Getty strike again...

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

Getty Images makes 35 million images free in fight against copyright infringement » British...

bjp-online.com

The controversial move is set to draw professional photographers’ ire at a time when the stock photography market is marred by low prices and under...

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...

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. http://www.legislation.gov.uk/ukpga/1988/48/contents

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

www.petejenkins.co.uk

www.onlinepictureproof.com/petejenkins

www.photographerspro.eu/pete_jenkins/

www.petejenkinsphotothoughts.blogspot.com/

Member of: The National Union of Journalists

The watchword in our Authority now is not 'quality', but 'cashable savings'.

"Thank you for taking the time to explain the pricing in detail. I do understand the costs and demands on a commercial photographer but I think you will find that as public services budgets continue to dwindle over the next three to five years clients such as myself with have less money to spend and will need to shop around to ensure the small amount of money we have goes as far as possible.

The sad reality is that the watchword in our Authority now is now 'quality' but "cashable savings", and we are being told that we must look to providing not the best service possible but a service that is "good enough". This is a sad state of affairs for many of us who have worked in local government for years, but given the state of public finances it is not surprising.

I think that at this point I should therefore get some other quotes and look at the other photographers out there, to see what arrangements they use and which will suit our needs best.

Thank you for your work with us over the past couple of years and all the best."

Great Scott! As I read this e-mail from a valued client, one with whom I have, (or had), an excellent working relationship, where the quality of my work was appreciated, and I would always go that extra little bit further for, my heart  hit my boots.

What on earth are cashable savings?

This from the Gershon Efficiency Guidelines

DEFINITIONS OF CASHABLE AND NON-CASHABLE EFFICIENCY SAVINGS

Government advice (Efficiency Technical Note January 2005) sets out 4 categories from where efficiencies might be attained:

• Reducing inputs for the same outputs (Cashable)Reducing prices for the same outputs (Cashable)
• Getting greater outputs or improved quality for the same inputs (Non-cashable)
• Proportional Efficiencies (Getting more outputs/increased quality in return for an increase in resources that is proportionately less than an increase in output or quality.) (May give rise to both cashable and non-cashable savings).

I think that we can translate this into English as the following:

• Get suppliers to do more work, for the same fee.
• Pay less for the same or greater amount of product you buy in, regardless of quality.

So, for a small business such as mine, this leaves me with a dilemma.  Like all businesses, I have a minimum amount of return I must receive in order to maintain my over heads, and provide enough profit to pay the mortgage, buy food, and pay all the usual living expenses.  The clients photo budget may have decreased, but my cost of living hasn't, (actually quite the reverse), and like most other editorial photographers and photojournalists, I have been pruning my costs and over heads for years to keep up with client cuts and economies.

• Do small businesses really overcharge?  
• Is there any slack to be taken up? 
• Should we be prepared to provide a poorer quality service and charge a lower fee.

For the first two I can put my hand on my heart and honestly say that I don't overcharge - far from it, and without question my operation has been pared almost to the bone.  I already run with less equipment, my stocks are lower, and in some cases this in itself means I can no longer provide some of the services upon which my business reputation was made

But should I be prepared to lower my quality, to enable me to charge a lower fee?  Would this in itself get me more work?  Would it make me more saleable, or would it simply put me into a pool of photographers who spend their business time undercutting each other and seeing their income lowering year on year?

I suspect that simply lowering my prices would not make me more saleable, nor in reality would it get me more work.  It would place me in that part of the market where my services were not respected, I would sacrifice client quality, and more to the point it would not make me any more able to pay my bills at the end of the month.

At some point, and I hope it is sooner rather than later, people will start looking at the visual products that they buy and will perceive that one product is better than another simply because it is of a better quality.  In a market place where the phrase 'good enough' is bandied about, and where quality is reduced, not in many cases to provide a cheaper product, but simply to maintain a high share dividend (some regional newspaper publishers may recognise themselves here). Where suppliers are squeezed, harder than ever before, forcing them to compromise on their own high standards just to maintain a business.

