War On Photography II

Presented at PhotoPlus Expo - Jacob Javits Convention Center - October 22, 2004

Sponsored by EP and APA

PANELISTS:
Edward Greenberg, Esq. - Greenberg & Reicher, LLP.
Erica Galinski, Esq. - Greenberg & Reicher, LLP
Brian Smith, President - Editorial Photographers
Michael Grecco, Chair APA/LA and EP Board of Directors
Jeff Sedlik, Past-President of APA
Adrienne De Armas - Apix.

(EG) We'd like you to think of this panel as more of a Las Vegas buffet rather than an intimate dinner for two at The Plaza. We intend to move very quickly. Do not get offended if we are very abrupt or fast. Those of you who have questions who may not feel you get a detailed 45 minute answer and are unsatisfied, that's life, that's what is likely to happen tonight. We're going to do the best we can within the time constraints. Last year we left what we thought was a lot of time for questions and it clearly wasn't enough.

So I'm going to touch on a few of the hot button issues that we received requests to touch on this year, either on the EP boards or just clients or potential clients contacting us and asking us about. It's going to be up to you guys to bring up the topics that we don't touch on. The biggest demand that we got, the biggest single request that we have received was on the issue of negotiation - because of the financial environment - and negotiation strategies and techniques. By the way is there feedback on this. Better, better? Can't hear me? That's the first time I've ever heard that in my life.

How well any of you negotiate, or anybody in any business setting, how well they negotiate, goes to a very great degree on how you are perceived by others. And no one is going to perceive you the way your dog does. Your dog perceives you as perfect and you of course, know that your dog is right. But there's a steady and continuous falloff from that level to how you're perceived by other people. It goes (down) from your spouse down to your kids to your friends and then it descends into the depths of hell where you get reps, clients, media companies, lawyers, IP people and at the very bottom of the depths of hell there are Miami Dolphins fans and stock agencies.

You need to understand that 99.9% of the American public does not know or care that you exist. They have no understanding of your business; they have no desire to understand it, it is not like the modeling business where they have a great desire to understand it. Their perception of photography is wedding pictures, bar mitzvah pictures and the guy who's at the Little League game selling prints. They don't care about this industry and again it bears repeating, they don't know it exists. If they look at Time or they look at Newsweek or they flip through People and they see celebrity pictures or they see ads for an insurance company if it's a pretty girl, if it's an interesting picture they'll stop for maybe 3 of a second or a 2 second longer.

Joe Hunter, who used to be President of Ford Models in a trial that I had testified as my witness that the value of the "supermodels" that he had was in the ability to make the reader hold that page in Vogue for 1/8 of a second. The photographs that all of you see and that all of you respect, or some of you respect - some of your other colleagues can appreciate the talent that goes into it - most people in the real world don't see that and they don't care. You guys in this business are viewed by the clients, by reps, by the stock agencies, by the lawyers who work for your clients - as naive, passive to a fault as "artistes" in the most pejorative sense. That you lack business acumen, that you never read anything - and I know from personal experience and Erica can tell you from personal experience, we know that half of you don't read the letters that we send you, even though you're paying us. We know they're not read. They perceive you as being unable to write English sentences. They perceive you as being unable to put a paragraph together. They perceive you as being easily fooled and very desperate.

This is the way that they talk about you behind your back. They don't tell you that when their having drinks after a shoot and they don't volunteer this information, but it's what they tell us when we have them under oath. It's what they tell us when their in negotiations. These are people who can, and will, tap you on the back with one hand and pick your pocket with the other. And it can happen to you.

This is an environment where perception becomes realty. All of you are dealing in the visual arts and this really should hit home. You should understand this in your gut. The scent of desperation by and amongst photographers is about as subtle as a dead skunk in the middle of the road and if the person you are negotiating with - who you guys like to call your ‘negotiating partner' - senses that desperation, you are likely then to become another piece of road kill.

So here are some in your face tips, tactics and approaches. You can think that me or Erica, or anybody else on the panel, well that we're overly strident. That we're cynical, that your experience isn't our experience. That's fine. But again, just remember, if we are just a little bit right and you're just a little bit wrong, what the consequences are going to be for you.

Now let me make a representation, I own no shares in Google, none. You guys hear all the time from reps who are supposed to be own your side - which I'll get to in a minute - from reps, from clients, from agencies from prospective clients, you hear these cliches, these buzz words all the time: It's a "tight economic environment", "we have no budget", "we have no money for you", "we have no budget for this" and variations of those lines. I'm sure that each one of you can give me a dozen additional variations that you've heard. The repetition of these phases gives them an air of authenticity that they frequently do not have. Many times these people who are telling you this are lying to you.

Now I know that some of you find that really amazing - but they're lying to you. So what can you do about it? What are some of the things you can do about it? Well first of all, Google the damn client. Before you have a meeting with a client, or an agency, do a Google search. Check some articles about their advertising budget. See what their stock prices are. See what agencies they may have hired recently. See if they've made commitments.

Recently there was reference to a I believe a car company, which has elected not to do any television advertising and has rerouted $130 million into web advertising and other sorts of advertising. It may have been on the business pages of the Philadelphia Inquirer. I not quite sure and I'm not going to name the company only because I don't know this for a fact, but I have no doubt that any photographers who came in that week were told that, "the budget is such that we've decided not to advertise on TV". Now photographers hear that a car company isn't going to advertise on TV! "Gosh, they must not have any money". But gee I (still) want to work for them!

Well they don't want to advertise on TV because they're aiming for 20 to 30 year-old market and they've decided the money is better spent elsewhere, in other media.. Do your homework. There's no excuse not to.

Every one of your clients is out to get more rights than they need, by paying you less money than they can afford. If you've done a little basic homework, if you've scanned the business pages, if you've Googled them- you can diffuse the "we have no money, argument."

I know Jeff is going to address, as others I'm sure will address, the New York Times issue that some of you are familiar with. The New York Times in this climate of a controversial contract did very well last year, they made money. They did well.

Language is very important and unfortunately it's a right side of the brain versus left side of the brain issue - just like probably 99 out of 100 photographers can't write a "legal sentence" 99 out of 100 attorneys can't take a picture - your side of the brain is such that you tend not to use language well. Language intimidates you. Language scares you because you really don't use the written word the way other people or professions do.

So you"ll get in negotiations with a client or a rep and they use the word "standard" and they'll throw this word at you, "standard", "standard". This is done as a tactic; it's done when there's no basis for the request that the person is making. So to shut you up and to take the issue off the table they say aw, it's standard, standard. It's good enough for him that's why it's "standard". You hear that from anybody, one or two times, that's it! A tactic perceived is no tactic at all. You are to assume that nothing is standard. We'll talk a little bit about rep agreements.

I guarantee if I polled this crowd, 99% of you would tell me "oh yeah, reps get 25% commission that's standard". They don't -- some do. Language is going to come back in negotiations with you guys all the time.

Now "used car" have now become "pre-owned" and that's advertising BS and we're all used to that and that's no big deal and I guess only William Safire will lose sleep over that. But there are some efforts being made with language that deeply affect you. You may have heard at some of the seminars here today the word "agent" which has a legal meaning in every state in the United States. People who were formerly agents who had no problem being called your "agent", no problem signing contracts as agents or representing themselves as agents, now want to be called: "distributors", "sales reps" or "vendors". And most of you don't perceive that there is any big difference. Well this seemingly subtle change is cataclysmic from you. An agent has a legal, which in legalese is called a "fiduciary responsibility". He or she has to represent you.

There are laws in each state that require an agent act in your best interests, not to put money in his or her pocket. Not to steer a client who might be best suited to you, to another one of her photographers who hasn't worked in six months and is threatening to leave. A sales rep, a distributor, has no such obligation, nothing. A sales rep is someone who sells, you know, chairs. No obligation. Be careful when an agent wants to change that language. It's not by accident. An agent has to exert his or her best efforts on your behalf, a sales rep doesn't.

In negotiations many of you hire reps. And in your negotiations when you're speaking to reps - and you're hiring a rep because you're not the world's best negotiator, and that's fine - the first thing the rep will do, is out negotiate you. You are a pigeon and how that rep negotiates with you is going to be indicative on how he or she negotiates with your clients and your potential clients. So if you have a concern and you're rep wants to make light of it and doesn't care that it's your concern - think about that. That's a rep that is not going to take your concerns into consideration.

Each one of us has our own idiosyncrasies, our own wacko character traits, my wife can tell you that I have none, but I notice you guys do. Your rep has to take consideration what your particular proclivities are just like you are supposed to take into consideration what his or her proclivities are. So if you have a quirkiness, if you don't want to shoot on Tuesdays and your rep is giving you a hard time, well than he or she is not terribly receptive to your needs.

Again on the topic of reps - there are few issues which bother me more than the idea of severance. There is no legal right to severance unless you agree to it. It is a misnomer; it is a term created by reps to screw you out of money. The way it exists in the photo business - it does not exist in that manner in any other industry. When judges and lawyers hear what we can call for a minute, the photography notion of severance, they're appalled, they don't get it. There are businesses where if you're a sales rep and you get Home Depot as a client, yeah you might get a percentage of the sales for a period of time after termination on an account that you brought in. That exists in the garment business. That exists in a million different industries.

