When does stock photography become microstock photography? Can it be cheaper than microstock? And what happens when a supposedly non-microstock agency offers the same images as a microstock site, but for less?
Stock agency Alamy found themselves facing a forum firestorm last week when a leaked marketing email revealed the existence of a previously unknown Alamy product called Premium. Contributors were infuriated not just by the fact that they only heard about Premium through a leak rather than an Alamy announcement, but also by Premium’s terms – $49 for virtually unlimited commercial usage for 10 years.
Although the language employed was not as colourful, the row had echoes of last year’s iStockphoto riot when contributors to the microstock agency were outraged at a change in their royalty percentages. As at iStockphoto, contributors took to the forums to denounce the Premium deal: Alamy staff made several attempts to calm the situation, but these seemed only to add fuel to the fire. Eventually Alamy CEO James West stepped forward with an attempt at a definitive statement on the company position and Premium.
But West’s statement prompts at least as many questions as it provides answers:
- He stressed that advertising use was excluded from Premium, but does the deal include the far more common editorial usage?
- Although described as a test, West claimed that some Premium clients had already upgraded to high ticket advertising licenses: so had the newly revealed Premium secretly been on the market for some time?
- Premium was described as only one of a number of tests, some at a higher price point: but are there any at a lower price point?
- It was stressed that there is no opt-out from Premium, but contributors quickly found a loophole: by placing a single restriction on images those were removed from Premium offerings. So would Alamy move to prevent contributors placing restrictions on their images?
- Some larger Alamy contributors’ material seemed absent from Premium: so had those contributors been given the option to opt-out in advance?
But the most intriguing question – which West also declined to answer – is prompted by his most startling claim: “Our trials have shown that we can cannibalise microstock market share at a much higher price point.”
That’s a pretty daring claim on two points. Firstly, it’s generally accepted that microstock buyers are primarily motivated by price: the idea you can get them to pay much more sounds like quite a challenge. But it’s the second point that’s more interesting: West’s assertion that Premium really is more expensive than microstock.
People unfamiliar with the microstock market will instinctively buy that: popular belief is that typical microstock prices are no more than a couple of dollars. But that’s really not the case: those dollar deal prices only ever apply when clients both buy huge amounts of microstock “currency” – so-called credits – toward future purchases and also make limited use of the images they eventually license. Once a client buys and uses a microstock image in the way Alamy are pitching Premium – maximum size, no subscriptions and virtually unlimited usage – microstock prices rise dramatically.
This is not an isolated example carefully chosen to browbeat Alamy. As at other microstock outlets, prices at iStockphoto are dictated by three factors: the price band of the image chosen; the usage; and the way credits are bought. Istockphoto have five price bands; the equivalent license to Premium is XXLarge-Extended License-Multiseat-Unlimited Reproduction; credit prices run from $0.24 to $1.63 each. The very cheapest you can buy a Premium-equivalent license at iStockphoto is $52.40; but that requires a subscription account and an investment of tens of thousands of dollars in credits. At the other extreme, buying the most expensive image in the most expensive way, the price rockets to $800.
There is of course one key difference between Premium and microstock licenses: the latter include advertising and the former don’t. During last week’s damage limitation exercise Alamy made great play of this, claiming that Premium customers “upgrade” to big-ticket ad rates. But this is the photo agency as lottery: make your images available at a bargain price and you might hit the jackpot of an advertising sale. Given the sheer number of Premium images available – some 25 million – the odds of any single one being upgraded is infinitesimally tiny: the truth is that most $49 Premium licenses will remain just that.
Last week’s row developed a comic sub-plot when one Alamy contributor by the name of Dingdong posted comments he attributed to West:
“The simple answer for our contributors is move with the times or get out. We are a business not a charity to our contributors. We have serious contributors whom we have contacted and agree in principle to the need to change.”