How soon will it be before the sheer quality of a product will again mark it out from the dross of its competitors, and that the impact of quality will cause products to be desirable again?

That pendulum has to swing back again hasn't it?

Pete Jenkins
www.petejenkins.co.uk
www.onlinepictureproof.com/petejenkins
www.photographerspro.eu/pete_jenkins/
www.petejenkinsphotothoughts.blogspot.com/

Member of: The National Union of Journalists

Contracts and agreements

The other day I had an e-mail from one of my regular clients.  Not angry as such, but well, this is what he wrote:

“I have received an invoice from you for the use of an image on billboard advertising. I feel that this seems a bit excessive in the context of the other fees that we pay and would request that you reconsider this invoice.”

On the face of it I could have reacted by being angry and cross, but instead I thought it would be best dealt with by explaining to my client why he had an invoice.

So this is what I said to him in reply.

"I have as requested given further consideration to the invoice.

The fees that I charge your business during the process of providing you with a photographic service, cover the specific needs outlined on each occasion, and for each individual shoot.  As you know these requirements vary from internal editorial uses to a small number of advertising publications.  The requirements are set out by yourselves before each job is undertaken.

I understand that you are unhappy with the invoice issued to cover the billboard advertising (adverts that have already been in place for some months), and for which no agreement currently exists between us.

The billboard use was never mentioned when the initial commission was discussed, and had it been then I would have negotiated a higher fee to cover this extra use of my work, (as you will agree, the more work done and used, the higher the fee).

The fee charged in this case is a heavily discounted one  - on what is a bespoke image, and is not covered by any existing agreement that I have with your business.

I have been concerned ever since the initial work was done, that the contract for the work itself needed discussion and revision, because your photographic requirements have changed over the past year. 

When the work was commissioned by your management team and agreed by myself, it covered a wide range of uses, as we discussed, and the fee paid reflected those requirements, and the work done to acquire the imagery in the first place.

The specific uses licensed were:

• Your company website
• Brochures and leaflets promoting ‘your business
• Annual Report
• Advertising in external regional publications, e.g. Nottingham Evening Post, NG3, NG5 and similar, for the duration of the license
• Duration of the license will be for one year from date the contract is signed 
• Storage in an on-site DAM system (to be agreed)

Under the circumstances I believe that the invoiced fee is very reasonable considering the extra unforeseen advertising use of the image and the circumstances. If your business were to obtain an ‘off the peg’ image from a photo agency, it would expect to pay anything from £500 to £1500 (maybe more) for billboard usage of this kind.

A bespoke image (photograph) such as the one used has considerably more value.

The fee I have charged, (and the substantial discount already included), reflects the fact that it is an image that has been used by yourselves once before, even though there is currently no contractual agreement for it to be used on a billboard between our two businesses."

It is sometimes very difficult as a supplier of created works dealing with clients. One tries to advise them of the most effective way, and the most economic way to get the best use out of bespoke imagery, but sometimes they simply do not listen.  I know the old adage:

“The client knows best”.

But do they?  Do they really?  Do they always? Why hire an expert and then ignore the advice they give?

Photographers more than almost every other creator are under huge pressure at the moment.  On top of the perception that everyone with a mobile phone is now a competent photographer, we also have the added difficulties of a world wide recession, more specific in many ways here in the UK.

If I hire, and pay for a car for a fortnight and then decide to take an extra weeks hire, is it reasonable to expect that extra weeks hire for free?  No, of course not.

It is absolutely essential for photographers and clients to spell out exactly what each party expects from the other, including exactly what service is required, and what remuneration is to be made for that service.  Business is based on supply and demand, and the terms and conditions are spelt out in contracts.  They protect both sides.  To do business without those requirements, including terms and conditions in writing, even if it is little more than three sentences stating specifically what service is to be performed, to what time-scale, and how much and when remuneration is to be paid, is plain daft.

You know it makes sense :-)

Pete Jenkins

www.petejenkins.co.uk

www.onlinepictureproof.com/petejenkins

www.photographerspro.eu/pete_jenkins/

www.petejenkinsphotothoughts.blogspot.com/

Member of: The National Union of Journalists