But the notion that someone can come to "work" for you, not perform, not contribute any money to your advertising or promotion during the time by the way, that you're paying rent, utilities, insurance, stationery, film, digital products, you have overhead and the rep could be working out of his or her apartment - the notion that if the relationship doesn't work out, that the rep is somehow entitled to a piece of your wallet is absurd. If I said to my clients I want 25% of your income this year and I'll (actually) work on all your matters and all your photography cases, there isn't a single photographer wouldn't get up, turn on his heels and walk out of my office. And I have a license and I have malpractice insurance. But photographers give away money on accounts that in some cases have taken them 20 years to build.

Now, because there is nothing standard you can fashion anything you like with a rep. If you've had General Motors for 20 years and you tell the rep, "that's mine, anything that comes in on General Motors I want you to service but I'll only give you 10%", that's fine, you can do that. You don't have to gift a rep house accounts. And if the rep doesn't like it, (either of you) can say "no". I know that's really shocking and Nancy Reagan's not in the room, but you really can say no. If you can't say no, if you can't say no to the unauthorized use of your images, if you can't say no to work for hire agreements, if you can't say no in a dozen or more business situations - get out of business, become an employee, work for somebody. There's no harm in that, but if you can't say "no" you shouldn't be in your own business.

I have written, read, amended, drafted 150 to 200 rep agreements and I have seen or written or changed, almost 100 versions of severance or quasi-severance agreements, but once the rep say to you its "standard", shut him/her up right there, its not standard. It's what you agree to, its your business decision.

Another item that comes up all the time on the EP board and as I've said there and I said many times and I'll say again and this won't be the last time. This is a myth that will not die, this has a life of its own and Erica will address this is in some questions that I'm sure we're going to get. You guys see an infringing use, God forbid you should register your image, you know, that's the worst thing. Then we have to read you the riot act and say look out the windows those are $100 bills flying away. Your case that would be worth $50 or $100 thousand, if we get $5,000 your lucky.

Then some of you wake-up, just some of you. There is a myth; it is a myth that if you that if you see an infringing use you send out a bill for triple the invoice. Dumb! Stupid! No basis in fact, it is done by you guys, or some of you guys, and will be done long after I'm dead because it's simple. It's stupid.

Let me give you a quick example why. You can't know the value of any infringement, whether you're going to bring a "regular legal case" or whether you're just going to try to negotiate with the client - maybe it's a nice client, maybe you just want to get along with the client - if you don't know the full nature and extent of the use. So let's just take a real quick example.

The local Ford dealer asks you to do a shot and the usage is point of purchase at the Smith Street Ford dealer, and you get paid - $500. Okay, that's the usage and the whole job is $500. And then you come into Manhattan and you walk past another Ford dealer and you see the same thing at the Manhattan Ford dealer. So what do some of you people do? You send out a triple invoice for $1,500 to (perhaps) the New York City Ford dealer. Do you know whether it's being used by every Ford dealership in New York State? Do you know whether it's being used in every Ford dealership in the United States? Is it being used by Ford in Europe? Are there any uses of this point of purchase shot that you did in any brochure? Is it on a web site? Is it in a TV commercial? If you don't bother to find out and you send this ridiculous $1,500 you are leaving as Mr. Sedlik so eloquently puts it, "money on the table". It's just plain dumb.

You write a letter or you have your attorney write a letter - and those of you who are not comfortable with your grammar and your English - don't be ashamed. Let somebody else write it. We've had a case where somebody put a comma in the wrong place and it cost them $50,000. The letter has to request, and you have to be provided with a writing, which gives the full nature and extent of all the uses of the images or image. And in that case, if you get a writing which is, to make a long story short, a lie, and you settle the case based on that piece of paper, your settlement agreement, and any lawyer with a single digit IQ - and there are several - all you have to say is "we are relying on a substantial accuracy the representation in a letter dated June 5th". If you were to find out that it's not only being used by Ford but that it's being used by Home Depot and Walmart and CVS, you not only can go after Home Depot and Walmart and CVS but you can go back to Ford for big bucks. Its called fraud and it's happened, it's happened in my cases. It's happened in a case that was settled in Federal Court. It happened and we went back and judges are very unhappy when clients settle cases and they say, "we swear this is all it is".

Quickly, there is one aspect of triple billing, and I don't want to get too much, too deep into this because I know it's going to get misconstrued so. There is language that you can put in your original paper work if you're very, very specific, if you license not sell, license your image for use. For example: New York Post, January 1, January 2, January 3, one use per day, one edition and it's $1,500 lets say, for those 3 usages. You can put in there that if the image is used on the additional weekday, in the same manner and style as it was used on the agreed upon Monday and Tuesday, it's $5,000, it's $10,000, it's $100,000, that you can do. But the grammar that you people use says "use". So what some of you have the effect of doing is saying that if you make an infringing "use" or an "unauthorized use", no matter what it is, is X$, dumb. Read your paperwork, that's what some of your clauses say. We break people's hearts every day. What does this say? Did you read it before you sent it out?

Finally, stock agencies. There are some that are okay. They are few and far between. Some of you may know that our, we have a particular animus towards stock agencies because we are involved in litigation against them on a very frequent basis. Stock agencies and this is particularly addressed to the photojournalists out there and these are not words that I have made up. These are words used by stock agencies and their attorneys and their IP people. They view photojournalistic images, which all of you treasure and respect, as "commodities", "widgets", "all the same"; they're "different but the same". One of my personal favorites was "All shooters are the same", although one stock agency senior editor did allow that our client, "Richard Avedon could be the only one that's a little different".

They (don't) consider those of you who risk your lives and have bullets whizzing past you in war zones. They say that there is no premium for risk. If those images are lost the fact that you may have risked your life, the fact that you may have had dysentery shooting that job for 3 months, they could care less. The stock agencies are in a position whereby they tell their potential licensees that again, particularly photojournalism, if your photojournalism is incredibly valuable, if their client loses it, it's worth a lot but if the agency loses it, it's not even worth the cost of processing. That's how they talk behind your back after they wine and dine you.

Final point on stock agencies; they double dip. If the agency owns a sub-agent and if you go with a worldwide company, which presumably has offices in Europe, why are they taking two commissions? There was a time when agencies in New York - mom and pop agencies - had to enlist small mom and pop agencies in Germany or Budapest and okay, they are entitled to a fee. Why should you pay a multinational corporation that owns its own sub-agents for the privilege of double billing you?

In short we're here today, we don't want you to be victims. If you want to be a victim we're the wrong people for you. Jeff wants to address a point.

(JEFF) I'm noticing that after having sent to a number of stock agencies - I have a bit of a different view than Ed. I don't view stock agents as the bottom of the barrel. I believe that what we have here are companies walking into a room and on the table there is 6 billion dollars worth of transactions that go on every year, that's 6 billion with a B. In licensing photography that's assignment and stock and when they first walked into the room they saw a lot of photographers dancing around that table with loin cloths on and doing business in that kind of fashion. They came in and engaged in commerce and took the lion's share of that away. In doing so they just restructured the way that business works in the industry.

I don't view that as evil and I don't view that as them trying to take advantage or harm photographers, but in the process photographers have been taken advantage of and harmed. It's in the process of that commerce. The next big move that we are going to see is a combination of assignment and stock agencies and I can assure you that you will see this with many, many agencies including the very top agencies. The stock portion of the licensing transaction is about 4 billion dollars a year. I'm sorry, about 2 billion dollars a year currently. The assignment is 4 billion dollars a year. They've only just scratched the surface of that.

We have a lot of the agencies beginning to get into the assignment market; beginning quietly to take assignments from ad agencies, design firms, magazines, it's been going on for many of the recent years and it's escalating now. You're going to see this combination of assignment and stock and I'll just call it ass-stock because this it what's coming folks and we really need to be prepared for it. The problem in photography is we just haven't been prepared for what's coming. We don't look ahead, we're just seeing day-by-day and this is how the rug kind of got pulled out from under a lot of photographers. If you know what's coming you can at least try to remain standing and try to develop a business plan and be more diverse so that continue to be independent and earn a living in photography.

Rolling forward I believe that what we are going to see is we'll have ad agencies who will have contracts with the major stock agencies and that exists now with regard to stock transactions. So whenever a certain large corporate conglomerate ad agency has an assignment or a stock need they would go to a certain stock agency where they would get a significant discount for their valued patronage. Then the stock agency would quote a fee and accept a layout, assign it to one of their photographers and the job gets shot. Nobody else ever hears about it; there's no bidding process, there's nothing. It's going on right now, right now, with advertising campaigns, with editorial; the stock agencies are in the process of shooting assignment work.