Although the post was obviously a hoax that didn’t stop it reappearing on About The Image and elsewhere as a genuine quote from West. Unsurprisingly the Alamy CEO was unimpressed by this display of Internet juvenilia, describing it as “comments that I would never have made.” But the truth is when the chips were down West’s own message was little different:
“There is no opt in/opt out available for this. You can, of course, opt out of Alamy whenever you like. We provide the marketplace and set the ground rules, but it is entirely your decision as to whether you want to participate or not.”
So the lessons are clear for punters who want to try their luck in the Alamy Premium casino. The management sets the rules – and the house always wins.
The most talked about photo from last week – and indeed for some time – was Richard Lam’s riot kiss in Vancouver. Naturally many wannabe image experts made fools of themselves by instantly branding the picture a fake. Esquire went to the opposite extreme, declaring it not just the best photo of the night, but “maybe of all time”. Ten reasons why they’re wrong:
1. Digital Photography Review Expert Analysis™ identifies multiple technical failures: burned-out highlights, incorrect white balance and poor composition.
2. The photographer neglected to use the World Press Photo recommended formula: convert to b/w, burn down 2 stops, add 100% contrast, run Tunnel Vision™ vignette plug-in, re-crop with 20 degree angle and constrain to wrap.
3. The image clearly fails Alamy’s industry standard quality control: “contains excessive noise, and soft or lacking definition”.
4. Shot by a photographer in his own town, the image fails the photojournalism travel test. Greatest-ever photos are invariably taken far from home, most often in Africa, the Middle East or Haiti. Never in Canada.
5. Not shot on a leicaPhone, the classic camera for all serious reportage.
6. No use of Hipstamatic, HDR or tone mapping: the image relies solely on content and sorely lacks post-processing gimmickry.
7. Not copied from Google Street View.
8. Ignores many of photography’s most basic tenets, including the vital rule of thirds, all of which are freely available on the Internet. Additionally displays shockingly poor bokeh.
9. Fails the flickr content test: image contains no sunsets or kittens.
10. It’s not even the best riot kiss photo ever.
Unless the parties reach a settlement out of court Morel’s claims will go to a full jury trial in the New Year. AFP, Getty Images, CBS Broadcasting and Turner Broadcasting will face claims for copyright infringement and Digital Millennium Copyright Act violations; AFP and Getty will face further claims for contributory infringement and vicarious infringement. With widespread misuse of 13 images alleged damages and legal costs could run into many millions of dollars.
Essentially the defendants’ best option now is the same as it always was: quietly admit guilt and settle out of court on the best terms offered. Their problem is that they already tried that before the recent ruling and were rebuffed, so there’s no obvious reason why Morel should offer them a deal in their now severely weakened state. On the contrary Morel’s incentive is to go for the jugular, a favourable outcome in court when the claims are heard and maximum damages.
Indeed hitting AFP and Getty as hard as possible appears to have been the strategy of Morel’s lawyers from the start: not only are they pursuing the defendants under copyright law, but they also attempted to do so under trademark legislation, primarily for false advertising. Judge Pauley rejected all the trademark applications, which might lead a careless reader to think the defendants are somehow off the hook, but that is not the case. On the contrary it’s notable that at every point in his ruling where Pauley turned down Morel’s applications under trademark law the judge reminded him that the court was doing so because the protection and compensation he seeks are available through his applications under copyright law. The core of Pauley’s ruling is thus: “I’m not letting you go after them under trademark legislation because the law doesn’t allow it; but don’t worry, you can nail the bastards under copyright law.”
Pauley also rejected AFP’s sole remaining – and most ludicrous – defence, the so-called Content Management Information argument. In this AFP attorney Joshua Kaufman tied himself in knots trying to make a claim that Pauley derided as “implausible”: that because the words “by photomorel” merely appeared alongside the photographs, rather than being embedded in the images, a viewer – such as AFP – was unable to identify the author.
