Friday, 19 December 2014

Do You Want A Sweetie little Photographer?

I have recently completed my application for the 2014 Design and Artists Copyright Society’s ‘Payback’. Something I do every year during the summer.  Indeed, something I have done for many years, since the scheme was first made available to photographers.

But this year it has not been the same and many photographers have queried the extended mandate that we have been asked to sign – BEFORE we are able to collect that money that has already been collected on our behalf.

What is ‘Payback’        

Best explanation is the one that DACS themselves give:

‘Payback is an annual scheme run by DACS to distribute the money owed to visual artists by various collective licensing schemes.

These licensing schemes cover situations where it would be impractical for you to license your rights on an individual basis. For example, when a student in a library wants to photocopy pages from a book which features your work. As the creator of the work being photocopied, you are entitled to a royalty, but rather than ask the student to contact you every time they photocopy your work, the library pays an annual licence fee that covers their students photocopying copyright protected books.

It’s not just libraries and universities that do this. Many different types of businesses and organisations buy a similar licence too.

The money is then shared out among the creators whose work has been featured. Authors and publishers receive a share of this money through
Authors' Licensing and Collecting Society (ALCS) and Publishers Licensing Society (PLS) respectively. As a visual artist you can claim your royalties through Payback.'

Photographers all over the UK look forward to what is seen by many as their ‘Christmas Box’, as the payment which for many can be a thousand pounds or more usually arrives in early December, having been collected during the previous financial year.

However in 2014 something changed.

DACS has previously collected under the following licensing schemes:

  • Photocopying (by central, local government departments, universities and other business).
  • Slide collection Licensing Scheme (in educational establishments)

  • Cable re-transmission of UK Broadcasts
  • BBC prime and BBC World
  • Off-air recording of programmes (by educational establishments)

This year instead of simply acknowledging monies already collected, which photographers had always done as part of the application process, artists now had to sign a cleverly worded document including the following:

  • I grant to DACS an exclusive licence and a mandate to negotiate, claim and administer the secondary rights in my artistic works, or the secondary rights in the artistic works of those individuals to the extent we are authorised to represent them (the ‘Authorisation’). I warrant that I have full right and title to grant this Authorisation. In consideration for granting this exclusive licence I will become a Payback Member of DACS.

This gives DACS the mandate to act on the behalf of photographers in licensing that currently doesn’t take place.  It gives licence to DACS to expand PAYBACK in any way it sees fit without recourse to the very people it purports to represent. 

  • ·        Is this good?
  • ·        Is this fair? 
  • ·        Is it correct?

Let us be clear what is being done here. DACS is holding to ransom the money it has already collected on behalf of its members, and which is already there to be distributed.  In order to get this money – legitimately belonging to the creators (not DACS) creators are obliged to sign away unspecified new secondary rights, giving DACS carte-blanche to represent photographers without any further recourse to those same creators.

Regardless of how good DACS are, or how efficient they might be, why do they need to give the impression that they are holding their member’s money to ransom in this way, – sign up or you don’t get your money we have already collected. (At least that is how it feels to me, and I find it difficult to interpret their action in any other way)?

Both the UK government and the European equivalent are keen on extended collective licensing, but not just for what has already been described. (see the DACS FAQ page) DACS want to be in a position to be THE collecting society granting licences on behalf of photographers, and our blanket permission means that they can claim to represent us, without any of that laborious having to consult us rigmarole. This actually will be very useful as DACS goes into battle with the big guns of secondary licensing The Copyright Licensing Agency.

DACS say that they will consult us before doing anything. But will they though, now that they don’t have to any more?

Extended Collective Licensing, by its very nature removes control of licensing from the creator.  If the image licensing market becomes one run through ECL then control of works removed from the creator, and even opting out of the ECL scheme will do little to regain that control (work will be used regardless and the creator will not get paid at all).

Q.      Why do government and large organisations like ECL? 
A.      Because it is cheap.

Cheap to run and brings in blanket licensing which will of course be tailored to the low end product (and costings), but encompassing high end superior quality, heavily maintained collections of work.

