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Key words in this issue: INFRINGEMENT DAMAGES | Graphic Arts | R.J. Reynolds | Celebrities | Commercial Stock Photography | Editorial Buyers | Color Ad | Travel | Memory Cards | One-Time Use | Hoaxes | Picture Stamps | NANPA | Slidetour | Stock Photo
Newswords: Photograher's Rights | HP | Mistakes | Sentimental | Print
Directly | Photographer Dies | Colorado | Photographer Warned | Amateur | Em-
ployee or Contractor | Mobile Phones | Scans | Nikon D70 | Nature In Short |
Nature Photography | Awards |
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## PhotoAimLite weekly newsletter for November ## 410
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PhotoAimLite, the monthly newsletter from PhotoSource
International. <http://www.photosource.com> ==>
ISSN 1530-0511
If you no longer wish to receive PhotoAimLite, see the instructions at the end of this newsletter.
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COURT EXCLUDES MULTIPLIER FROM COPYRIGHT INFRINGEMENT DAMAGES
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Some people in the graphic arts and photography industry believe that it is appropriate in determining damages for infringement of copyrighted work, to multiply the actual damages by up to ten times. While this may be an accepted practice in negotiating settlements, a court has now, in no uncertain terms, held that there is no such provision for multipliers in the Copyright Act.
The case is Michiko Stehrenberger v. R.J. Reynolds Tobacco Holdings, Inc. et al, brought in the United States District Court for the Southern District of New York. The decision came about on a motion to preclude the plaintiff from claiming, as part of her actual damages, a multiplier to increase damages by up to ten times. District Court Judge Stanton, in an opinion filed September 15, 2004, ruled against the plaintiff and precluded such evidence after a thorough discussion of the issues.
The plaintiff's expert, a prominent photographer, claimed that for a company with the annual revenues of an R.J. Reynolds, that the reasonable license fees for the infringements appearing in newspaper advertisements, consisted of $10,000 for a corporate ad, and $50,000 for a limited corporate identity project. He concluded that "a total licensing fee of $60,000 is thus appropriate in this case."
On top of this, the expert wanted to add a multiplier for unauthorized usage, because, he claimed, the graphic arts community (which obviously includes photography) recognizes that mistakes do occur resulting in unauthorized use, and to resolve these problems, the industry has a schedule of fees for the granting of a retroactive license. The reason such a multiplier is used, according to the expert, is to avoid the costly and protracted business of a federal copyright case. He claimed that when the case is settled without litigation, the multiplier is between two to three times the normal fee, but if the parties go to court, the multiplier goes up to ten times what the pre-infringement price would have been.
The Court recognized that such a formula may have some utility as a marketplace technique for resolving problems in the industry, but rejected its place in calculation of damages under the copyright law. In short, the Court said, "in litigated cases, infringement does not make a copyright more valuable."
On the other hand, multipliers can, in fact, be used, but only as an enhancement of statutory damages, which this plaintiff was apparently not eligible for.
Accordingly, the Court said that plaintiff can pursue her actual damages, which is measured by the extent to which the market value of the copyrighted work, at the time of the infringement, had been injured or destroyed by the infringement. In appropriate circumstances, actual damages may be equal to the reasonable license fee that would have been charged for such use. (Disgorgement of profits is also an available remedy, but that apparently was not raised in this case.)
The Court concluded that, since the expert determined actual damages at $60,000, any multiplier would constitute a penalty and was therefore not available. The case will now proceed to trial with the plaintiff having to prove her damages, which cannot exceed $60,000.
In the photography industry, multipliers have traditionally been used in contracts to value loss of images, or use without consent or use beyond the terms of the license granted. These clauses, which fall under the heading of liquidated damages under contract law, can be enforceable under certain circumstances. They therefore still have practical use in the industry. However, you must be careful how you structure your remedies and contract terms, so that you can maximize the potential and actual value of your property.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.
THE BIG PICTURE
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I'll call him Jason. In 1994 he dropped his subscription to our daily marketletter. "There aren't enough aviation requests in your newsletter," he said.
"Let's talk about that," I said, "keeping in mind that the PhotoDaily is a market letter, not a newsletter. The distinction is important, and has bearing on your concern about the number of aviation requests."