The ruling not only leaves AFP’s legal strategy in disarray, it is deeply embarrassing for a number of observers and would-be experts who have spoken out in support of the agency. On the eve of the case US National Press Photographers’ Association lawyer Mickey H. Osterreicher announced:
“Unfortunately for Mr. Morel, in an attempt to transmit his spot news photographs of the Haiti earthquake to the outside world he apparently overlooked the the applicable terms and conditions of posting images on Twitter.”
That’s exactly the opposite of the court ruling: let’s hope Mr. Osterreicher never has to present a case to Judge Pauley.
“Anyone who puts images on Flickr or on Twitter, and then sees them being used, well too bad for him… a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough.”
Wrong again. Pauley’s ruling states very clearly what was obvious from the start: that photographers are entitled to exactly the same protection at social networking sites as they are, for example, at the Visa Pour L’Image site.
Worst of all however was Washington photographer and business advisor John Harrington, who published a lengthy defence of AFP and attack on Morel last October. In light of the ruling it’s worth revisiting some of Harrington’s insights:
“The photographer is in the wrong”
“Their [Twitter’s] conveyance of those rights to third parties – in this case AFP, is perfectly within the bounds of their rights, and Morel is out of line.”
“The fact is, Twitter’s T&C give AFP permission, granted to them by Morel, when he accepted them as a condition of his use of Twitter.”
“AFP did NOT steal them, they have a license (permission) to use them.”
“AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legitimately got them from Morel. AFP did the right thing.”
How about that for sound business advice?
One way or another all of these people claim to have the best interests of photographers at heart, yet they have all made interventions that are not only contrary to those interests, but that have been exposed by the court ruling as factually and legally incorrect. It will be interesting to hear what, if anything, are their reactions to the judgment.
Is that the sound of silence we hear?
This week’s release of the oral arguments in Daniel Morel vs Agence France Presse, Getty Images and others has provided a first insight into the thinking of the respective legal teams.
Morel’s case, presented by Barbara Hoffman, is of course pretty straightforward: you stole my property, now you have to pony up. The main opposition party, Agence France Presse, is represented by Joshua Kaufman, and their argument is inevitably more complex. Inevitably, most observers would say, because AFP haven’t a leg to stand on; therefore Kaufman has to transform what appears to be a straightforward case of theft into something more complex in an attempt to find a loophole for AFP to wriggle through.
Essentially Kaufman has opted for a smoke and mirrors operation, lifting a phrase from one Terms of Service here, a snippet from another ToS there, then attempting to cobble the various components into a coherent whole: it’s the law as practiced by Heath Robinson. Whether this strategy will work remains to be seen, but judging by some of Judge William H Pauley’s comments, His Honour was distinctly unimpressed by Kaufman’s tortuous logic.
There’s excellent background and analysis both at the British Journal of Photography and especially at Duckrabbit, who have highlighted the absurd logical conclusion of Kaufman’s argument: that unless metadata is embedded to state otherwise, AFP are entitled to help themselves to any image they find on the net.
But along with the common sense analysis came the Loony Toons brigade: self-appointed experts using their own imaginary authority to shore up the AFP case. At A Photo Editor one commentator, Leslie Burns, posted some nonsense attempting to justify AFP’s actions. When this was easily shot down by others Burns claimed superior knowledge on the basis that s/he is a law student. Nor an actual, real, grown-up, qualified, practicing lawyer, you understand, but a student.
However this week’s first prize for idiocy relating to the Morel case – the Visa D’Or Faux Pas if you like – unquestionably goes to John Harrington at his Photo Business News & Forum. In “Morel v. AFP, AFP v. Morel – Which Way Blows the Wind?” Harrington claimed that AFP were entitled to use Morel’s work, and tried to illustrate why. This was partly the same ground already foolishly trodden by JF Leroy and the NPPA, but Harrington took the attack on Morel a step further: rather than simply make vague comments about the dangers of social media he set out to prove in detail why AFP were entitled to behave as they did.
