Raw deal: available from iStockphoto for $430...or Alamy Premium for $49.

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?

James West
These questions are a bit tricky... Alamy CEO James West
When these questions were put to West on Friday he declined to answer, meaning that – at least in theory – all the above are possible. His only comment:  “I don’t have anything further to add other than to remind readers that these price experiments will account for less than 1% of our revenue this year.”

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.

And now maths? This is really hard...
How dramatically? For a direct comparison take the casino image above. It’s available Royalty Free at Alamy in its largest size for $365. But it’s also available from iStockphoto, the microstock market leader, at the same size and usage for $213.75, $65.25 or $54, depending on whether it’s bought Pay As You Go, or on a corporate or subscription account. However that’s not the whole iStockphoto story: those prices rely on the purchaser buying a massive number of credits toward other images. To get even the PAYG $213.75 price you first have to buy 20,000 credits at, gulp, $19,000. If you simply wander in the iStockphoto door today and just want to buy this image alone as a one-off it will cost you $430. But here’s the real figure that counts: the same image is now available at Alamy Premium – for $49.

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.

In Alamy Premium your advertising sales will be THIS big...
In practice most prices will be somewhere between those two extremes. But one thing is clear: on the publicly available figures it is impossible to buy a Premium-equivalent licence at iStockphoto for as low as Alamy’s Premium price tag of $49. Alamy will have run their own figures, but unless they’ve seriously stacked the deck it’s very hard to see how they conclude that Premium has a higher price point than microstock. On the contrary, Premium isn’t just a microstock product: it has a sub-microstock price.

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.

Orphan work courtesy Professor Ian Hargreaves
“Who has won the copyright wars?” asked Rory Cellan-Jones last week on the eve of publication of the Hargreaves Intellectual Property Review. Judging by the comments on Cellan-Jones’ blog and elsewhere the answer is: “nobody”.

Only a rather hysterical John Naughton in the Observer and freetard shill John Bradwell in the New Scientist gushed with unreserved enthusiasm at the review’s conclusions. Some indication of the depth of Bradwell’s grasp of IP matters is his assertion that within five minutes of the 130 page report being published “Hargreaves had pulled off the impossible: pleasing everyone.”

In fact Hargreaves ended up pleasing not very many people at all. Prime Minister David Cameron, announcing the review last autumn, made plain that he expected it to recommend US-style fair use legislation, but as predicted Hargreaves failed to deliver. Likewise Google, who Cameron’s government had shacked up with, will have been disappointed with the rejection of fair use.

But the most displeased, inevitably, were photographers. As predicted here, and described by the Register as “throwing photographers under a bus”, Hargreaves proposed legislation for the commercial use of so-called orphan works, those whose owners cannot be immediately identified.

If this all sounds familiar that’s because it is. UK OW legislation was first proposed in the Gowers Report of 2005 and subsequently dropped. Then the Labour government tried to slip legislation through in last year’s Digital Economy Act, only to be humiliatingly rebuffed after a series of embarrassing blunders. Now, zombie-like, Hargreaves resuscitates the theme. Apparently the motto of the UK OW lobby is: “if at first you don’t succeed, try, try to steal again”.

The proposal Hargreaves has come up with is the half-bright cousin of US copyright law. In the US there is in reality a two tier copyright system: while all images are copyrighted at the click of the shutter, only those that are subsequently registered with the US Copyright Office receive effective protection through the provision of heavy statutory damages for infringement. Anyone attempting to pursue infringement of an unregistered image can generally only rely on the generosity of the infringer to offer compensation: US lawyers invariably require an image to be registered before they consider handling a case.

Likewise, Hargreaves envisages a two-tier UK system: a Digital Copyright Exchange in which copyright owners could register their images, with all remaining unregistered images regarded as orphans. The difference from the US system would be that the registered images would receive little or no more protection than they do now – there is no suggestion of US-style punitive damages for infringement of registered images; and orphaned images – inevitably the vast majority – could be licensed for a “nominal sum”, probably £1.