"How so?" he said, "What's the distinction?"
"A marketletter provides markets for you - not only the current day's specific photo needs, but new markets, to add to your own Market List. The marketletter does all your research for you and not only finds new photobuyers, but provides you with the kinds of photos they buy and the prices they pay. You can take this information, and whether or not you have the specific photo requested in that one listing, if over the long haul that buyer uses photos in one of your specialties, you have made a valuable contact to pursue on your own."
"But I just told you, your marketletter lists too few aviation buyers."
I asked him to think of "Marketing" as a long term annuity. "Here's the big picture," I said. "We list photo needs every day, five days a week. In a year's time, we list about 5,000 photo needs. Let's say 1% of those are aviation needs."
"That's not many," he said. "That's only 50 needs! And only 10% of those will actually buy anything from you. That's only 5 buyers a year!"
"That's a lot," I said. "It's a gold mine!"
"What do you mean?"
Want to read more of this article? Go to: http://www.photoaim.com/gen668.html
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JOE DIMAGGIO - Where have you gone? Way back then when the "Mrs. Robinson" song was popular Joe took Paul Simon and Art Garfunkel to court for "invasion of privacy." Joe lost. Creative free enterprise won. It's a reminder that a copyright issue has three participants: the user, the creator, and the publisher. A fourth participant can be an individual who feels their privacy has been invaded. The courts, however, have generally agreed, in the case of celebrities, that public figures have little recourse when it comes to First Amendment privacy issues. -RE
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RIGHT RULES, WRONG GAME
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Would you use the rules of the game of basketball when you play football? Would you speak French when you visit England? If you did, you wouldn't be too successful.
That's in effect what you are doing when you apply information about commercial stock photography to your editorial stock photo business.
Most of your exposure to stock photography has probably been in the area of commercial stock. These are the pictures that are the exquisite cliches we see in stock photography catalogs, on stock agency discs, CD-ROM royalty-free discs, in ads, and corporate print and on-line materials.
Most of the stock photography information you currently read in photography and computer magazines, how-to books, and business newsletters, is talking about commercial stock photography.
A DIFFERENT BALL GAME
If commercial stock photography is your calling, you'll find that editorial stock photography is an altogether different field and requires a different mind-set.
Buyers of commercial stock photography tend to adhere closely to a stringent check list that includes "musts" like: healthy, wholesome models; politically correct subject matter; this year's trends, buzz-words, hues and colors, and font favorites.
Editorial buyers, on the other hand, select pictures in terms of content and subject matter. Example: If the subject matter is the environment, yes, beauty pictures might be called for, but the results of environmental neglect would also be sought after. Editorial photobuyers buy pictures not because they necessarily like them, for their aesthetic characteristics, but because they need them. For animal rights photos, for example, it would be rare for them to select a fashionably-correct model in a fur coat. For a booklet on playground safety they would select normal everyday children playing at work-a-day playgrounds, not well-scrubbed and well-dressed child models. Editorial photobuyers need "believable" pictures, not manufactured images.
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"Photography is an instantaneous expression of the world in visual terms, and a perpetual quest and interrogation. The camera is an admirable instrument for seizing upon life as it presents itself. A photographer must always work with the greatest respect for his subject and in terms of his own "point of view." That is my own personal attitude; consequently, I have a marked prejudice against 'arranged' photographs and contrived settings."
Henri Cartier-Bresson, 1968
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In the past, editorial stock played a minor role in the overall stock photography industry. Editorial stock photos were not readily available, as they are today.
In the past, most photobuyers reluctantly accepted the fact that the exact picture they needed was too hard to find, or not available at all, and settled for royalty-free images for their page layouts, or used no photos at all.
Thanks now to improved, easier-to-use digital cameras, faster bandwidth, and more manageable equipment, thousands of photographers with serious commitment have been encouraged to enter the field of documenting the world around them, in the areas of their prime interests.
Today, also, thanks to search engines on the Web, photo editors are discovering that a massive supply of editorial photos exists that can be tapped, for pictures to perfectly exemplify and illustrate their topics of interest.
No longer do photographers with large collections of editorial photos languishing in files and shoeboxes in their homes and offices, need to see their photographic efforts fail to get published.
