PhotoResearcher Newsletter

PhotoRESEARCHER

PhotoRESEARCHER Newsletter
for August ## 431

FYI

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YOU AND
THE LAW

By Joel Hecker, Esq.

The Pitfalls of Overreaching in Copyright Infringement Claims

As you undoubtedly know, a copyright owner who has timely fulfilled the registration requirements under the Copyright Act, is eligible for an award of statutory damages and attorney fees. On the other hand, the Supreme Court of the United States has leveled the playing field by interpreting the Act as permitting, in the trial Court's discretion, an award of attorney's fees to the prevailing party in any copyright infringement action. This means that where the defendant prevails, the plaintiff may be required to pay the defendant's attorney fees.
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“Never pursue unreasonable claims…”
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I have always espoused that a copyright owner pursuing a copyright infringement claim should never act unreasonably or pursue unreasonable claims. Not only does that jeopardize the case, it makes a resolution more difficult and, of course, exposes the client to penalties in the event the "unreasonable" claim is denied.
A photographer and his attorney in a recent decision found out how expensive an unreasonable position taken in litigation can be. The photographer, Kent Baker, had sued Urban Outfitters for copyright infringement based upon sale of inexpensive plastic picture frames in 2000 and 2001 with one of Baker's images included in a paper insert. The use was unauthorized but the total gross profit from the sale of the frames was only $3,896. The defendant offered to settle for $9,096 but Baker and his attorney rejected the offer insisting upon damages in the amount of $260, 000 although he was not eligible for statutory damages or attorney fees. Baker’s claims were dismissed in 2002. Thereafter, his attorney Stephen Weingrad, sued Urban's attorneys for misconduct. He lost with the Court having found that his legal briefs were "replete with rambling, irrelevant, unsupportive assertions of fact and law." He was ordered to reimburse Urban's legal fees in that action in the sum of $19,270. Urban then sued both Baker and Weingrad to recover its attorneys fees and costs from the original copyright infringement case since Urban was the prevailing party. The trial Court ordered Baker to reimburse Urban $388,424.54 and Weingrad to reimburse Urban an additional $65,760.50, for legal fees and costs.

Want to read more of this article? Go to: http://www.photosource.com/researcher/legal136.html

Can we protect our tiny images from commercial piracy?
Thumbs Up ? Thumbs Down?

Who says a thumbnail photo can’t be swiped from the Internet?
Could a legitimate company swipe thousands of thumbnail-size images and sell them to, say, a cell phone company for downloading? And still be legal?
Well, presently they could, if they went through an innocent major search engine that featured image-search.
This is the story of an adult-content company (Perfect-10) who leases (for $$$$) its thumbnail-sized “adult pictures” to a British cell phone entity (Fonestarz Media Ltd.), and finds that those same pictures are being offered for free on a major search engine, Google.
Thumbnails can be marketed on the web, nowadays, in different ways, so this brings up a problem for stock photographers.
A brief history: Over the years we have reported on this question. A California photographer, Leslie Kelly, sued a company called (at that time) Arriba Soft, and asked, “Can search engines tap into photographers’ web photos and use them to display in their own website?”
The case took several years to decide. The courts finally came up with an answer (in layman’s terms): “Yes, web search engines can display a photographer’s images, if they use them in a ‘thumbnail format.’”

Want to read more of this article? Go to: http://www.photosource.com/researcher/gen722.html

Gary Crabbe

Stockschlock Revisited

Part I
By Dale O’Dell

In the May 17, 2006 issue of Photo Stock Notes, Rohn asked two interesting questions about stock photography: “Are we off on the wrong track?” and, “Would Cartier-Bresson be accepted today at Getty Images?” These are important questions to ask in today’s uncertain and commodity-driven stock image market.

No, we are not on the wrong track, but the big stock agencies are. Photographers are artists who take risks to create original works. This mindset is directly opposite of corporate culture that eschews risk and cannot recognize originality. To the big agencies “innovation” is to find out what’s successful and copy it. The agencies compel photographers to shoot what and how they want without realizing that if they let the photographers do what the photographers do best, the agencies would have more varied imagery to license.

Nobody gets into photography to shoot formulaic, banal pictures all the time (except for wedding photographers, but that’s a whole different market). The stock photography market is glutted with the lame, boring, “wishful imagery” Rohn wrote about. With so many of the big agencies funding wholly-owned shoots of “already acceptable” imagery, you’d be a fool to produce this stuff as a mere agency contributor. The agencies will promote their wholly-owned pictures over yours, and they’d probably reject yours anyway.

It seems the big agencies don’t get one fundamental fact: Picture buyers only buy what’s available to them. When agency editors (and who are the “editors” these days anyway, accountants?) reject imagery that doesn’t fit their preconceived notion of what it’s supposed to look like, nothing new or innovative gets into the market. The circle closes and creative artists are on the outside, victims of a bizarre sort of corporate economic censorship.