To a certain when the stock agencies purchased a lot of the editorial, the more editorial focused assignment agencies, they got right into the assignment market. This progression into advertising and commercial work and corporate work has only occurred in recent years. We all need to be aware of this because as that assignment market continues to shrink, with stock kind of impinging on it, this extra hit is going to be phenomenal on photographers and it's only going to grow and grow. So what we want to avoid and what I'd like to help everybody avoid is to see the independent disappear; except for of course the very highest echelon the .5% of photographers who can always be independent. The rest of the 99.5% will find it very difficult to stay in business and pay their expenses if all the jobs are going through all the stock agencies who have account executives establishing these exclusive contracts. So, the best thing that we can do is to be aware of it and to also make sure that other photographers are aware that this is happening.

In addition, we have agencies cropping up with a new business model, one of which is a company called On Request Stock. Has anybody heard of On Request? It's On Request Images. In this model and you should all know about this, it's www.onrequestimages.com. Client calls this agency with an advertising campaign; say they need 7 ads for Oil of Olay. The On Request Stock responds with a quote that is based on stock licensing fees with no expenses, no assignment fees, no shooting fees, no creative fees, just a stock licensing fee comparable to what a Getty or Corbis or other agency would charge. They get the go ahead, they assign the shoot to 5 photographers.

(JEFF) These 5 photographers have 48 hours - 48 to 72 hours - to go out cast, get the props, get the wardrobe built the sets, get the backgrounds, do whatever they need to get the shoot together; 48 to 72 hours to deliver digital images to the light box at On Request. Those images are then edited and provided to the client. The client can then select from those images the images that they need. Out of the 5 photographers only the photographer whose images are chosen will get a license fee and they only get 50% of the license fee, On Request keeps the balance and pays no expenses. It's unlike any other business model. There are bad business models out there, this make every other agency on the planet look angelic. I mean, now you've got 4 photographers who went out and shot the job over a 72 hour period, delivered it, have all the expenses; they don't get a dime, no expenses, no fee, nothing.

Now On Request has a 5 year exclusive on all there images though, so On Request then takes those images and forwards them to all their partners out there, all the other stock agencies that they have contracts with. These stock agencies then put the images out for licensing and whatever they license they pay On Request a percentage, probably 50% and then On Request then forwards 50% of that 50% to you. So you are getting 25% of whatever it's being licensed for and you've got no expenses back. It's a perfectly legal model unfortunately they've got photographers lining up and scratching at each other to go do this and you'll see a lot of people around with no spec buttons - I've got one on myself. They call this stock photography. I've had several conversations with the president, he's a eloquent speaker and really believes in what he's doing, believes he is helping photographers and he makes a pretty good argument, although I believe we could punch holes in that. What he believes is that he is helping photographers to monetize their images. I'm not really sure what that means because I could go out and shoot stock on my own by identifying market trends by speaking with an editor at a stock agency and determining what the demand is out there in the near future and I'll go out and I'll spend some money and I'll create stock on my own, but I've created images then - at my own expense - but according to market demand. Those images, if I'm a good photographer are very highly likely to pay for themselves and far more than that in a fairly short period of time; say within 8 months to a year and a half and then go on to profit for me.

In the On Request model you get one client contacting them with one request that might be very specific to that client and have nothing to do with what any other client might want, then you've got 5 photographers shooting that. I'm not sure how this monetizes their image because they've just created images based on one client's request. I believe that he's going to be, his company's going to be extremely successful. The reason I believe this is that there's the highest of demand for what he's doing. Look at it from the client perspective. A client now that has a layout, they need an ad shot and they need it fast, or they need stock and they need it fast, but they have 48 hours. Instead of using a rights managed or even a royalty free image or hiring an assignment photographer they can go to On Request, give them their layout, give them as many detailed specifications as they want for this image and have 5 photographers shoot it at absolutely no risk. All of the risk has now shifted to the photographer, not the stock agency, not the client, to the photographer. So then in 48 to 72 hours there's your images on a light box ready for you. Now if you look at those images that the 5 photographers shot and you don't like any of them they'll assign it to another 5 photographers who will then go out and shoot it and submit it, and so on and so on. Now generally they find an image within the first 5, I'm told. Yes? Meanwhile these other 4 photographers get...nothing!

(JEFF) Their images are locked up for 5 years in an exclusive contract where they can't take them to any other stock agency. They are made available by On Request to other agencies who then license them and On Request gets a share of it. Perfectly legal thing, the company is backed by the same company that backs Starbucks, they are very, very well funded, they have patents on all of their technology and they are going big guns. Not a lot of people are aware of them and I've actually had several photographers contact me and say that they love this model. I can't understand how, I can't, I can think about it and think about it and I can't understand how. Truthfully I'm getting a little bit obsessed with it because of what I see. So I've engaged the president of On Request in a series of, in a dialog where we call and talk with each other for an hour or two occasionally and I've never met a more persuasive person; I mean if I didn't know what I know I could have been persuaded to shoot for him - he's that good.

What they've just done is hired staff to go out and draft photographers with 10 or more years of advertising experience and they are finding no shortage of this; no shortage of people willing to shoot for them. Photographers that perhaps have been shooting ads that can't quite make their overhead because they don't know quite how to run their business and keep the overhead low. They're getting a little desperate to pay their people. This is a shoot where they can have a one in five chance of making a sale that will get them 50% of the stock fee and somehow they decide that this is a viable pursuit and so they go ahead and shoot it. They've got people doing this and the images are not of - they are of high assignment quality - let's put it that way, some of these images. Some of them, if you go to the On Request site, some of them look a little tacky because they've got kind of doctors and dentists who want to do this also. The problem is that some of these doctors and dentists have better cameras than we do and can actually shoot quite well and some of the images are very, very good and they can compete with us easily because things can be fixed. They know PhotoShop like we do and they can go in there and fix things. They might not know how to light, they might not be masters of photography but they can fix things. I really see this as almost the number 1 threat to the livelihood of photographers in the future, though he has every right to do what he's doing.

The problem is, again, photographers are willing to do it. As long as there are photographers willing to do it we can fight it. That goes back to when you negotiate you have to be willing to walk away from the table at any time. Question?

(FROM THE AUDIENCE) Where would these photographers that are not too bright to follow-up this and not ask the questions that you're asking - and once having it happen then realizing it and not going back? I can understand once, but if something like this continues to happen he's not too bright, or she's not too bright, or this dentist is not too bright. I'm getting frightened from what you're saying.

(EG) I don't want to step on what Jeff is talking about, but that's why I said in my opening that clients perceive photographers as having no business acumen or (as being) not too bright. Do you think there would be carpenters and sheet rock people or accountants or painters who would work on that model?

(JEFF) Or imagine if you had a rep and your rep came to you and let's say your rep had 5 photographers and the rep said "you know, I just got a request for a job and I'm going to have all of my photographers shoot it and one of you is going to get half of the fee and no expenses". The rep would be fired. That would sever that, but for some reason and I think it's perhaps desperation or not understanding that you have to be able to - not understanding the amount that it takes to stay in business - the revenue you need to bring in, not going to the EP site and using the calculator to determine how much you need every day. Something, but they have no shortage of photographers; there is 15 or 1600 currently but what they're doing is bringing in the bigger guns, they're trying to get better photographers in there and these are not all low level ad campaigns.

We can't make the same mistake that we did years ago when royalty free started to come up in saying that "oh, it's just going to be crappy photographs". It's the same mistake that was made years before that when we said "Oh stock is just a bunch of cheesy pictures of people with wine glasses in the park or on the beach or whatever, with star filters". It was at the time, but we couldn't look forward into time, or we refused to, we failed to and now we need to and we have to educate other photographers about this, make sure that people are of it because they are like sirens on the rocks; I mean, your really, they put up a very good case for shooting for them, they really do. He's willing to listen to photographers and you should all send him some email and let them know what you think about that business model. We're trying to convince - I'm trying to convince - and the other people that are talking, EP and SAA and ASMP, trying to convince them to modify their business plan. We have no control over them, we can't force photographers not to work for them and that's part of the issue. Photography is a fragmented profession, no trade organization can force you to do anything you don't want to do. The trade organizations are actively working on this but clearly, when it comes down to it, we have no control over you and or other photographers. I've been talking with this guy for a couple of months and writing back and forth and trying to convince him to alter this so that maybe photographers can at least get their expenses. In wrapping this up, you have to look at this from the client perspective; they see the ability to shift all the risk away from their company and to not pay any expenses and to not pay any premium whatsoever for having jobs shot on assignment.

On Request defines an assignment as follows: an assignment is when the art director attends the shoot - that's the line for On Request when it becomes assignment - anything short of the art director attending the shoot it's stock. I've tried to explain to him no, stock is when the image does not exist before; I'm sorry I got that backwards didn't I? Stock is when the image exists and assignment is when the image does not exist and he disagrees. So the big problem here is that we are teaching - this model teaches clients - that they do not assign a job to get something to their exact specifications made. So the whole commissioned work and assignment is pretty much threatened by this model. What we can expect to see is for this to succeed shortly; then the other agencies looking at this, the other stock agencies, I believe will make a move to adopt a similar model - maybe modifications of it. You'll see an agency come in with high-end custom stock - they call this custom stock by the way, there is no such thing as custom stock - then we'll see an agency come in with lower priced, god knows what that might be and it's just like what happened with RF.

