They only care about the terms of use, which has nothing to do with RF or RM.</span></div>
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</div>argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.com3tag:blogger.com,1999:blog-10926261.post-57316670121067829262012-03-15T11:19:00.007-07:002012-03-16T15:02:59.197-07:00Pinterest Copyright Infringement: Yeah, so what?<style> <!-- /* Font Definitions */ @font-face {font-family:Cambria; panose-1:2 4 5 3 5 4 6 3 2 4; mso-font-charset:0; mso-generic-font-family:auto; mso-font-pitch:variable; mso-font-signature:3 0 0 0 1 0;} /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-parent:""; margin:0in; margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:12.0pt; font-family:"Times New Roman"; mso-ascii-font-family:Cambria; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Cambria; mso-fareast-theme-font:minor-latin; mso-hansi-font-family:Cambria; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} h2 {mso-style-link:"Heading 2 Char"; mso-style-next:Normal; margin-top:10.0pt; margin-right:0in; margin-bottom:0in; margin-left:0in; margin-bottom:.0001pt; mso-pagination:widow-orphan lines-together; page-break-after:avoid; mso-outline-level:2; font-size:13.0pt; font-family:"Times New Roman"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:major-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:major-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:major-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:major-bidi; color:#4F81BD; mso-bidi-font-weight:bold;} a:link, span.MsoHyperlink {color:blue; text-decoration:underline; text-underline:single;} a:visited, span.MsoHyperlinkFollowed {color:purple; text-decoration:underline; text-underline:single;} p.MsoQuote, li.MsoQuote, div.MsoQuote {mso-style-update:auto; mso-style-link:"Quote Char"; mso-style-next:Normal; margin-top:6.0pt; margin-right:0in; margin-bottom:6.0pt; margin-left:.5in; mso-pagination:widow-orphan; font-size:12.0pt; font-family:"Times New Roman"; mso-ascii-font-family:Cambria; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Cambria; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} span.Heading2Char {mso-style-name:"Heading 2 Char"; mso-style-locked:yes; mso-style-link:"Heading 2"; mso-ansi-font-size:13.0pt; mso-bidi-font-size:13.0pt; font-family:Calibri; mso-ascii-font-family:Calibri; mso-ascii-theme-font:major-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:major-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:major-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:major-bidi; color:#4F81BD; font-weight:bold;} span.QuoteChar {mso-style-name:"Quote Char"; mso-style-locked:yes; mso-style-link:Quote; font-family:"Times New Roman"; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast;} @page Section1 {size:8.5in 11.0in; margin:1.0in 1.25in 1.0in 1.25in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-paper-source:0;} div.Section1 {page:Section1;} --> </style> <p class="MsoNormal">The latest hot startup in the photo-sharing space is one that is also creating a lot of controversy about copyright infringement. <a href="http://www.pinterest.com/">Pinterest</a> lets users create "boards" of images they find from around the Web. Users “pin up” these images, and share them with friends and strangers. </p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal">“<i style="mso-bidi-font-style: normal">Is</i> this copyright infringement,” </b>you ask?</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Well, imagine exactly the same website that let's users upload music or movies. Do you think the music labels or movie studios would permit this? Pinterest would be shut down before they could get their first dollar of venture capital. </p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal">“But they’re <i style="mso-bidi-font-style:normal">photos</i>, not music or movies!”</b></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Yes, and photos have precisely the same copyright protection.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal">“Ok, wise guy, then why hasn’t Pinterest been shut down?”</b></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Simply put, there’s no one there to stop them, at least not with the same effect and scale as music labels or movie studios. And the reason is reflected in your very statement: society simply regards photos as “different” from movies; they don’t see Pinterest’s use of imagery as copyright infringement. </p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">And this is a natural feeling to the common person. Everyone shoots pictures all the time; it takes milliseconds; most people don’t invest any thought or intent. By contrast, music and movies require considerable time, effort and expense to produce. So, there’s a difference.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">And herein lies the unresolved problem: the law is the law, and photos are copyrighted works, regardless of the time, skill, or anything else necessary to create them. Accordingly, photos are supposed to enjoy the same <span style="mso-spacerun: yes"> </span>legal protections as music and movies. </p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal">“I see. But, most people <i style="mso-bidi-font-style:normal">want and expect</i> to share their images with others.”</b></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Yes! <i style="mso-bidi-font-style:normal"><u>Their</u></i> images. Pinterest isn’t letting people share their <i style="mso-bidi-font-style: normal">own</i> photos; they’re sharing <i style="mso-bidi-font-style:normal">other people’s photos</i>.”</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal">“Ah, I see now.”</b></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Very good, <a href="http://en.wikipedia.org/wiki/Kung_Fu_%28TV_series%29">Grasshopper</a>.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">As a society, we permit this kind of infringement, which explains why there are no large, powerful, influential organizations representing the interests (and the copyrights) of photographers. People simply regard photos as different.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">A case in point can be found in <a href="http://www.chow.com/food-news/107370/pinterest/">this article</a> on chow.com, discussing people’s reactions when they found their recipes were being “pinned” to Pinterest, along with the photos of their foods. The complaint was that their intellectual property (cooking recipes) were being stolen; the recommendation: “Just allow the photo to be shared, not my recipe!”</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">You see? Never mind the pro photographers whose pictures were being infringed; they’re not part of the conversation.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal">“Ok, so what about those professional photographers? How are they hurt?”</b></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">I’ve been a photo industry analyst since the mid 1990s, and I’ve seen the industry suffer more from “piracy” than the film and music industries combined. Every single publicly traded stock photo agency has either gone out of business or withdrawn from public trade. Getty Images is the last profitable company of any significant size, and even then, its pay to photographers has been drifting lower for over ten years to maintain that status. A series of studies from <a href="http://www.picscout.com/">Picscout</a> – a photo-tracking service for stock agencies and photographers – finds that 90% of commercial websites use at least one photo in a manner considered to be “commercial use” without the copyright holder's authorization. No company whose business model is to sell or license photography has had venture capital investment since 2000.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Yet, the <i style="mso-bidi-font-style:normal">shadow economy</i> for photography is enormous. <a href="http://www.danheller.com/blog/posts/total-size-of-licensing-market.html">In a study I conducted in 2007</a> on contract for a potential investor in a photo-related technology, I found that most photo buying and licensing was done on a peer-to-peer basis, mostly in local markets and exchanges, at a scale that suggested the total economic activity tipped at $25B/year. Yet, none of it can migrate online because of the “perception” that photos don’t count when it comes to piracy, <i style="mso-bidi-font-style:normal">and</i> because there was no possible infrastructure to enforce legal protections.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">So, yes, the photo industry has been starved to near extinction, compared to what it could be if it similar legal representation that the music and movie industries do.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal">“My gosh, I’m getting sad. But I still want to share photos online.”</b></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Don’t misunderstand me; I’m cognizant and sympathetic to the non-professional side of photography and the social value of sharing images, both culturally and economically – including to those photo-sharing sites like Pinterest. There’s no question that people should be able to share images online with others in an unfettered manner that Pinterest provides, as well as <i style="mso-bidi-font-style:normal">every</i> social network.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">But to do so in compliance with copyright law would require a series of rights access that cannot be scaled up to serve the public at large without a centralized (and streamlined) rights clearinghouse. Legally speaking, Pinterest should obtain rights from “everyone,” but it’s not possible because people are uploading <i style="mso-bidi-font-style: normal">other people’s photos.</i> If there were a central clearing house open to everyone – say, like the music labels have – Pinterest could enter into a unified license agreement.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Without such a clearing house, the law is the law, and the courts will eventually be forced to reconcile the law with society’s desires. Well, provided cases are brought to court to press the issue.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">This is not new. Copyright itself has been a controversial topic for society (and justice) for years, and continues to this day. On one hand, there are <a href="http://en.wikipedia.org/wiki/Creative_commons">many who believe</a> that copyright protection should be lifted, if not severely curtailed, largely in order to avoid this very problem of the social benefit from photo-sharing. Economists, on the other hand, understand that the <i style="mso-bidi-font-style:normal"><a href="http://en.wikipedia.org/wiki/Creative_economy">creative economy</a></i> only exists because people can earn a living from their efforts—that "human creativity is the ultimate economic resource." (<a href="http://en.wikipedia.org/wiki/Richard_Florida">Florida 2002</a>) If they couldn’t economically benefit from their creations, society would suffer <i style="mso-bidi-font-style:normal">more</i>, since the lack of incentives (and hence, resources) would starve an important and socially valuable industry. </p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">The only legal basis for dealing with this dispute continues to reside in the <a href="http://en.wikipedia.org/wiki/Copyright_Act_of_1976">Copyright Act</a> in 1976, which states that “copyright protection extends to original works of authorship fixed in any tangible medium of expression,” including photography, of course. Tightly coupled with the Copyright Act is <a href="http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works">The Berne Convention</a>, which states that “Copyright must be automatic; it is prohibited to require formal registration.” Yes, the USA provides added protection that permits authors to register their works with the Copyright Office, which then affords them “statutory damages” in legal claims, which guarantees the copyright holder a minimum of $750 per claim, and up to $150,000 if the infringing party “willfully infringed” (that is, with intent). <i style="mso-bidi-font-style:normal">But this registration is not required in order for the copyright to be held by the person holding the camera, and that ownership comes with rights.</i></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">So, Pinterest and other social networks are technically contributing to copyright violation by permitting <i style="mso-bidi-font-style: normal">other users to upload unauthorized copyrighted works.</i> This is called “contributory infringement.” <a href="http://en.wikipedia.org/wiki/Contributory_copyright_infringement">This Wikipedia excerpt</a> explains, “indirect infringement arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for directly infringing acts carried out by another party.”</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">These underlying legal principles of copyright law are subtle, and few are as educated on it as they like to believe—especially corporate law firms that write the legal mumbo jumbo in “terms of service” agreements (TOS). To wit, Pinterest’s own TOS stipulates that when you upload a photo to Pinterest, you are granting it a "perpetual, irrevocable, royalty-free license to use” your photos on its site and "application or services." While this is applicable if <i style="mso-bidi-font-style:normal"><u>you</u></i> own the photos you upload, you cannot grant this permission for photos that aren’t yours. <u>That is, you are not the legal authority of someone else’s photos</u>. So, Pinterest’s own TOS is unenforceable on photos that the user doesn’t own, which is pretty much all of them. So, strictly speaking, their TOS is toothless, pointless and moot. </p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">But this is also besides the point: the <i style="mso-bidi-font-style: normal">user </i>violated the copyright, not Pinterest.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal">So again, who’s to complain? To whom? Against Whom?</b></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">One could try to sue Pinterest, which is where their lawyers would quickly seek protection under the <a href="http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act">Digital Millennium Copyright Act</a> (DMCA), which states that websites that host content uploaded by users cannot be held liable for copyright infringement, so long as the site complies with “take down notices” from those copyright holders. Here, the original owner of the copyright notifies the company with a “take down notice,” and the company is off the hook—no TOS necessary.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Many companies – Pinterest, included – very effectively use the DMCA as the “get out of jail free” card, effectively keeping their business out of legal danger. </p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">But once again, we come back to the subtleties of the Copyright Act. As stated earlier, Pinterest could be liable for <i style="mso-bidi-font-style:normal">secondary infringement</i>, which would make them ineligible to seek protection from the DMCA. For matters relating to copyright, courts would have to decide on the merits of such claims solely on case law developments.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">This brings us to landmark cases, such as Napster and most notably, <a href="http://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd.">Grokster</a>, where courts have established a three-point test to determine if a website “induces infringement”: (1) whether the <i style="mso-bidi-font-style:normal">majority</i> of the content uploaded by users is infringed works; (2) whether the site provides <i style="mso-bidi-font-style:normal">tools that can only be used to infringe</i>; and (3) whether the <i style="mso-bidi-font-style:normal">use</i> of the works are (a) for commercial purposes <i style="mso-bidi-font-style: normal">or</i> (b) harms the commercial interests of the copyright holder. </p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">In the case of “majority of content,” this part is pretty self-evident.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">In the case of the site providing tools that are “only” used to infringe, Pinterest’s defense would have to be based on a finding by the Supreme Court in “S<i style="mso-bidi-font-style:normal">ony Corp. of America v. Universal City Studios, Inc,” </i><span style="mso-spacerun: yes"></span>where the court found that, contributory liability cannot be imposed unless the technology lacks substantial non-infringing uses. <a href="http://www.flickr.com/">Flickr</a>, for example, only provides an “upload” button that allows users to upload images from their own hard drive. This provides “substantial non-infringing uses.” Indeed, the content on Flickr has most of its images uploaded by the original photographers themselves. Pinterest, however, cannot demonstrate this: their tool does not permit uploading photos from one’s own computer; in fact, it encourages users to pin photos from other sites.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">The third test –commercial profit– also has roots in the legal doctrine of “Vicarious Liability,” where “courts have extended liability to those who profit from infringing activity when an enterprise has the right and ability to prevent the infringement.”</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">If someone were to go to the effort of showing that Pinterest satisfies all three tests, the company loses its DMCA protections, and must now face the music. This then re-engages copyright law, where the company could be liable for <i style="mso-bidi-font-style:normal">statutory damages</i> if any of the works are registered with the copyright office. (Many pro photographers whose works are generally passed around the most, actually register their works.) Statutory damages mandate a minimum of $750 per infringed work, although a judge can raise the limit of the claim up to $150,000 per infringement if the defendant was deemed to “intentionally infringe.”</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">One would assume that if a site lost its DMCA protection because it was “inducing infringement,” then a judge would likely also rule that the infringement was “willful.” Hence, the $150,000 <i style="mso-bidi-font-style: normal"><u>per image</u></i> claim would be a hefty speeding ticket.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal"><span style="mso-spacerun: yes"> </span>“Sounds troubling for Pinterest! Are they in trouble?”</b></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Probably not. And it’s not because they aren’t in violation of copyright law—they are. It’s back to the basic question of “who’s going to sue them?” Unlike music and movie companies that have hoards of lawyers representing their interests and who aggressively shut down websites and file legal claims perpetually, photographers have no one. As individuals, photographers are too unsophisticated to navigate the difficult and expensive litigation process, so it is highly improbable that many will sue. And even if they did, they won’t be able to do so in a critical mass necessary to materially affect the company the way may music labels can. And even if they could, they’d be up against the same <a href="http://www.eff.org/">free-speech advocates</a> that defended Grokster. This would not be an easy or inexpensive task, and would probably garner a large push-back from society who already regards photos as “different.”</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">I don’t mean to “pick on” Pinterest, actually. They are but one of many such sites. <a href="http://www.polyvore.com/">Polyvore</a> not only satisfies the three-point test of “inducing users to infringe,” but their volume knob goes to 11: They offer even more sophisticated tools to infringe, including <a href="http://www.polyvore.com/cgi/clipper">software that specifically designed to copy photos from other sites</a>, while also providing <i style="mso-bidi-font-style:normal">no tools to upload users’ own photos</i>, which flies directly into the face of the definition of Contributory Infringement, and satisfies the Supreme Court’s own language on whether the technology has a substantial “non-infringing use.” Worst of all, they are actually selling products, not advertising, which satisfies “Vicarious Liability.”</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">And their legal problems go beyond just copyright. Users also upload photos of celebrities to adorn the products sold on the site, which could be in violation of publicity laws if there isn’t a model release. (Cameron Diaz’s picture is one of the most popular.)</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Polyvore <i style="mso-bidi-font-style:normal">does</i> provide its own photos, which are legitimately licensed -- namely, from the companies selling the products depicted in the pictures. The test is whether the majority of the content uploaded by users are unauthorized. Other factors that appear to implicate their “knowledge of willful infringement” is <a href="http://www.polyvore.com/cgi/help.copyright">a statement warning people not to infringe</a>, and the promise they will take down photos if contacted by copyright owners. While one could argue that they are trying to give notice, this is akin to warning labels on cigarette boxes. No one’s fooling anyone here.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">There’s no doubt that Polyvore knows its users are infringing, and it’s certainly possible that they are aware that they are also “inducing” infringement, but they are counting on the same two factors that Pinterest is: society accepts copyright infringement of photography, and more importantly, there are no special interest groups that will sue them for “contributory infringement” on behalf of a class of photographers.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal">“So, as long as society has accepted photography as a non-threatening step-child in the copyright debate, these sites are safe.”</b></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">The force is strong in you, young Jedi.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Still, the risk profile could suddenly spike if there were an unintended rise of those who would intend to assert those copyright protections, which could happen if incentives were to suddenly materialize. For example, a <a href="http://en.wikipedia.org/wiki/Stop_Online_Piracy_Act">SOPA</a>-like legislation. </p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal">“Huh? SOPA? Come again?”</b></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Although the Stop Online Piracy Act is dead for now, the music and movie industries are not about to let it go. Something will eventually re-emerge with new and different terms. We’re already seeing a great deal of anti-piracy legislation coming out of Europe, and Congress and others are under a great deal of pressure to do something (probably after the election season).</p><p class="MsoNormal"><br /></p><p class="MsoNormal">What needs to be considered is the unintended consequences that might result if they don’t reconcile the incompatibilities between the social aspect of photography and the fact that it’s a copyrighted work. For, whatever law that has the intention of protecting movies and music just might <i style="mso-bidi-font-style:normal">create</i> a financial incentive for new actors to enter the stage and try to represent the interests of the entire class of photographers, professional and otherwise. And the social networks that use photos are far bigger and vulnerable than the usual targets that music and movie studios attack, escalating the size of litigations that could arise.<br /></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">A poorly drafted SOPA-like law could affect the internet in highly unexpected ways, akin to the sudden and immediate changes we saw in our political system after the Supreme Court’s decision on <a href="http://en.wikipedia.org/wiki/Citizens_united">Citizen’s United</a>.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal"><b style="mso-bidi-font-weight:normal">“So, do you have a better solution?”</b></p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">Funny you should ask. </p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">I don’t believe one can ever legislate around this problem. There are two economies at play all the time: a legitimate one and an underground pirate economy. The best you can do is create so much incentive for people to participate in the legitimate economy, that the efforts to pirate become less interesting and less profitable, yielding a progressively smaller proportion of that industry’s total economy. Steve Jobs pleaded with the music industry to remove music locking in song files using the argument that people don’t <i style="mso-bidi-font-style:normal">want</i> to infringe, so long as they can get access to what they want at a fair price. When the music industry finally agreed to remove those locks, online music sales spiked. But the music (and film) industries haven’t kept up with cultural and technological trends in how they handle the business side of their industries. They are still trying to solve 21<sup>st</sup> century problems with 20<sup>th</sup> century attitudes.