Harrington’s post earned him a fair amount of derision from readers, both at his own blog and elsewhere; one at Duckrabbit rather cruelly described him as “an obscure small-time PR photographer” with “no understanding of the challenges faced by Morel in the midst of a massive disaster”. However none of the readers noticed the howler at the heart of Harrington’s thesis: an error so fundamental that it both demolishes his argument and renders any other criticism moot.
To conclusively prove his case against Morel Harrington decided to play lawyer and use the Twitpic ToS to conclusively prove that AFP were entitled to help themselves to Morel’s work. Quoting the Twitpic ToS Harrington wrote:
From TwitPic’s TOS:
– By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites
- you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.
What part of that’s not clear? Photographer “A” delivers images to party ”B” (TwitPic and then Twitter) and in doing so, accepts terms expressly providing that party “B” has the right to sublicense his work to third party/ies “C”, then the photographer must abide by terms to which he/she agreed. As to Party “C” being Lisandro Suaero, who downloaded the images from TwitPic and reposted them on Twitter under his name (see FastCompany article here for this gem of information), nothing in TwitPic’s terms require photo credit, let alone, an accurate photo credit. Setting aside Suaero’s ethical breach for taking credit for someone elses’ work, AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legimiately got them from Morel. AFP did the right thing, as they learned that Morel was in fact the photographer, and not Suaero, so they corrected the photo credit to attribute Morel. Morel is not some newbie, or someone unschooled in how to transmit photographs – he used to be an employee of the Associated Press as a photographer, so any claims of “I didn’t know…” will, for me, fall on deaf ears.
Yes John, here’s a question. Where are the first five words of those Twitpic ToS? You know, the ones in bold so they’re hard to miss. The ones that read “Date Modified: July 14th, 2010”.
Here’s another question: exactly what was the modification that was made on July 14th?
Don’t know? Time’s up: here’s the answer. The modification was the insertion into the Twitpic ToS of the exact clause that you quote and use as the basis for claiming that those ToS entitled AFP to syndicate Morel’s images. That clause does not exist in any earlier version of the Twitpic ToS, and most importantly, not at the time of the AFP theft of Morel’s images. Indeed, as AFP’s Kaufman noted in court, the Twitpic ToS at the time of the AFP/Morel incident make no mention whatsoever of third party use of material hosted on Twitpic: that is one of the elements at the very heart of the case.
Harrington presents himself as an expert on the business aspects of photography; indeed he has published a book on the subject. Such a person must surely be aware that a ToS clause published on July 14th can have no bearing on an incident that occurred some six months earlier, or a on a legal case filed shortly after that incident. In other words, Harrington’s entire argument is a nonsense, in the most literal sense without any foundation.
However Harrington’s article does raise two other embarrassing questions for him, for there are only two possible reasons for his blunder. Either Harrington didn’t bother to check the history of the Twitpic ToS, in which case he was lazy and careless to the point of incompetence; or he did check them, realised the history didn’t support his argument, and therefore ignored it; in which case he deliberately set out to mislead his readers.
So was Harrington fibbing? Or just plain dumb?
Any answers John?
The much anticipated court case pitting Haitian-born photographer Daniel Morel against Agence France Presse, Getty Images and many other news organisations opened on Friday in New York. AFP had already agreed in advance to drop their claim against Morel for financial disparagement, leaving the first day for oral arguments as to whether Morel’s many and various claims against AFP and the other defendants would be allowed to proceed. After a hearing lasting several hours Judge William Pauley retired to consider the arguments, and it is not yet known when he will rule on whether Morel’s case for copyright infringement will proceed or be thrown out.
But nature, photographers and the internet all abhor a vacuum, and with no obvious excitement in court the onlookers soon became restless. Before the day was out Duckrabbit’s Benjamin Chesterton had tossed the first brick at Jean-François Leroy, organiser of the Visa Pour L’Image Festival of Photojournalism; or as Chesterton would have it, the Festival of Shanty Town Photography.