Since the computer has ushered in a new era of information exchange, we are going to see more, not fewer, editorial pictures in the future. Be prepared to show off your collection of editorial photos to the world.
Rohn Engh is director of PhotoSource International and publisher of PhotoStockNotes. Pine Lake Farm, 1910 35th Road, Osceola, WI 54020 USA. E-mail: info@photosource.com . Fax: 1 715 248 7394. Web site: www.photosource.com.
DO YOU NEED EXPOSURE?
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by Mikael Karlsson
Want to really be seen? I mean really? By well over 3,000 hand-picked,
top photobuyers across the United States? Now how about if we could do
all that on a budget? Sounds interesting? Thought so...
You can now get your full color ad, up to 7" by 10", seen for far less
than it would cost you to print and send out postcards. Actually, the ads
are cheaper than just printing postcards would be... Your ad will run in
the 2005 PhotoSourceBOOK and it will be printed on heavy-duty, coated
stock in brilliant color.
Go ahead and order your space for the upcoming book. You'll be seen side
by side with photographers like Galen Rowell's Mountain Light, Tom Mangelsen,
Brian Yarvin, Danita Delimont, and China Stock. You can place your order
online at https://www.photosource.com/products/ads.php
As a special offer to the ten persons who are first to sign up for this offer we'll deduct 25%
off the price for you! Just enter coupon code psiad2005 when you check
out. It will automatically stop working after the first ten orders so
try it even if you place your order a day or two from when you receive this
message.
The price for the full page ad is (7"x10")$615 and the half page ad (5"x7")runs $469.
The space is very limited so place your order today at
https://www.photosource.com/products/ads.php or by contacting Mike
Karlsson directly toll-free by phone at 877-404 7790 or by e-mail at
mike@photosource.com
THE MEMORY CARD: ON THE ROAD WITH DIGITAL
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David Arnold and Gail Rutman
We're writing this column from Chicago, where we're spending a week shooting in the Latino Pilsen neighborhood. (Our stock photo specialization is Latino communities, culture, and people). The trip has reminded us in some of the differences between digital and film travel.
TRAVEL. No more unboxing scores of 35 mm cassettes and repacking them in double Ziploc bags for the airport security checks. And instead of the hundred rolls we would have carried, we have just four 1GB memory cards each, in a pair of tiny yet protective Lowepro memory wallets. On the other hand, we also had to pack two battery chargers, two 40GB digital albums for storage and backup (see our article "If It Can Fail..." in the August 25th PhotoStockNotes), and a 110 v. connector for our cameras for evening image review and for safe mirror lock-up when cleaning the sensors.
MORNING PREP. FILM: Check the weather report, look out the window, and try to figure out what film to take for the day. (We used to carry five different speeds and emulsions on trips). DIGITAL: Just grab the equipment and go.
SHOOTING. FILM: Since you can't reshoot after you get your slides back and you can't be sure you got your shot, bracket aperture and shutter speed as much as you can afford. DIGITAL: Check the histogram and LCD display: if exposure, framing, position of subjects, etc., aren't perfect, bracket all you want-it's free. If the light is marginal, bracket ISO too, since each increase in ISO lets you double your shutter speed (though at a cost in visible noise). Back home, evaluate and pick the best. Also try increasing ISO if you need more depth of field but can't afford to give up shutter speed.
COVER YOUR ASSETS. FILM: All your eggs are in one basket, so guard that basket (of film). DIGITAL: Cook up some duplicate digital eggs. If you're carrying a notebook computer, burn your memory cards to two sets of CDs or DVDs (in case one fails). Or do what we do, carry two digital albums-small portable hard disks with a slot that reads CF cards. Ours are 40GB Nixview Digital Lite units that weigh in at 10 oz. each plus protective case and power block. Everything we shoot gets copied each night to both of them, so if one fails we have a back-up.
THE VERDICT: Digital equipment is more compact and easier to transport than film, though uploading the memory cards requires additional time and effort at day's end. More importantly, however, with digital we come back with higher quality photos, and more of them, and that's what it's all about.
- - -
David Arnold and Gail Rutman are Oregon-based photographers who have been writing about photography, computers, and other topics since 1980. Their web site is at http://www.arnoldrutman.com.