</p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">It’s not that I disapprove of litigation – it’s the music and movie industries greatest advantage. <i style="mso-bidi-font-style:normal">The</i> <i style="mso-bidi-font-style:normal">legitimate marketplace exists because music and movie companies have the infrastructure to enforce copyrights</i>; this is the stick that gets people to seek the carrot, benefiting the entire marketplace financially and fairly. </p> <p class="MsoNormal"><br /></p> <p class="MsoNormal">When it comes to photography, there is no infrastructure for enforcing copyrights, so there’s no viable marketplace. I mentioned that there needs to be a central clearing house for photo rights management: My solution to that is <a href="http://www.danheller.com/blog/posts/proposal-for-privatizing-copyright.html">here</a>.</p><p class="MsoNormal"><br /></p><p class="MsoNormal">________________________________</p><p class="MsoNormal">On Fri, Mar 16, 2012 at 4:15 AM, <span dir="ltr"><fatalmoon@comcast.net></fatalmoon@comcast.net></span> wrote:<br /></p><div class="gmail_quote"><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex;"><div id=":1cl">When a person makes a board and posts other people's photos, isn't it just like sharing a link on a blog? When you click on the photo it goes back to the original website that it was found, doesn't it? I don't understand how that constitutes infringement, to me it's like a beefed-up hyperlink. Are you saying that they are literally taking photos and uploading them somewhere?</div></blockquote><div><br />Literally copying content is one form of copyright infringement, but that's not what we're talking about here. The fact that the content is merely "displayed on a website not authorized by the copyright holder" is technically an infringement.<br /><br />To illustrate, let's take your text, and change the word "photo" to "movie":<br /></div></div><blockquote>When a person makes a board and posts <b><i>other<br />people's</i></b> <i><b>movies</b></i>, isn't it just like sharing a link on a blog?<br /><br /></blockquote>In this case, let's say that those "other people" are <i>movie studios</i>. Here, the the public that views this movie is able to <i>see</i> it on a site that has not been authorized to show the movie. The movie studio doesn't care that the movie also happens to link back to their site, or iTunes, or amazon, or anywhere else. <span style="font-style: italic;">The</span> <i>content itself is displayed</i> <i>on another website without authorization.</i> That is an infringement.<br /><br />Your question of "link" should not be conflated with "text links," which do not display original content. For example, the text link "<a href="http://danheller.com/">click here for this photo</a>" is not an infringement because content is not being displayed.<br /><br />You may say that "photos are different" because photos aren't like movies, or that movie studios charge money, or anything else. Copyright law does not distinguish between media formats or financial intent or even who the owner is. Copyright law is there to allow copyright holders to choose how their content is used.<br /><br />Many people think that content can be used <span style="font-style: italic;">unless the copyright holder objects, </span>but that is not the case. Technically, the copyright holder must grant consent <span style="font-style: italic;">first<span style="font-style: italic;">. </span></span><br /><br />I realize this would suddenly make everyone aware that every social network in the world is suddenly in gross violation of copyright, and that's why the legal system and the copyright "process" needs to be updated to reconcile this.argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-58848088669530726602012-03-02T12:43:00.004-08:002012-03-02T13:43:03.459-08:00Market Efficiencies and Stock Photo PricingIn my last blog post, <a href="http://danheller.blogspot.com/2012/02/selling-stock-its-about-search-rank-not.html">Selling Stock: It's About Search Rank, Not Price</a>, I argued that the price variability in the stock photo industry can be exploited by those who garner high search rankings. The rationale is that the direct and indirect cost (overhead) of finding an image so far exceeds typical license fees, that photo buyers are more indifferent to those license fees than sellers believe. Thus well-ranked photo sites would be able to command higher license fees, simply because they have first access to the buyer.<br /><br />In fact, well-ranked photo websites are undermining their own profitability by lowering prices unnecessarily, mostly because they are following their perceived competitors, not because the customer is demanding lower prices. Their rationale would follow traditional economic theory under most market conditions, but therein lies the exception. The photo industry does not represent "normal economic conditions." Indeed, the photo industry represents a classic case of an "inefficient market."<br /><br />Let me explain by starting with the definition of an "efficient market." It can be summarized as a market of buyers and sellers engaging under conditions where <span style="font-style: italic;">all information is available</span> to parties on both sides of a transaction. (See this <a href="http://en.wikipedia.org/wiki/Efficient-market_hypothesis">wikipedia link</a> for extended definitions, examples, and citations.)<br /><br />Examples of efficient markets are exchange-traded commodities like oil, orange juice and automobiles, among others. Here, producers of commodities make their wares generally available, and market-makers trade on this information. It is exceedingly difficult (if not impossible) to have inventory that the market is unaware of, or to purchase commodities without the broader market's awareness. These are the conditions that lead to the definition of an "efficient market."<br /><br />While there will always be price volatility, it is almost entirely governed by <span style="font-style: italic;">predictions</span> of how supply and demand might be affected by external events. The weather affects the price of Orange Juice; war and instability affects the price of oil; and a litany of factors affect the auto industry.<br /><br />When it comes to image-licensing, most buyers and sellers do not have that much information about the "global" market of buyers <span style="font-style: italic; font-weight: bold;">or</span> sellers, let alone access to conditions that can affect future supply and demand. This results in "market inefficiency," which results in price inconsistencies, precisely as predicted by economists. Therefore, prices vary from high to low across the spectrum, depending on the <span style="font-style: italic;"> </span>perception of the buyers in any given time/place. This is because they have <i>limited and incomplete</i> information about the global supply chain.<br /><br />This also explains why people objected to my proposition from my prior article. They do not have access to "all information," and worse, <span style="font-style: italic;">they are unaware that their worldview is limited.</span> That is, most pro photographers are under the illusion that the entire market of stock photos is monopolized by a small number of stock agencies.<br /><br />Ironically, the other markets (non-agency buyers/sellers) don't see the other side either. These discrete and separate markets will, by definition, find different prices than buyers in other markets. Stock agencies will view one another as competitors and lower their prices, whereas websites that are unaware of stock agencies (or don't attempt to compete with them) will command higher prices.<br /><p>To optimize prices and create an efficient market, the following would have to take place:<br /></p><ul><li>Stock agencies would have to expand to cover a larger proportion of the image-buying market. As my prior article advised, the way to do this is to partner (or merge) with photo-centric websites, <span style="font-style: italic;">whose proportion of global internet traffic is very high</span>. This will allow "more information to be more universally available to a greater proportion of the buyers and sellers." This now leads to market efficiency.<br /></li><li>Once the market became efficient, it could then be automated through predictive pricing algorithms, precisely the way Google automated online ad prices using an auction-based mechanism. No doubt this is not a simple algorithm, and it took years to evolve, requiring considerable data mining to determine optimal market pricing. But it was achieved to a point where it is now a highly viable (and mutually beneficial) economic model for buyers and sellers. The market of photo buying is similarly large, and there's enough economic activity that appropriate data-mining efforts could lead to similar algorithms for auction-based image license pricing.</li></ul><p>The question is whether anyone is willing to invest enough into this untapped market.<br /></p><p></p>argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-42517735307631634642012-02-17T10:00:00.000-08:002012-02-17T10:18:25.857-08:00Selling Stock: it's about search rank, not priceYesterday, I reposted an <a href="http://www.danheller.com/blog/posts/myth-that-microstock-agencies-hurt.html">article I originally wrote in 2007</a>, discussing the misconception that microstock pricing is what's driving down overall license fees.<br /><br />I got a few emails that still challenged my assertion, and it appears I haven't emphasized strongly enough the most compelling arguments supporting this thesis.<br /><div class="gmail_quote"><div><br />All of my research supports the premise that the primary cost of licensing images is not the license fee, but the overhead associated with finding and acquiring the right image. The overhead and administration of a project that would involve photo licensing shows that the actual license fee ranks very low on the budget -- hence, low on the buyer's priority list. My 2007 surveys of buyers showed that.<br /><br />If the person responsible for finding images for a project is paid $60/hr, and this person spends 2-3 <i>more hours</i> looking for a photo just to pay $1 vs. $50, this translates to paying someone $120-180, just to save $50. People who control budgets know that the license fee for photos is negligible to the total cost of production, even at the traditional stock photo rates. The bigger the project, and lower the proportion of the license fee for the image(s).<br /><br />Those who sell images are dropping their prices <i>because they're looking at their competition, not the buyer</i>. Further, there is absolutely no evidence to show that sites that have lower prices sell more images. There is definitely a <i>perception</i> that there's a correlation, but that's because people are comparing apples to oranges. Getty sales vs iStock sales are not apples-to-apples because the two entities vary dramatically in search engine results (and other important factors). People talk about microstock sites more, and they link to them (in blogs, discussion forums) and the quantity of images on microstock sites is rapidly growing. So naturally, these sites get higher rankings in search results. Search engines don't rank sites because they have lower prices. They rank sites by size (content), links, and a black magic formula that is best described as "dispersion of discussion in and around the net." In short, microstock sites have more content and get more attention. Hence, better rankings, which translates to more traffic, which attracts more photographers to submit images to them, perpetuating the feedback loop.<br /><br />In my 2007 survey, those who indicated they were aware of--and use microstock sites-- most don't go to them because the prices are lower; it's mostly because those sites ranked higher in search engine results, where the buyer starts.<br /><br />Because search engine ranking drives traffic -- especially the untapped (and unaware) segment of the global economy that doesn't use stock agencies -- and because the greatest cost in photo acquisition is time, not the license fee, 90% of the time-savings is the image results the user gets on that initial search. If it takes the buyer to a stock agency site -- microstock or otherwise -- then the deal is nearly done. Price notwithstanding.<br /><br />This is primarily why I have advocated for years that stock sites should focus their entire effort towards optimizing search engine rankings. While they could have done something about it in the past, the rise of social networks and the plethora of image-related websites and apps has made it impossible for agencies to rank highly on image-search rankings on their own. In today's market, they have no choice but to either partner with, or acquire/be-acquired-by a social-networking site.<br /><br />The Getty<->Flickr combination is a very pragmatic example. Yahoo is circling the drain, and it needs to shed its non-performing assets and focus its attention on ... <i>something</i>. Whatever that is, it isn't Flickr, and there aren't a lot of buyers that would be interested in that asset, except for Getty or Corbis. The combined product would involve retooling Flickr to be far more socially active (to keep up with modern social networking trends), <i>and</i> to integrate licensing/acquisition into the user/social experience. Most importantly, to provide incentive programs for photo submitters to participate economically. (I've <a href="http://www.danheller.com/blog/posts/getty-and-flickr-prophesies-coming-true.html">written a great deal about this</a> in the past.)<br /><br />Of course, perhaps Yahoo should just buy Getty. Facebook is getting into the game, which tends to lead one's eyes towards Google, but they are still struggling to play catch up in the social-networking arena, and their photo division is not run by someone with a disposition towards stock or an awareness of the economics of the photo industry. The company is more interested in building assets that support their advertising model. There's no evidence that "licensing" is on their radar--a pity because they would be on the forefront of the Web 3.0 economic model, where images would play a huge role. (See <a href="http://www.danheller.com/blog/posts/economics-of-migrating-from-web-20-to-30">here</a>.)<br /><br />In the meantime, there's a $25B shadow economy in peer-to-peer photo licensing that's up for grabs. (See <a href="http://www.danheller.com/blog/posts/total-size-of-licensing-market.html">here</a>.)<br /><br />So, you ask, "how do you convince agencies of this?"<br />I've been trying since 1998.<br /><br />(For fun, <a href="http://web.archive.org/web/20010413103116/http://www.danheller.com/ep-webuse">see this web archive</a> of my site from 1999 discussing this topic.)<br /></div></div>argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-90704964616828464282012-02-15T23:34:00.001-08:002012-02-15T23:42:30.014-08:00Myth about Microstock Pricing's Effect on LicensingThis is a repost from an article I wrote on March 8, 2007. It came up in a discussion I had with a stock agency today, and found that much of what I wrote is still true today.<br /><br />__________________________________________<br /><br />I was talking with a photographer friend of mine about why he doesn't sell his own images on his website. His response was, "Who can compete with microstock agencies selling images for $1 each?"<br /><br />My immediate response was, "I do just fine. In fact, I've raised my prices at the beginning of the year."<br /><br />And that got me to thinking, Why is it that I can do that? Why aren't buyers pressing me to lower my prices? Why aren't competitors stealing my business?<br /><br />The short answer is counter-intuitive for economists because there's a twist to this story that is rarely ever seen: it's not the buyer pressing prices lower, it's the competitors themselves. They're simply acting naturally, according to the laws of supply and demand: as the supply goes up, prices drop so competitors can sell their wares. But what's happening in the photo microstock industry is a bit of twist: buyers aren't putting pricing pressures lower, but the sellers aren't expecting that.<br /><br />How can we tell? Well, by the data. The premise begins with the question I posed at the top: why aren't my sales hurting? The two-part answer begins with the fact that my site ranks very, very highly. (Or, it did at the time of this writing back in 2007.) This means that when people search for images, they get to my site ahead of many others, at least for certain keywords. (I rank high for a lot of keywords, but I don't claim to have cornered the market by any means.) The second part of the answer is that if they find the image they want, they simply buy it. If price was a concern, they would move on.<br /><br />One might ask, "How do you know who's moving on and who's staying?" Again, data. My traffic has gone up and down dramatically since I started selling images online back in 1998. Since then, there's been a very tight correlation between the total unique visitors and the number of images I sell. The only variations to that rule have come when I've adjusted prices, and even then, the results were counter-intuitive. When I started selling pictures, my prices were naively low and I got very little buyers. It wasn't until I raised my prices did I finally get more buyers. (I talk about this experience in greater detail <a href="http://www.danheller.com/biz-prints">here</a>.)<br /><br />Once my pricing stabilized, my ratio of traffic to buyers has remained constant. Even as microstock came into the picture, and people were dropping their prices precipitously, I never did. Yet, the ratio of traffic to sales has remained flat. If pricing were a factor, that ratio would not remain consistent.<br /><br />This then begs the question, why doesn't the buyer care about price? There are two very likely answers that are both supported by data. First, most buyers are not aware of other, lower-priced sellers. Second, despite the possibility of a lower price elsewhere, the differential is not enough to bother. Let's take each separately.<br /><br />Regarding the "awareness" of other photo-selling sites (like microstock), we are still in an era where online licensing of imagery is still unknown to most photo buyers. Most pro photographers would have a hard time believing that, but this is explained by their historical roots: most pros are used to a very narrow group of buyers—the old-style traditional print/news media companies—who use traditional stock agencies. There was a time when media companies were the <span style="font-style:italic;">only</span> buyers of images, and most pros (and agencies) continue to believe this delusion. As long as this class of buyer continues to buy in large volumes, the delusion perpetuates.<br /><br />But traditional media agencies are not the only buyers of images by orders of magnitude. (<span style="font-weight:bold;">Editing note:</span> In an article I would write several months after this one—which would be titled, <a href="http://www.danheller.com/blog/posts/total-size-of-licensing-market.html">The Total Size of the Photo Licensing Market</a> —I cite numerous data that supports the thesis that most photo buyers are consumers or non-traditional office workers, designers, stay-home-moms who create brochures for clients, and so on.)<br /><br />Those who have not worked in the traditional media industry are largely unaware of traditional stock photography websites, and this population numbers in the 10s of millions. And what keeps those buyers from finding traditional stock photography websites (or microstock sites) is their poor search engine rankings. The plethora of consumer-generated photos on the internet dilutes the visibility (and rankings) of most stock agency sites, and they do nothing to fix this problem, largely because they don't think they need to. Again, they think that consumers don't buy photos, that only media companies do. It's a self-fulfilling prophesy: their traffic is low, no one links to them (because there's no reason to), and they have no other content for search engines to index. Because photos themselves don't index well, this puts them pretty far down on search results when people do searches.<br /><br />As for price sensitivity, the reason why buyers don't balk at my prices is because most buyers aren't spending their own money. Their budgets are set by others: clients, employers, and so on. Those budgets have to factor in a large number of expenses. More specifically, the cost associated with whatever the project happens to be, which includes printing, copy-editing, and of course image licensing. The most costly element in this equation is labor. The employee or contractor that's looking for the image costs a lot of money. So, when you calculate the total cost of the project that requires that image, the actual license fee is nearly negligible. In fact, a research study I did for a client in 2005 showed that photo buyers are encouraged to limit the amount of time spent finding images because their time is very expensive. Photos aren't.<br /><br />So, when a photo buyer starts to do a search, and they quickly land on my site (because of my ranking), the one and only question is: does the photo work? If so, price is not a factor. A $50 license fee is identical to a $1 license fee for this reason: if they had to spend only a dollar, they would to spend another $50 in employee time continuing a search that would yield no appreciable difference in the final image. Spend the money and move on.<br /><br />(<span style="font-weight:bold;">Editing update</span>: Since this article was written, Google has improved its "importance" of images as content, which has increased the visibility of stock agency sites, and their associated rankings. While agency websites now outperform my site, my overall traffic has been cut in half. However, the ratio of traffic to buyers has remained constant, further supporting the claim that price is not a factor. I just need to boost my rankings again. But that's another topic.)<br /><br />The photo licensing industry has been in a downward spiral for reasons that have only to do with their own lack of economic analysis and objective research. It is certainly true that there are price-sensitive buyers, but the far greater factor in selling images is search engine ranking. If you solve that problem for yourself, then you needn't worry about pricing.<br /><br />And this is primarily why I've continually called for stock agencies to partner (or merge) with consumer-oriented photo sites. Getty should acquire Flickr from Yahoo. Corbis should acquire Smugmug. You name the photo-friendly consumer site, and there's a poorly performing stock agency that should either acquire them, or be acquired by them. Once stock agencies find themselves in a better-ranked position that yields more traffic and user activity, they will find that price is not the factor they thought it was.argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-42286839956113471932011-11-13T20:11:00.000-08:002011-11-13T20:36:21.599-08:00Creative Commons Effect on Photo LicensingJulie Bernstein asked me the following question: "I am curious if your views on Creative Commons have changed since the four articles you published on this topic in '08."<br /><br />Julie is referring to these articles (<a href="http://www.danheller.com/blog/posts/creative-commons-and-photography.html">part1</a>, <a href="http://www.danheller.com/blog/posts/follow-up-creative-commons-and.html">p2</a>, <a href="http://www.danheller.com/blog/posts/gaming-creative-commons-for-profit.html">p3</a>, <a href="http://www.danheller.com/blog/posts/proposal-for-creative-commons.html">p4</a>) where I describe the CC as a great licensing method for almost all media types <span style="font-style:italic;">except</span> photography.<br /><br />In summary, what the CC has done is create a legally legitimate infrastructure for those who freely share copyrighted works. Before CC, such activity was technically an infringement, because the the publication of creative works requires consent of copyright holders. CC clears up that technicality, which is great. But it has inadvertently given people the impression that it has affected the licensing industry's pricing structures.