Granting DACS this right to negotiate on our behalf and to be our representative in the Copyright Licensing arena is a two-edged sword.

An astute observer might ask, whether by signing the DACS authorisation as it now stands are photographers not implicitly condoning Extended Collective Licensing, not just of the things that we know about and approve, but of ECL in much wider fields that we might not be so happy with?

The same observer might ask the question ‘What do DACS know that they are not telling us?’

What makes this all the more difficult is that I actually want DACS to represent me in the collecting of secondary licensing, as currently they are the only option we have. As other options make themselves available then I may wish to move my allegiance.  But what I do want to be sure is that DACS are truly representing my wishes and that they ask me BEFORE they undertake new activities and not simply present me with ‘fait accompli’.

Ransom  (Merriam-webster)

Full Definition of RANSOM

  1. a consideration paid or demanded for the release of someone or something from captivity
  2.  the act of ransoming

Examples of RANSOM

  1. The kidnappers demanded a ransom of one million dollars.
  2. The family is willing to pay ransom for his release.
  3. The ransom note explained the terms under which she would be released.

Origin of RANSOM

Middle English ransoun, from Anglo-French rançun, from Latin redemption-, redemptio — more at redemption

First Known Use: 13th century

Thursday, 6 March 2014

Getty strike again...

The British Journal of Photography has just run a very interesting story

I have to say that I certainly had not seen this coming. The difficulty for everyone else (photographers that is) who are not the corporate Getty (and I include their editorial supplier photographers) is it will have an almost immediate effect on every other supplier of editorial ‘smudgery’ (Smudger - Fleet Street slang for Photographer). Not so much a race to the bottom, but the floor simply vanishing under our feet...

The effect of this move by Getty could be to remove an entire market (editorial stock photography). One understands the basics of taking over a market by reducing the cost – indeed there have been many famous exponents, but even ‘Walmart’ don’t actually give it all away.

The consequence may well be that theft of images by companies will actually increase even though there is now a vast source of free imagery available legitimately.  Many ' bloggers' and other users of the internet have been working on the basis that everything is free on the Internet, something that up until now Getty appear to have been agreement with professional creators; that 'free' is an incorrect interpretation of what the Internet really is. Now Getty have given into this abandonment of the International Copyright law, and sanction wholesale use of their work. Good for Getty – in that this is a data mining exercise, but no so good for those individual creators relying on the Getty payments every month; payments that most if not all Getty freelance photographers have seen decrease by a huge percentage in recent years.  

For everyone else (photo creators, suppliers and aggregators)  this is going to have an (adverse)effect. Will internet content users recognise that this is simply a Getty initiative or that this move simply vindicate what they have wanted to believe all along (everything on the net is free); with the consequence that other creators will find that their work is further stolen and used without permission, infringers pointing to Getty as their motivation. Will would-be infringers realise that the copyright laws have not actually changed?

Getty has believed in its market domination for many years, and we have seen them buy-out many of the agencies (inc Tony Stone, Allsport and many more), that were of very high quality, and had become household names. This latest move simply builds upon this, and is a calculated  to undermine the smaller creators and suppliers for whom the Getty buy-out is not an option.

It will potentially make it more difficult for creators who must sell licences. This is a deliberate attempt to annihilate the current market, and create a new Getty centric one.

But, there could be a positive effect. This move *should* make specialist creator controlled collections even more valuable, and therefore more important that each of us (individual creators) chase up every theft. Copyright law is on our side thankfully. It is going to be difficult, but we have to stand firm against Getty queering our pitch.

Interesting that fellow creators in the music industry whilst they have found sales of discs and CDs etc. fall, they have managed to take control of the copyright situation on the internet and with on-line sales through access ports such as 'I-tunes'. Instead of giving up and letting the theft of music tracks on-line go unchecked they have come up with new revenue streams that make theft less attractive and on-line paid access actually desirable for the consumer and user. If only we could do this in the image industry instead of the big aggregators constantly undercutting each other to the advantage of no one and at the direct cost to the creator. 