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ONE-TIME USE ONLY should be typed in on each transaction you have with a photobuyer. Also indicate that your original transparencies and/or digital files must be returned. In some cases, photo editors may wish to retain some of your digital files in the publishing house's Central Art Library, for possible future use. For second-time use of an image, change the picture buyer 75% of the original fee. Think twice about selling EXCLUSIVE RIGHTS to your image. We encourage you to "rent" your pictures rather than "sell" them. If you receive a request to sell exclusive rights to your picture, multiply your "renting" fee by the number of times you anticipated marketing the picture in future years. When you sell exclusive rights to your color or B&W picture, you also sell the original negative. Otherwise, never allow an original negative to leave your possession.
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HOAXES AND VIRUSES. Viruses are like colds. You usually don't know where they come from and you don't know (usually) if you're passing one on to others. If you receive an email with an attached file from an unknown source, it's simply best to delete it. Most viruses arrive in attachments. As for hoaxes, they're scare messages that are sent out by mini-hackers to get their jollies. For a list of now familiar hoaxes, go to: http://www.antivirus.com/vinfo/hoaxes/hoax.asp
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ON-LINE
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Picture Stamps
The three-month pilot program that allowed you to order real U.S. postage with an image you uploaded to stamps.com has been terminated early by the Post Office. The Post Office is now re-evaluating the program. If you want to express your opinion about it, please write to the following address. The Post Office will be accepting public comment for about 90 days.
Nick Barranca, VP Product Development
United States Postal Service
475 L'Enfant Plaza, SW, Room 5012
Washington, DC 20260-5012
Any postage already printed under the PhotoStamps program remains valid U.S. postage. Stamps.com printed about 2 million individual stamps during the 7-week trial period. If you were unaware of this program, see the Sept. issue of PSN.
ADOBE DIGITAL PHOTO FORMAT
Adobe, the folks that brought us the .PDF file format to allow sharing of documents in their original layout and format, and the ubiquitous PhotoShop photo editing software, is proposing a similar standard for digital images. This new specification is designed to make saving of files and editing of images compatible across all types of cameras and photo software (assuming camera manufacturers and software developers adopt the specification). Most consumer digital cameras capture an image in the .jpg format, which is a glossy compression algorithm. Some of those cameras and most high-end and professional cameras also offer a "raw" format, which is supposed to capture the image before any processing occurs by the camera's electronics. One problem is that different manufacturers use different, proprietary versions of the raw format. Adobe is proposing an industry standard for the raw format, calling it Digital Negative specification, or DNG. While there is no requirement that camera manufacturers support this new spec, some industry folks predict it will happen within 5 years, since "it is to everyone's advantage." Adobe is making the spec available for free.
HERE A PATCH, THERE A PATCH, EVERYWHERE A PATCH PATCH
We've always counseled our readers on the importance of keeping their operating system patched with the latest fixes and updates (this applies mostly to computers running the Microsoft operating system). Same applies to antivirus and firewall software. Well, one of the latest threats affects Microsoft Office. Did we mention that, while there are automatic updates for Windows operating system files (for versions of Windows after 95), no such auto update exists for Microsoft Office? It's true. To get your Office updates, you have to navigate to an Office Update website, and manually launch the update scanner. Further, if there are any updates, you generally need to have your original Office CDs ready to pop into the computer when requested or the update won't install. One way to get there is to click on the Office Update tab from the main Windows update page. One of the latest Critical Updates just happens to affect Microsoft Office. Problem is, this particular bug may also exist in other, non-Microsoft products that use Microsoft code! And the Office Update scanner does not identify non-Microsoft products. This particular bug is of great concern to photographers because it exploits a flaw in the way digital image files are processed. The bug could allow attackers to take control of a computer running Windows XP. So, if you're running Windows XP and have Microsoft Office installed, visit the Office Update site as soon as you can. The Office Update scanner only works for Office 2000 and above. However, there are downloads for earlier Office products; it's just not nearly as automated.
Bill Hopkins is the Webmaster of PhotoSourceFolio* (www.photosourcefolio.com) and a regular contributor to PhotoStockNotes. Send comments via e-mail to wh@photosourcefolio.com. Fax: 1 818 831-0916. For on-line questions, contact Bill on the Kracker Barrel at www.photosource.com/board.