<br /><br />CC has not affected the greater licensing market (or prices), largely because of risk: CC has no centralized authority to assure that content is either <span style="font-style:italic;">submitted</span> properly or <span style="font-style:italic;">used</span> properly. Because it's so easy to game the system on either side of the photo (the supplier or the user can sue the other by luring them with a legally misleading scenario), the financial liability for anyone with a lot to lose is simply too high, especially given that traditional license fees are so minimal. So, the majority of image buyers simply stay away from CC.<br /><br />Now, this is not to suggest there's something wrong with the CC model in principle. I'm a big advocate for it in all other contexts. Indeed, it was born out of the "free software" meme that was popular in the 1980s and 90s, when Gnu Public License (GPL) and other models were the precursors to the "open-source" model we still enjoy today. These are great innovations in licensing because they allow intellectual property to be used for the greater good, while also allowing for commercial use of those innovations.<br /><br />But CC in the world of engineering is entirely different from photography. Engineering takes a considerable amount of time, resources and (usually) teamwork to produce anything of value that those in the open-source community would use. As such, the kind of content there is proportionally minimal, and each work is substantial and recognizable, making infringements quite easy to spot.<br /><br />None of this is true in photography -- trillions of images are produced daily, it's impossible to track any given photo, or whether it is "legitimate" (either by the owner or the user).<br /><br />So, sure, in a world of honest people that want to freely share their content in a peaceful corner of the image licensing market, CC is great. The CC market is growing, but the perception is only as a measurement of itself, not the total licensing market. An article on that topic can be found here:<br />http://www.danheller.com/blog/posts/total-size-of-licensing-market.html<br /><br />Lastly, it's natural to ask, "If CC is so easy to game, why haven't we seen it?" The answer is because the market is so negligible. Economists often use crime data as a reality check on the economic activity they think they're aware of. The higher the crime rate, the more economic activity there is, and there's usually parity between that activity and the presumed size of a commodity's market. If there's little crime, the market size isn't big enough to warrant the effort. If CC were to genuinely gain momentum, it would attract those who would game the system for profit, which itself would have a cooling effect, bringing its popularity back down.<br /><br />For the record, I've proposed that the best way to assuage people's risk concerns about CC is to use the "copyright registration" system. The CC foundation should have a submission system where those who want to submit images for CC licensing would bulk register those images to the copyright office. This gives them the right to file claims on behalf of the copyright owner, which is how major stock agencies like Getty work. Registered images are eligible for higher level of copyright protection, and there are federal penalties for fraudulent use. This means that <span style="font-style:italic;">users</span> of CC images can be protected from invalid claims by those trying to game the system because this is built into the copyright act's provisions. Similarly, <span style="font-style:italic;">authors</span> can be assured of CC compliance because non-compliant users could be subject to an infringement claim. Yes, you can sue someone for copyright infringement, even if the license fee were zero, because the infringement is another form of "breach of contract." Here, the user of a CC image agreed to the terms of CC by (for example) citing copyright ownership. Failing to do so is an infringement of that contract, and is therefore subject to the statutes provided by copyright law.<br /><br />This would not only allow CC to have actual teeth, but the trust would go up as the risk comes down.<br /><br />But such an infrastructure would be quite expensive to operate. That'd be a tall order just to create a system that brings the license fee for a commodity down only a few dollars, even if it is only to zero.argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-11864545566018067402011-09-30T21:14:00.000-07:002011-09-30T21:43:50.546-07:00"Commercial Uses" and Model ReleasesIn my last blog post, "<a href="http://www.danheller.com/model-release-facts">Myth-Busting Model Releases</a>", I received quite a bit of email from people about "commercial uses"of images, pointing to other discussion forums where, again, myths and hearsay prevailed among many misinformed, but well-intentioned photographers.<br /><br />The common assumption is that "commercial uses" of images require model releases, but that's not actually true. The sole trigger for whether a release is required rests on whether the subject can be perceived as <span style="font-style:italic;">supporting or advocating a particular idea, product or service</span>. True, many "commercial" uses of images do have people appearing to be advocates, and this is where the oversimplification begins. People overlook the many commercial uses where a person can be presented <span style="font-style:italic;">without</span> appearing to be a supporter or advocate. Similarly, there are <span style="font-style:italic;">non-commercial</span> uses that do portray the subject as a supporter or advocate, which would require a release. Two examples follow:<br /><br />On the commercial side, there are companies that sell books, magazines, newspapers and other forms of media. While the <span style="font-style:italic;">content</span> of their media may be editorial in nature (which doesn't require a release), the <span style="font-style:italic;">promotion</span> of their products is commercial in nature. Just because they may be promoting an editorial product, it's irrelevant. Promotion is a commercial activity. Full stop. But again, "commercial use" does not itself trigger the need for a release.<br /><br /><img src="http://www.danheller.com/images/misc/rush-limbaugh.jpg" align="left" hspace="10"><br />For example, a highly critical book about Rush Limbaugh ("<a href="http://www.amazon.com/Most-Dangerous-Man-America-Limbaughs/dp/0312612141/ref=sr%3Ci%3E1%3C/i%3E5?ie=UTF8&qid=1317412195&sr=8-5">The Most Dangerous Man in America</a>"), by John Wilson) sports a <a href="http://www.danheller.com/images/misc/rush-limbaugh.jpg">photo</a> of Rush himself on the front cover. And given the scathing nature of how Rush is portrayed in the book as an irresponsible, sexist, racist, ideologue, one would expect that Rush signed no model release or provided consent of any kind to have him or his likeness be associated in any way with this book. Obviously, the text is editorial commentary about the controversial radio host, so no consent is necessary for using the photo on the book itself.<br /><br />But what about the promotion and advertising for the book? Both of those are "commercial" in nature: profits are made, and the book itself is a product. Again: promotion is "commercial use." Full Stop. So, one would think that Rush would have his lawyers find any legal position possible to stop or slow down the supply chain, from the photographer to the stock agency to the publisher. Yet, there it is in full color, used to both promote and advertise the book.<br /><br />The reason a release is not required is not because this was the photo used on the book, but because this photo—or most any photo—would not cause a common person to believe that Rush is an advocate or sponsor of the book. (If there were a photo of Rush standing proudly next to a poster sized replica of the book, then such a photo could suggest he advocated the book, although the existence of such a photo would be unlikely.)<br /><br />So, the fact that a photo is used as part of a promotion is a red herring. Photos may be on web pages, in portfolios, and presented for sale, yet the "advocacy" question is not satisfied simply because photos are displayed. There has to be more context to imply advocacy.<br /><br />This is true of non-commercial uses as well. Non-profit companies often believe they can use photos of people in their materials because they are implicitly "non-commercial." But again, the determining factor is whether the person could be perceived as an advocate or sponsor of the organization.<br /><br />Speaking of supply chain, note that the photographer who shot the photo of Rush Limbaugh didn't need a release to take the picture or to sell the image; he didn't need to know what the buyer was going to use it for, assuming he was even aware that someone was buying it. Similarly, a stock photo agency can display the image online, which is how the book publisher (Thomas Dunn Books) found it.<br /><br />The moral of the story is, take "commercial use" out of your vernacular, and only focus on the "advocacy" question. And while that's the right place to start, such assessments are not always easy; people disagree on specific cases and argue incessantly.<br /><br />A common example is photographer's own self-promotional pieces. Naturally, most believe that these are "commercial use" of images, but again, that's not the sole trigger. Most images used as part of a piece that promotes someone as a photographer is almost universally interpreted by the public as "<span style="font-style:italic;">examples</span>" of the artists' work, not necessarily as advocates for them. Such an assertion would require text, often in the form of a quote praising the photographer's work. That context would require consent from the person depicted.<br /><br />As for being in the business of selling photos, photographers are never responsible for having to know the answer the "advocacy question." Someone else is going to publish their pictures, which means that the <span style="font-style:italic;">buyer</span> bears the risk. Photographers or stock agencies can't be responsible for how other people use the images they acquire, especially because one can't make the advocacy assessment until the photo is ultimately put to use, which is long after the financial transaction took place. <br /><br />Lastly, there are portfolios: Photographers do not need releases for photos for these.<br /><br />First, a portfolio is rarely considered a "promotional" item, unless it's put together very poorly. Professional portfolios consist of a collection of artistic works that demonstrate the skills and talents of the photographer. For any given image to be interpreted as to suggest the subject were an advocate for the photographer, particular text would have to be used, which is not typical for a good portfolio, which means that permission is not required in order to use photos of people. This includes all forms of publication of the portfolio, whether in physical form, or as a website, or other media.<br /><br />The one thing to be aware of, however, is that sometimes photographers take pictures of people in special, "closed sessions," where an agreement was made ahead of time—<span style="font-style:italic;">before the photo was taken</span>. If a subject posed for a photographer with the pre-arranged agreement that the photos would not be used in a portfolio or any other manner, than that agreement takes precedent. (Of course, a new agreement, such as a model release, can supersede it.) Such an agreement would have to be established first--it cannot be retroactively enforced.<br /><br />That said, any good photographer would honor such a request, even if he or she didn't have to.argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-52324541429237604622011-09-28T15:43:00.000-07:002011-09-28T16:25:50.740-07:00Busting Myths about Model ReleasesThe internet is a virtual echo-chamber of facts and myths of all sorts. When something goes viral, there's no stopping it. Even the most blatant falsehoods can perpetuate for years if they cause no harm in believing them. An example is the myth that the different regions of the tongue tastes different types of things: sweet in the front, sour in the back, etc.. In fact, all taste buds are identical, but the myth started from a single, faulty study in the 1800s that was published in a school text book, and it's been repeated ever since.<br /><br />In the photo business, the greatest myths are those involving model releases. If you have ever considered selling (or licensing) photos on your own, or through a stock agency, you've probably been told that photographers need "model releases" to sell photos of people, and "property releases" to sell photos of buildings and the like. Some stock agencies actually reject images unless these photos have releases.<br /><br />While it's true that model release are necessary for certain situations, the actual laws about these issues are deep and complex. As rumors and hearsay perpetuate on the net, the over-simplification has resulted in virtually all the "advice" and conventional wisdom about model releases to be entirely wrong. And the reason why these myths perpetuate is because they cause no harm. No one ever got sued for having a model release. So, people follow the advice because they (and others) seem to be safe, perpetuating the myths.<br /><br />So, why address the myths about model releases? Because photographers are losing enormous opportunity by not trying to sell the images they don't have releases for, and by going to great lengths to get releases they don't need. Despite the rumors, most publications of photos are not the type that need releases anyway, resulting in an enormous market of buyers. Most photographers could continue to have very successful businesses without ever getting model releases, all while doing exactly what they are doing today. Sure, releases are important for many types of publishers, so if you do get releases for their benefit, you can expand your buyer base by getting them. But it's a proportionally smaller market than people think, and the time, effort and resources necessary to properly obtain, manage and catalog releases is rather substantial. This investment will rarely be offset by the incremental income from sales of images that actually do require releases.<br /><br />This article attempts to help the photographer looking to make money by setting the record straight on the most common myths about model releases. <br /><br /><span style="font-weight:bold;">Fact #1: You do not need a model release to take pictures.</span><br /><br />Nuff said. Don't let anyone tell you otherwise. Everyone in the world has a camera on their phones, and photos are taken constantly. You don't need someone's permission to take their pictures. Now, just because you might eventually intend to sell your photos has nothing to do with the ability to take pictures in the first place.<br /><br /><span style="font-weight:bold;">Fact #2 You do not need a model release to sell pictures. And "profit" has no effect on whether a release is required.</span><br /><br />First, newspapers buy photos, and their use of the photo is unlikely to need a release. So, selling a photo (and making a profit doing so) to a newspaper also does not require a release. And because the law does not require you to have any knowledge of the buyer or their intended use of a photo, you are <span style="font-style:italic;">always</span> allowed to sell photos without a release.<br /><br /><span style="font-weight:bold;">Fact #3 You do not need a model release to make photos available for sale, either on your own website, or through a stock agency.</span><br /><br />If one can sell a photo without a release, one must also be able to "make photos available for sale" without a release. This includes the publication of such photos in a manner that would allow potential buyers to find them.<br /><br />The legal case that established precedent for this was <a href="http://www.state.il.us/court/Opinions/AppellateCourt/2007/1stDistrict/August/1060870.pdf">Corbis vs. James Brown</a>, where the judge called the depiction of a photo as being for sale a "vehicle of information". Here, consent from a subject is not required.<br /><br />Therefore, one can make photos available for sale in any manner of publication and media, whether it's traditional print or online formats, including personal web pages, photo-sharing sites, social media sites, stock photo sites, or mostly anywhere.<br /><br />For detailed information, see the article, <a href="http://www.danheller.com/model-release-primer">Model Release Primer.</a><br /><br /><span style="font-weight:bold;">Fact #4: A "property release" is NOT required to sell or buy photos of buildings or people's personal property (like land).</span><br /><br />The root of this misunderstanding is complicated. The term "property" in an actual "property release" refers to two particular forms of <span style="font-style:italic;">intellectual property</span>: trademarks and copyrights. Examples include logos, designs and other works.<br /><br />Now, just because these are "protected" works, it doesn't mean that one cannot publish photos of them. It only means that the manner in which such works are depicted cannot cause confusion among the general public about who "owns" the properties, or other legally complex factors. It is impossible for a photo of a bottle of coke to cause the general public to suddenly think that the Coca Cola company was now owned by a freelance photographer in Topeka. If the photographer sold the image to a publisher, and the publisher's use of the image would imply that it had a unique and special business relationship with Coke, then that would trigger a trademark infringement claim. But that would be with the publisher, not the photographer, nor the stock agency that sold the image. Furthermore, such an infringement couldn't possibly happen by merely the photo being printed. Text around the photo would have to give this impression. And, since the photographer or anyone selling such a photo cannot know or control how a publisher uses a photo, they could never be held liable for the infringement. <br /><br />Like the myth about the tongue's different taste regions, the history of the "property release" stems from a single misimpression from long ago. Certain physical structures, such as the Golden Gate Bridge and the Transamerica building in San Francisco happen to be registered trademarks. And, they <span style="font-style:italic;">have</span> been infringed upon inappropriately in the past, but these were cases that have nothing whatsoever to do with photography. And at the time, news of these suits briefly caused publishers to shy away from publishing photos of such places unless photographers could provide property releases for them. Those releases were <span style="font-style:italic;">not for the buildings</span>, but for the right to use the <span style="font-style:italic;">trademarks</span>. This was very short-lived, however, because it is impossible for photographers to obtain "true" (and legally valid) property releases for trademarks without paying enormous sums of money. So, even though the publishers stopped asking for those releases, the rumor perpetuated nonetheless: photographers erroneously interpreted these requests as "mandates" that all photos of buildings required "property releases." And they've been behaving that way ever since. <br /><br />To be crystal clear, property releases are not required to sell or resell photos of buildings and other real estate (or physical property of any sort, such as land, pets, livestock, homes, etc). If something happens to be a registered trademark (building or otherwise), then the publisher will already be quite aware that they are the ones that need to obtain permission from the trademark owner (which may not even be the building owner). Any permission obtained by the photographer would be entirely useless to the publisher. In fact, every single property release used by photographers gives no legal right to use a trademark, and since buildings and other items do not require consent for photos of them to be used, these property releases are worthless pieces of paper. But they also cause no harm.<br /><br />For more, see <a href="http://www.danheller.com/biz-trademarks">Photographers' issues concerning trademarks and photography</a>. <br /><br /><span style="font-weight:bold;">Fact #5 You usually do not need permission to shoot pictures of (or on) private property.</span><br /><br />While it's true that property owners can restrict photography, that's not saying much. They can also stop you from picking your nose. It's their property, so they can stop anyone from doing anything. You've seen signs that say, "No shoes, no shirt, no service." There's also the sign that reads, "We reserve the right to refuse service to anyone." In short, property owners can apply restrictions indiscriminately and inconsistently and arbitrarily. <br /><br />But, the owner has to proactively take an action to prevent you from doing things. It's not that you're prohibited from actions by default, and they then grant you permission later. So, most of the time, there are rarely (if any) actual restrictions property owners enforce.<br /><br />This includes taking pictures. It's permitted by default, and to prevent it they must take explicit actions, including (but not necessarily limited to) posting signs, as noted above. If you are not stopped (or are given reasonable advanced notice), any photos you take are legitimate, and can be sold legitimately. (See later section on "ownership.") Further, one may not retroactively enforce their restriction. That is, if you were at a private event, and then later told you were not allowed to take pictures, it has no affect on your photos or your ability to sell those images. (Publishers, on the other hand, may need releases if the nature of the publication would require it. But that doesn't affect the photographer's liability.)<br /><br />So, if you're in a bar, or in an amusement park, or touring a winery, you are allowed to take pictures unless you're told not to while you're there. And if you do take pictures, you can sell them to any buyer willing to assume the risk, if any exists.<br /><br />Sometimes, photographers will often seek permission to shoot pictures ahead of time. This is not only unnecessary, but invites someone from stopping them. If you know ahead of time that you will need permission, that's another story. <br /><br /><span style="font-weight:bold;">Fact #6: You do not need releases for Art, Books, Exhibitions, Presentations, Fairs, Contests, Postcards, Calendars, Etc.</span><br /><br />At the risk of over-simplification, the only time a release is needed is if a person can be seen as supporting or advocating an idea, product or service. True, there are often disputes about whether a given publication of a photo of someone could be construed in such a way, but the dispute gets closer into the safety zone when that publication is a form of artistic expression. The First Amendment of the US Constitution protects "artistic exhibitions" (and publications) as a form of free speech, so consent from anyone else—by definition—is never required. Money or profit has nothing to do with whether a work is published or "depicted in an artistic manner."<br /><br />Again, people argue frequently about whether such depictions are, in fact, artistic in nature, which leads to a complex argument: is it art, and if not, is it a promotion, and if so, is it the type of promotion that should have required consent from the person in the photo?<br /><br />While these are all good questions, the reality is that no one has ever successfully won the argument that a model release was necessary for a photo that was used in a book, in an art gallery, or at a fair, or any of the items in the above list. In short, the law is on the side of the First Amendment by default - a claimant bears the burden of proving otherwise, and that's a difficult and very expensive bar to clear. While is indeed a very deep and complex subject, those wishing to seek quick answers can feel relaxed: "don't worry. You're fine."<br /><br />For for more info, I encourage you to <a href="http://www.danheller.com/model-release.html#8.5">read this</a>. <br /><br /><span style="font-weight:bold;">Fact #7: Photographers do not need releases for photos in their portfolio.</span><br /><br />A portfolio is a collection of artistic works that demonstrate the skills and talents of the photographer. Permission is not required in order to use photos of people in a portfolio. This includes all forms of publication of the portfolio, whether in physical form, or as a website, or other media.