Dan Heller's Photography Business Blog Industry analysis from www.danheller.com

The photography world -- the business, the culture, the art, the politics, the technology.

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Saturday, April 23, 2005

The "solution looking for a problem" Syndrome

On Apr 23, 10:27am, harrison555@naver.com wrote:
Do you think there is a niche market for the international photos (especially Korean photos) in the USA? In other words, do you think that a nice website with Korean photos with English descriptions will attract some potential customers in the USA? Who is interested in Asian photos? What would be the most appealing topics of Korean photos to the potential customers?

Harrison --

Your question is understandable, and it represents the classic question that all photographers have: "Is there a market for MY photographs?"

The answer is both yes and no. The photo industry is so saturated with images from every aspect of the world, that there is rarely a demand for images that can't be met by some supplier. On the other hand, if that were the case, no one would be in the photo business.

The answer is like that of Love: there's someone for everyone. In this case, any photo has a potential buyer. And, as I've said copiously through my books on the business of photography, it's not about the photos--it's about how you go about the business of marketing and sales.

Most photographers make the classic mistake that I discuss in http://www.danheller.com/biz-sense.html#4.1, where I refer to a friend who shoots art festivals and wants to find buyers for those photos. Because she's excited about these pictures, she feels there's a market, and it's just a matter of finding it. But, it's not about finding a market--it's about already being in the market you want to sell to. That's the only way to create the demand from people who would otherwise not be interested. If you know your industry well enough, you can do that.

The guy who invented the hammer didn't just say, "Hey! This is a cool design--let's see if anyone can find a use for it!" It doesn't work that way. This is what I call "a solution looking for a problem." Most photographers are like this. In your case, you have Korean photos and are hoping to find someone who needs them. Instead of probing around to find buyers, you should instead work from the inside out: What industries need these photos? Find them. What kinds of businesses market to an Asian audience? Find them. If you don't know these answers, you're not working from within any industry that needs photos.

Once inside, you then need to understand their business objectives and articulate a business case for why your photos are useful. And it's not just about "communicating" a business case, as if it were just a matter of wordsmithing creative text to market your photos--you actually have to know this stuff, and your photos have to reflect that knowledge.

Do your photos today reflect some aspect of Korean life, industry or culture that can be useful in some market in the USA? If you know the answer to this, then you should already know the kinds of industries you should target, and you shouldn't be asking me these questions. On the other hand, if you only have a series of good-looking pictures, but they are otherwise random and inconsistent, then anyone looking at them isn't going to find much more value in them than the thousands of other photographers, each of whom are presenting thousands of pictures themselves. Assuming that all you have to do is take technically and creatively good-looking pictures, and someone out there will find a good use for them is another way of saying, "a solution looking for a problem."

Unless and until you understand a target market, you won't get any good, useful information from me or anyone else. Guidance is not going to come from people in the photo industry. It's going to come from discussions with people from other industries that you want to target.

At the end of the day, the photo business is not about photography. It's about understanding business--or, some market segment or industry--and being able to sell widgets (in this case, photos) that help them with their businesses. If you can do that, it doesn't matter what your photos look like. You're ahead of your competition.

Friday, April 22, 2005

Teaching: does it help in sales/name-recognition?

On Apr 21, 6:53am, Chris6970@aol.com wrote:
I don't know what its like in USA, but there is an almost inbred sense of smugness, even superiority among so called pro [landscape] photographers here.

It's the same problem everywhere... It's one of the more unfortunate aspects to the culture of this industry.

The people who bought some of my earlier work also commented that it would be nice to have photos of an equal quality but of more directly recognizable scenes. So I have embarked on a series of photos of all the local villages, towns, cities, within traveling distance. And lo and behold my sales are beginning to rise [consistently].

Yup -- it's a sad-but-true fact that consumers are not just attracted to the familiar, but the typical. Whenever I read statements in photo magazines about how the photographer always "runs the other way" from those locations where other photographers gather, I wince with regret that the readers are getting the wrong message. Yes, it's true that atypical shots are great, and you should strive to get them, but avoiding the typical shot is a bad business decision.

in the process of sorting out a website, I have at least 3 exhibitions planned, and am arranging to hold classes and give talks on photoshop and photography at the local college..Not that I consider myself an expert..But to "build a name".

That's well and good, and I applaud your participation in local events and especially education.... And while that may translate into some moderate short-term boost for business, don't believe too strongly in the association between the value of name recognition in the educational context, and that of the business context. There's always going to be some overlap, but the mistake many make is misinterpreting this "overlap" as "a trend."

Name-recognition among buyers is not based on how well the person is known by other photographers--it's based on how well that person is known in the buyer's world. (And photographers rarely buy photography.) That target market is really your ultimate goal, and the question is, what's the best way to penetrate that market? (For this discussion, see http://www.danheller.com/biz-marketing.html.)