*Display 6 of your own images for photobuyers to view, on your page on the PhotoSource website.
GOODSTUFF
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NANPA. The 11th Annual NANPA Summit, to be held in Charlotte, NC on January 19 - 23, 2005. The Summit is the focal point for those engaged in nature photography. By bringing professionals and amateurs together in an open exchange of ideas, experiences, and the newest technical information, the get-together provides an opportunity to communicate on the subject of to nature photography. Contact: North American Nature Photography Association, 10200 W 44th Ave, Ste 304, Wheat Ridge, CO 80033. Phone: 1 303 422-8527. E-mail: info@nanpa.org . Web: http://www.nanpa.org .
SHOW US HOW YOU DO IT. The Web bandwidth worldwide offers us an opportunity, not possible until now, to show/teach others various "how-to" aspects of stock photography. Share your know-how with readers in our How-To column, plus get some free advertising for your stock photography. Supply a half-dozen web-ready photos (please send a LightBOX, not attachments) plus 400-500 words of copy. We, of course, will edit your text to our newsletter style and return the copy to you for your approval. BONUS: We'll provide you with a 3-month subscription to our popular PhotoDaily, a $70 value. Send queries to our editor: Angela Dober at editor@photostocknotes.com .
BUSSINESS NOTEPAD
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FREE TRIAL ACCOUNT FOR SLIDETOUR ONLINE PRESENTATION SERVICE. For your next client presentation, show off your portfolio in high-resolution images using SlideTour. Just go to http://www.SlideTour.com and click on the text link "Sign Up Now" for your free trial account. See how SlideTour's unique magnifier tool gives dramatic close-ups of your images. Using a regular phone line, record a voiceover narration to accompany your portfolio presentation. This offer is good through the month of October. For more information, please call 1-888-588-3246 or email mati@3cim.com.
THE ELECTRONIC COAT HANGER
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If you have a car that can be unlocked by that remote car button
on your key ring: If you lock your keys in the car and the spare keys are home, and you don't have "OnStar," here's your answer to the problem!
If someone has access to the spare keys and remote button at your home, call them on your cell phone (or borrow one from someone if your cell phone is locked in the car, too)! Hold the cell phone about a foot from your car door and have the other person at your home press their unlock button, holding it near the phone on their end.
Your car will unlock.
Saves someone from having to drive your keys to you; or using the ol' coat hanger routine.
Distance is no object. You could be hundreds of miles away, and if you can reach someone who has the other "remote" for your car, you can unlock the doors (or the trunk, or have the "horn" signal go off, or whatever)!
THE IMPORTANCE OF BEING FINDABLE
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Demographers tell us that in a mobile society, we can expect most people to have a new address every five years. Here at PhotoSource International, we certainly find that to be true when we make a mailing to photographers on our database. Photographers move a lot.
If you have moved recently, it's important to personally let your buyers and clients know of your new address. Don't rely on the U.S. Postal Service to do the job for you.
In our day and age, technology offers ways we can make sure to stay on top for our buyers, even during the transition of a move. Your Email address and 800# can remain the same, independent of any changes in your mailing address. You won't lose touch with your photobuyers if you have one or the other or both.
I recently experienced another way that photobuyers can find photographers.
Nancy Ritz, photo coordinator at Prentice Hall, the book publishing company, wrote to me saying she was returning one of my photos (an original B&W 8X10) that her company had used in one of their textbooks. She pointed out that they've filed a digitized copy of the photo, and the number stamped on the back of the print is the database designation from the Corporate Digital Archive (CDA) of their parent company, Simon & Schuster. She said in her letter, "You are listed as the photographer, copyright holder, and source. When another buyer at Simon & Schuster should come across the photo, the information is already in our computers relating you to that photograph."
It's nice to know computers, databases, and mergers of large publishing houses can have a beneficial reward for independent photographers. My digitized photo will probably remain in their CDA a long time.
And it's nice to know that photo, taken in 1978 (more than 26 years ago), is in an archive that might benefit not only me but my grandchildren, and possibly their grandchildren.