<br /><br />The one thing to be aware of, however, is that sometimes photographers take pictures of people in special, "closed sessions," where an agreement was made ahead of time—before the photo was taken. If a subject posed for a photographer with the pre-arranged agreement that the photos would not be used in a portfolio or any other manner, than that agreement takes precedent. (Of course, a new agreement, such as a model release, can supersede it.)<br /><br />For more on this, see <a href="http://www.danheller.com/blog/posts/when-editorial-uses-of-photos-require.html">Personal Privacy and Model Releases</a><br /><br /><span style="font-weight:bold;">Fact #8: Posting photos online is just another form of publishing.</span><br /><br />What determines the need for a release is whether a photo makes someone appear to support, advocate or promote ideas, products or services. The medium itself is irrelevant, whether it's traditional physical media, or online/electronic media. One cannot say whether a release is required for photos "posted on the web" because it depends on the way the photo depicts the person in it.<br /><br />When photographers put images on their professional website, they think that this suggests that the people in those photos could be construed as sponsors or advocates, but that's not complete. Putting photos online to "sell" does not require a release, depictions of "art" do not require a release, and a "portfolio" does not require a release. The only way a photo would require a release is if the photographer created a self-promotional piece (such as an ad) that promoted his or her services, and used a photo of someone that might suggest it is a client.<br /><br /><span style="font-weight:bold;">Fact #9 Ownership of physical pictures and ownership of rights are different.</span><br /><br />When people hire photographers to take pictures of them, they think they own the photos, or have rights to publish them. They don't. This has to be agreed upon, usually ahead of time (but it can be negotiated later.) Normally, this isn't a problem. But where things break down is when subjects don't like the photos of themselves. Here, they try to demand them back, but they don't have this right. (They also cannot retract permission if it's been granted in writing, such as a model release.)<br /><br />The same thing is true of pictures taken on (or of) people's property. They think that because it's their house, or their private event, or their pet, that they have the rights to the photos. They don't. Nor can they stop the photographer from publishing those photos. Non-humans do not have inherent rights, unless protected by trademark or copyright. <br /><br /><span style="font-weight:bold;">Concusion</span><br /><br />The reality is that photographers (and stock agencies) don't get sued for the publication of an unreleased image. And given the very high cost of suing someone, litigants are usually told by their lawyers to go after the "publishers" of the images in question, as they are the ones who bear the true legal liability.<br /><br />As an active photographer, understand that most people are entirely uninformed about model releases, and factor this into your business dealings. Publishers, stock agencies and many others may vehemently demand a model (or property) release before buying photos, or for accepting your images into a stock agency. Despite their being wrong, this is the way of the world, and you can only do what they ask, or don't play.<br /><br />But don't underestimate the sales potential of your unreleased images, and the large market of buyers who don't make such demands.<br /><br />For those with interest in reading the details, I have many articles that answer all the technical questions, like <a href="http://www.danheller.com/model-release-primer">this one</a> and <a href="http://www.danheller.com/model-release">this one</a>. I also wrote a book called, <a href="http://www.danheller.com/books">Photographer's Guide to Model Releases. </a>argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-53749978309300602092011-08-25T00:20:00.000-07:002011-08-25T00:33:35.959-07:00Time-Lapse Movies Demo Reel #1I'm happy to announce that I've entered into an agreement with Thought Equity as the exclusive reseller of my time-lapse video content. Although I will continue to sell still images on my site (danheller.com), licensing video is another matter entirely. In other words, it's a very narrow, tightly-controlled market segment.
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<br />You can browse my movie clips here: <a href="http://bit.ly/heller-timelapse-clips">http://bit.ly/heller-timelapse-clips</a>
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<br />The following is a short (3-minute) demo reel of a few select time-lapse scenes.
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<br /><iframe width="560" height="345" src="http://www.youtube.com/embed/b0nUj_lHwEk" frameborder="0" allowfullscreen></iframe>
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<br />If the video does not appear above, use this link: <a href="http://www.youtube.com/watch?v=b0nUj_lHwEk">http://www.youtube.com/watch?v=b0nUj_lHwEk</a>argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-40260915682129320062011-02-14T09:10:00.000-08:002011-02-14T12:18:29.030-08:00Search Engine Optimization and The Long TailI was inspired by an entertaining article I read in today's New York Times titled, <a href="http://www.nytimes.com/2011/02/13/business/13search.html">The Dirty Little Secrets of Search</a>, detailing the rise and fall of JC Penney's Google rankings. Turns out, JC Penney's SEO consulting firm allegedly bought a huge number of paid links on websites, most of which aren't actual sites at all, but domain names purchased solely for the purpose of placing links to PC Penney. Google takes this very seriously, and has been known to eliminate sites completely.<br /><br />The rationale for this approach is, as most people know by now, that your ranking is governed most largely by the number of other sites that link to yours. Unfortunately, what many people still don't know is that gaming the system doesn't work. (Link exchanges are a sure way to lower the ranking of both sites that link to each other. That's why JC Penney's SEO firm just created sites that had one-way links.) While it'd be nice to have <span style="font-style:italic;">organic linking,</span> where people simply "talk about you" (and provide a link) on many websites on the net, that's not so easy to do and takes a lot of time.<br /><br />In this day and age, if you're going to succeed as a stock photographer, you have no choice but to figure this out. This strategy begins with two questions: 1) which keywords or phrases do you want to rank highly for, and 2) how do you seed yourself around the net?<br /><br />The answer to the second question begins with the first: find the right keywords.<br /><br />Here is where most photographers (and agencies) get it wrong: they shoot for keywords like, "stock photography," and other industry trade terms. But this doesn't work so well. Google's <a href="https://adwords.google.com/select/TrafficEstimatorSandbox">Traffic Estimator</a> shows terms like "stock photography" yields only about 90,000 global monthly searches. Sites that rank highly for only a few keywords or phrases never do well, even for popular search terms. Instead, reach for many search terms -- as many as possible.<br /><br />My site (<a href="http://www.danheller.com">danheller.com</a>) ranks in the top five positions on 751 search terms, and 1205 search terms rank in the top 10 on Google Search results, according to Google's <a href="https://www.google.com/webmasters/tools">Webmaster Tools</a>. But I'm not actually trying to rank highly for any given search term at all. That would be futile. Odd as it may sound, I rank #1 for "<a href="http://www.google.com/search?q=stock+photography+business&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a">stock photography business</a>," but I swear I didn't try to. Of course not, because that search term doesn't generate enough traffic to warrant investing any special time or effort. That's the point. This is the "long tail" approach to keyword indexing: it's about breadth, not depth. I don't get that much traffic to any single page. By ranking highly in such a vast number of terms, it's the aggregate that matters.<br /><br />All this starts with simply being indexed. That is, search engines have to know what words and phrases you have before it can rank them. Choosing the right words is one thing, but you also need Google to <span style="font-style:italic;">trust your keywords</span>. In other words, trust you. Unlike standard text on a page, which Google is good at, photos are different. An algorithm doesn't know what's inside a photo -- it has to look at other characteristics to determine its content, such as surrounding text, the name of the page it's on, and of course, its <span style="font-style:italic;">metadata.</span> In particular, the "keywords" tags embedded in the IPTC header of the image file.<br /><br />Once again, here's where most photographers and agencies get it wrong: they "pollute" their keyword lists with dozens, if not hundreds, of phrases and expressions, hoping the target image will come up as a search result for any one of them. But Google will actually penalize people try to game the system with "black hat" approaches, like using repetition (singulars and plurals together), lots of synonyms, intended misspellings (by seeing both the misspelled and correctly spelled words together), and tons of generic terms (such as "photo", "image", "photography," etc).<br /><br />Products like Cradoc's Keyword Harvester and A2Z Keywording each suffer from (and perpetuate) this problem. The main reason is because they are trying to <span style="font-style:italic;">anticipate what a searcher might look for</span>. This is not only impossible, but the mere attempt reduces your credibility index in the eyes of almost all search engines.<br /><br />Almost all? Which search engines does it actually work for? One of the people responsible for this policy told me "microstock agencies is where our customers submit their photos, and those search engines are not that smart. So, we have to be thorough."<br /><br />True enough, but this raises two issues. First, despite the fact that microstock websites are popular among amateur photographers and a growing population of desperate pros, looking to pick up the pennies from as many sources as possible, the vast majority of those looking to <span style="font-style:italic;">license images</span> don't go to stock agencies. They go to main search engines.<br /><br />Second, even among the brain-dead search technology employed by stock agencies (except for Getty's whose search technology is quite good), proper keywording techniques still perform quite well at those places. The reason is that people searching for images don't go about it in the diligent, thoughtful way that photographers think they do. People do not search using conceptual terms that those who sell keywording products would lead you to believe.<br /><br />Keywording properly is really boring, and far less time-intensive than people make it out to be: just the basic "facts" about the photo can be described in a handful of terms. The search engine will do the hard part. Granted, this is a bit simplified, because it doesn't address issues like word definition ambiguity, synonyms, and so on. But this isn't done by humans anyway; it needs to be handled by the search engine's heuristic engine. True, stock agencies don't have them, but again, the trade off is whether to achieve "good enough" with the less-frequently used stock agency or the "proper" method advocated by the search engines.<br /><br />This is why the "proper" method achieves the best of both worlds: you will be indexed properly and given higher "credibility" with public search engines like Google, and you won't be penalized by the microstock agencies even though images might only use a handful of keywords, rather than dozens or a hundred.<br /><br />The next question is how to get all those coveted links from other sites to direct traffic your way. This technique is not easy; it requires work. You need to write a lot, post to discussion forums, socialize and network, be on the "inside" with industry people, and above all, talk about what you know. And here's the real hidden secret, <span style="font-style:italic;">I'm not talking about photography.</span> The discussion forums, industry people and the topics you talk about are best when it's something other than photography because it's highly likely that you're an expert at something other than photography.<br /><br />Of course, if you are well-informed about photography and are regarded as a leader in the field, then go for it. But if you are, then you're probably not reading this... at least, not with the goal of improving your photography business. I am better known for my business analysis, which happens to be in the photography field, than I am for my photography as an art form. That I sell lots of images (prints and licenses) is not a byproduct of my artistic skills. It's the byproduct of having published so much about the business of photography.<br /><br />The more you engage in discussions online and offer useful, insightful and meaningful commentary, the more people will link to you. Offer to write for magazines. Try even writing a book or two. Sure, it's an investment of time. What'd you expect? That it'd be easy?argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-10229486576505173352011-01-23T11:35:00.000-08:002011-01-23T11:46:56.217-08:00The perils of taking advice from prosI got an email today that seems to be representative of a common thread I'm seeing. I included excerpts from the original sender and my responses:<br /><blockquote><br /> In Chapter 7 you note that in 2000 you increased your image library, and had a big spike in traffic (2000 visitors/month). If you don't mind me asking, approximately how many images did you have online entering 2000?<br /></blockquote><br /><br />I have no idea. And though I appreciate the motivation for your question, the milestone comparisons are inapplicable. The major reason my success back in 2000 was that there was virtually no appreciable photo content online. Anyone that put photos online did well. Most pro photographers were still shooting film, and the time and cost of getting that media scanned and online was a major barrier for photo imaging growth. While digital cameras were around, their resolution and image quality were too low to have much commercial value till 2003 (Canon's EOS 1Ds was the first camera that could produce an acceptable professional image quality for commercial production.)<br /><br />So, whatever size my archive was, or photo quality, it was easier to succeed. So, don't look at my past as having any relevancy to today's market.<br /><br />I tried to advise pro photographers to do this back then, but most were adamant that it would cause more harm to have images "stolen", and that film-based stock photo agencies were still the only viable distribution channel. It was this heated argument that propagated my postings (and my website) to other websites, which resulted in my getting so many links, which translated into traffic, which helped elevate my site rankings, which translated into sales.<br /><br />(Ok, I'll admit it: I probably also had a lot of worthwhile photos to buy.)<br /><br /> <blockquote> A big part of my strategy is blogging on my image creation and some of the places I have visited where images were taken. I'm trying to be as search engine friendly and optimized as I possibly can, per your suggestions.</blockquote><br /><br /><br />My suggestion is not to be "search-engine friendly", per se. It's to <span style="font-style:italic;">rank highly</span> in search results. The two are not the same, and you don't achieve high rankings by having search engines merely find you and index you accurately. (That's being "friendly".)<br /><br />Ranking highly in search engines requires other sites to link to your site. The value of those links are assessed by the ranking of those sites, which affect your ranking. Search engines are aware of people attempting to game the system through "link exchanges". Accordingly, you can reduce your own rankings if you try to agree with other sites to link to each other as a way of increasing each of your link counts. Those sites rank poorly, and so will yours, if you do link exchanges.<br /><br />So the question is, who do you want to link to you?<br /><br />Writing articles on "image creation" and "the places you've been" will attract mostly other photographers. And they don't buy photos. While it is certainly desirable to have highly-ranked photo-centric websites link to you, this is a very narrow market, and not one that will boost your overall rankings that ultimately attract image buyers.<br /><br />If you're going to invest time into blogging, you want NON-PHOTOGRAPHY sites to link to you. How do you do that? By blogging about subjects that probably have less to do with photography as the other subject.<br /><br />My advice has always been to be an expert in something other than photography. Write about that and cross-post your articles to discussion forums or other formats to attract new and different audiences. If they regard your knowledge and opinions as valuable, they will link to you, talk about you, and regard you as credible. This is what will raise your site's ranking.<br /><br />Do I follow my own advice? Well, not as much as I should. Yes, my site has a lot content about photography (business and techniques), and yes, I rank highly for that. But again, I did this back in the 1990s and early 2000s, when such things mattered. It doesn't matter that much anymore. I would not be successful today by repeating the same steps I did back then, so don't emulate me just because I capitalized on what was at one time a successful technique.<br /><br />More recently, I have a great deal of non-photography content as well -- mostly in the form of photos, of course. But here's where I've dropped the ball. I don't spend nearly the kind of time talking about non-photo subjects as I should. I am in the fortunate position where I don't really have to. And that's the part that doesn't translate to other, emerging photographers.<br /><br />This leads to another point I've made often in the past: don't emulate other pros. What they do NOW, or have done IN THE PAST, often has no bearing on their current success, or yours. Most of them are unaware of this, and erroneously believe they have advice that emerging photographers should adopt.<br /><br />See <a href="http://www.danheller.com/blog/posts/asking-pros-for-advice-about-pricing.html">this blog post</a> about asking pros for advice. Though it's about pricing, the concept is the same: pro photographers' opinions or experiences are not universal and cannot necessarily be expected to apply to anyone else--especially those still trying to build their careers or a presence.<br /><br />There's also <a href="http://www.danheller.com/blog/posts/why-being-photographers-assistant-is.html">this related post</a>: this one is about the perils of being a photographer's assistant, or having existing pros be "mentors." Most pros today were successful at a time where their experiences no longer apply today. Having their advice can be fraught with as much poor advice as useful, and emerging photographers cannot discern between the two.<br /><br />My best advice for emerging photographers in this day and age is not to look at photographers at all -- look at general online business development. There are many texts and periodicals that deal with building business models that are more universal, and can better translate to a photography business than what narrowly-experienced pros can offer.argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-69351543234769369732011-01-21T09:31:00.000-08:002011-01-21T09:38:06.692-08:00(New Photos) On the Nile: Cruising from Cairo to AswanI just posted a new gallery of photos from the photo expedition I lead in Egypt over Christmas. You can view them here:<br /><a href="http://www.danheller.com/egypt">http://www.danheller.com/egypt</a><br /><br />I also shot time-lapse footage of select scenes here:<br /><a href="http://www.youtube.com/watch?v=UKB6EmqoBjA">http://www.youtube.com/watch?v=UKB6EmqoBjA</a>argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-49115080873429199102010-12-25T12:25:00.000-08:002010-12-25T12:27:58.619-08:00Day 3: Luxor TemplesDay 3 already. These images are from Luxor, the main temple and Karnak.<br /><br />http://www.danheller.com/luxor<br /><br />Tomorrow we go on a boat down the Nile, and there's no internet access... apparently, for five days. What will I ever do.argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-84141729150724188932010-12-25T03:54:00.001-08:002010-12-25T03:54:41.723-08:00Cairo, Day 2: The Old CityMerry Christmas everyone -- here's pix from Day 2 of my photo workshop.<br />We spent the day in the Old City... great stuff to see.<br /><br />http://www.danheller.com/cairo-2argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-74779810746618798262010-12-23T18:44:00.001-08:002010-12-23T18:47:26.985-08:00Trip to Cairo: Day 1I'm on a new assignment, leading another photo workshop. This time, I'm in Cairo Egypt.<br /><br />Rather than wait till my trip is done and it takes me months (or longer) to post photos to my site, I thought I'd post them here on a semi-daily basis as I shoot them. So, here are some select shots from today:<br /><br />http://danheller.com/cairo-1<br /><br />danargvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-29120020019890896882010-11-09T10:33:00.000-08:002010-11-09T10:39:52.295-08:00Model Release Seminar: Tuesday Nov 9 (ASMP, SF chapter)I forgot to mention this sooner: I'm giving a three-hour seminar on model releases as the San Francisco chapter of the ASMP starting at 6pm ($20 for non-ASMP members, $5 for members, but then, there's free food).<br /><br />Information can be seen at www.asmpnorcal.orgargvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-91174928744617745692010-10-26T09:14:00.000-07:002010-10-31T13:38:28.822-07:00Flatter Stock Licensing TiersI was recently sent email from someone who asked very good--and very common--questions, and I thought it might be apropos for my blog:<br /><br /> <blockquote>Do you think that a price does not depend on target audience? I imagine that for web use it has not a sense, but for books, newspapers, magazines, CDs: does not it have still importance in current market?</blockquote><br /><br />The current stock photo market is such that simplicity is king. For the most part, buyers are no longer accustomed to pricing tiers based on the criteria you mentioned above. Back before the internet, buyers and sellers had those pricing tiers because the economics permitted it. That is, buyers understood that different uses and tiers made it possible for them to get access to commodities that used to be under much tighter controls. In the 1990s and before, stock photography was sold through glossy, elaborately designed books; if a buyer wanted a photo of a tiger, there was a page with about 10-15 images, and that was the entire lot to choose from. When the supply of images and the distribution channel are tightly controlled, the distributor has much more control over the pricing structures.<br /><br />Furthermore, the supply chain between image creators and users was more complex and expensive: there's the overhead of having slides sent (both ways), the overhead of scanning and touching up photos, personnel and expertise in design and technology, all of whom were skilled and nuanced trades.<br /><br />The combination of a controlled distribution channel and an expensive supply chain implied a delicate balance in the financial flexibility between buyers and sellers, each wiggling up and down in price negotiations to settle at an equilibrium: a pricing structure that allowed lower-revenue editorial clients to participate alongside their commercial counterparts. This inherent inequality was balanced by those very pricing tiers, where buyers could plan their publication budgets so that they could put more money into images that appeared on more prominent positions (e.g., a cover shot vs interior pages), or to buy more or less "exclusive" content that fit their needs.<br /><br />But then the internet and digital photography came into the picture. Here, the cost of creation and distribution of images went to zero, which subsequently opened up the channel to everyone that was previously locked out: consumers, hobbyists and semi-professionals. These two factors contributed to the collapse of the entire economic "reasoning" behind the pricing structures of stock licensing. Back in 1999, I said that it'd take about 10 years for this to filter through the economic ecosystem, and the supply/demand imbalance would erode those tiers, and the pricing structures would invariably flatten.