Leroy had already earned much opprobrium as a result of a June interview in the British Journal of Photography in which he appeared to defend AFP’s actions in misappropriating Morel’s images, distributing them without his permission, and then threatening legal action when the photographer objected. Two weeks later the Visa Director followed up with the even more surprising assertion that photographers should avoid social media altogether.
In “It Wasn’t Rape Your Honour” Chesterton accused Leroy of double standards, “siding with an industry that loves photographs because you can make money from them, but has no time for individual photographers.” The cheeky duck then rounded off the piece with a spot of “see how it feels when it happens to you”, heisting a batch of photos from the Visa website and noting the lack of copyright protection for photographers there.
Leroy was never likely to take that lying down, and sure enough he responded with the bizarre and meandering “My Position Here Is That Of An Insurance Company”. His reply is worth reading, if only because it’s always entertaining to watch someone attempt to simultaneously espouse two contradictory positions. So while he insisted that he was not defending either party, Leroy went on to describe Morel’s behaviour as wrong, mistaken, unethical and amateurish. Then for good measure he described Duckrabbit as defamatory and suffering from “viewing impairment”.
Unsurprisingly Leroy’s performance played very badly with the Duckrabbit audience, and unpleasant comments quickly followed. One lengthy response, a point-by-point demolition of Leroy’s argument, accused him of “industry arrogance and business logic gone mad”.
It’s the nature of such disputes that the ante is constantly being raised, so within hours the Duckster was back for round three, advertised this time as “with the gloves off”. In “Dear Mr. Leroy” Chesterton posed the question that had been hanging in the air ever since that first BJP interview: could Leroy’s position be explained by the fact that AFP’s main co-defendant, Getty Images, is also a major financial sponsor of Leroy’s Visa festival?
Now that’s a mean, low-down, nasty kind of a question. But it’s also a perfectly valid one, the kind that is asked every day of participants in other industries when there is a perceived conflict of interest: there’s no reason why the photo industry should be any different. Whether Leroy cares to answer it is another matter.
But Leroy is not the only member of the photo establishment to blunder over the AFP/Morel case. In America the National Press Photographers’ Association issued a press release that inadvertently revealed the NPPA legal department’s apparent inability to grasp the most basic issue in the case: where Morel had actually uploaded his pictures.
According to NPPA general counsel Mickey H. Osterreicher:
“Unfortunately for Mr. Morel, in an attempt to transmit his spot news photographs of the Haiti earthquake to the outside world he apparently overlooked the the applicable terms and conditions of posting images on Twitter…This case is a perfect illustration of why anyone posting or uploading images to a web site should read and understand the terms and conditions of that site before accepting them.”
But Morel didn’t post any pictures on Twitter. Nobody ever has, because – as most 10-year-olds could explain to the NPPA – Twitter is a text message system: it can’t host pictures. Morel’s pictures were posted to Twitpic, an entirely separate legal entity from Twitter, with entirely different terms and conditions; therefore it is the Twitpic terms that are applicable in the Morel case. That’s the kind of very basic legal point one might expect a lawyer to notice.
Or to put it another way: this case is a perfect illustration of why any lawyer posting or uploading legal opinions to a web site should read and understand which terms and conditions are applicable before pronouncing on them.
So as a public service for Jean-François Leroy, Mickey H. Osterreicher, and anyone else who has difficulty understanding the bleeding obvious, here – yet again – are the applicable terms under which Daniel Morel uploaded his pictures to Twitpic:
“Improper Use of Data
Data mining, “scrapping”, and/or unauthorized crawling of Twitpic is prohibited unless explicit permission is given. Using any data from Twitpic (including data from images and/or users) that is not available through authorized channels is also prohibited unless explicit permission is given.
By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites
All images uploaded are copyright © their respective owners”
Now, what part of that don’t you understand?