The flaw at the heart of this is so glaringly obvious it’s hard to believe that Hargreaves was unable to see it; nonetheless it’s worth spelling out. Many UK professional photographers will register with the DCE in a desperate attempt to protect their copyright; most UK amateurs won’t and will get comprehensively ripped off. But by far the biggest losers will be non-UK photographers, both professional and amateur. The chances of foreign photographers – most of whom will not even be aware of the DCE – registering their work will be essentially zero. Result: the work of all non-UK photographers is automatically orphaned within the UK. It’s not hard to predict the reaction of foreign IP owners to such behaviour.

Perhaps all this should come as no surprise, for Hargreaves’ ignorance of international law in general, and the Berne Copyright  Convention in particular, was cruelly exposed when he tried to defend his report in the comments section of his blog[Irony alert!  Hargreaves’ blog is headed by – you guessed – a genuine metadata-free orphan image of the Professor.] Challenged that his proposals fall foul of Berne, to which the UK is a signatory, Hargreaves fudged and claimed this was not the case. One commentator, Simon Crofts, promptly demolished that defence by quoting the relevant Berne legislation. But then when it comes to discussing photography and the law Crofts has a considerable advantage over Hargreaves, who is neither a photographer nor a lawyer: Crofts is both. Helpfully, Crofts has expanded his comments into a blog piece that will probably come to be regarded as the definitive analysis of Hargreaves’ OW botch.

Ironically, for someone charged with presenting proposals to make digital Britain fit for a wired-up world, Hargreaves has managed to do the opposite with his OW scheme. As it stands the proposal to orphan any image not on the register will turn the UK into an island of state-sponsored copyright theft, and will inevitably invite legal challenges from foreign photographers, most especially those in the US.

It’s far too early to say whether Hargreaves’ scheme will ever get into law, but the chances, fortunately, are not good. “Doomed to fail”, was the verdict of Barlow Robbins technology and media lawyer Brett Farrell in the Daily Telegraph:

“Intellectual property laws are effectively underpinned throughout the world by international treaty arrangements. Well intentioned as it may be, England wanting to set up its own one-stop-shop for collective licensing is simply doomed to fail without the global community buying into it. One only needs to look to the European Union’s attempt to have the music collecting societies set up European-wide licensing and one stop shop licensing bodies. A one-stop-shop for licensing, or digital exchange will not work.”

So we may not yet know who the Hargreaves winners are, but if lawyers like Crofts and Farrell are right it’s clear who the loser is: Hargreaves himself.

Expect great freetard wailing and gnashing of teeth this week with the much-anticipated publication of the Hargreaves Intellectual Property Review in the UK. The review, announced last Autumn by UK Prime Minister David Cameron, was advertised as a way of updating the country’s supposedly stuffy old copyright laws to make them fit for today’s cutting-edge digital era.

Central to the review was the possible introduction of something dear to the hearts of freetards everywhere: a law permitting the so-called fair use of intellectual property. For those unfamiliar with the concept, fair use is a term that in the looking-glass world of Freetardia means the exact opposite of what it means on planet Earth. Down here fair use means what it says: somebody pays a reasonable fee for something and enjoys usage commensurate with the fee. It doesn’t much matter what that something is. A photograph, a restaurant meal or even some Class A drugs: the basic rules of the game are the same, and are constrained by what the seller and buyer agree are reasonable.

But on Freetardia fair use means anyone can take an artist’s product without paying or even informing the artist, and do with it what they will. Health and Safety Advisory: freetards only apply this logic to intellectual property. Even the most diehard freetards caution against leaving restaurants without paying, or heisting the Merc belonging to the drug dealer at the end of your road.

The freetards had high hopes of the IP Review, not least because they have a heavy hitter on their side: Google Vice-President Rachel Whetstone is married to David Cameron’s Director of Strategy Steve Hilton, a fact doubtless unconnected with Cameron’s assertion that Google could never have started their company in Britain due to the lack of fair use legislation.

But as submissions to the review poured in the freetards’ plans began to go awry. For one thing, Britain’s IP laws are more closely related to European IP laws, not those of the US. Then members of the review panel noted that fair use in the US had led to a large amount of litigation. And right on cue those raising this issue were presented with a prime piece of evidence: so-called appropriation artist Richard Prince – known in some circles as the Prince of Thieves for his ability to make millions recycling the work of others and flogging the results to the gullible – suffered a humiliating New York courtroom defeat for plagiarising the work of French photographer Patrick Cariou. And what had Prince’s defence been? Why, fair use of course.