<br /><br />Indeed, publications no longer hire high-end photo editors with an art degree, skilled in design, and savvy in the business of creating quality publications. As lower-skilled (and lower paid) workers leveraged increasingly more sophisticated page-layout and print software, very high-quality publications can be created at much lower physical and employment costs. This has created a fundamental shift in the economics of every single business that uses imagery, not just photographers and agencies. Every company in the world uses photos of some kind at some point in the company's lifetime, and since companies employ people, one can say that the entire world's cultural attitude about imagery shifted: it's no longer considered a skilled labor, but that of a commodity, where just about anyone can do "a reasonably good job" (not that all of them actually do).<br /><br />The net effect on the photo industry is a recycling of the photo-editor staff to an entirely different kind of employee. This new photo buyer is not only unaccustomed to any of the historical tiers of pricing rationale, but they are financially constrained to work within a budget that, like it or not, yields no material difference in the overall business. In a difficult economy, where companies share the financial challenges as the employees they employ, those who try to be the Good Samaritans and help the needy photographer only find they suffer at the bottom line.<br /><br />Now, all that said, there's one overwhelming factor that can be used to preserve pricing structures: the fact that the most overwhelming cost associated with acquiring images is not the license fee of an image, but the cost of <span style="font-style:italic;">search and acquisition</span>. The huge supply of images on the internet, and the exceedingly poor search mechanisms on all search-based sites (ranging from Google to the common stock agency) means that finding images is a very costly endeavor for photo buyers, irrespective of their "skill." As I've written in the past, it often takes anywhere from 1-5 hours per image for a photo researcher to find a set of images that exceed the lowest-threshold of acceptability for their needs. The actual cost of the license is negligible compared to the cost of search and acquisition.<br /><br />(Note that the latest Pulitzer Prizes for economics has gone two to economists who've used the same mechanism to explain the disparity between the high rate of employment at the same time as there is also huge amounts of unfilled jobs. They came to the same conclusion: the cost of "finding where those jobs are" exceeds the feasibility for the job-seekers to go get them.)<br /><br />Accounting for this economic reality, I have flattened my pricing tiers from the more traditional menu of editorial/commercial use and "placement", to that of a single metric: the size of the image. I don't care about anything else because I'm reflecting the attitudes of modern photo buyers: they don't care or understand the older pricing rationales and just want to get the image they want and get out. They are more prone to buy when the licensing mechanism is fast and simple.<br /><br />Though my prices have also lowered a bit, they have not dropped nearly at the same rate as the pricing structures found in stock photo agencies, big and small. The rate of photo buying on my site has not dropped, despite the fact that my prices are 100-1000% higher than those on microstock sites. But don't let the huge percentage ranges fool you: just because I may sell an image for $50 when a microstock might sell the same image for $1 doesn't really mean anything to the photo buyer. That cost differential is largely irrelevant. They know that in order to save $49, they have to go back to the research stage, retrofit new images into their page layout, get new approval from clients, and so on. That's not worth the $49 difference.<br /><br /><blockquote> What about exclusivity? Have you ever licensed an<br /> image with a exclusivity clause for a certain amount of months/years?</blockquote><br /><br />Perception of exclusivity is way overblown. While all buyers love the idea of using an image that no one else will use -- which often causes them to "request" exclusivity -- the economic reality is that there's very little market for that. Whenever anyone asks for it, and I quote them any kind of upcharge, they always say, "nah, forget it." The issue of exclusivity turns most photographers into worry-warts, concerned that they'll fail to get the gig, or license the image, or scare away the client... And of course, they don't know what to quote, which they feel they need to do because the client asks for a quote.<br /><br />My recommendation is not to worry about this, but instead, give a simple explanation to the client that the need for exclusivity is largely overblown. Unless the image was specifically shot for the client and contains very unique or proprietary information (people, things, or access), the upcharge for exclusivity will not pencil out to be worthwhile. In a global market of many images and many businesses, the risk of having the same image used by a competitor (or anyone else) is too low to bother paying the upcharge. Yes, I am aware of the famous 'oops' stories -- these are anomalies, not truly representative of the market.<br /> <br /><br /><blockquote> ... how could you manage everything before becoming a full<br /> time photographer? I mean your previous job, photos, website, business<br /> analysis, blog, wife and a child?...</blockquote><br /><br />I have always recommended that no one should ever <span style="font-style:italic;">enter</span> into the business of licensing photography as their <span style="font-style:italic;">sole</span> source of income. This is not the type of job that you jump into and instantly start making money. You should always start with photography as a hobby, build your inventory, establish your web presence, participate in social networking, and set up a stock-licensing fulfillment system. And do all this while you have a real job (or income) doing something else. If you go about your hobby efficiently and effectively, your licensing income will grow, and more importantly, be sustainable and predictable. Your traffic to your site should be a repeatable wave pattern (high traffic during the week; lower on weekends), and your sales should be similarly consistent. If this data is erratic, your business is not yet established well enough to rely on it as your sole source of income.<br /><br />There are many other career-building aspects to this, and I cover them all here: <a href="http://www.danheller.com/biz-sense">http://www.danheller.com/biz-sense</a>argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-2164023125481516832010-08-16T23:58:00.000-07:002010-08-17T00:02:38.254-07:00The Obama Photo Copyright Controversy (Revised)NOTE: This posting is intended to supersede my prior blog post on the same subject. This article is a more concise articulation of the more relevant issue facing the controversial topic.<br /><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://www.danheller.com/Blog/obama-hope-poster.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 300px; height: 220px;" src="http://www.danheller.com/Blog/obama-hope-poster.jpg" border="0" alt="" /></a><br />I was recently forwarded Peter Friedman's article titled, <a href="http://blogs.geniocity.com/friedman/2010/07/faireys-obama-hope-poster-copied-nothing-from-garcias-photo-that-could-be-copyrighted/">Fairey˙s Obama Hope poster copied nothing from Garcia˙s photo that could be copyrighted.</a><br /><br />Normally, the arguments in this case are whether Shepard Fairey's artistic rendering of the image is an infringement of a photograph by AP photographer, Manny Garcia. But in this case, Friedman argues that the image doesn't have enough "copyrightable elements" for it matter in the first place. Under copyright law, works are ineligible for copyright protection if they do not contain enough unique qualities that would differentiate them from others. For example, photos of coins are generally not copyrightable unless there are unique angles, uses of light, or other qualities of a "creative" nature. Friedman argues that, while Garcia's photo may contain some elements -- though he also argues they are minimal at best -- Fairey's artistic rendering virtually removes them: that Fairey's image has few, if any, copyrightable elements. His article states, <i>"the poster entirely changes these details by transforming them into a stylized combination of red, white, and blue. Moreover, it is plain the colors of the photograph are in marked contrast to the colors of the poster."</i><br /><br />Friedman's logic concludes that if Fairey's photo has no copyrightable elements, then how can such a work infringe on <i>any</i> other work?<br /><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://www.danheller.com/Blog/friedman-fairey.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 107px; height: 95px;" src="http://www.danheller.com/Blog/friedman-fairey.jpg" border="0" alt="" /></a>While an intriguing question, one that I hadn't heard raised before, the artist in me has a hard time buying into the notion. Fairey's is a very identifiable style, one that Friedman himself applies to his own image, as shown here.<br /><br />Not only does Fairey's rendering enjoy its own protection under copyright, but the fact that it was <i>derived</i> from Garcia's photo means that Fairey's ability to <i>use</i> the work is limited. No one disputes that. Where the real argument begins is discerning the conditions where Fairey is limited, and where he's not. That is, unless he gains permission from Garcia, Fairey's use of his own rendering is limited to "editorial" uses, such as artistic display, political or social commentary, satire, and so on. On the other hand, "commercial uses" require Garcia's consent, such as when the image to advocate a product or service, or to promote an idea, <i>including political or religious points of view.</i> These are the types of uses that define "commercial use" as described by most state <i>publicity laws.</i> Granted, publicity laws and copyright laws are different, but the definition of terms are consistent.<br /><br />And herein lies the ultimate question: is the Fairey "Hope" poster a form of protected political speech, or a commercial use? As Friedman points out, political speech is at the heart of the First Amendment, and people's right to express themselves--especially on matters of politics--is always given deference by the courts.<br /><br />While a true statement, it's not quite that simple. Just because the Fairey image has been used in a political context does not necessarily imply that it's "political speech." And even if it is, the greater question is whether you can appropriate anyone -- or anything -- as a tool in that speech. For example, if the Fairey image were of a recognizable factory worker holding a hammer, and that person was an ardent Republican, we can be very sure that this person would sue Fairey for suggesting that he was an advocate for Obama. And the courts would not even begin to entertain the notion that this use of the image was "protected political speech." The First Amendment has its limitations, and this is such an example.<br /><br />Although "property" (such as a copyrighted photograph) does not enjoy the same protections as people's rights of publicity, the point of the example was more to illustrate that the <i>use</i> in question is would fail a critical Fair Use test: <i>it's an advocacy piece, and when advocating a political idea, you cannot misappropriate someone's likeness or their property without their consent.</i> The ideas, opinions and expressions have to be yours, and yours alone. You have the right to express an opinion <i>about</i> someone in a political context, but misappropriating their property (or someone else's) for that purpose is not the same thing.<br /><br />What if Fairey applied his artistic rendering technique to the Pepsi logo and added the phrase, "Obama's Generation." One can imagine that Pepsi would not take so kindly to having their logo misappropriated in such a manner.<br /><br />Now, if Fairey's work were merely a piece of art hanging in a museum or an art gallery, courts have deemed this as Fair Use, regardless of the price that it may command, or even whether he copied it directly from Garcia's photo. ("Commercial" use is not not measured solely by monetary consideration.) Yes, one can appropriate another work, a person, or a logo without their consent, for purposes of artistic expression.<br /><br />But which is the Fairey image? Protected art form? Or an advocacy poster? We have competing notions, but which carries more weight? To reconcile this logjam, courts often take into account is the <i>predominant use</i>? Is it used more as an art form? Or as a form of advocacy?<br /><br />Or is Fairey just out to make a buck?argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-65208777961423166572010-08-14T12:33:00.000-07:002010-08-16T23:58:30.463-07:00The Obama Photo Copyright Controversy<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://www.danheller.com/Blog/obama-hope-poster.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 300px; height: 220px;" src="http://www.danheller.com/Blog/obama-hope-poster.jpg" border="0" alt="" /></a><br />I was recently forwarded Peter Friedman's article titled, <a href="http://blogs.geniocity.com/friedman/2010/07/faireys-obama-hope-poster-copied-nothing-from-garcias-photo-that-could-be-copyrighted/">Fairey˙s Obama Hope poster copied nothing from Garcia˙s photo that could be copyrighted.</a><br /><br />Normally, the arguments in this case are whether Shepard Fairey's artistic rendering of the image is an infringement of a photograph by AP photographer, Manny Garcia. But in this case, Friedman argues that the image doesn't have enough "copyrightable elements" for it matter in the first place. Under copyright law, works are ineligible for copyright protection if they do not contain enough unique qualities that would differentiate them from others. For example, photos of coins are generally not copyrightable unless there are unique angles, uses of light, or other qualities of a "creative" nature. Friedman argues that, while Garcia's photo may contain some elements -- though he also argues they are minimal at best -- Fairey's artistic rendering virtually removes them: that Fairey's image has few, if any, copyrightable elements. His article states, <i>"the poster entirely changes these details by transforming them into a stylized combination of red, white, and blue. Moreover, it is plain the colors of the photograph are in marked contrast to the colors of the poster."</i><br /><br />Friedman's logic concludes that if Fairey's photo has no copyrightable elements, then how can such a work infringe on <i>any</i> other work?<br /><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://www.danheller.com/Blog/friedman-fairey.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 107px; height: 95px;" src="http://www.danheller.com/Blog/friedman-fairey.jpg" border="0" alt="" /></a>While an intriguing question, one that I hadn't heard raised before, the artist in me has a hard time buying into the notion. Fairey's is a very identifiable style, one that Friedman himself applies to his own image, as shown here.<br /><br />Not only does Fairey's rendering enjoy its own protection under copyright, but the fact that it was <i>derived</i> from Garcia's photo means that Fairey's ability to <i>use</i> the work is limited. No one disputes that. Where the real argument begins is discerning the conditions where Fairey is limited, and where he's not. That is, unless he gains permission from Garcia, Fairey's use of his own rendering is limited to "editorial" uses, such as artistic display, political or social commentary, satire, and so on. On the other hand, "commercial uses" require Garcia's consent, such as when the image to advocate a product or service, or to promote an idea, <i>including political or religious points of view.</i> These are the types of uses that define "commercial use" as described by most state <i>publicity laws.</i> Granted, publicity laws and copyright laws are different, but the definition of terms are consistent.<br /><br />And herein lies the ultimate question: is the Fairey "Hope" poster a form of protected political speech, or a commercial use? As Friedman points out, political speech is at the heart of the First Amendment, and people's right to express themselves--especially on matters of politics--is always given deference by the courts.<br /><br />While a true statement, it's not quite that simple. Just because the Fairey image has been used in a political context does not necessarily imply that it's "political speech." And even if it is, the greater question is whether you can appropriate anyone -- or anything -- as a tool in that speech. For example, if the Fairey image were of a recognizable factory worker holding a hammer, and that person was an ardent Republican, we can be very sure that this person would sue Fairey for suggesting that he was an advocate for Obama. And the courts would not even begin to entertain the notion that this use of the image was "protected political speech." The First Amendment has its limitations, and this is such an example.<br /><br />Although "property" (such as a copyrighted photograph) does not enjoy the same protections as people's rights of publicity, the point of the example was more to illustrate that the <i>use</i> in question is would fail a critical Fair Use test: <i>it's an advocacy piece, and when advocating a political idea, you cannot misappropriate someone's likeness or their property without their consent.</i> The ideas, opinions and expressions have to be yours, and yours alone. You have the right to express an opinion <i>about</i> someone in a political context, but misappropriating their property (or someone else's) for that purpose is not the same thing.<br /><br />What if Fairey applied his artistic rendering technique to the Pepsi logo and added the phrase, "Obama's Generation." One can imagine that Pepsi would not take so kindly to having their logo misappropriated in such a manner.<br /><br />Now, if Fairey's work were merely a piece of art hanging in a museum or an art gallery, courts have deemed this as Fair Use, regardless of the price that it may command, or even whether he copied it directly from Garcia's photo. ("Commercial" use is not not measured solely by monetary consideration.) Yes, one can appropriate another work, a person, or a logo without their consent, for purposes of artistic expression.<br /><br />But which is the Fairey image? Protected art form? Or an advocacy poster? We have competing notions, but which carries more weight? To reconcile this logjam, courts often take into account is the <i>predominant use</i>? Is it used more as an art form? Or as a form of advocacy?<br /><br />Or is Fairey just out to make a buck?argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-12779326199517180542010-06-28T10:37:00.000-07:002010-06-28T11:59:59.822-07:00Getty and Flickr: Prophesies Coming True?People have been emailing me copiously, asking for a statement in response to the new relationship between Getty and Flickr, where Flickr members and visitors can work with each other through a new program with Getty Images called “Request to License”. The details of this program are listed <a href="http://blog.flickr.net/en/2010/06/17/request-to-license-via-getty-images-is-here/">here</a>. From that page:<br /><br /><blockquote>When a prospective licensee sees an image marked for license, they can click on the link and be put in touch with a representative from Getty Images who will help handle details like permissions, releases and pricing. Once reviewed, the Getty Images editors will send you a FlickrMail to request to license your work, either for commercial or editorial usage. The decision to license is always yours.</blockquote><br /><br />Why are people asking me about this?<br /><br />For years, I've been proposing that precisely this model be implemented. Most of my blog entries in 2007 and 2008 articulated this very model. The first was on Feb 13, 2007, in an article titled, "The future of photo sharing sites and agencies"<a href="http://www.danheller.com/blog/posts/future-of-photo-sharing-sites-and.html"></a>. There, I predicted the inevitable convergence between companies like Getty and Flickr:<br /><br /><blockquote>I believe it will invariably happen that major photo agencies like Getty and Corbis can (and should) move into the consumer market. Consider what would happen if major stock agencies expanded their businesses by opening the flood gates and letting everyone in. By removing the barriers that require photographers to "submit images," and having a separate portion of their sites be entirely open, much like other photo-sharing sites are, they would give more options to buyers, and provide more opportunities (and greater incentive) for photographers to join at all levels. Getty owns iStockPhoto.com, which is a microstock agency that sells images for much less, <span style="font-style:italic;">but this is not a consumer-based, social networking style photo sharing site like flickr is</span>.</blockquote><br /><br />The key here is in italics: microstock agencies are not social networking sites, they are therefore limited by both buyers are sellers than the social-networking sites. My premise for this logic is based on my years of research showing that 80% or more of licensed images is peer-to-peer, directly between buyers and photographers, not among agencies. You can read this research in the article, <a href="http://www.danheller.com/blog/posts/total-size-of-licensing-market.html">"The Size of the Photo Licensing Market"</a>). The summary of that research is this basic truism: <span style="font-style:italic;">Most buyers find images on non-stock agency websites.</span><br /><br />On Feb 18, 2007, I wrote how the photo-sharing and social-networking sites can capitalize on this opportunity in an article titled, <a href="http://www.danheller.com/blog/posts/two-phased-approach-to-photo.html">"Two-Phased Approach to photo-sharing/licensing model"</a>. I said:<br /><br /><blockquote>Phase One of this business will be where a photo-sharing site merely allows visitors to license images directly from the site. Phase Two will involve the distribution of the same photo assets to other sites, much the same way online ad sales are hosted (or "published") on other websites. ... For the sake of discussion, I'm going to assume that the approach ultimately adopted is the one I've suggested in the past: make it pure and simple by giving the user a toggle for setting whether his photos are (or aren't) permitted to be "sold".</blockquote><br /><br />And that's exactly what Getty and Flickr are doing now. Over four years later.<br /><br />You may note that I said there was a two-phased approach. That second model will eventually become part of more photo-licensing business models. (In fact, it already exists, but among companies too small to get anyone's attention--partly because the technology and business models they've adopted do not properly understand and implement the true nature of photo licensing, copyright issues, and potential target markets. This is an aside for the moment; it may come up again when larger players eventually begin to consider the opportunities.)<br /><br />Speaking of predictions, I remain steadfast in my opinion of the inevitability of what happens next:<br /><br />In July, 2007, my blog post titled, <a href="http://www.danheller.com/blog/posts/solution-to-gettys-woes.html">"The Solution to Getty's Woes"</a> explained how Getty can get out of its financial troubles by simply buying Flickr directly from Yahoo and using it as the main stock licensing engine. The article got into exceedingly detailed analysis of Getty's financial model (and troubles) combined with the explosion of available imagery on sites like Flickr that make this solution not only obvious, but <span style="font-style:italic;">inevitable</span>.<br /><br />On a directly related note, I called into question the life expectancy of the Creative Commons in <a href="http://www.danheller.com/blog/posts/follow-up-creative-commons-and.html">this article</a> (2008), where I again proposed that Flickr allow users the option of <span style="font-style:italic;">choosing</span> between allowing their images available for free via CC, or to get income from their images. I said, <br /><br /><blockquote>...it begs the question about whether enough people would choose the option to "make my images free"(CC) if it were next to the checkbox that says, "pay me a quarter if someone's dumb enough to buy it."<br /><br />And then there's the buyer. If they were given the choice between "free images, with disclaimers and risks" and modestly priced images without such risks, it wouldn't be very likely that the "free" versions would be chosen very often.