The assumption that teaching will translate into name-recognition, which then translates into sales, is not that simple. Rather, one needs to gain visibility in the broader marketplace beyond just academia. Now, one can certain leverage access to that broader market using credentials from the academic realm, but they don't just work for you magically behind the scenes. You still need to employ some other marketing strategies. Sure, use the academics to bolster your image, but it won't work without those marketing tasks.

While an impressive academic resume may aid in gaining credibility among the gate-keepers who hold and defend that media/gallery domain, academia is not the highest ranking in their eyes, nor is it the easiest or most time-efficient strategy for achieving broader name-recognition status. As discussed in the above link, given the investment of time and resources, academia probably the least "efficient" way to gain notoriety. If one's background does stem from academia, however, one must assuredly exploit the networks and contacts within that particular institution as an "in" for venues and other resources that raise your status outside of academia.

To sum it up, "don't expect to teach classes and see sales jump." Unless your career objective is to teach (which is a fantastic objective), teaching should really be to be used as an "in" to a much broader marketing campaign, which still needs as much attention and fostering as before.

Wednesday, April 20, 2005

Discussing Stock License Agreements

Where on the Internet can I find a typical image licensing contract that a photographer would use, like for stock licensing his stuff? Book?

There are tons of places, but here are some things to think about first:

*) Most of the prototype contracts are for photographers who have much more substantial business arrangements with their licensees. This is either in terms of dollar amount, or the proprietary nature of the subjects/usages (or even both). Most pre-written/boilerplate contracts have a lot of verbiage that won't necessarily apply to most other (less expensive and less legally formal) business relationships. Having crap in a contract that you don't need (or understand) only hurts. More on that soon.

*) People who license pictures from photographers often do not have the authority to engage in the terms and conditions that these prototype contracts stipulate. This may cause the whole thing to be bumped to a higher signing authority, which may not only slow down the whole process, but may kill it if the higher-up just says, "forget it--find another image from another source."

*) Most license arrangements are so straight forward, that there isn't a whole lot to say, other than those I mentioned in my posting, Terms Related to Digital Files. I have never found the need for any other license agreement than the simple four-point terms outlined there (which are also on on my image quotes, and sales receipt--see below).

*) The UNDERDOG in any legal dispute usually fares better when there is ambiguity in an agreement when he has little to lose. Put another way, the bigger player is more exposed when faced with a legal entanglement with a smaller player (such as a single photographer) because bigger parties have too much to lose. The aversion to risk is higher, so it costs even more to go through legal hurdles to avoid that risk. Little guys usually don't go to the cost and expense of such a suit unless they have a strong case, especially when a stronger case has more of a likelihood of upside results. Hence, bigger players prefer to settle before it goes to court anyway (esp. if they are caught doing something wrong, and there's an ambiguous contract to have to argue in front of a judge or mediator). So, bigger players prefer a solid, very verbose contract to bolster their case (or to wiggle around in).

*) Even in the event of a dispute, the contract doesn't matter nearly as much as the ability to enforce/defend it. It costs a LOT of money to go through the legal system, even if you're right. And the amount of money you recover has to be enough to warrant hiring the lawyer to do it (or for a lawyer to agree to take it on contingency). Otherwise, it isn't worthwhile. Which brings us back to the first point above: if the license for the photo is worth a lot of money, or there are sensitive/proprietary subjects or legally formal relationships involved, then yes, you'd need a formal license contract like those you find on various photography interest group websites. My guess is that doesn't apply to most everyday photographers. (Photo agencies, yes... But that's another thing entirely.)

If it turns out that, in your specific situation, you should have a good, formal license agreement with the licensees of your photos, then it will be the case that you know ahead of time WHY you need it, and are absolutely certain that you are seriously exposed legally (or can be screwed royally) without one. If this really is the case, then you already know the lay of the land, and should be able to write it yourself. If you are not sure, but just worried/scared, you don't need one. Using a prototype you find on the net or anywhere else is probably not going to do much more for you than being less formal.

Note!! I'm not saying that people should not have protection. I'm just saying that your terms do not need to be verbose, formal, or even signed by the licensee for them to be legally enforceable. If you have those terms briefly enumerated in your price quote, and then restated in the receipt they receive after having made payment, then the licensee has been duely notified of the terms, implicitly binding them to those terms.

Tuesday, April 19, 2005

Using photos of trademarked items

On Apr 4, 10:29am, doug@artmechanica.com wrote:
Dan, I'm writing to ask if you have any passing familiarity with getting licensing for selling photos/artwork of trademarked items. I do automotive subjects, and now find some indication that many mfrs such as GM, Rolls, Porsche, etc "go after" sites like mine that try to sell photos of their products or logos. I assume that consists of a stern cease and desist letter along with a demand to buy a license. So far my website has no visibility and is well below their radar, but the issue seems certain to come up in the future if my changes are effective. I sincerely hope they want only a piece of the pie rather than an up-front payment, for obvious reasons.