(Question - unintelligible)

(EG) Let me just make a suggestion. If you want to start lining up at that mike - this is being taped and last year we make a transcript available, we want to do the same thing this year. If you have a question just go to that mike otherwise it's not going to be in the transcript.

(JEFF) The question was why can't APA negotiate for all employees? The catch there is that if you're an employee you don't own the copyright when you create the image.

(EG) On that note Brian wants to address a similar issue.

(BRIAN SMITH) I think one thing that's equally troubling with what Jeff detailed is really happening in the last year is just as he was talking about stock agencies getting the assignment business in the last year we've seen sort of an influx of publishers deciding that they want to get into the syndication business. Probably the case everyone's well aware of is in the New York Times freelance contract but that's not the only example of a time when after years on hearing "well we're sorry the rates are the same as they have been for the last 10 years, but we know at least you make a lot of money and your licensing. All of a sudden in the last year what I've noticed is publishers saying "Well the rates are the same and my god, you make a lot of money in your licensing. We want half of that".

To further compound it they don't know what the hell they're doing. This wouldn't be so troubling if they had any concept of what licensing numbers are in other agencies. I actually have a really good view of stock agencies because the one that I'm with - Outline - a division of Corbis. They do very well for me in the licensing but they're able to generate. They don't use canned numbers that everything is a certain amount. The examples that I've seen from magazines that have tried to do licensing - is they don't have a clue. It's either that or they're trying to keep the numbers down because a lot of the magazines that have in-house syndication often buy ten times as many photographs -license ten times as many photographs as they will possibly syndicate. So, by licensing them to other publications at very low rates it further sort of enhances the idea that, oh, it's 1/4 page it's 200 bucks, no. It's not necessarily 200 bucks for 1/4 page just because it was in 1962. So, that's something that, as Jeff, I've talked at with length with some of the people that jumped to sign the New York Times agreement trying to explain that you're losing your entire future if you give up the potential to be able to decide who is going to license your images. If you want to do it yourself that's great, if you find an agency that's going to handle the licensing and syndication for you that's also great. But, if you trust the publication just because they gave you the assignment, that may have any concept of what licensing fees are in particular with exclusive images. You're going to be losing tons of money in the future.

I've tried to explain this to people and unfortunately, a number of the ones that jumped to sign the New York Times contract just had no concept what photographs can license for in the future and they threw back examples of "Well, the small paper I used to work for every now and then somebody would be in the paper and they'd want to reprint it themselves and, you know, I don't even want to make that print for 15 bucks." That's really what they looked at it as, that they were gladly giving up the $15.

(ADRIENNE DEARMAS) I just want to add something, as Ed said, I used to run an agency that we just shut down in April, unfortunately we just ran out of money, it's tough to do that. If I was sitting out there I would be ready to slit my wrists. It just seems so depressing. One of the things I wanted to add - I don't know how many here are photojournalists, I don't know how many are freelance. How many of you have ever asked - not even asked - but how many have any ever said to a major magazine with set day rates or set space rates that you charge something other than that? Anybody in here? Okay good. Believe it or not they will pay you what you ask them if you - and I'm not talking about you've been shooting for a year and you walk in and say "no, no, no, I want X".

The biggest problem that I see among photographers and it's a combination fear thing and Ed was saying, desperation thing, is you can ask for what you want but you have to ask. Sometimes you guys are your own worst enemies, you yourself, not the agencies, not your rep, not anybody else. It's the fact that you have your living day-to-day and you have an immediate financial need and a situation comes up and you're like okay, I'll do it, because what other choice do I have. You do have a choice. If you represent yourself and I'm not talking about, you know, representing yourself, and I'm saying even to your reps, or your agency or whatever. If you represent yourself as worth this you will be treated as such. Yes, they may turn you down and I had a situation where the magazine, everybody knows the magazine, they do not pay anything more than what they pay for their day rate. I said sorry this particular photographer's rates have gone up and he lost the job and amazingly a week later they called with a 3-day assignment at the rate okay? It's up to you guys they'll keep treating like Ed was describing as long as you allow it.

(Question from Audience) Thank you. Last year Michael Grecco spoke about a photo shoot he did of Michael Richards, Kramer from Seinfeld and how it was basically copied by a photographer and I don't know what the legal ramifications were but in this case of what you're talking about just, if 5 people shoot the same assignment, let's say of 3 kids, of 3 very specific nationalities in a comp, all making the same face asked for by the art director and now that ends of 5 years and there all the same basic picture, how it is any different than the case of Michael Kramer and doesn't this cause problems in all kinds of ways?

(MICHAEL GRECCO) Can I (answer)?

(EG) Yeah, let's both of them answer but just a clarification for Jeff. In the model you're talking about they're not using the same models, they're not using the same people. Those 5 shooters could be New York, LA, Miami, Dallas and...

(MICHAEL GRECCO) Bangladesh. The test and I mean Ed can explain it further and I'm sure he will. The test is more the look and feel of the image. They used the same backdrop with a look like model with the same expression, with the same lighting, with the same everything. When you looked at the two pictures it wasn't 5 guys shooting a comp drawing. It was another photographer replicating the image. It's not really the same issue. In fact if I were the making the art demand to Stock Request I would probably want it shot with 5 slightly different looks and feels and having different look and feel then you get to show your client and they all get to choose "hey do you like this one, that one or that one". This was a case of an almost identical copy.

(JEFF?) Just to add to that there is no copyright issue there because they are all 5 being hired to create an image and they are independently creating those images without copying each other. They're not looking at each other's work; they're doing it based on the layout or client specs. Just to add to what Michael said. On Request has 3 products, they have custom stock, which is what I talked about, they have custom series, which is if they want to pay something extra they can then have all those photographs reserved for their usage that all the photographers have taken; they don't have to pay for it right now and the photographers don't get their money until they're licensed, but that's a custom series; then there's custom library where they have a bunch of photographers shoot a whole bunch of images that are then reserved for that client to pick and choose from whenever they want for a specified period - none of the photographers get anything until the individual images are licensed. Many of you may have bid on these library shoots which are very lucrative shoots where a corporation like Coca Cola might want to shoot a year's worth of images all at once with the photographer and so this photographer gets these assignments and it can be 6 figure fees and you go and you work for a month and you create a whole bunch of images and then they get one year's usage to those images. This is going to also be dramatically affected by On Request libraries. They're very, very perceptive, they've looked at the industry, the owner is a photographer, graduated from the art center a few years before me and he knows photography and he knows his business so he's looking at it from the client perspective.

(? FROM AUDIENCE) Let's say like Gregg Carr he lives in LA and then some of these art directors hire him in New York. He has to pay to the New York City because he is doing business in New York and let's say that they hire someone in Bangladesh to do some job here in the USA. He has to pay - I mean there has to be like some tax- you know when you buy something in another country.

(EG) First of all Michael, with respect to Michael, he does business in New York and LA. Are you talking about the need of a photographer to file a doing business certificate or incorporating in various states?

(?) Maybe that could help the people that are not as licensed to make business in that city. I think that could be a way to deal with it?

(JEFF) I think what she's trying to say is that to pay everyone that shoots from out-of-town to come shoot in that town would pay some sort of tax to help the photographers whose getting work taken away the same way it happens in Canada where you have to pay a work permit.

(?) The On Request model, these photographers are all over the world and if you could imagine, let's say a $1,000 assignment, of which they are going to get $1,500, no expenses and they can shoot this portrait or a shot of somebody holding something in Bangladesh, you know, maybe it's a still-life, I don't know. They can be very profitable at a lot less fee than a photographer here. It's just, now we're seeing the world market really come to life and it's not pretty, but we're seeing it.

(EG) Without getting into an extremely boring legal discussion, it would be extremely difficult to inhibit someone who lives in one state from working in another and believe me you don't want to hear the explanation.

(?) Where I come from in Puerto Rico we are having (similar undercutting of fees) problems.

(EG) Why would you be surprised that the client would support something that gets them a product for less money? We hear all the time - shooters aren't going to hear this, but Erica and I hear this all the time - that some of the most successful ad campaigns have been run on very mediocre photography. Why would you think that clients care all the time about having such extraordinarily terrific photography? One lawyer said to me and it was a great line and he was 100% right - he said, "they sell more Chevy's than Mercedes". He's right.

(?) I have another question, because you guys are getting me outraged in a sense because I've been this business of photography about 50 years now. I know, I don't look that old but I am. I went through this business of agents starting to do numbers and trying to make business and second dipping. I remember I made a photograph of Robert Kennedy and it was sent to somewhere and to somewhere, each agent, as it went along take the percentage and then I had to pay them for selling the pictures.

(EG) Did you know what the gross licensing fee was?

(?) At this time no, I learned quickly. After that I made my own contracts and what I'm hearing from you guys is you think we're stupid and maybe you guys are stupid, I hope I'm not, but I make sure a contract goes out, I figure out all of the information that I can and I get other people with ASMP and other places like that to give me advice and lawyers and then I send the information out and I get paid for it.