<br /><br />The concept of CC would never survive under these two conditions. </blockquote><br /><br />Without getting too far afield, I have no qualms with the CC, per se. It's more about how simplistically it's been designed and deployed. It's just not sustainable in the real world business market. The problem is not the "license terms" and the structure of the legal contracts--those are all just fine. It's the fact that the system can be gamed so easily by both buyers and sellers, that it's too unreliable to be sustainable beyond a small handful of casual users (by comparison to the larger market of stock imagery). The true protections for both buyers and sellers is to leverage the copyright registration mechanism. That is, creative commons images that are also registered with the copyright office lowers the risk both both buyers and sellers, as explained in that article. Since no one is building copyright registration into their online business models, and the CC itself has a fundamental objection to the concept of copyright in the first place, the CC will be relegated to an historical footnote , bringing strength back to the for-fee licensing model. And which brings us back to why I'd always argued that Flickr should have enabled image licensing.<br /><br />So, why is this all good for the photo licensing industry? I articulate this answer in the blog entry I wrote on March 15, 2007 in the article titled, <a href="http://www.danheller.com/blog/posts/photo-sharing-licensing-sites-leveling.html">"Photo-sharing-licensing sites leveling the playing field."</a><br /><br /><blockquote>As more companies engage in the business of licensing images, photographers with credibility will gravitate to the sites that offer a better return on their money... In a way, this is how photo agencies started in the very beginning, only better: because photographers don't have to be "accepted," the playing field is much more level, and the market forces can be more free to let the money flow to those who really do merit the higher earnings (rather than at the whim of photo editors). The buyer, it turns out, is the best photo editor, and it will be pretty clear in short order which sites are hosting good, honest content. </blockquote><br /><br />I summarize with another excerpt from that article:<br /><br />...the most basic, fundamental truism about photography remains: there are more people who have it as a hobby than as a profession, and the barrier to entry is low... the honeymoon period for Getty will end once photo-sharing sites become new outlets for photographers where the open market can decide their rates."argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-82677612543058242752010-04-21T10:59:00.000-07:002010-04-21T13:11:35.789-07:00Model Releases: Pro Models and Their AgenciesI got an interesting email from a fashion photographer that warrants some discussion:<br /><blockquote> A model agency booker recently wrote to me saying: "<span style="font-style:italic;">But if you want to use the images for editorial use, we ask that you ask us first before agreeing to the usages used for that magazine. In fact, all magazines require releases...even for editorials. That's where the release will come into play.</span>"<br /></blockquote><br /><br />First, the quote that you included from the agent is a bit misleading, though he might not be aware of it. That magazines "require" releases doesn't mean that they "are required" to have a release for publication. It just means that many magazines have a <span style="font-style:italic;">policy</span> to only publish released images, even though one isn't actually necessary.<br /><br />As I will discuss, this creates more liability for them, not less. It's also a great disservice to the industry because it perpetuates incorrect information about how and why model releases work.<br /><br />First, let's talk about context: Fashion photography is different from grab-shooting in the street because someone is specifically asked to pose in a controlled and staged environment, and to take specific pictures for a specific purpose. The model is not subject to a condition where he or she can be photographed "without being aware of it," like on the street. Instead, the model is only willing to do it in exchange for something. For example, money.<br /><br />Now, if it were just money, that's one thing, but in professional fashion photography, it is often the case that models also insist that <span style="font-style:italic;">you</span> (the photographer) <span style="font-style:italic;">and your assigns</span> (those to whom you license the images) only use the photos for a specific purpose. <br /><br />It's the phrase "..and your assigns..." that you will need to think about. I'll bring it up again soon.<br /><br />What makes this situation different insofar as model releases are concerned is that the <span style="font-style:italic;">model has stipulated the uses of the images -- not the photographer.</span> Thus, the photographer is now assuming liabilities. This is atypical for most photographers, who are used to being the ones who spell out the terms of the model release (and ask the subject to sign it).<br /><br />In this inverted photographer/model relationship (from the norm), focus is now centered on the models themselves: they are the ones that are seeking protection...in this case, their professional careers. They don't want images of themselves used in ways that might compromise their modeling relationship with particular designers, advertisers, or even editorial relationships. They also need to control how they are portrayed in the press to the degree that they can. In this case, if they are going to be wearing clothing that would not bode well in publications, they would not want those photos to be published. That's why they are eager to assure that the photographers that take their photos are restricted in what they can do with the images.<br /><br />If the model has an agency, those agencies would (should) instruct their clients (the models) not to attend photo sessions without requiring the photographer (or other agents there) to sign the agency's release.<br /><br />Now I get back to the quote from the above agency representative, where he says, "for editorial use, we ask that you ask us first..." He can't <i>enforce</i> that without strictly saying so in the contract the photographer signs. That's why he says, "we ask..."<br /><br />But, if he truly wants to enforce that policy of "ask first", he should stipulate this requirement into his template model release agreement that photographers sign. An even stronger provision is simply to state up front that the photos "can only be used under specific conditions," such as for a particular magazine, in a particular story, to be published on a particular date. By definition, this would exclude <i>all</i> other uses--including editorial.<br /><br /><b>Liability</b><br>Given all that, where does liability reside if the photo ends up somewhere else that isn't covered by that agreement? What about that editorial magazine?<br /><br />Answer: it all depends on the language inside the model release.<br /><br />If the photographer signs a release that lists specific uses only, and the photo ends up in an editorial story not covered by that release, the photographer--not the publisher--is the first in line for liability: he violated the contractual agreement.<br /><br />What about the magazine? Aren't they liable too? <span style="font-style:italic;">Yes, but only if they were <span style="font-weight:bold;">assigned</span> the images and were <span style="font-weight:bold;">made aware</span> of the restriction of use ahead of time.</span> That is, if they knowingly published an image in a manner that they knew was in violation of an agreement that they are a party to.<br /><br />That's a big "if", and one that can easily be avoided.<br /><br />Strictly from a legal perspective, it is in editorial publishers' best interests to <span style="font-style:italic;">not</span> ask for model releases from photographers, because that would then make them aware of restrictions that they would then have to comply with. Any lawyer will advise clients never to assume liability of someone else's contract, even if it looks clean as a whistle. It just wraps you into the same risk as the photographer. This is precisely why most newspapers and other top-flight periodicals not only never ask for model releases, they indemnify themselves from any obligations that the photographer might have agreed to with the subject of a photograph.<br /><br />So, let's say the photos are used in an editorial article on a particular line of clothing where the model does not have a relationship with the designer, there could very well be many displeased parties. In this case, the liability is not held by the magazine: it didn't violate anyone's privacy because it didn't perform the act of taking the pictures (or pay for it), nor has it violated publicity rights because the magazine or article is not a paid advertisement by the designer. Assuming that the magazine simply got a hold of the photos without agreeing to be "assigned" the image under typical license terms, it is entitled to publish them in an editorial context under the protection of the First Amendment.<br /><br />That editorial publishers of all sorts even ask for model releases (or property) releases is silly -- they assuming more risk by doing so.<br /><br />This is not the same as commercial publishers, of course. For example, if the same image were published in association with an ad for another product not covered by the agreement, that company would be liable for violating the model's publicity rights, and the model could sue that publisher for damages. The model would <span style="font-style:italic;">also</span> sue the photographer (again, for violating the contractual agreement), but this is separate from the commercial publication of the image.<br /><br />Remember again, this all falls under the premise that agencies and their models only agree to only be photographed under conditions where photographers sign releases that have language restricting the use of images to specific publications and uses.<br /><br /><b>No (or vague) Model Releases</b><br>Without such specificity, rights of the model and the agency begin to erode. On one extreme, there are very open and vague release, such as the ones most photographers clip out of books (including <a href="http://www.danheller.com/model-release-book"> my book </a> on model releases). Most pro models won't (or shouldn't) sign these, unless they are early in their careers and are still establishing themselves. (Once you become more well-known, you will then have a stronger brand that you will not only need to protect, but will also have more opportunity to capitalize upon by commanding a higher price for publication rights of yourself. Even editorially.)<br /><br />If there's no release at all, then licensing an image to an editorial publisher is risk-free. That is, judges would assume that anyone that willingly sits in front of a photographer without a written release has willingly waived his rights of privacy. (This has nothing to do with commercial publication, however. <i>Licensing</i> is still permitted, because it doesn't violate a contract. <i>Publication</i> is a liability born by the publisher. For more information on this, see <a href="http://www.danheller.com/model-release-primer">Model Release Primer</a>.) <br /><br />If a subject has an issue with an editorial publication of his image, it's usually the case that things are a bit messy. If someone were to bring a complaint against a photographer or publication, some kind of harm must have been done. (If no harm has been done, and no release has been signed, it's a losing case.)<br /><br />If harm has been done, and no release is signed, a judge will gather other facts, such as an email that might have been sent beforehand saying, "Ok, I'll do the photo session for $50 if you promise not to publish them on your website." While a court is permitted to take this into account, it isn't an open and shut case--the judge has to weigh the two factors between the verbal agreement and the degree of harm that's been done. You can imagine extremes on your own. If it's a toss-up, courts (in the USA) generally give deference to First Amendment rights -- the right to publish -- over publicity rights. The hardest ones to judge are those that involve publication rights and <i>privacy</i> rights.<br /><br />Good luck with that.<br /><br />The summary is that professional models should almost universally be trained to provide their own model releases, but do so judiciously. If you're too restrictive, no one will want to work with you, nor will anyone pay you. (Remember, you have lots of competition.) Photographers don't necessarily "need" releases to protect themselves, but those releases will make the marketability of such images much better.<br /><br />If both the model and the photographer have releases and there's a stand-off, it's time to negotiate: find what each party "needs" from a financial point of view. Don't worry about "liability." This misperception that releases are there to "protect" photographers has kept many photographers from capitalizing on their photo assets. Negotiation should really be about the scope of publication: use, geographic, and term (expiration time). Oh, and money. :-)argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-55067653099818150452010-03-24T00:44:00.000-07:002010-03-24T01:03:52.179-07:002009 Year in Review: Web OptimizationIn this second segment of my series, "2009: Year in Review," I discuss issues related to managing my web presence. Some of these methods directly result in income, such as advertising dollars, whereas others indirectly affect income, such my ranking in search engines or by directing traffic towards monetizable content. Nothing discussed here addresses my actual sales and licensing methods, which was addressed in <a href="http://www.danheller.com/blog/posts/2009-in-review-content-is-king.html">Part 1</a> of this series.<br /><br /><h2> Web Traffic and Advertising</h2> Traffic to my site has marginally increased by 16% from the same time last year (2008). More specifically, I averaged about 15,000 visitors a day in 2009, but the number would have been much higher had it not been for a technical mis-decision I made during the summer months that dramatically dropped my rankings, which had to do with "keyword stuffing", discussed later. Normalizing for that, my traffic has been pretty steady at around 16-18K unique visitors a day, compared to 14-15K/day in 2008. (Stats can be seen <a href="http://www.danheller.com/dhstats/">here</a>.)<br /><br />While that may sound impressive, it's not that simple. There are a number of devils in the details, and sifting through the data is only half the battle. For example, the <i>bounce rate</i> (the rate at which people leave my site after viewing the first page) rose to 8.5%, and the <i>average time on site</i> dropped by 11%. In other words, people are leaving my site sooner than before.<br /><br />One would think that this is a bad thing, but there's other data that suggests otherwise. For example, advertising revenue more than doubled; in some cases (some pages and topics) tripled and quadrupled. <B>All those people "bouncing" away without spending time on my site are clicking on ads.</B> For 2009, advertising revenue jumped to represent 17% of total income.<br /><br />One might say that I'm losing potential buyers to advertisers, but that's not what's going on. Most of the ads on my site are not for photography prints or licensing, which is the lion's share of my <i>online</i> transactions. That is, people are clicking on ads because they decidedly do <i>not</i> want anything I have to offer. I don't care that they leave; it just so happens that they're paying me a effective "exit tax." Or rather, the people who are getting my traffic are paying that tax.<br /><br />Indeed, this turns out to be mutually beneficial: advertisers whose own sites don't rank well for some search terms, actually get a lot more <i>relevant</i> traffic from my site than they would if they paid to get onto Google's search page directly. That is, they'll pay ten cents to a dollar per click to put an ad on my page (through Google's adwords program), compared to twice or three times that much to put the same ad on Google's search results page. They may not quite get the same number of total traffic, but they'll get much more relevant traffic that converts to revenue if they place those ads on my site (or any of the other top-ranked sites). This kind of <i>advertising-indirection</i> costs them less, they get better bang for the buck. Best of all, I get a cut of it. :-)<br /><br />I should point out that this isn't always so straightforward for advertisers, because targeting a <i>specific site</i> can be costly (in the form of lost opportunity, not necessarily money) if that site isn't consistently well-ranked. That is, if they target a site that appears to rank well sporadically (because their content changes), they could get a boost of traffic for a short time, and then go dark. Since my site has been around for a long time and is generally stable, this risk is not a concern.<br /><br />In fact, many advertisers come directly to me and pay me to put their ads on my pages, rather than going through Google. There are advertising aggregators that have clients that pay them to do this analysis, and my site is coming up more often in their radar. <a href="http://www.danheller.com/ad-rate-card">My advertising rates</a> are not based on clicks or impressions; they're flat fee rates, which advertisers like a lot for a high-traffic site like mine.<br /><br />This then begs the question: what was the actual end-user looking for that they landed on my site, even though I didn't have what they were looking for? Why am I ranked so highly for them? Isn't that a problem with the search results?<br /><br />First of all, the bounce rates are <i>still</i> quite low. Google <i>does</i> accurately put users on pages that match their searches. Of the low number of people who bounce, it's usually because they used the wrong search terms in the first place, and Google couldn't possibly know that ahead of time.<br /><br />Take the Olympics in Vancouver, for example. If you search for "photos of vancouver", I'm currently ranked #8 on Google. (Before the Olympics, I was ranked among the top three.) So, I get a lot of people looking for olympics photos, even though they didn't use the term, "olympics" in their search query. When they don't see such images on my <a href="http://www.danheller.com/vancouver">Vancouver</a> page, users click on an ad that gets them where they wanted to go.<br /><br />Vancouver is only one of a long list of examples. At the moment, I score very highly for phrases like:<br /><br /><ol> <li> "black and white pictures" (Google Rank: #4) <li> "what kind of camera should I buy" (#6), <li> "learning photography" (#2) <li> "photography business" (#1) <li> "model release" (#1) <li> "star trails" (#1) <li> "fill flash" (#1) <li> "photographing people" (#1) <li> "selling prints" (#1) <li> "photography marketing" (#3) <li> "sahara desert" (#5) <li> "stairs" (#6) <li> "photos of doors" (#1) <li> "photos of new york city" (#3) <li> "photos of san francisco" (#1) <li> "photos of kids" (#1) <li> "photos of united states" (#1) <li> "photos of patagonia" (#3) <li> "photos of cuba" (#1) </ol><br /><br />These are but a few among hundreds of phrases that Google ranks my site and/or pages among the top-five. But the key is that these terms are generic and they themselves do not bring traffic that can be attributed to a single dime of sales revenue.<br /><br />While they are good for generating advertising revenue, there's an even better benefit to ranking high for generic search patterns: <i>Non-buyer</i> traffic out-strips buyers by orders of magnitude, and <i>any</i> traffic--buyers or not--contributes to the overall ranking of my site. When people search using more <i>specific</i> terms (for content that they <i>do</i> want to purchase), my site will rise in those search results, yielding sales.<br /><br />So the objective is to have as many pages rank as highly as possible. One key strategy here is that I don't particularly care to rank highly for any single or small set of search terms--that doesn't necessarily benefit me. It's just having my site itself be indexed well for whatever content the search engines deem appropriate. And therein lies the question: how do they determine what search terms should send users to my site? Since they cannot determine what's inside of a photo the way a human eye does, search engines look for other clues to determine the content of a page that otherwise has very little text: metadata.<br /><br /><h2>Keywording</h2> <a href="http://www.danheller.com/blog/posts/keywording-and-future-of-stock.html">I've blogged before about keywording</a>; it's a huge topic. I'm not going to reiterate points I already made, but to appreciate how and why I employ my keywording methods, you need to at least understand this very basic set of truisms:<br /><br /><ol> <li> <b>Most image buyers use search engines first, stock agencies second.</b><br> Search engines act like "metasearch" for all the stock sites, as well as many other image sources, including mine, yours, everyone else's. It's best to use keywording techniques advised by search engines, not stock photo agencies. <li> <b>Search engines are <i>intelligent</i> about search queries.</b><br> Unlike days long ago, they know all the synonyms that are related to a common root. So, you do <i>not</i> need to include the singular and plurals, all the variants of "dog" (canine, puppy, pooch, etc.), and so on. What's more, intelligent search is becoming more common, even among stock agencies. The need to stuff your images with synonyms and other related keywords to make your list "more thorough or complete" is gone. In fact, attempting to do so can backfire on you. (More about that later.) <li> <b><i>Controlled Vocabularies</i> are a complete waste of time.</b><br> There was once a time when such lists were useful, because it made the job of image search much easier for unsophisticated (brute force) search algorithms. Controlled vocabularies helped you use a small, consistent set of words, which kept you from using dozens of similar words that might come up with different search results when the user input search queries. <br><br>While that premise was useful, it only addresses half the equation: the weakest link in search is not <i>you</i>, it's the <i>end-users</i>. Or rather, the search queries they submit. These people are not going to conform to controlled vocabularies. So, in order to map their queries to your images, their input text has to be converted to root words anyway. If the search algorithm is going to do this to end-user queries, it can (and should) also do it with your keyword list. Forcing you to conform to a list becomes a waste of time. <li><b>Keywording should take only a few minutes and minimal thought.</b><br> It's very easy to over-think how people might find your images, or to worry that your images might not be found if someone uses a series of queries that you didn't think of. But this kind of over-thinking can negatively affect if and how your images are found. End-users learn very quickly to be <i>very</i> conservative in their search queries, or they will get a lot of irrelevant results, rapidly wasting their time. They may experiment with creative, conceptual, or "refined" queries to see what they get, but it doesn't take long to learn to "keep it simple." So should you. Keywords should include only the most basic, obvious, and prominent items in the photo. Search engines also rank the quality of photos (and the sites that host them) on their brevity. More than ten keywords will diminish a photo's rank because it usually means that someone is going to stuff the keyword list with unrelated words in an attempt to game the system. This is a common technique among photographers who submit their images to dozens of microstock agencies who do not enforce such restrictions, and who use brute-force (letter-for-letter) search algorithms. Keyword stuffing--also known as "keyword pollution"--has proven to be effective for such photo sites because it allows those images to be found ahead of other, potentially more relevant results for any given search. </ol><br /><br />In fact, I fell victim to "keyword stuffing" myself midway through 2009. In my automated keyword algorithms, which normally <i>strips</i> redundant or "similar" keywords, I had thought I was being clever by adding in location information (city, state, country) into the keyword list. Yet, what I found was that because the IPTC data already had these keywords, which search engines tap into, <i>and</i> because my keyword list grew (unnecessarily) by three more words, this dropped my rankings down by several notches, which kept me out of the "top fold" of search engine results. It's a huge deal dropping from #3 to #6 or #7 for a given search term, and you can see the results of this in my <a href="http://www.danheller.com/dhstats/">site traffic data</a> over the summer of 2009.