Worst of all, although many UK small and medium size business claimed that the cost of using others’ intellectual property restricted business development, and therefore lobbied for the introduction of fair use, other larger businesses – those in the actual business of intellectual property – made the opposite argument. Publishers and broadcasters, including the BBC, ITV and national newspaper and magazine groups, lined up to make the case summed up by ITV’s Adam Crozier:

“If the government really sees creative Britain as being a growth story, the surest way to pull the rug out from under it would be to weaken the IP rules”

Photographers also made submissions opposing fair use to the review, but in these situations photographers tend to get squeezed between big publishers and end users, and their interests disregarded. But in this instance the interests of photographers and big publishing happened to coincide: in a truly epic irony fail, even the Daily Mail – notorious for their freetard approach to photography – attacked the fair use proposals, describing them as “Google’s latest power grab”.

Now, according to recent leaks in both the Sunday Telegraph and the Independent, fair use provisions have been dropped from the review proposals. So in this case, on the basis of the enemy of my enemy is my friend, photographers have cause to feel grateful to Big Media.

But so far as Big Media and the IP Review are concerned, the BBC for one has at least two faces. As revealed here last November, the thorny issue of so-called orphan works – defeated by the photographers’ campaign against Clause 43 of the Digital Economy Bill – is also back on the UK copyright agenda. It now appears that while the Hargreaves review will reject the proposal to introduce fair use legislation, it will recommend the introduction of an orphan works law.

Proponents of OW legislation like to claim that their interest is purely cultural, but the fight over Clause 43 of the DEB exposed many of the true movers and shakers behind OW legislation, all of them organisations with a stake in the commercial exploitation of such work. Prime amongst these movers and shakers was the BBC.

And sure enough, last Friday there was BBC Arts Editor Will Gompertz bigging up orphan works, oddly neglecting to mention that his employers were one of the main proponents of such legislation during the Clause 43 debacle of the DEB. A number of photographers, surely intrigued to see their TV licence fees used to employ someone enthusiastically promoting a scheme potentially detrimental to their livelihoods, dropped by Gompertz’ blog to comment on and correct his many errors and misassumptions.

Gompertz is of course not the first Beeb flack to pimp orphan works while forgetting to mention how the corporation hopes to benefit commercially from OW legislation. In November BBC advisor and former BBC Head of Copyright Stephen Edwards was caught playing the same game in the Guardian.

If Gompertz is right that the review will recommend the introduction of OW legislation, then he is also correct that such a recommendation is bound to reignite last year’s Clause 43 row. In which case we can look forward lots more OW pr fluff disguised as journalism from the likes of Edwards and Gompertz.

Fakenham, Norfolk, England, 10/04/2011. A jockey dressed as the Stig, from the BBC's Top Gear, at the start of racing at Fakenham National Hunt racecourse. Jockeys wearing fancy dress and representing six local pubs took part in three camel races to race funds for the East Anglian Air Ambulance. The winner was Kerry Sumner from the Crown at Gayton, riding a five year old Pintado dromedary called Sahara; the Stig came last.
Photo © Jeremy Nicholl 2011. All Rights Reserved.
Fakenham, Norfolk, England, 10/04/2011.
A jockey dressed as the Stig, from the BBC’s Top Gear, at the start of racing at Fakenham National Hunt racecourse. Jockeys wearing fancy dress and representing six local pubs took part in three camel races to raise funds for the East Anglian Air Ambulance. The winner was Kerry Sumner from the Crown at Gayton, riding a five year old Pintado dromedary called Sahara; the Stig came last.

Irish Sea, 29/03/2011. Potato crisp in one hand, sandwich in the other, a passenger sits in a cafe area on board a ferry crossing from Larne in Northern Ireland to Cairnryan in Scotland.
Photo © Jeremy Nicholl 2011. All Rights Reserved.
Irish Sea, 29/03/2011.
Potato crisp in one hand, sandwich in the other, a passenger sits in a cafe area on board a ferry crossing from Larne in Northern Ireland to Cairnryan in Scotland.

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