It is of course a carefully planned move by the image giant. From its very inception the Getty Juggernaut has been all about domination of the image market. This latest move is all about data mining.

By supplying markets which are not great revenue generators  (for Getty) with freebies they will be ensuring that each image leads directly back to Getty.

"......since all the images are served by Getty Images, we’ll have access to the information on who and how that image is being used and viewed, and we’ll reserve the right to utilise that data to the benefit of our business.”

So these free pictures will put Getty all over the Internet. Very clever for the company that can afford to do it, and do it at the expense of all other suppliers in the photo marketplace.

The flip side of this for independent photographic creators could be that independent specialist collection *should* become more valuable if managed properly. The issue now is how the other agencies will respond.
  Getty is looking for comprehensive data mining and data utilisation. If other agencies simply follow Getty in a knee-jerk like manner without the accompanying data analysis approach then they and their suppliers (us) will lose out big time. Geek led Alamy and Corbis will be ones to watch...

Wednesday, 18 April 2012

Reaching Potential Markets...

Ah, another spring day fighting the hosepipe ban :-) Whilst editing and key wording I am looking for better ways to market my images...

How can I make my photos more desirable? How do I get potential clients to see the advantage in using my services over doing it themselves?

Why are businesses dealing in high quality products content to use sub-standard images on their expensive web sites?

The first glimpse of any business is its website. Does it not make sense to make that website look as good as possible?

Photographs can be worth a thousand words. How much is a good photograph worth? How much is a poorly shot sub-standard photograph worth?

Discuss :-) 

Tuesday, 17 April 2012

I paid for them I 'own' the photographs!

I have had a very difficult situation to deal with recently with a trusted and valued client who started using images outside of the agreed contract, and despite requests for the contract to be renegotiated to include these extra uses, those uses continued, with the client refusing to pay for them because he believed that as he had paid for the images once, that he should 'own' them.

We are not talking about a fool here - one generally does not become an MD by being foolish, no this is a clever and intelligent businessman.  Possibly one who is inexperienced in the commissioning of photographers, although he would deny this vehemently of course.

How does one deal with a situation like this?

Well, one can simply give in and allow ones self to be bullied and ignore the extra uses.  That keeps the 'status quo' - for a while at least, but what happens when the next flagrant contract abuse occurs?

Or one can try and bring some understanding to the situation.

As someone who is a firm believer in both the integrity of contracts and of copyright,  I chose to take the second option, knowing that with some people reason and common sense are not always enough to win an argument...

My response:

"I absolutely respect your business experience, but I believe it is also fair that you have some respect for mine.  I have been a working photographer running businesses supplying both stock and bespoke imagery to a wide number of clients since the late 1970’s.  As I mentioned at our last meeting my more recent clients include Rolls Royce (in Derby), Royal Mail, Unison, Nottingham County Council and Farmers weekly.  A disparate group it is true, but all of whom use photographers such as myself on a regular basis.  In each case as a supplier, I have an agreement with them as the client.  The client specifies what is required and I agree to supply imagery to that specification, for an agreed fee. This is the way I have always conducted my business.  It is not usual to specify 'unlimited usage' of imagery, but when a business requires this, it forms part of the contract, and remuneration to the supplier will reflect this extra value.

Had your business made clear before the agreement was entered into, that it required an unlimited licence to use my images, then I would have been happy to oblige, (and still am), but I would have expected (and expect) an appropriate adjustment to the remuneration to cover the extra value this would give the images supplied.

In the UK created works such as photographs, music, art, are covered by the 1988 Copyright act.

In the Act it is made clear that the author of a work is the first owner of any copyright in it.  The rights to use that work is then licensed to users as required.  Even when work is commissioned, the ownership remains with the creator.  The only exception to this is if the creator is employed as a creator on ‘staff’ (PAYE).  In which case the company employing the creator, and supplying all the tools of the trade, paying the appropriate taxes, and monthly salary, is the copyright holder of the work.

The licenses granted to use created works such as photographs vary in cost according to the use made of that work: size of use, frequency of use, scale of use, and longevity of use - the greater the use, the greater the fee.