(EG) You're conscientious and you're doing business the way a good business should do and that's why you're in business for 50 years. Most of the people who are your colleagues, many of whom that are about your age don't do those things.

(ADRIENNE) Let me tell you about a photographer that I know who, great photographer, very talented and actually good at business, somewhat, for a photographer. You know, he takes these great images, 5 years go by he gets a call from, not the client, who commissioned the work, the subject, okay; the subject of the shoot, he's thinking that it's not worth anything, it's 5 years old, he's never gotten requests for it or whatever. The subject says hey I need a picture of myself, I remember I really liked that picture you took, could you send me that film? He did, all of them, okay? Now everybody in here is laughing but the thing was he was in the middle of one shoot he had another shoot on top of that his assistant had the flu, couldn't get to it and he was leaving the country for 3 months to go do another shoot. He didn't have the time to deal with it. So, I think the biggest problem is not stupidity but it's kind of blind trust. You can't, you can't. You have to tell that person sure, I'll send it to the lab I'll get X scans made for you, it's going to cost you this amount of money; I'll FedEx it to you it's going to cost this amount of money, look it over, tell me what you like. I mean but, that's time consuming and I know you guys don't have a lot of time. So it's not stupidity, it' just blind trust.

(ERICA GALINSKI) And to piggyback on that what a lot of you guys do, and I see this all the time, you over estimate your adversary, be it the stock agency, be it the client. I see so many people who sign the dumbest contracts - and I just don't mean dumb as in not in their interest, not even in the other side's interest. I've seen stuff that makes absolutely no sense from either point of view and people sign it because they figure well they handed me this and they must have know what they wanted and they probably wouldn't have changed it anyway. Don't overestimate that, sometimes they don't know what they're doing.

(? FROM AUDIENCE) I'm also a photographer. My concern, frankly, is that the marketplace is changing I try to think from the other side, the client is happy with it if, from what you're saying, the photography itself doesn't have to be that good because PhotoShop can fix it. I don't see what one can do about it. It's a reality that we have to deal with it and we have to see from the client's perspective. It looks also their putting in their computer in photography anyone who has a camera and if that person with a camera, the dentist or the doctor is doing the job and someone else with PhotoShop skills is fixing it, that's the new reality, we have to deal with it. I'm not saying you have solution but I don't.

(JEFF) The solution for photographers is to anticipate what's coming and become as diverse as you possibly can to spread it out, it's no longer the market of the 80's so you have to be doing business in a number of different areas of photography and also perhaps in areas outside of photography. You know I have a publishing business I market myself as a commercial director, I teach, I'm an expert witness, I'm a speaker; I do whatever I can so than if there's not money coming in that I'm covered, you know and so the new model is the diverse photographer. I believe, I mean, I strongly believe in that the creative vision of a photographer is essential to the photographer's success. But then again, if people don't recognize or need that creative vision - and I think the vast majority of the market doesn't need a high level of creative vision - then we have an issue.

Photographer BRAD TRENT question from Audience (?): I don't doubt there are people out there are people hiring these guys but who are they? I mean who is the guy who that's willing to stand up, foot the bill for all of his expenses with a 1 in 5 chance he doesn't get it he's going to do it again, he doesn't get it he's going to do it again, he doesn't get it. How many times before he's going to realize he's being a dumb ass?

(JEFF) I think there is a lot of desperation.

(MR. TRENT) I understand there's desperation but how many times do you have to do it before you realize it's not going to work before their business model collapses in on themselves?

(JEFF) This is what now, this brings up my point of what I was going to say. There's desperation and you can say the business model is changing, but you can say the business model is changing but that doesn't mean you have to accept it and that doesn't mean you don't have to turn to people and say why are we doing this? It's changing for the worse because people aren't educated and the people are not keeping up with trends. They're not keeping up with what's going on. The more you educate, we've had an incredible surge in the industry with copyright registrations over the past 5 years through the entrance of EP and APA with teaching people to register their work. So change can be effected and I don't say I disagree with you to just say, well I'm just going to accept it and we should all adapt to how the industry is changing. We're a part of it and it changes if you, if you say yes I'm going to be a dumb behind and do it or it won't get as bad as quickly if people say no, I'm not going to do that. I can't shoot 5 assignments and pay for all the expenses and hope that I get paid for one.

(MR. TRENT): But that doesn't answer my question really though. How does their business model work if their 1500 photographers don't start selling these pictures? I mean if I have to go out and spend a couple of grand on expenses for one of these stock shoots and I don't sell the picture - I don't get chosen - I don't have to do it more than a couple of times to realize this isn't for me and not all the guys are going to get picked. So Jeff is convinced that this thing is going to work?

(EG interrupting) But Jeff, he thinks, what does he say when...

(MR. TRENT) and I'm sure some guys are getting more work than others but some of these people aren't getting any work at all. Some of these people aren't getting their pictures chosen. They can't.

(JEFF) Sure - they'll find new people though. What you're not considering is that this is not their sole means of income. So, On Request is an additional revenue stream for them.

(MR. TRENT) You've got to be pretty desperate to sign up for that and do it how many times before you're not going to be on their rolls and they are using new photographers.

(JEFF) They are losing the expenses on it but I don't know about for you, but for me I have a little bit of an ego and so if I'm going to go shoot for this - which I'm not, I promise - I'm going to go in thinking I'm the one, I'm not the other four. I'm going to go shoot this thing and I'm going to get this job, I'm going to get this sale.

(MR. TRENT) And then how long before you leave? I mean, I think their business model is flawed because I don't think it can self-sustain no matter how many more people come in because eventually it's sort of like a pyramid, eventually people are going to realize 1 in 5 isn't great odds if I'm footing' the bill.

(EG): What it is...is that the photographer's who say I know from food, I shoot food and I know for a fact that if a job comes in from Kraft I know there are three photographers aren't getting in there, okay. They know right away and they run that risk that (they are) bidding against them.

(interrupting) Yeah Ed, but they don't go up.

(EG) Hold on, hold on.

(MR. TRENT) They don't go out and expend money on expenses for Kraft

(EG) I understand that, they are willing to spend the time to develop an estimate and they spend x number of hours and expenses which they are likely not to recoup if they don't get the work. There are some people who are more willing to spend more money than others (in the bidding process). There are people who are more desperate.

(MR. TRENT) Yeah but Ed I don't lose money doing an estimate.

(EG): You're using logic.

(MR. TRENT) I'm just saying...

(EG): Will you stop it! You are using logic. There are people out there, there are photographers out there who don't read. They don't get it.

(ERICA GALINSKI) and part of it

(EG): They don't make these decisions and think the way you do and Jeff does, that's why you've been in the business as long as you have. They won't be.

(ERICA): And part of the risk is as Jeff said, those images are going to make their way to other stock agencies so they are going to see a revenue stream, however minuscule, that many of them will use to convince themselves that one day they'll recoup.

(ADRIENNE) And one last thought is that when, I guess this was in the last 3, 2-3 years when the photojournalism markets switched from film to digital, okay, who bore the expense of the equipment? You guys did. Did your rates go up? Did you try, I mean you know I've heard different, you know, people say oh you can charge for this, you can charge for that. How many got those expenses got kicked back - by editors? A lot of them, right? Okay. When you ask the question, you know, how stupid are these photographers to do, you know, have expenses that never get recouped for a shoot, look at every photojournalist who was forced into buying digital equipment. The post-production time, what it is nobody - none of you guys and none of your clients - value your time. Let's get away from your technical expertise, your, you know, what you know, all your experience, all that stuff. They don't value your time, and that it's not an issue of stupidity, it's just that it's not valued.

(MICHAEL) Okay, if I can I'd like to turn this discussion in a different direction.

(EG) Any way you like.

(? FROM AUDIENCE) We've got 6 experts up on the stage with a tremendous amount of experience in the photography and content production business and I think everybody agrees that photography and photographers is a trade and a group of talented artisans who are really under challenge here. I would submit that part of what we're talking about tonight is not a war, per se, this is a market force in the same way that clip photography, which became royalty free, was a market force that changed the face of photography as we know it. So let me turn this around and instead of having the information that well, that we don't get it, that we don't read, that we're passive. Let me put it onto you, and for each of the 6 of you, to give us and to give this forum, maybe 3 of your best ideas for what photographers, photography organizations and all of us out here can do to uplift this trade Y

(EG) Good question. Brian, want to start at the end?

(BRIAN) I would reiterate something Jeff said earlier: diversify. And not only in terms of what you're doing but what your client base is. I think one of the things that the New York Times contract proved to us is people with a very small client base are the most susceptible, if all your income is from one newspaper, one magazine, one client and suddenly they start squeezing you. It's a much better situation to be in a position where you can go to somebody who treats you better and having a diversified client base is the best way to do that. Also in terms of, you know, diversifying the work that you do. There are a lot of different aspects creating, you know, whether rather than sit around and wait for somebody to come up with an idea. Come up with your own stories. You know, the other thing is just being informed. That's the whole reason that the forums on EP and APA exist is that the most important thing is to find out that other people aren't being treated the same way. Because very often what I've noticed is a lot of the most heinous, magazine contracts, you may not even be aware, that 3 of the other people shooting for them have 3 totally different contracts and you need to push. You need to not assume that everything out there is the way that it is, because it's not. There are 6 or 7 examples that we'll hopefully be providing to you guys shortly of cases where magazines have their tough contract, they have their little bit friendlier contract and they have their really nice contract and I think you need to be educated and you need to continue to keep an open dialog to know if there's something better out there than what's being pushed in your face.