On a couple of occasions I emailed the people involved and asked if I could license their trademark for purposes of using an image of their property for a specific use. I only got a response that amounted to, "sure, but don't ask for a license...that'll just involve more work than either of us want to deal with." In other words, more often than not, people like me are beneath their radar. Obviously, I did not request the kind of open-ended use you're probably looking for, which is where the question is more apropos. What it is you want to do with your images is another thing entirely. If you just have images for general stock requests, then you can simply follow the same guidelines discussed in http://www.danheller.com/model-release, which I think you've already done. That is, it depends on any given use of an image whether a release is necessary (trademark notwithstanding). Here's where it DOES apply to your situation. Now, there's good news, bad news and worse news.

Good news:
Unless and until they actually show that you HAVE licensed an image in a manner that violates their trademark, you haven't done anything wrong. You are not obligated to take down images on your site because there are legitimate editorial uses for images that do not require releases, thereby making it perfectly legal to show such images are for sale.

Bad news:
If you shot the images in a private setting, such as if you bought a ticket to an event where they expressly prohibit the use of photography (whether or not they actually enforce it), then you violated another contract, which they can enforce.

Worse news:
Even if you shot pictures in open public space, and have every right to shoot the pictures and put them online, that doesn't stop a very aggressive company from overstepping their bounds and try to get you to stop doing "whatever" with those photos, even though they have no right to do so. If you were to put a lot of money into defending yourself, you would probably win under these circumstances (again, provided you have not actually licensed such images to a client who would use them in a way that would violate the trademark's protection). The question is whether you will have the resources to match theirs, or even the guts. Most people don't, so they back down. (I've done it too.) But, that does NOT make them correct in their legal interpretations, and you shouldn't take it for granted that because this happens a lot, that it has set some sort of precedent. (Many people on the net are misinformed about such matters because they assume that because such circumstances exist, that the law must be on the side of the litigants.)

Your questions:
I sincerely hope they want only a piece of the pie rather than an up-front payment, for obvious reasons.

No -- they have no interest in a piece of your pie. There are many reasons for this. The simplest is that the administration and policing of that "pie" costs far more than what they would receive from you (not just monetarily, but in the resources they'd have to allocate to you in its various forms, such as software, legal oversight, frame of mind, etc.). Since it's not their business model to administer such a thing, it's even less of an incentive, unless you were a major clothing manufacturer or something like that. Another huge reason is perhaps that if they allow you, then they will do that with others as well, which, unless very carefully monitored, will likely yield a more serious trademark infringement. Worse, defending this would be harder because they'd already have set a precedent for allowing flexible and probably indiscriminant uses that (in all likelihood) were hard to monitor. (Remember, winning a case against trademark infringement requires having shown a history of your trying to _protect_ your mark in the first place.)

Lastly, and probably the most important reason for not allowing any old use of their mark is that name-brand recognition is vitally important, and anything that may diminish that--such as letting you sell pictures of their trademarked products--can be extremely costly in the long run if some of those uses (which they can't monitor) devalue the "impression" of their logo.

Should I contact them first, or wait until the various hammers drop? Better to act like I want to be on the up & up, or live with a negative or semi-hostile first contact? What would you do?

I would avoid stirring the hornet's nest. If they contact you, see what they have to say and why, etc. If you well-versed with the ideas presented here, you may be easier to deal with or negotiate around for several reasonable uses. Note: it would help your appearance if you had certain disclaimers and trademark notices next to (or somewhere near) pictures of such.

A local small stock photo house may have an interest in my work, and asked me to contact them once I get a quantity of images rolling.

I seriously doubt anything will come of this for several reasons. First, that house is going to request usages that will far exceed what the company will likely release. Note: they license their pictures themselves, so anyone that wants them usually goes to them first. If a stock agency has rights too, that imposes competition you just don't need. (This is why I don't have stock agencies represent my images either--same rationale.)

If that's not reason enough, even if you were to get some authorization for any kind of use, the stock agency is going to ask you to sign an indemnity clause protecting them ("hold harmless") against any claim from the manufacturer against them for any reason. So, for example, if the stock agency were to license an image to a client that uses it for a legitimate purpose, but then their graphic designer steals the image and uses it for some other, unrelated piece, then the manufacturer will go after you. Why YOU? Because they'll start with the stock agency, and they'll show them the indemnity clause, and that will point them back to you. Then YOU have to show that the designer stole the image, etc... You don't want to have to spend your time doing all that.

(Hint: you might want to consider having your OWN indemnity clause in any of your licensing agreements that says that the licensor indemnify you against any claim of THEIR use of the image. A stock agency would never sign up for that, as just noted, but a licensing client might.) (or might not.)

You might want to see: http://www.danheller.com/biz-trademarks