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Key words in this issue: Good RF | Captain America | Focused Marketing | H. Armstrong Roberts |Photo Need |

NEWSWORDS: Work at Home | Web Hoaxes | Government Helicopters | Sea Photography | Japanese Merger | New Adobe | Anne Geddes | Epson CD Printing |

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## PhotoAIM weekly newsletter for 01/11/03 ## 388b

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PhotoAIM, the weekly newsletter from PhotoSource

ISSN 1530-0511

If you no longer wish to receive PhotoAIM, see the instructions at the end of this newsletter.

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THE PROBLEM WITH "GOOD" ROYALTY-FREE

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by Dale O'Dell

Advance Note: Royalty Free offers stock photographers a new avenue to sell their work, but it also proposes a marketing principle they shouldn't forget: "Don't sell yourself short."

The stock agency owner was in tears. She was dismayed that royalty-free imagery was cutting into rights-protected stock image licensing. She couldn’t believe photographers would sell their works for so little; she was angry that royalty-free distributors were taking advantage of photographers. "There’s nothing good about royalty-free!" she cried. Six months later her agency published its first disk of royalty-free images.

She found one good thing about royalty-free; it was profitable for her.

Royalty-free demeans and devalues photography and photographers. It fills a low-end market niche at the expense of photographers.

Of course if I were a publisher of RF imagery, my opinion would be transformed, like that of the above-mentioned stock agency owner.

Previously in this publication, I wrote that rights-protected agencies would have to concentrate on licensing more innovative, conceptual and artistic imagery to survive. They’d have to do this because what had been their bread and butter ---the commonplace, nuts-and-bolts image--- would go the way of RF. I thought the generic landscape, and the non-creative, hole-in-the-layout filling picture, would all be royalty-free. I thought since the crap was royalty-free, the art would be higher-priced and rights-protected.

AUDACIOUSLY AVERAGE BUT...

I was wrong about royalty-free. It is not all crap, not any more. Sure, the majority of royalty-free images are audaciously average, but…. there is some surprisingly innovative, interesting and artistic imagery showing up in RF collections. This is distressing.

I’m surprised to see works that are unique, innovative, thoughtful and artistic offered as royalty-free. I wonder why some photographers, who obviously have spent hours or days creating truly expressive works, are offering them for pennies, or at the most, a few hundred dollars, royalty-free. Apparently these photographers have no faith in the value and future earning potential of their ‘art.’ They are content to trade valuable artworks for a few dollars today instead of thousands of dollars tomorrow.

Royalty-free is the appropriate marketing tool for commonplace, dime-a-dozen imagery. Why not make a few bucks off a boring cliché that anyone could shoot? But RF is not the instrument for selling imagery that’s unique and potentially highly profitable.

One of your RF "artworks" just might see widespread use. It could become a famous, iconic image. The user of that image may generate a lot of money from your picture. Because it was acquired royalty-free, you won’t get rich and you won’t be recognized. You will remain anonymous and underpaid.

Why sell high-end imagery to the low-end segment of the market?

Dale O'Dell is a regular contributor to PhotoStockNotes. He produces cyber-generated stock photography from his studio in Prescott, Arizona. Email: dale@cybertrail.com;VF Phone: 1 520 541-0944; Fax: 1 520 541-0957; Web: http://www.dalephoto.com

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This week's featured photographer on PhotoSourceFolio: Frank Moster:

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YOU AND THE LAW

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Work for Hire Issue Still Unresolved

In my October 2002 column, I wrote about how the failure to reduce an agreement to writing can have ramifications years, even decades, later.

A recent case expands on that theme, holding that even when the parties do reduce their agreement to writing, it can still run afoul of new copyright legislation, with entirely unexpected, and perhaps unintended, consequences.

The case, Marvel Characters, Inc. v. Simon, involves the creator of the "Captain America" comic character. Joseph H. Simon created the character in 1940. He maintains it was an independent freelance project, which was shopped around to various publishers before he finally found one willing to take a chance. Simon orally assigned his interests to the publisher, which registered the copyrights in the publisher's name for the 28-year term then in effect.

Under the Copyright Act of 1909, the author had the right to renew the copyright for an additional 28 years under the renewal provisions. 

In fact, Simon did exercise this right, and sued the publisher in 1966 and 1967 in both state and federal court, claiming that he was entitled to the sole and exclusive right to this 28-year renewal term. Those cases were eventually settled in 1969 with Simon acknowledging in writing that his contribution "was done as an employee for hire," and assigning all of his rights to the publisher. The actions were then dismissed with prejudice.

That should have been the end of the line, but it wasn't. When, years later, the Copyright Act of 1976 was passed, it contained a clause that gave new protection to authors by allowing them to terminate prior transfers under certain conditions. The right of termination was effective, for transfers other than a work made for hire, "notwithstanding any agreement to the contrary." This was intended to prevent publishers and others from forcing a surrender of rights through economic duress.

As a result, in 1999, Simon found himself in a position to terminate the grant and to reclaim his copyrights. The current lawsuit ensued.

On appeal, the United States Court Appeals for the Second Circuit, decided that Simon was entitled to pursue his claim. They held that, on the facts as alleged, Simon had presented sufficient evidence to raise issues of fact as to whether his work was created on a freelance basis, notwithstanding the 1969 settlement agreement in which he "acknowledged" it was a work made for hire.

The Court determined that the settlement agreement was "an agreement to the contrary" and therefore could not bar his claim. The Court emphasized that the Congressional intent behind the statutory clause "was to prevent authors from waiving their termination right by contract." Accordingly, Simon can now proceed and attempt to win on the merits of his claim.