<br /><br />Needless to say, this cost me quite a bit in traffic, which affected every other aspect of my business, from sales to advertising rates.<br /><br />You can imagine, therefore, that "effective keywording" (so that images and website are deemed "credible" and ranked highly) is a hotly debated issue in the photo community. It's also one where entrepreneurs try to come up with solutions--some good, some not so much.<br /><br />One example is a product "imense annotator" (<a href="http://annotator.imense.com" rel=nofollow>annotator.imense.com</a>), which has some interesting ideas, such as an image-recognition algorithm that tries to guess keywords that might describe the people in an image. It will do a reasonable job in ascertaining the ages, sex and ethnicity of people in a photo, and then attach those keywords to your images. Clever, and possibly quite useful more to a stock agency than an individual. This is because agencies have millions of images to process, none of which have been (or will be) seen by company staff. On the other hand, original photographers that shot the images could do this task quite easily on their own. One can only shoot so many images in a day, and since one has to eventually go through a manual (if not minimal) keywording phase anyway, one can assign the keywords associated with the "people" photos as part of that process. This shouldn't be all that time-consuming for reasonably well-disciplined photographers. And human analysis on such things is always going to outperform a computer. (Yes, I say this as an active programmer.)<br /><br />(Note: The annotator only does people/facial recognition.)<br /><br />All other aspects of annotator look and sound cool, but are considerably less effective in practicality. Again, these include "commercial vocabularies", "crowdsourcing" and "controlled vocabularies." As noted earlier, these ultimately contribute to the perils of keyword stuffing that search engines don't like--and which only serve to confuse stock agencies' less sophisticated search algorithms.<br /><br />Another thing to keep in mind is keywording is often done <i>once</i>, and then you never touch those particular images again. Therefore, whatever you use as keywords today are likely to stick with your images long into the future. But technology doesn't sit still--especially image-recognition and search algorithms. For these, time has a tendency to speed by rather quickly. Before you know it, most search engines will be incorporating the same sort of algorithms like the annotator above. In fact, Google's own image recognition features are rather well developed, and can be seen in action if you use their Picasa image management solutions.<br /><br />In any event, the point is that keywording is a classic case where "less is more." Images should have minimal base tokens in the keyword list; the search "intermediary" interprets the <i>uncontrolled end-user queries</i> and maps them to the minimal keyword list in your images. This is and will always be the most effective way for images to be found.<br /><br />While I don't necessarily fault software companies for coming up with creative ways to "enhance" keywording, I draw the line when companies actually <i>recommend</i> methods and behaviors that are wholly counter-productive. An example is Cradoc Software's latest product, <i>fotoKeyword Harvester</i>, a product that does a form of semi-automation of keywording your images. While I am a fan of the company in many ways because it tries to also be the photographer's "coach" on many vital business matters, it has never been on the forefront of the photo business--rather, they seem to be stuck in the 1990s with many of them. Alas, most of their advice, while applicable 10-15 years ago, is well behind the times today.<br /><br />In the case of the Keyword Harvester, the company sent out an article titled, "best ways to keyword images using concepts and attributes." A quote is: "You'll need to start paying attention to how images convey messages in advertising." They say:<br /><br /><blockquote> One of the most valuable types of keywords for an image are things called Concepts. A concept is a term that describes non-concrete aspects of your image, an abstract idea. Concepts are used by advertisers to sell their product with the use of your image. They want the consumer to think of something specific when their product is thought of. (...) For example: Wells Fargo Bank uses images of cowboys, wagon trains, horses, and the wild west to promote their business. The concepts for these images are: excitement, freedom, trust, historic, strong, powerful. </blockquote><br /><br />There are several problems with all this. First is one I highlighted above in my bullet list: photo searchers (commercial or not) do <i>not</i> use conceptual search terms very often--at least, not with much success as they once did when the stock industry was far smaller, before digital images, and before the internet--a time when almost all stock sales were dominated by Getty Images. Back then, <i>yes</i>, conceptual keywords worked. And this was because Getty internally controlled <i>all keywords for all images</i>. Also, they had their own intelligent search, and they controlled the images in their databank.<br /><br />Today, images are found in many places, are keyworded by arbitrary staff--or worse, photographers--and the consistency is impossible to centralize and manage. The direct result is that photo buyers don't search the way they once did. (This is an example of Cradoc seems to be stuck in the 1990s.)<br /><br />It's easy to put this to the test: go to images.google.com and search for the "conceptual keywords" that Cradoc said represented the kind of themes Wells Fargo uses in their imagery. I tried every word on their list, as individual search terms, in pairs, in triplets, and as the entire group. Not one single set of results from these queries contained images that would ever be used by Wells Fargo. They are totally unrelated to all their business models. This is not unique; it's rarely ever the case that conceptual keyword searches yield desirable results. That's why most searchers don't use them anymore.<br /><br />By contrast, if you search for images based on the actual elements <i>used</i> by Wells Fargo imagery -- cowboys, wagon trains, horses -- image search results show many images similar to those the bank actually uses.<br /><br />Again, the lesson: keep it simple. Don't get clever. Do <i>not</i> try to anticipate what the searcher might use as search terms. Photo researchers are more afraid of you than you are of them. They are going to keep it simple, too.<br /><br />I can verify this with my own statistics: My site gets about 19,000 search queries a day on my own search pages. Of the search terms I get, 99% are for very specific items. Furthermore, when someone actually licenses an image from me, and I track their search patterns that lead up to the sale, it is never the case that people use conceptual terms.<br /><br />In preparation for this article, I interviewed one particular client about how he tends to search for images. He said, "I found that sites are so inconsistent about search terms, that I've learned not to use big words. Just be as specific as possible to the actual things I want to see in a photo."<br /><br />When I asked him how he chose the particular photo he licensed from me, and what search terms he used leading up to it, he said he wanted a "futuristic landscape." When he tried that phrase (and derivatives, such as "future" and "cityscape") on Google, Getty and Corbis, he got nothing like what he wanted. So, he just got specific: "glowing buildings", which lead him to the image he licensed from my site, which can be seen <a href="http://www.danheller.com/images/Europe/France/Paris/LaDefense/Slideshow/img2.html">here</a>.<br /><br /><h2>Keywording Methods</h2> So, let's get to brass tacks: how <i>should</i> you keyword your images? Google has a document called, <a href="http://www.google.com/webmasters/docs/search-engine-optimization-starter-guide.pdf">Google's Search Engine Optimization Starter Guide</a>, which includes tips on optimizing your images for search. It all boils down to:<br /><br /><ol> <li> <b>The image's <i>filename</i> should include the most relevant elements of the image.</b><br> For example, if it's a photo of a boy and a dog, use "boy-dog.jpg". If you have many such images, use sequences: boy-dog-1.jpg, boy-dog-2.jpg, etc. <li> <b>Use keywords <i>sparsely</i>.</b><br> The more keywords you try to associate with an image, the more you dilute it, bringing down its "rank" and relevancy (and credibility) with search engines, or with given search queries. This is because search engines use two key metrics to determine how well a given image matches a search parameter: the <i>ratio</i> of matches between an image's keyword list and that of the search query, and the <i>filename</i> of the image. For example, if the user entered the query, "boy and dog", the search engine sees two words: "boy" and "dog." (It throws out filler words like "and.") Here, the image named, <i>boy-dog.jpg</i> has a 100% hit ratio of query terms with keyword terms, <i>and</i> the keywords were in the filename. Note that the actual photo itself may very well be that of a fish and a boat. (Google doesn't actually look at that, because, well, it doesn't know how.) <li> <b>Avoid using synonyms and other "related" terms in keyword lists</b><br> That is, <i>do not attempt to be thorough</i> in describing images with keywords. That's not your job. Search engines already know how to do that. They've got thousands of programmers with PhDs doing that for you (<i>and</i> for the end-user). The more you try to "help," the more you're actually interfering with the process, which reduces your relevancy and ranking. </ol><br /><br />The good news about keywording is that <i>proper and effective</i> use of keywords is extremely simple and shouldn't require much (if any) thought or time. Using myself as an example, my workflow involves two phases: the edit phase (where I rename all my photos so that their filenames reflect their content), and the keywording phase, where I apply individual words to images--usually in very large batches.<br /><br />For example, let's say I'm on a photo shoot of a boy and a dog. After editing out the stuff that gets tossed, I'm left with several hundred images, where I then name them just as recommended by Google: <i>boy-dog-lake.jpg</i>, <i>boy-dog-bridge.jpg</i>, <i>boy-dog-1.jpg</i>, etc. In order to assure the highest <i>ratio</i> of search queries to keyword terms, I try to limit filenames to two to six words, though most are either three or four. This is a difficult decision because if I use too many words, I may "match" more queries, but the ratio will be diluted. If I use too few words, I will rank highly for very narrow searches, but may miss more opportunities. This trade-off is a zero-sum game, so rather than try to game the system, I just be honest: determine what's in the photo, and use that as the filename.<br /><br />Any words that may be "in" the photo, but seems to be less relevant are then added to the keywords list in the image's metadata. And even then, I rarely add more than two or three words, usually modifiers such as "young" or "funny."<br /><br />Naming files is often very quick because most are batches of similar images. One only needs to browse a given gallery on my site to see the number of similar images that are shot together. The keywording process is similarly fast, also involving mass-assignment of specific, unambiguous words to large batches of images. My rule of thumb is that keywording thousands of images should take no more than 30 minutes.<br /><br />Most any image-management software can add keywords; I happen to use Adobe Bridge, which is bundled for free with Photoshop or any of the creative suite products.<br /><br />Note that if you inspect the images on my site, you may notice that they appear to have lots of keywords. Most of these keywords aren't actually in the images that I process--these are added later by an automated post-production algorithm that generates all my static html pages. I do all this to present hints to the end-user for suggested related search terms to stimulate new search ideas.<br /><br /><h2>Maps</h2> The newest addendum to my website is the use of Google Maps. Essentially, each of my web pages incorporates a google map to represent where every photo was taken. While it may seem frivolous, there's been great advantage to the maps. (It also wasn't entirely easy; Google set up the whole mechanism for the sole purpose of presenting maps based on specific street and/or mailing <i>addresses.</i> I have no interest in that level of detail; I just wanted to generate maps for generic locations, like city/state/country. Well, that isn't quite so easy because there are many streets named after cities, states and countries, and there's no way to tell Google maps that I'm <i>not</i> interested in street addresses, just general city maps.)<br /><br />Though I instituted maps onto my site late in December, the effect its had on my traffic and ranking has been a surprise. Search engines seem to give extra boost to web pages that are <i>geo-tagged</i>--that is, they indicate location. When people search for images where the search parameters include a location, my pages get an additional bump. I've seen about a 10% boost in traffic two months after having introduced geo-tagging onto my web pages, and I look forward to seeing more data to quantify the extent to which geo-tagging has long-term benefits.argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-65337332254212855872010-03-17T14:42:00.000-07:002010-03-18T08:34:29.622-07:002009 Year in Review: Content Remains KingIn this first segment of my series, "2009: Year in Review," I discuss the role <i>content</i> has played on my business.<br /><br />As I've preached since the dawn of my writings on the business of photography, the best way to make money on the web is to create as much content as possible. Having more inventory to sell is only a part of the benefit—indeed, a much smaller role than people may think in some cases, as I'll articulate shortly. The main reason content is so important is because it's the nucleus of all other revenue sources and business activity. Content plays an important role for search engines, which not only allow people to find you, but provides other sites with <i>links</i>. As links build, your search rankings increase, which increases traffic, which feed these various revenue streams. I discuss this principle in general in my chapter, <a href="http://www.danheller.com/photo-biz" title=" Web-based Photography Business"><b> Web-based Photography Business</b></a>, which is part of my series of <a href="http://www.danheller.com/books" title="photo business books"><b>photo business books</b></a>. (I discuss 2009's numbers more specifically in the next article in this series.)<br /><br />As a general business model, I follow my own advice to others: Almost everything you do should ultimately result in new, monetizable content. Once you have it, you can make money with it in perpetuity, with very little (if any) additional overhead or resources. Outside of some initial short-term costs and overhead, your business can scale up to virtually any size by merely adding new content. Whatever short-term income or expense that may be involved in acquiring new content, it should be regarded as part of your investment in the future. (That is, the short term pay or income is less important as the long-term potential.) I'll get back to this subject shortly.<br /><br />Though people monetize their content in different ways, I happen to choose to be the exclusive licensor of my own content. That is, I do not use stock agencies or other distribution models. I usually recommend this approach to people as a default assumption when considering entering into the photo industry, but one can certainly leverage the sales resources of agencies, if done properly from the outset.<br /><br />Given that I have over 60,000 images in my online archives now, and the manner in which content can be leveraged so easily, it may come as a big surprise to learn that licensing of <i>still photography</i> only represented 5.8% of my total revenue for 2009, compared to 16.9% in 2008. But don't take this bad news.<br /><br />First, still photography (the majority of the content on my website) is what I call the "gateway drug" for my clients. People discover my site primarily because of my still images, and end up making more lucrative transactions later. The fact that still imagery licensing has dropped as a <i>percentage</i> of total revenue is more due to the much larger increases in other, more lucrative revenue streams (discussed later). This further underscores the importance of having a robust and diverse business model that can survive (and even benefit from) shifts in the economy. In this context, the recession may have caused some people to spend less, but it also caused others to shift their spending towards me. Those "others" is a much larger population, even though each spends less on a per-transaction basis.<br /><br />For example, my fine-art sales represented 19.5% of my revenue, up from 12.7% in 2008. This can be entirely explained by the economy and shifting demographics. Buyers on my site in 2008 and prior had been low-end art collectors and enthusiasts (see <a href="http://www.danheller.com/biz-prints" title=" Selling Photography Prints"><b> Selling Photography Prints</b></a>), whose average purchase was $232 per order. By contrast, 2009 saw the average drop to $188 per order, but I got a <i>lot</i> more orders. Though I may have lost art collectors, they were replaced by high-end consumers were who shifted their spending from more expensive gifts (such as jewelry, etc.) to photography.<br /><br /> <h2> Assignments </h2> <!-- end section head --><br /><br />In light of my prior blog articles on the <a href="http://www.danheller.com/blog/posts/understanding-economics-for.html" title="principles of economics for photographers"><b>principles of economics for photographers</b></a>, assignments are also extremely critical to the acquisition of content. Many photographers scoff at the notion of accepting "low pay" for assignments, or even doing them for free, but this is extremely short-sighted and self-defeating. Acquisition of extremely valuable imagery is key to long-term revenue generation, and assignments are pivotal to that objective. If you choose your assignments well, then the "fee" you charged—be it a lot or a little—is, and <i>should</i> represent a very small proportion of the revenue you yield from the photos you just took. In other words, if you're only revenue form an assignment is the assignment fee, you have an outdated business model; you simply cannot compete in today's modern internet-based economy, especially when millions of people are taking pictures themselves. That assignment rates go down may be an unfortunate side-effect of this growth, but it is merely a blip on the screen when it comes to a mature photo business model.<br /><br />I'm not dismissing the potential income from an assignment; I never leave money on the table. If the client is well-endowed and I can negotiate higher fees, I do so. Mind you, <i>negotiation</i> is an entirely different subject, which I discuss in greater length <a href="http://www.danheller.com/blog/posts/in-negotiations-consider-career.html" title="here"><b>here</b></a> and <a href="http://www.danheller.com/blog/posts/negotiation-101-start-with-who-owns.html" title="here"><b>here</b></a>. But negotiation is only about optimizing what you can get, and should not be confused with <i>whether</i> you should take an assignment (regardless of price). In short, in mature business and career planning, assignments should be regarded as one-off payments for opportunities to acquire useful images that last into the future. When you amortize your assignment fees over the course of time, it should be negligible. (There are assignments I shot in 1996 that still generate revenue.)<br /><br />Assignments represented 12.1% of my 2009 revenue, up from 4% in 2008. This substantial increase is due to both an increase in the number of assignments I took, <i>and</i> the amount I charge per assignment. As I said, I don't leave money on the table, despite the fact that I face the same market conditions as everyone else—namely, attempts by other photographers to under-bid me, even offering to shoot for free.<br /><br />So, why would my clients pay me a higher rate than they used to, despite the increased competition? Because I provide something that cannot be supplanted by the lowest bidder: <i>a track record</i>. My experience, quality, reliability, and maturity in the industry is important to clients that cannot afford to risk getting a photographer to shoot something for free, yet end up with images they can't use, or other bad side effects of working with an inexperienced photographer.<br /><br />I also choose clients wisely. I don't seek or need clients who <i>can and should be serviced by emerging photographers</i>. My motto is, "real clients don't need newbies." (Any photographer that complains about being harmed by newbies should have moved up and out long ago into the next tier of their profession.)<br /><br />People often ask how I come up with my assignment fees. It's actually a very simple calculus of two factors: the client's financial condition, and the "value" of the images I can get. Remember, this doesn't govern <i>whether</i> I take an assignment, just what I charge for it once I deem it worthwhile. I emphatically dismiss all of the fee calculators that you see in books and on blogs. For example, most pros will say you should factor in your "costs" for any given assignment into your fee, whereas I feel costs are entirely irrelevant. I am never concerned with whether I'm making a profit for any given assignment because—<i>remember</i>—the true value of any given job is the longer-term potential with the images. Thinking about purely the fees for an assignment prevents you from focusing on career growth.<br /><br />While I do generate good revenue from assignments, I will still shoot some for free. Last year I'd done two very important assignments, one was for free, and for another, I spent <b>$3200</b> of my own money to fulfill the job. In this case, I knew that the imagery itself was invaluable. (And indeed it has already paid for itself in the aftermarket.) Better still, once my clients saw the results of the work, I not only sold them additional content that they didn't anticipate, but I got follow-on work to do exactly the same thing at twice my normal billing rate.<br /><br /> <h2> Still Photos </h2> <!-- end section head --><br />Over the past year, I've added about 30,000-40,000 new images, all<br />entirely from assignments. These include:<br /><ol><br /><li> <a href="http://www.danheller.com/cambodia.html" title="Cambodia (Siem Reap, Cambodia)"><b>Cambodia (Siem Reap, Cambodia)</b></a><br /><li> <a href="http://www.danheller.com/laos.html" title="Laos (Southeast Asia)"><b>Laos (Southeast Asia)</b></a><br /><li> <a href="http://www.danheller.com/croatia.html" title="Croatia (Europe)"><b>Croatia (Europe)</b></a><br /><li> <a href="http://www.danheller.com/puglia.html" title="Puglia (Apuglia) (The 'Heel' of Italy)"><b>Puglia (Apuglia) (The 'Heel' of Italy)</b></a><br /><li> <a href="http://www.danheller.com/jerusalem.html" title="Jerusalem (Israel)"><b>Jerusalem (Israel)</b></a><br /><li> <a href="http://www.danheller.com/paris" title="Paris, France"><b>Paris, France</b></a><br /><li> <a href="http://www.danheller.com/oregon" title="Oregon (USA)"><b>Oregon (USA)</b></a><br /><li> <a href="http://www.danheller.com/idaho" title="The State of Idaho (USA)"><b>The State of Idaho (USA)</b></a><br /></ol><br /><br />Not included in this list are projects that I haven't yet gotten online, plus thousands of images added to existing galleries, mostly in and around <a href="http://www.danheller.com/california" title="California"><b>California</b></a>, such as <a href="http://www.danheller.com/marin" title="Marin County (California)"><b>Marin County (California)</b></a>, <a href="http://www.danheller.com/sf-top" title="San Francisco, California"><b>San Francisco, California</b></a>, up and down the central valley, the <a href="http://www.danheller.com/calif-coast" title="The California Coast (USA)"><b>The California Coast (USA)</b></a> to the <a href="http://www.danheller.com/sierras" title="The Sierras (California)"><b>The Sierras (California)</b></a>. I've also expanded my topical pages, such as <a href="http://www.danheller.com/doors" title="Doors and Windows"><b>Doors and Windows</b></a>, <a href="http://www.danheller.com/stairs" title="Stairs and Steps"><b>Stairs and Steps</b></a>, <a href="http://www.danheller.com/bw-artsie" title="Random Black and White Photographs"><b>Random Black and White Photographs</b></a>, and <a href="http://www.danheller.com/topics" title="other topics"><b>other topics</b></a>.