(MICHAEL) I would think the three things that are the most important in my view is one, get involved. I'm a really busy guy, I shoot a fair amount, I have 3 kids, I'm involved with APA, I was on the board of EP. Get involved. How can you complain and not help to educate your fellow photographers or not be involved. You know, that's one of the most important things to me is to get yourself involved. Get yourself involved with one of the organizations, educate your friends, share information, don't be insular, spread the wealth. That's the first thing. The second thing is..

(interrupt) That sounded like more than one. (laughter)

(MICHAEL) Get involved.

Take great pictures. I mean, that's your best defense to, to the market is to keep you, the quality and caliber of your work. Keep it creative, keep it high, because that gives you the third thing. Is it gives you the ability to say no and that's a really powerful tool to be able to say no. So, I think you can't, as I said earlier, you can't do business without the ability to say no in certain circumstances and having good work and a good reputation knowing the people, you know, for people to know that you deliver, deliver the goods. I think that that helps you.

(JEFF?) Okay, I've got more than three

(EG interrupt) How did we know that? (laughter)

(JS) At the top we have to recognize the value of your own work. For me that means to think in terms, to not think in terms of the value of the work to you but to always to think about your work in terms of the value to the clients. If you, if you think about the work in terms of the value to you you're going to make mistakes, your going to give away things that you shouldn't give away. You have to recognize the value of your work. It could be a shot of a hubcap that you do that you don't give a damn about so you give away all the rights to the client. A year later the client wants to reuse that image their just going to go ahead and reuse it. If you had instead thought about it in terms of the value to the client you negotiate a licensing agreement with the client. You license him one year's usage and the next year when they find that their sales have gone up because you did a great job on that hubcap shot they come back and pay you again for it. Maybe 80% of what they paid the first year and again and again and again. This happens to photographers who carefully license their work. I've always done that since day one when I got out of school I acted - and I must say I was acting at that time - like a successful person. I acted as if I knew what I was doing, I got some books on negotiation and on business and I didn't give my rights away. I carefully licensed it and when a client would come to me and say we need all the rights, we don't have a lot of money - which is pretty much every single call when you pick up the phone - I would spend as much time as I could carefully backing them down off of that unlimited rights thing. I would explain to them that they don't need the unlimited rights and back them down onto the rights that they need. And if they said well we don't know exactly what the usage is that we need I'd say well just wild ballpark guess. You know, let me know what you think you might use it for and I'm am going to license them those rights because they have x dollars to spend and it doesn't benefit you at all to give away all the rights for those x dollars. Their budget is pretty much set and so you license them just the rights that they need. I'll give you one brief example where I was doing a bunch of Bank of America billboards and the client came up and said we need some head shots to go on these new credit cards, we're going to put the picture on the credit cards, this was about 8 years ago or so. And, so, I had them sign a job change order right there for 4 shots of these little tiny head shots - and I forget what I charged for those - but they needed it for a brochure so I licensed them the brochure rights. Then, they used it in the brochure and then I get a call from their other agency that does the direct marketing, oh we need it for posters in the banks and I licensed it again. Oh, now we need it for billboards and I licensed it again. Now we need it for ads and I licensed it again. Now we need it for ads and I licensed it again.

I wasn't being greedy, I was providing value to them and them were very happy to pay me additional money because I was not taking advantage of them. I wasn't coming back and saying that will be 1 million dollars for that, I was quoting reasonable fees. All told the 4 shots, almost $100,000.00 and these were head shots with just flash over the camera because they wanted them to look like passport photos. I could have just given it away right there because they were, the shots were nothing to me. They meant nothing to me, but instead I took a deep breath and said I'll license you the rights that you need and as a result it brought in money.

Now that's an unusual example, but that's how I license and usually it doesn't involve to that, evolve to that level of income but it does keep money coming in constantly. I have money. I shot a musician named Patti Page, the singing rage, okay. You got me brother, okay. So Patti Page is getting a little older she came out with another album and they used a few photographers, couldn't get a good shot and they came to me and they wanted unlimited rights. I said I can license you the rights that you need - I did so. That was a few years ago, she loved the shots. Now she has Patti Page syrup, who would know? She has a syrup farm, she comes back, she licenses the rights. Next year, Patti Page pancake mix. She comes back, she licenses the rights. Three more Patti Page albums, okay. Now they came back and they said now look we're very happy with the shots but we just want to pay you something so we can use those for unlimited time. A huge license, okay, they were very happy to pay it. They make a lot of sales because of these great photographs. It's just like the hubcap example in that you just think about it in terms of value of the client. That's number one. (laughter)

(EG) And I'm the lawyer?

(MICHAEL) Okay, Jeff, Jeff, the show's over Saturday.

(JEFF) I'm going to go through these rapidly now okay. So don't undervalue your work think in terms of the value to the client. That's number 1. Number 2, lower your overhead and do it now. Take a look at everything you do from your DSL bill to whatever services you use, to staff, to whatever you can. Look at your overhead and cut it down. Be a miser when it comes to your overhead so that you can increase your margin and continue to operate if things get slow. Okay, number 3. Take the money that you would have spent on new cameras and on your overhead and spend it on promotion. Promote yourself to the greatest extent possible. Number 4, learn about copyright and register copyright in your work. Preferable before it's published. Number 5, never agree to joint copyright ownership and never shoot work for hire unless you're getting a huge amount of money and I mean a very huge amount of money. I won't get into the details now because that's a whole other seminar, but work for hire and joint copyright should be no nos. for everybody. Shoot stock. Find a stock agent that you feel comfortable working with. I work with Corbis Outline also and I've had a good experience. I mean Ed sees the worst side of everything because people come to him when things go bad, you know, but I've had a pretty good experience and, diversify and that's my advice.

(ADRIENNE) I'm going to try to offer some examples as illustrations, so the photographer I told you about who set the subject, the images, thank goodness they were honest people. So they came back and they said we need a picture some trade publication is going to publish a cover story and the subject does not like to have his photograph taken we've hired another photographer he took terrible photos and so we want to buy these images outright. And, we're sitting here looking at him and some of the outs are pretty embarrassing so kind of want to buy those to destroy them. Basically we just want to buy them all. And so the photographer says to me, he says well you know I need to go to Australia, so I need, you know, like 5 grand, something like that. And I said well wait a minute let's find out, and Ed said this earlier. Got on Google, turns out the guy is the CEO and director or a major, major, major, major, major company that nobody has ever heard of that happens to own 3 major, major, major, major, major companies who make billions and billions and billions of dollars every year. His take home salary, you know, without bonuses etc., is about 2.2 million dollars. It also turns out that his position as president and board of director is a 6-year term, which is coming up for renewal. So we've got a window of opportunity here, a guy, who is going to need a lot of pictures for a very limited amount of time. And he doesn't go to social events, nobody photographs him. Do your research. Now, the second part of this example is, I developed a sliding scale of usage versus pricing. Okay, I highly recommend this. Your first tier make it really complicated and convoluted and really inexpensive. Have a lawyer help you with it if you need to. Make it about one time use only with all sorts of restrictions, you know, language distribution, size, etc. etc. etc. Make it very complicated but very affordable. Your next tier should be somewhere in the middle. You're getting a little bit, you know, you're giving away a little bit more rights, your charging a little bit more money. Your last tier, and this is only if - I don't recommend this - this is only if you're willing to sell the images outright. There are certain images that some photographers are willing to do.

The first thing that I said to this guy was I don't think you should ever do it. But, if your in the position to do it and you're going to do it make that last box astronomically expensive, I mean out of control expensive where you're giggling as you're typing that number. Okay. And then make those rights to the universe and beyond. I mean like right - whatever - just, you know, it's all there. Handed it over to them, it took them exactly 4 days to come back and they said we'll take option number 3. If you're going to give away your copyright, you know, then make it hurt. You know, and for this - and do your research. Judge it wisely. The only other thing I would say, because I'm only going to have two which should counteract his argument is that, you know - I have this thing I say, and if I offend anybody I apologize. There's only 3 reasons in the world anybody makes more money than me. One, they have skills that I don't have, there's not much I can do about that. I don't have a law degree, so Ed's going to make more money, you know, doing legal than I am. If somebody has more skills, you know, or abilities that I do not possess, then yeah their going to make more money than I am in that area. If they're sleeping with somebody, there's not much I can do about that. If that's, you know, the conditions the thing. The third thing is if they are a better negotiator, and nobody's a better negotiator than me. If you are not, if you can't look yourself in the mirror, and ask your friends, ask your family, ask your colleagues, ask your clients, if you have a good relationship with them.