The old adage that "it is never over until it is over," can surely be amended to add, "and not even then!"

FLASHBACK

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1928 – January 17<sup>th</sup> – A patent was issued to Anatol M. Josepho for the "Photomation," a fully-automated apparatus for developing photographic filmstrips. It is said that the inventor received $1 million for his invention, that he developed in a loft building on 125<sup>th</sup> St, New York City, and put into operation at 1659 Broadway.

SIDEBAR

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Targeted Marketing

Are your promotional efforts right on target or do they miss the mark? In the world of direct marketing, relevant marketing is a term that defines what your target market prefers and how to get the right promotion to that market. In the case of photobuyers (your target market) it basically means that the more you know about the buyer you are sending your marketing materials to, the better off you are.

The concept is simple. Do your homework. Research what the photobuyer's purchasing preferences are and apply that information to your marketing strategies. Examples of relevant information to build your marketing efforts around, are: 1) what computer system does the photobuyer use? Do they accept digital preview scans? If so, what format do they prefer? Is their computer format Windows or another? 2) Do they prefer postcards, sell-sheets, periodic e-mails, travel itineraries, personal phone calls or faxed reminders?

In all marketing efforts, detail knowledge can mean the difference between success and failure. Targeted marketing (rifle) is much more efficient and produces better results than broad marketing (shotgun); this is a well-known fact in the direct marketing industry. Another well-known fact is that marketing tailored to specific prospects and their preferences is even more efficient.

DOING YOUR HOMEWORK

How do you discover this vital information about your prospects? Most often, you can find out this 'relevant information' by establishing yourself as an important resource to the photobuyer (if your specialized photography subject matter matches their specialized interest areas, you are an important resource to them).

Then send an e-mail inquiry to the photobuyers you work with and simply ask them to supply the information you need. This can be in the form of a small survey, or some straight-out questions with multiple choice answers.

If you explain that you need the information to be able to serve them better, chances are that they will be very willing to respond. Many times you'll find that they have already prepared a Q&A sheet for photo suppliers. After all -- they use your images and they want to continue using your images, so this is in their best interest as well as yours.

Let me share a real-life example. A while ago I personally made a CD catalog as a service to my clients. The catalog was made as a PDF document with some 350 images. The reason I went with PDF is the great versatility of that particular format, since it can be accessed on both PC and MAC.

I included with the CD a brief questionnaire asking which method they prefer for receiving a photo supplier's catalog. Out of the some 300 photobuyers I sent the CD's to, about half (150) preferred a specialized CD catalog they can use whenever they choose. Approximately 80 photobuyers contacted me and asked for a printed version, which I later sent.

In the future, it's likely that more and more photobuyers will be set up for and willing to handle digital promo pieces, but I learned through my questionnaire that there will always be those photobuyers who prefer more traditional promotion delivery methods from stock photographers.

Which methods do each of your photobuyers prefer?

BUSINESS NOTEPAD

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(4203 Locust Street, Philadelphia, PA 19104. 1 215 386 6300. Fax: 1 215 386 3521.)

CONTEST

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GOOD STUFF

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QUOTE OF THE WEEK

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"Consistency requires you to be as ignorant today as you were a year ago."

–Bernard Berenson

FREE THIS WEEK

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FREE. Pet safety tags. Features the FasTrac Lost Pet Hotline and the International Animal Poison Hotline. You also get online pet care management. Visit their website tolearn more and get your pet tag for free.

THIS WEEK'S WEB FEATURE

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Got a question about legal issues for photographers?

Watch for developments in the field of stock photography in PhotoAIM's

PHOTOGRAPHY IN THE NEWS

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You'll be the first to know…

Note: If the URL is long, it may extend to two lines. In that case - clicking on it won't work. Instead, "copy and paste" the URL.

The work-at-home person needs some encouragement to live by. These are 100 years old.

The Truth About Web Hoaxes, Scams and Rumors The Bunk Stops at Purportal.com A new site called Purportal.com boasts that "the bunk stops here." Its introductory screen says, "That story that your brother-in-law just sent to you and forty other people sounds true. ... Put it to the test here!" The site provides assorted search engines and related tools that let you check out that latest rumor before you hit the "forward" button in your e-mail software.

A speedier timetable and access to government helicopters for overhead photography

Artists by the Sea....Images: Photography by Ed and Stacia Johnson

Konica, Minolta, two film photography giants struggling for a foothold in the digital era, unveiled a merger plan on Tuesday that they hope will put them in the big league of camera makers with Canon and Ricoh.

Adobe Unveils New Photo Software - Adobe Systems Inc. is intensifying its focus on the mass photography market with new software aimed at the rising number of consumers with little or no experience managing digital images.

Digital photography enhances results - One of the many advantages of digital over film cameras is waste control. With digital, there's no more of those crazy out-of-focus or underexposed shots we were forced to pay for with film. You choose your shots before printing, and you can correct many of the common photo problems in your computer.

World-class photographer sticks with the babies as subjects – Most photographers are at the mercy of their models. Anne Geddes is no different; she works around her subjects' schedules. Geddes takes pictures of infants. Only infants.

Epson Adds CD Printing Capabilities to Popular EPSON Stylus Photo 960 Printer; New Printing Feature Offers Increased Versatility With No Additional Cost to the Customer

Printers Not Worried About Various Technologies - Four out of 10 print businesses don't believe that any digital printing, prepress, or Internet technologies will have a negative effect on their business.

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388a

Next Week: Protecting Your Images

"Many thanks again for all of your help – it is MUCH appreciated."

- Lee Snider, Photographer, New York NY