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This week's featured photographer on PhotoSourceFolio: Patrick Bridges
(http://www.photosourcefolio.com)
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PHOTOGRAPHY IN THE NEWS
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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.
PHOTOGRAPHER'S RIGHTS must be protected
http://www.theglobeandmail.com/servlet/story/RTGAM.20041111.gtcopyrightlet1111/BNStory/Technology/?query=photographer
HP Unveils Imaging and Printing Solutions to Reduce Costs and Complexity for
Enterprise and Mid-size Businesses - HP today unveiled 14 new imaging,
printing and digital information solutions, including a groundbreaking
multi-function product that provides a low-cost, high-performance
alternative to expensive and complex copiers.
http://www.creativepro.com/story/news/22155.html
Among 3 Digital Photo Fixes, Adobe's Is No. 1 - One of the great things
about digital photography is that you don't have to live with your MISTAKES.
http://www.washingtonpost.com/wp-dyn/articles/A47148-2004Nov13.html?nav=rss_technology
Picture this: A digitally made keepsake - Through their home-based business,
Now & Then Imaging, Ron and Dolly Hirsch can turn an assortment of everyday
objects into SENTIMENTAL keepsakes, or even a shower wall into a picture
album or mural.
http://www.greeleytrib.com/apps/pbcs.dll/article?AID=/20041114/BUSINESS/111140043
Picture-perfect printers, and no computer required - The big news in digital
photography this season is the explosion of printers designed exclusively
for medium-format photos. They can PRINT DIRECTLY from a digital camera,
which means it is easy to take them on the road.
http://www.iht.com/articles/2004/11/12/business/ptpogue13.html
Geographic PHOTOGRAPHER DIES in Amazon Plane Crash - French freelance
photographer Nicolas Reynard, who had worked for the National Geographic
Society several times, died yesterday.
http://news.nationalgeographic.com/news/2004/11/1112_041112_reynard_crash.html
Photographer's presentation to coverwide variety of topics on a large
scale - "Mountain Ranges of COLORADO ," if not a life's work, represents
highlights of Fielder's efforts in his prime as a landscape photographer.
http://www.postindependent.com/article/20041115/VALLEYNEWS/111150004
PHOTOGRAPHER WARNED off AEP property Incident echoes post-9/11 heightened
security
http://www.coshoctontribune.com/news/stories/20041114/localnews/1591004.html
Shooting stars - The new Telegraph Travel Photography Awards attracted more
than 9,000 entries. our first overall winner, Paul Goldstein, Telegraph
Travel Photographer 2004, is an AMATEUR .
http://www.telegraph.co.uk/travel/main.jhtml?xml=/travel/2004/11/13/etphotocomp131104.xml&sSheet=/travel/2004/11/13/ixtrvhome.html
As a stock photographer, are you an EMPLOYEE OR CONTRACTOR ? For tax purposes, it's important to know. http://www.creativepro.com/story/feature/22170.html?cprose=daily
Bidders to snap up MOBILE PHONES
http://news.bbc.co.uk/2/hi/entertainment/4011965.stm
The Human Form Divined Anatomy is revealed as art by an awe-inspiring new book that weds
photography with high-tech SCANS .
http://www.philly.com/mld/inquirer/living/health/10183110.htm?1c
NIKON D70 Digital SLR Named 'Camera of the Year' By Popular Photography
& Imaging Magazine
Monday November 15, 7:15 am ET
http://biz.yahoo.com/prnews/041115/nym033_1.html
NATURE IN SHORT / For NATURE PHOTOGRAPHY , it's time to go digital
Kevin Short Special to The Daily Yomiuri
http://www.yomiuri.co.jp/newse/20041116wo72.htm
Spyker photographer clicks with two AWARDS
http://www.autowired.co.uk/news/article.aspx?storyid=12892
New Exhibit, "The Photography Show" opens at Baxter Chang Patri Fine Art
in the Hotel Nikko, San Francisco, featuring works by Winston Swift
Boyer, E.F. Kitchen, Lewis Koch, Ed Martin, Don Hong-Oai, and Robert Stivers
http://www.prweb.com/releases/2004/11/prwebxml177422.php
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410
Next Month: Dealing With "Officials"