And ask them if you're a good negotiator. If you are not a good negotiator it's nothing to be ashamed of. Go get a buddy. I know a photographer who had another photographer friend and neither one of them were good negotiators so they did the buddy system. And when one guy was in the position to have to negotiate he would call the other photographer and say, hey, can you talk, you know, and, and, get the buddy system. Find somebody. It doesn't have to be an agent or a rep or an agency or whatever. Find somebody you trust who is not emotionally attached to the project or the situation or whatever who will go to bat for you. Find somebody else or do it yourself but be able to say no. You've got to be the best negotiator because there isn't anybody in this world that's going to protect you more than you. And everybody is going to try to screw you, it's said, but it's true. So find a way to negotiate, if not you, find somebody else.

(ERICA) First off, register your work. I don't care what you shoot. I don't care if you're a photojournalist; I don't care if you're shooting nothing but stock. Register your work, because by the time you show up at our door and say, look it's own this billboard outside the Lincoln Tunnel it's too late for us to get you the big bucks if you didn't register your work. It's cheap, it's easy. It's the cheapest insurance this industry has and you can go to EP's website, they have a tutorial on how to do it. We don't need to get involved to do it. You don't need a lawyer to register your work. Register your work. Second, read what you're given and read what you send out.

Again, what I said earlier about horrible, horrible paperwork. People don't read the contracts the agencies put in front of them. They don't read the contracts magazines put in front of them. And, many of them don't read the backs on their own paperwork, if they even have backs - which they all should by the way. I've seen things where people have lost images (with) clauses on assignment contracts and those clauses don't contain complete sentences. I'd have to call people up and say, did you read point 3 on your back? They'll call me back and say, "I thought it made sense".

And finally, organize what you have. Part of this means keeping everything. Never throw away a model release. Never throw away anything you've signed, be it an invoice, be it a purchase order, be it a contract you did in 1972. And in fact, be it your little notebook. We had a photographer show up and he's got lost images and he said I know what I sent because here are these notebooks I kept for expenses in the >70s and they show that I shot this many rolls on this day when I was in this location. And he never did any kind of delivery memo back then and he was putting things in satchels on planes for overnight deadlines. Nevertheless, he now knows that on that day back in 1973 he shot 25 rolls and what format because he never threw anything away.

(EG) You guys stole most of them so... Most important advice is run your business as a business unless you are a trust fund baby and don't really care; your business is no different than any other business. You should, therefore, assemble people, whether their friends, colleagues, an accountant, could be someone at your bank or God forbid, a lawyer. Assemble people who do those things well that you don't. There is no individual entrepreneur who does everything well. Nobody, cannot be done. So you have to know that which you knoweth not and go to the people who are going to fill in those critical gaps.

Second, ERICA talked about registering your work which of course is, as any lawyer is going to tell you, is the number one item. Two thoughts on that. First of all, monitor the web. Especially those of you who ever shoot celebrities, even if you do it (only) occasionally. We have a very large percentage of litigation which involve photographs of celebrities which wind up on fan sites, at poster companies, greeting card companies, you name it. Periodically, ERICA in particular, will monitor the web and go through the web because we have particular shooters who shoot television stars or music performers and so forth and you can hit particular fan sites. ERICA is very good at this, she knows that there's a good chance that there's a photograph of a Terry Hatcher or a photograph of someone from Star Trek, there's a good chance that that photo is going to wind up on a given site. When we do this, or when we've done that, we're no longer surprised, but many of you might be surprised at what we find.

There is an image, which unfortunately I can't reference because it's a very, very well know photographer, a great guy, and he's a character and he lives in California and he's not anyone here and ERICA saw one of his most famous images on a site of a very low end poster company. We knew that there was no way that this guy, given what we know about his business, and his personality, would ever do business with that type of site. We phoned him and he got right on it.

"Nudes", this is going to take me to sites and some of these girls have never been nude in a photo, it doesn't matter. It'll take you to sites where those images are on those sites whether they're nude or not and the theft is rampant. If your images are registered, then you've got something.

Now, I don't think there's any of you who would give second thought to taking a client or a perspective client and running a bar tab of $30. None of you would think twice about that, but you don't register your work where a $30 investment can payoff in 6 figures, in the big bucks. We're talking about potentially lotto numbers. And that, you don't do. And I want to get to something that Michael, and Adrian, touched on and Michael is, is really the best source for this. Some of you may have a psychological problem, they won't call it a psychological problem, I will. You have a psychological problem and maybe you've been shooting for a long time and you haven't registered anything and you have a psychological problem in beginning, in starting your registration. And there is an inertia there, artistic or otherwise and Michael you're going to take that andY

(EG) I touched on it before and the answer is say no. There is work that you going to have to walk away from every business turns down work, every carpenter turns down work if he or she isn't going to make a buck on it. Finally, and paying homage to Ronald Reagan, "trust but verify", when people say to you that we - (your client)- tells you, "we don't do this, we don't do that, this is standard", don't believe them. Check on them, there's a good chance they're lying to you. Now Michael, you wanted to chime in on registering volumes of work, particularly, but not exclusively photojournalists who have a huge body of work who have never registered anything.

(ADRIENNE) Well it is, it's completely overwhelming, I mean where do you start? I have to say I've read everything that Michael's written, on EP and on his site about how to do it and its true, you've got to start somewhere, it doesn't matter where, just start today. And I love the idea, especially if you guys are shooting digital that makes it even that much easier, and I'm not - I happen to use photo mechanic - photo mechanic has a great contact sheet feature, so literally you ingest your disk or your cards and before you, and you can put your file in for whatever if you want but, while you're doing all the captioning stuff go ahead and print out those sheets and it's done, that's it.
Like Michael says, if you get it into the Library of Congress before it even goes to the client, and let's face it, you know most of us at FTPing directly to the site, if you're doing magazine work, but it doesn't get published until a certain day so you've got a time period and I think that everybody who doesn't know where to start, start today.

(MICHAEL) Well I had a couple known infringements, Sam I believe, Sam Merrill had asked me about copyright issues and I had this picture of Kramer that America On Line used as a tremendously well placed, well funded full page ad campaign in every magazine in America and it helped start America On Line. They took a picture of mine in the first words out of the attorney's mouth was, was it registered, and I'm like, what does that mean? I'm registered to vote. I had no clue. So after that experience I looked at changing my work habits and starting to register and the amount of material I had was so daunting that I just decided to start from a zero point that one day I was just going to start and move forward and start to register everything as it came out of my studio. So I believe it was 1998 or 1999 on that July day we set up a camera over the light box and we started photographing everything as it came out, out of the studio. If something was on deadline for Time magazine we would make sure that that submission went in that day. I physically don't do, I don't FTP it, but we started a regular routine where everything now, including my family snapshots, my personal images my assignments, my commercial work, if I go to grab one of my kids face down the line for a PhotoShop project, even those snapshots are registered; every image because it's so easy you can do it in bulk. To balance that I took my classic images, my images that have been published in some of the source books and my web site and I registered those to try and handle some of the larger bodies of work I was known for, but I wasn't about to start going through my files and figure out what image was published, what wasn't and start registering. I just set a date basically and I moved forward from that date.

QUESTION OFF MIKE

(MICHAEL) Did I register my published stuff as unpublished? What I try to do is I register it before it hits the magazine. If I shoot something for Time on Tuesday and I >m shipping film Wednesday, by Thursday the package is off to the Library of Congress for Friday morning knowing the magazine comes out on Monday morning.

QUESTION OFF MIKE

(MICHAEL) My archive. I handle my archive in what my LA attorney thought was a sophisticated manner. We took the web site - I can't do my whole archive - I mean it would be too daunting. I took the web site which had 80 greatest hits or whatever it was, 80 pictures that we thought were good pictures and we registered it with text and the design of the web site as a collective work noting that some of the pictures had been published and some weren't. So we did that as an overall body and he felt that that would protect us and then the images in the Black Book and the Work Book and stuff like that we would have to go through and figure out which ones were published and which ones weren't and register them correctly. That was a much easier task if you're just doing a few images per year.

QUESTION OFF MIKE

(EG) Just repeat it.

(MICHAEL) If you register published works as unpublished does it cover you from the point

INTERRUPT OFF MIKE

(MICHAEL) No you don't do it that way. By law, you have, if it's published you have to, it's actually, Jeff knows the details, it's actually, I believe, a crime, it's fraud to register a work as published if you know it's unpublished or unpublished if you know it's published, it's, you're filling out a federal form in the wrong manner.

(JEFF) It's perjury, it's a $2,500 thing.

(MICHAEL) I knew Jeff would know. It's best to, for example my collection that I hadn't registered you have to go back and when you registered published work you can only register works that were all published within the same calendar year on one published registration. You know longer have to turn in tear sheets if you register more than one work on a registration; so always register at least two works on a registration unless it's a hero image or something and you want it to be a very, very clean registration. So, I went back and we tried our best to identify the works that were published and we separated those out by the year that they were first published in, which was daunting, but we've but doing it, working our way through and then we sent in one registration with all the works from that year and ideally you can send in one registration for every work, but the economics are very, very difficult. So we did that. Now with your unpublished work if you have no other choice you can organize it into whatever system you want.