When commissioning photographic work the second element that affects the fee is the ‘cost of production’.  In the case of the photographer this will reflect the amount of specialist equipment required to achieve the technical specifications required, the amount of experience a photographer has, and also the amount of time taken to not only acquire the images in the first place (travel, time on site), but also the time taken to process and edit the images to bring them up to a suitable publishable standard.  Regrettably, even with digital images, ‘what you see’ is not ‘what you get’, and in most cases it takes much longer to process digital images than it does to acquire them in the first place.

It is very rare indeed for a client to require ‘unlimited’ use of imagery, partly because of the extra cost that this entails, but also because most imagery dates relatively rapidly.  It is almost always more cost effective to purchase the occasional exceptional use ‘out of contract’, as in most cases the supplier will give a discount based on previous use.

In the case of your business, (with regard to the original contract), there are far in excess of 100 images being used on the website, images are also used in local publishing, both editorial and advertising, the images are used for your business' own publications.  The photographer attends your business site on demand, for several hours each occasion, several times a month, and covers special events very intensely.  Images are located from the photographers Digital Asset Management system, resized as required and forwarded to publishers etc., on demand, and all for an inclusive monthly fee of £290.

For my other clients, the lowest fee I receive for my work (for a non-profit making union) is £350 for a days photography (including processing), giving a years unlimited use for the clients editorial and advertising publishing of (up to) 30 images.  Copyright remains with the creator, and licensing can be extended to three, or five years or beyond for payment of an additional percentage of the original fee.

As you will be aware I have been concerned that the agreement between your business and myself has expired, and that it required discussion so that the newly evolving needs of the business could be examined and catered for.  This includes billboard advertising.  Now that you mention that your business requires unlimited use of my work then this also can be discussed, although as I have mentioned, I think it would be beneficial to ascertain exactly what licence is really and truly required, and for how many images.  Whilst there may well be a nostalgia value to a very small number of the images that I produce for use by your business, I cannot envisage any other use of images taken (say) in ten years time.  However, if there are uses, and these can be specified then I will be pleased to come to an appropriate arrangement.

If as has been suggested, all that is actually required is the facility to store images for possible future use, then I have already agreed in principal to the storage of my work in a DAM system for recall as required, (it is already written into the original contract). 

Whilst a contract exists between us the images can be easily accessed.  Outside of contract, the images can be just as accessible and on the rare occasion an out-of-contract image is required for use the appropriate fee can be paid – at that time.

I do not believe that I work in anyway different to any other experienced photographer.  I go to great lengths to assist my clients in identifying their photographic needs and using the created works that I supply to their greatest advantage, and obtain the best possible value out of the high quality work that I provide.

It would be very easy indeed to accede to any request made by a client for extra work or uses, and simply invoice accordingly.  However, I resist this, and instead try to work out with the client the most efficient way to use my services.  This is what I am endeavouring to do with your business.

If your business still has to have unlimited use of imagery supplied under contract, then I will happily comply, but I will expect an appropriate increase in the fee paid, and of course a contract does have to be in place.  If your business wishes to purchase unlimited use on images not taken under contract then this can also be negotiated.

I value the work I do with your business, as I value all the services I provide, all of my clients, and would wish it to continue.  It is always a joy to see the excellent use that your business put my work to and to see the business expand as the marketing and presentation continues to improve.

I apologise that this letter is so long, but I feel that the matters needed proper explanation.  I hope that I have managed to clarify my position, and that we can recommence negotiations with regard to the photographic service I provide your business as soon as is convenient.

Yours sincerely"

Will this letter regain me a valued client - probably not? (I don't want to embarrass the client so I have made a few obvious changes). The client has made a decision based on assumption, and I have found out (by experience)  that on occasion when one is 'found out', one generally does not like to admit an error.  No doubt other local photographers are already being offered the opportunity to bid for the work, and I am sure there will be some out there who will abandon good business practice and copyright, simply to have a little money coming in.

Sometimes discussed and agreed contracts, dedication, good work and cost effectiveness are not enough.

Pete Jenkins