<br /><br /> <h2> Video </h2> <!-- end section head --><br /><br />As noted above, and in keeping with <a href="http://www.danheller.com/truisms.html#truism4" title="Truism #4"><b>Truism #4</b></a> of my treatise, <a href="http://www.danheller.com/truisms.html" title="the Photography Business"><b>the Photography Business</b></a> (1998), my latest expansion into new revenue resources includes video. As you know, video online has been increasing, and the technology required to produce quality video has come down. This has given many people an opportunity to expand their licensing potential in ways they never could before. I'm encroaching into the video turf much the same way consumers have encroached on the pro photography turf when digital cameras and the internet became inexpensive and accessible back in the 1990s.<br /><br />Prior to 2009, I licensed no video footage. Yet it instantly grew to represent 12.2% of my 2009 revenue. Most of it is time-lapse photography, which I'd produced mostly as a curiosity that I stumbled into when I discovered my camera's <a href="http://www.bhphotovideo.com/c/product/164271-REG/Canon_2477A002_Timer_Remote_Controller_TC_80N3.html" target="_blank" title="cable release"><b>cable release</b></a> had an interval timer setting.<br /><br />Most surprising about my video revenue is the fact that I have never promoted or solicited my videos. In fact, aside from my blog comments, I never even made it known that I had video content. I hadn't upgraded or enhanced my site in any way to host or license video content, and the only access to it is <a href="http://www.danheller.com/videos" title="this page"><b>this page</b></a>, which is merely a collection of links directly to my <a href="http://www.youtube.com/user/argv01" target="_blank" title="YouTube"><b>YouTube</b></a> channel.<br /><br />Needless to say, the natural viral marketing effect of YouTube is self-evident.<br /><br />One then asks: if my site doesn't support it, and I can't license it through YouTube, how am I conducting transactions? <i>Email!</i> This is exactly how my stock photo business started. From 1996 to 2003, I had never had a shopping cart—buyers simply emailed me and asked to license images, and they'd send me a check.<br /><br />Of course, that wasn't that unusual back then—few stock photo sites existed, let alone had automated shopping/purchasing systems, so buyers accepted it more readily back then. Times are different now, and so are expectations. All the more reason why I'm as surprised by the degree of video licensing I've done using this archaic model.<br /><br />That said, I expect to integrate video licensing on my site soon enough.<br /><br />It should be noted that one reason why my <i>time-lapse</i> footage commands such a high price is because of the way I shoot it. Rather than use a video camera, I use my conventional <a href="http://www.danheller.com/tech-equipment" title="still cameras"><b>still cameras</b></a> and capture each frame in full resolution: 5600 pixels wide. I then string them together into video sequences using either iMovie (for presentation onto YouTube) or Final Cut Express to retain the full ultra-high-resolution. In fact, these clips are so high-res, buyers can pan and zoom within the sequences down to ¼ of the original footage, and <i>still</i> retain enough resolution to achieve 1920 HD. (And even then, most video buyers don't really need 1920 anyway.)<br /><br />None of this is possible using conventional video cameras, nor is it offered by other video-production service providers. And of course, the quality is much higher than video footage because night-time image detail in a pro-level dSLR far exceeds anything in the video camera category, even the amazing Red One. This strategy anticipates not just every possible buyer, but prepares for the future as well.<br /><br />One might think that this is a huge shift in my day-to-day shooting. That's where the best news is: shooting time-lapse footage is as easy as setting up a camera for a conventional landscape shot, but instead of pressing the shutter button once, I press the interval timer, and then go away. For all-night images, I just go to bed; for daytime footage, I use my other camera body and shoot stills while the time-lapse body snaps away every 3-5 seconds. This is not to suggest that all time-lapse is easy (or yields successful sequences), it's only to say that it doesn't interfere with my existing shooting patterns.<br /><br />Note that the videos on my YouTube site do not represent all the footage I've done, either in time-lapse or conventional capture. I've done a number of productions for clients as an addendum to my standard still-photography services. So, I haven't really grown a new business model as much as enhanced my existing assignment services. Also note that my Canon EOS 5D Mark II, the body that I use in standard still photography, also captures HD video, where I do get short segments of conventional video clips. (Always adding to my "content.")<br /><br />Lastly, don't assume by any of this that I'm moving towards video and abandoning still photography. The kind of video I'm doing is just the low-hanging fruit that happens to be available given my set of conditions (equipment, talent and clients). I am by no means a true videographer that could be hired by a television network to produce content for broadcast. That said, the future of video licensing looks very, very bright, and it would be something I would strongly encourage other photographers to do if they had a propensity for the technology and the clients that would use it.<br /><br /> <h2> Consulting and Business Development </h2> <!-- end section head --><br />2009 saw a big decrease in my consulting revenue largely because I'm shifting away from that business model. I've always used it as a vehicle for conducting research into new and interesting areas of the photo industry. However, my interests are shifting into new directions, and I'm finding that the information many people seek is becoming repetitive, and ultimately fruitless. I'll be posting future articles on some of those initiatives. <br /><br />Nevertheless, one of the side benefits of all this research is that I produce a lot more content that's not only indexed well by search engines (which brings me traffic, which helps my content sales), but it also leads to publishing revenue. As most of my readers know, I have written <a href="http://www.danheller.com/books" title="a few books"><b>a few books</b></a> on the photo business, which continue to sell quite well on my website. Even though they are "old" by publishing standards, I wrote them with longevity in mind, as they address timeless business principles. In 2009, my book sales and other publishing revenue (see below) represented 12.8% of my income, compared to 14.9% of 2008 revenue. (This aspect of my revenue is and always has been rather constant.)<br /><br />Another noteworthy fact is that my site outsells ever other book retailer on the net by many orders of magnitude. And I negotiated the contracts with my publishers with this in mind—I don't mind taking less royalty advances on my books in exchange for very advantageous discounts for direct purchasing from them. Though my contemporaries in the photo business publishing world may sell more books on amazon than I do, I sell far more total books because of the volume on my site. There's also the fact that I get $10-15/book, whereas my counterparts get maybe 10-15% royalties on those amazon sales. (I'm guessing these royalties translate to about $1.50 to $2 per book.)<br /><br />Then there's the revenue I get from publishers who reprint some of these blog entries (condensed down to 1500 words—yuck!) in their columns and newsletters. Interestingly, most are from non-US publishers. (One was translated into Russian. I got a copy. It was weird to see.)<br /><br />The next article in the series will cover Web Traffic and Visitors, Search Engine Optimization, and advertising revenue. Stay tuned.argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-21090281467926299882010-03-16T10:26:00.000-07:002010-03-16T12:41:46.473-07:00Understanding Economics (for photographers)Of the emails I got from people in response to my article on the <a href="http://www.danheller.com/blog/posts/photographers-dilemma-cooperate-or-not.html">Prisoner's Dilemma</a> (explaining how human behavior affects economics), two warrant public comment. One person said:<br /><br /><blockquote><br />Photographers that take $200 assignments hurt themselves, disproving your thesis that people act in their own self-interest.<br /></blockquote><br /><br />Ummm... How is it that we've established that they are hurting themselves? I personally have done assignments for $200 that involved spending 15 minutes photographing an individual for some personal use of their images. That's $800/hr., much better than most high-profile lawyers get. I've also done assignments for $200/day, but allowed me to get images that I was able to license for tens of thousands of dollars.<br /><br />The truth is, such vague and open-ended propositions are, frankly, silly. Even entertaining the proposition of such singular and simplistic truisms about economics hardly warrants serious discussion. Therefore, those who do engage in these discussions are usually those who have the dual tendency of (1) believing the premise, and (2) of using it for political motivations. This creates a feedback mechanism where you do more of it... repeatedly and more passionately. The most immediate dividend is bolstering one's own image among the faithful. (See my article, <a href="http://www.danheller.com/blog/posts/economics-of-controversy.html">The Economics of Controversy</a>.) <br /><br />It's not that people who dispel inaccurate economic theories are always intentionally deceptive. But there is a point where their own mental model of how things work becomes the filter by which all actions and statements are interpreted. If their basic premise is faulty, then this skews their perception of reality. Most importantly, it affects their ability to extrapolate simpler ideas into more complex ones, which would otherwise allow them to come up with effective economic forecasting tools. Is it really true that accepting $200 hurts yourself and the rest of the photo industry? Or does your intuition tell you that this is probably a bit simplistic? How does it strike you that most pro photographers believe this statement to be true?<br /><br />And this leads to the other email I referred to:<br /><br /><blockquote><br />Are there any important essays or textbooks that you think is worthwhile which distills a lot of what you have learned [about economics]?<br /></blockquote><br /><br />I'd ruminated about this continually since I got it, and I'd even started (and discarded) several lists. Every time I come up with a list of great resources that help establish fundamentals, I then put myself into the mindset of an average reader (esp in the photo community), and I realize that it's not quite right.<br /><br />For example, one of the items on the lits that I keep adding (and then removing) is <a href="http://www.pbs.org/newshour/economy/makingsense/">PBS Newshour's Paul Solman</a>. He is a "behavioral economist", and his continuing series on the Newshour program ("Making Sense" [of Financial News]) is must-see TV for anyone that wants to digest complex subjects down to the basics. To me, this is the easiest and most effective way to learn the fundamentals of economics, whether of a financial nature, or a personal nature. Yet, every time I send someone a clip from the show to explain things they don't understand, I usually get a response that their eyes glazed-over.<br /><br />So, how do you teach economics to people who are predisposed not to understand it?<br /><br />And that's when it finally dawned on me: There are two barriers to understanding economics. The first is to dispense with preconceived conclusions. Yet, this is often a paradox in itself. If your livelihood and financial future is at stake, there's a huge emotional hurdle that needs to be overcome to make sound decisions. It's like trying to teach good farming techniques to someone about to die of hunger: they don't have time or patience to wait a whole season or more for the next crop. They need to act now. They'll run towards the mirage on the horizon simply because it appears there's water there, despite the objective rational observation that mirages are well-known illusions.<br /><br />The need for immediate results doesn't change the reality of economics. This is why I've always taught that photographers should never, ever <span style="font-style:italic;">enter</span> into the business as their sole source of income. They should evolve into it gradually, until the income is more stable, reliable, and predictable. Anyone that complains that they aren't making enough money in photography has only themselves to blame for having dived into it before they were ready. There is no economic truism that others' actions or behaviors (such as taking $200 assignments) have hurt their careers.<br /><br /><br />The second reason people have these faulty notions about economics is more due to a primal human emotion: you're more powerful as part of a group than as an individual.<br /><br />Since most photographers work for themselves, it's natural to assume that the best way to fight common adversaries is to <span style="font-style:italic;">unify</span>: "all for one, and one for all". Once this mental model is in place, it becomes the sole and primary paradigm by which all observations are interpreted. Whenever anything comes up for discussion, it's no longer a question of whether the action itself makes sense, but whether it serves the larger goal of "unification." If someone accepts the $200 assignment, it's not whether or not it's a good idea, it's whether it supports the notion of unification.<br /><br />Another common example is the question of "free." Studies continually show that "free" is the most effective marketing term ever. If you want to attract new business, use <i>free</i> somewhere in your marketing materials. Yet, most everyone in the photo community froths at the mouth whenever they see or hear about photographers taking assignments (or doing anything) <span style="font-style:italic;">for free.</span> Naturally! As it runs counter to both the premise of "I'm hungry!", and "unification." Nowhere is the concept of "free" ever thoughtfully examined as a single element in a broader marketing campaign--an element used by literally every other business in the entire world. <br /><br />Learning economic principles is one of the keys to developing good business techniques, including negotiating contracts, pricing products, marketing yourself, and other career-building practices. The good news is that the basic concepts of economics is really very simple -- almost <span style="font-style:italic;">intuitive</span>. Indeed, the whole <a href="http://www.danheller.com/blog/posts/photographers-dilemma-cooperate-or-not.html">Prisoner's Dilemma experiment</a> illustrates a truism about human behavior that should in itself not have to be explained--the lessons it illustrates should not only be self-evident, but one should be able to naturally extrapolate them to other models, such as the question about whether expecting photographers to stop accepting $200 assignments is actually achievable. One should not have to have an education in economics to intuitively realize that such a premise is impossible. Expecting masses of people to voluntarily resist accepting paid assignments is an unrealistic expectation of human nature. (The "genius" of the experiment is not so much the facts that were revealed, but that it could be explained so quickly and succinctly.)<br /><br />For photographers to improve their own careers, and by extension, the health of the industry at large, they need to shift away from the notion that photography is governed by the same economic rules that apply to unions. Photographers cannot be expected to act in unison, and anyone that builds their business models on that expectation will be the first to fail. Secondly, understanding economics, requires an understanding human nature. The better you are at that, the easier and more intuitive economics naturally becomes.argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.comtag:blogger.com,1999:blog-10926261.post-27486407189164657452010-03-14T04:00:00.000-07:002010-03-14T04:15:50.512-07:00Reminder: Cooperation is an IllusionBefore I get to my series on 2009 (Year in Review), I feel compelled to repost an article I published in May 2007 titled, <a href="http://www.danheller.com/blog/posts/photographers-dilemma-cooperate-or-not.html">The Photographer's Dilemma: To Cooperate or Not?</a><br /><br />I feel compelled to post this now because of a new swell of populist rhetoric in some blogs and discussion forums that preaches that photographers should stick together, and not take low-fee jobs (or work for free), because such actions bring down the collective value of the photo industry and encourage clients to expect more for less.<br /><br />This very idea is pleasing to believe, and <i>always</i> goes over well with pro photographers, but it runs counter to many proven economic principles. One of the pinnacle truisms of economics is called <i>The Prisoner's Dilemma</i>, which not only shows that such cooperation never helps, but it actually harms those who cooperate more than those who don't. This famous experiment demonstrates the basic principle:<br /><br />You and a friend have robbed a bank. You almost get off scott-free, except for an old lady who "thinks" she saw you, but isn't quite sure. The police round you two up, but because the witness is uncertain, you and your friend agree that the best thing to do is not confess anything. That is, by cooperating, you can each assure that you will both be protected. But, the twist is that the police place you into <i>separate</i> cells, and interview you separately:<br /><br />"If one of you testifies against the other, and the other remains silent, the betrayer goes free, and the other gets 10 years in prison. If you both stay silent, we can't convict you on the bigger sentence, but we can get you on lesser charges, giving you six months in jail. If you both betray each other, then you both serve two years."<br /><br />Each of you has two options: stay quiet, resulting in a lighter sentence for each of you. Or, defect from the pact. The table below illustrates your options:<br /><br /><table border="1" cellpadding="5" cellspacing="0" align="center"> <tr> <td></td> <th scope="col">Prisoner B Stays Silent</th> <th scope="col">Prisoner B Betrays</th> </tr> <tr> <th scope="row">Prisoner A Stays Silent</th> <td>Each serves six months</td> <td>Prisoner A serves ten years<br /> Prisoner B goes free</td> </tr> <tr> <th scope="row">Prisoner A Betrays</th> <td>Prisoner A goes free<br /> Prisoner B serves ten years</td> <td>Each serves two years</td> </tr> </table><br /><br />Because you're in separate cells, you have no idea what your friend is going to do. But here's where your mind plays logic games. If you knew your friend would stay silent, your best move is to betray, because you then walk free instead of receiving the minor sentence. If you knew your friend would betray you, again your best move is still to betray him, as you receive a lesser sentence than by remaining silent. Of course, your friend will think the same thing and therefore also betray you. Yet by both betraying the other, you both get a worse sentence than if you both stayed silent. So rational, self-interest plays into each of your decisions, making you both worse off than if you'd "cooperated" on the agreement by staying silent.<br /><br />This experiment illustrates the most fundamental cornerstones of economic theory and has been tested in many different contexts, conditions, and demographics. It was originally conceived in 1950 by Merrill Flood and Melvin Dresher working at the RAND corporation, and became the basis from which John Forbes Nash derived his famed "Nash Equilibrium", which earned him a Nobel Prize for Economics. It has since served as the foundation for most businesses, governments, social policies, and many other aspects of everyday life because it reflects innate human decision-making. So long as there is no interfering body, policing of behaviors, enforcement of compliance, or any other factor to deter this natural human instinct, it is "natural" to serve one's own interests, and also to protect against harm from others by "betraying" them first.<br /><br />If this is the case, why doesn't society collapse? Because we have an intricate and complex system of checks and balances. We have laws that keep people from stealing or harming each other, police to enforce them, social stigmas, and religious dogma, just to name a few. There's also the fact that society isn't necessarily a zero-sum game: people don't kill each other unless there's some gain in it. In fact, there's a great deal of self-protection in maintaining order and keeping peace.<br /><br />What does this have to do with the photography business? Because there are more photographers than there is a demand for them. Therefore, it's a buyer's market: people will offer less and less, and there will <i>always</i> be photographers that will take it. Attempting to get photographers to "cooperate" is literally impossible. In fact, those who do cooperate will find themselves harmed worse, leaving an even greater proportion of those remaining unwilling to cooperate.<br /><br />Unless there is a plausible, accepted, and recognized <i>enforcement</i> of compliance -- such as how laws protect worker's unions from both defectors within the union, and from companies to hire people outside ethe union -- it is literally impossible to effect change through mass cooperation. In fact, this is <i>why</i> union laws were created. <br /><br />So why don't photographers form a union, or why doesn't the government set up some sort of pricing protection policy? The first answer is that photographers <i>did</i> have a union, but it was broken up in the 1970s for <i>restraint of trade</i>, which was triggered by two events: buyers were harmed because there was no competition in pricing. They <i>had</i> to buy photos only from union members, who, by law, were required to sell their photos at a set price. Secondly, photographers complained that they couldn't work because the union wouldn't let them in. So, too many people weren't working. A photographer's union caused far more harm than good.<br /><br />As for the government setting up pricing protection, that's not its role or responsibility in society. It has never done such a thing, nor would anyone ever accept it.<br /><br />Then there are those who feel that you just need <i>most</i> photographers to cooperate. But the Prison's Dilemma game has proven that the core, self-interest behavior has not only been established in small groups of people, but it has been shown that the greater the number of players, a smaller and smaller ratio of defectors is necessary to dilute the effects of the group. In any business model, whether it's a sole photographer, or a larger agency selling the work of thousands, this is this fundamental principle that instantly discounts all arguments made by photography interest groups that "sticking together" works. (That photo interest groups and educational systems continue to advocate this approach does more harm to those in the photo industry than anything else.)<br /><br />In summary, photographers of today cannot possibly expect to achieve anything by attempting to cooperate with one another. Doing so will only cause more harm to those who try. Making money in photography is about developing a career, not by stringing together one paid gig after another. If you develop yourself as a professional, money comes, and you're paid on many qualities and skills well beyond "photography." If someone isn't willing to pay you more than the competition, you're either not worth it, or the gig is too simplistic to expect it. Real success is having a skill or quality that cannot be provided by the lowest bidder.<br /><br /><br />For a discussion on that, see <a href="http://www.danheller.com/biz-sense" title=" Photography and Business Sense"><b> Photography and Business Sense</b></a>.argvhttp://www.blogger.com/profile/14471357746875576574noreply@blogger.com