Legally you can register an unlimited number of works on any registration but the failure happens when photographers do not have a system for determining which images were registered on which registration. Provided that you have a very good filing system and a system that will allow you to pull the registration at a moments notice and know what photographs were on it then that's okay. As far as registering published as unpublished or unpublished as published I have one comment and that is that you can pay a fee to the copyright office to file what's called a supplementary registration to change a published image (an image that was registered as published) to unpublished if you make a mistake. You can go from published to unpublished if you make a mistake. You cannot go the other way, so the first thing that happens when you call somebody and you've discovered an infringement is their attorney will say, is it registered, just like Ed said. That's the very first question and if it is registered they want you to fax over the registrations. I've found that when I do that and I pull those registrations that paralegal gets off the phone and all of a sudden I'm talking to a general counsel because they know what's going on there, I've got a registration in my hand which means if it's a willful infringement it's $150,000.00 statutory damage if I can prove willful infringement, that's the maximum per image. Having that registration is absolutely essential at that time it really gets their attention. As far as going from published to unpublished, that's no problem, the other way you can't do.

You really have to do your best and then when you're putting the date of first publication on the registrations you put on or about, or not before. Don't put an exact date, you're not required too the organizations, ASMP, APA and PPA and others went in a few years ago and had the regulations changed so you can put in qualifiers, not before, not after, on or about, that kind of thing or circa even, some date and try and register it by year. If an error is discovered in that date it's going to be determined to be deminimus if it was an accident, so they're not going to nail you and invalidate your registration on that date. If they were to successfully invalidate your registration, let's say because you registered a published work as unpublished, no, unpublished work as published, am I getting that right? Published work as unpublished I'm sorry, I've been talking for a long time so if they were to successfully invalidate your registration you then have to re-register in order to sue them in federal court.
If you re-register it your registration occurs after the infringement and you're no longer entitled to seek statutory damages or attorneys fees and then you can't get an attorney to take your case.

(EG) Just a point of clarification. It doesn't mean you can't sue. What it does mean is that it limits your damages, frequently tremendously limits your damages. Let me give you a fact pattern where there's an exception to that and this is the exception. I was involved where a photographer had a stock image that a pharmaceutical company wanted very badly and if anybody told me this I would not believe it if I wasn't there, if I didn't do the contract I wouldn't have believed it. The photographer made a demand to license this stock image to a pharmaceutical company for $1.8 million for a usage period of less than two years. As Jeff, I'm called on as an expert witness by attorneys in other places and so forth and if I was on the stand, and anybody asked me if that was possible I would say, "no way". Well this ad agency and this company wanted the image that badly and they paid that much money for that image. Now, let's assume that that image was not infringed, I'm sorry, was not registered, never registered; now someone a year two three years later infringes upon that and now the photographer makes a copyright filing he wakes up. Now, I'm happy to take that case because we have established what the licensing history is of that photo. I may not care what statutory damages are because I can establish to a court that the licensing history of this image is $1.7, $1.8 million. Now, this kind of a situation comes up and the kind of litigation that we're happy to take generally will involve photographs of news events, very unique personalities, sometimes when we license directly on behalf of the photographer to a news organization an extremely valuable image that does not go to a stock agency. So we may license the use for a single airing on ABC for say $50,000. In those kind of situations, again, registration well after the fact as far as we're concerned is fine. That is probably 1%? Maybe that's 1% of all situations.

(ERICA) I hate even talking about these because I'm afraid some of you are going to go, see there are situations where it's okay, and loose the greater message. REGISTER.

(EG) And by the way, another situation that comes up frequently is you have, let's for argument's sake, say a portrait photographer and the infringement is that the use is on a billboard in connection with a dating service. Well, he sits there and says, I've never done a advertising job in my life, I have no history whatsoever. So what are we supposed to do? We've got to establish what the value of this licensing is to someone who has absolutely no track record at all. Go ahead.

(?) Before you ask your question I just want to add one thing.

(? Audience) I usually talk as much as you guys do. I'm in the process of getting everything ready to register my images right now and I was kind of confused by, there seems to be an separate addendum where you can list all the names of all your images or you can just do it the easy short form way and just say here's my grouping - I forget what the actual name is - of images. Does it matter if you name each image? Is it any less protected if you don't?

(EG) Jeff do you want to take this?

(JEFF) You might take a look at, I mean I could answer that question but you're going to have other questions too on filling out that form that continuation form and that's a good hour long conversation. The APA and the ASMP and the EP all have excellent copyright resources on their sites. ASMP just added one last week that's pretty extensive. EP has a good one and so does APA. apanational.org, asmp.org, editorialphoto.org and you can see step-by-step directions for licensing your work. I think Michael you haveY

(MICHAEL) Well I think that her question is, is one more effective than the other. I was on a panel with Jeff in San Diego about a year ago and the attorney there told me he would argue against my registration. If you could write the number down or list it, it's more effective because no one can argue, well are you sure you put that image on that disk that day? Are you sure you didn't make-up a new disk just to be present here in court, or at this deposition? He would try that argument. Now I registration every image there is so I don't get the argument for me, but if you can make everything as bulletproof as possible it's bulletproof.

(ERICA) And let me tag along with that because I'm sitting here going, now that attorney's argument is asinine, but the way that the photographer's attorney would combat that is to request from the copyright office a copy of what accompanied that submission and that costs money. That's a fee you wouldn't need to pay under circumstances Michael is going into.

(MICHAEL) Well also if for some reason they can't find it, which is frequent (JEFF/MICHAEL IN UNISON) in the copyright office. So that was his argument.

(JEFF) And also you'd be surprised, but - or you may not be surprised - but the copyright office actually throws away your deposits after a certain number of years. They don't keep them forever.

(EG) As a general rule...profound statement from lawyer, ready?...specificity is not going to hurt you.

(?) It just seems so confusing I was hoping to avoid that part.

(EG) Life is confusing.

(JEFF) You know what I do when I submit the disk is I print out the window in my mac window of the label of every file that's on that disk and I keep it on my copy with the disk and I send it in to the copyright office and I attach it to the application. So that you have a label for every file, whatever the camera assigned that, if they're digital files, or if you shot the contact sheets digitally or whatever and it's all labeled.

(MICHAEL) It can also be simpler than that. There is a middle ground whereas basically if you were registering assignments as unpublished before they go on there chances are you're going to have job numbers for everything and I tend to put stuff together in terms of it's job number x to job number y and there consecutive so that gives you the range of what you are talking about rather than you don't have to say 1, 2, 3, 4 and five; you can do one to five.

(EG) Last question, they've got a very strong union here and I live in this town so...

(? Audience) Yes, if a photographer takes a previously unpublished image and puts it on his web site, portfolio, is that considered published or unpublished for registration purposes? Similarly, if a photographer takes unpublished images submits them to a stock agency and those images are posted on the stock site, although never been sold...

(EG) Is that a license?

(?) Yeah?

(EG) Not sold. Not sold. Licensed.

(?) Not sold by the stock agency, but it's on the agency's web site. Is that considered published or unpublished?

(JEFF) Use the term license not sold. That's all we're saying.

(?) I'm sorry, a mistake.

(JEFF) Use the term license not sold.

(EG) And by the way, the stock agents and the client use it against you because they will say to you usage is very unclear and very ambiguous. You kept saying you sold it, we thought we bought it. I bought my Ford from the dealer, that means it's mine. Jeff you want to take the first part.

(JEFF) So the definition of publication is a little bit ambiguous, but if you make an offering it's published. So if you are putting it on your site and indicating that the images are available for license what you've got there is an offering and it's published. If you distribute to a third-party for the purpose of further distribution, in other words, if you deliver it to another party for the purpose of distribution then its' published. The mere public display of an image is not publication.

(?) So a portfolio is a mere public display, or I'm not offering it?

(MICHAEL) I think the way to look at it is if you look at it as a commercial entity or you have a private web site that you show your family these pictures. Just because you've publicly displayed it. But if you are a commercial photographer and a commercial entity or you've given it to workbook stock or a commercial syndication or stock agency then you've set it out for commercial distribution and then that constitutes publication.

(JEFF) It does. There's no bright line in publication but that's pretty much published right there. If you've delivered it to a third-party for further distribution or made an offering. Conversely, if you put it on a site and it's password protected and nobody can get in, that's not published and arguably if you put it on a site and put all kinds of language about how noting can be reproduced or copied under any circumstances that may or may not be published. What you want to put in there is you may only make copies for personal viewing one time only in the terms.

(?) QUESTION OFF MIKE

(MICHAEL) If it's up on the web site after you do the registration and you have a commercial web site and you solicit commercial assignments its been published.

(JEFF) Do I use digimark? I don't currently use it but when it's enhanced I'll use it.

(MICHAEL) Thank you.

(JEFF) Thank you very much.

 

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