Want to read more of this article? Go to: http://www.photosource.com/researcher/gen723.html

For the Freelance Researcher

Direct Mail and Snail Mail

An effective method to keep your name and research service in front of clients is to contact them periodically with your own direct mail campaign. Postcards, calendars, magnets, and posters all can be used to advantage.
In planning your direct mail marketing to potential clients, you might want to consider what we've learned at the PhotoSource International website. These tips can make your direct marketing more effective:
[] By using U.S. Postal Mail to contact your client prospects (as opposed to e-mail), you can include a Business Response Card (BRC), to give you feed-back information, gauge effectiveness, make sales, and transform prospects into future sales leads.
[] Your post card, magnet, calendar or poster should feature an image chosen for its sales potential. Very often, your direct mail campaign will pay for itself.

Want to read more of this article? Go to: http://www.photosource.com/researcher/gen104.html

“YOU’VE GOT MAIL, I THINK”

It’s no secret that communicating important messages through e-mail is not foolproof. The good delivery rate we have learned to expect from the U.S. Postal Service cannot be applied to e-mail messaging. Snail mail may not be 100% flawless; nevertheless our “paper” messages sent through the U.S. mail to clients and prospects do not undergo a filtering process like spam-filters and other toll-gates that sometimes throws them into an electronic trash bin or holding tank.
Until e-mail becomes the messaging method of choice, continue to use direct mail also as part of your promotion programs. Usually, a piece of paper with a postal stamp on it typically gets delivered. As yet, we can’t say the same about a digital message that somehow floats past our e-mail address box and disappears into cyberspace. -RE

ONLINE

By: Bill Hopkins

Searching for Viruses and Spyware

You may not realize it, but many search engine results are pointing you to nefarious sites which may expose you to spyware, viruses, and other malware. A recent survey by SiteAdvisor, a product of McAfee, used popular search terms on Google, and then checked the results and ads on the first 5 pages for possible links to malware. They learned that searching for "free screensavers" produced results wherein 64% of the sites listed could expose the user to malware of various types. Searching for just "screensavers" had a 55% chance. "Limewire" searches had 46%, whereas "lime wire" (searched as two words) had a 41% chance of displaying dangerous links. "Free ringtones" resulted in a 38% chance. Based on average usage patterns, it's estimated that a user will click through to an unsafe site once every 15 days! The major search engines generally respond that they are only reflecting what's out there on the web, and that they try to protect users against them. Yahoo! has a software tool to help identify spyware, and Google says its ad policy prohibits such links and removes them when it becomes aware of them. Naturally, there are some industry differences over what constitutes a dangerous or nuisance site. And it should be noted that McAfee's SiteAdvisor may have a vested interest, as it also distributes browser-toolbar software used to screen sites. What can you do? Install and keep your anti-virus and anti-spam current, turn on Windows firewall, and turn on critical update notification.

Quotable Quote

"E-mail is a medium under siege. Trustworthiness has eroded as consumers find their inboxes jammed with spam, identity theft scams, and e-mail posing as brands they know." Ain't it the truth!

Paying More for More

Columbia University professor Tim Wu coined the term "net neutrality" to describe how the Internet works best as a neutral environment where entrepreneurs can create a Google-sized business with limited capital because the Web is open.

Want to read more of this article? Go to: http://www.photosource.com/researcher/onlin170.html

Let Google Spark

Your Imagination

At the heart of editorial photography is illustration. Illustration of a mood, a place, a city, a flower or whatever it might be, to complement a magazine article, book chapter, brochure, etc. To successfully illustrate, a picture professional benefits by knowing as much as they can about the particular subject. As you know, this is a powerful confirmation of the advantages of specializing, and you've no doubt experienced that it's a lifelong process to continually add to your knowledge in your special interest areas.
But sometimes knowing a lot about a topic or area isn't quite enough. Sometimes your imagination, not only your knowledge, can be your most useful tool.

Inspiration From The Web

These days, there is help available to get those creative juices flowing, swiftly and cheaply, and it’s right at your fingertips. Search engines are fast becoming the researcher’s most powerful idea tool.
If you find that you are running low on new creative ideas, browsing the work of others might be just the thing you need. In the past this would require a trip to the library and countless hours flipping through books and magazines.

Not so any more.

These days, all you need to do to browse the work of hundreds, if not thousands, of photographers and other illustrators, is to fire up your computer, get online and let a search engine such as Google work it's magic.

Go to www.google.com and select the “Images Tab”. Then key in whatever special area/topic you want to explore. Click “Search” and you'll soon see what I mean. You will encounter a huge number of images from all corners of the earth.

Find inspiration

“Is this legal?” you ask.
Finding inspiration from the work of others is not illegal or morally wrong. (Unless you downright copy what you see, of course.) To browse the work of other photographers, painters, peers, to find inspiration, is not only perfectly O.K., it's also a great way to get your creativity kicked into high gear.

Want to read more of this article? Go to: http://www.photosource.com/researcher/sbar19.html

Randy Pomeroy

Copyright: What’s it all about?

There have been many changes to the U.S. copyright law since 1790, when Congress first enacted the United States copyright law. The law gave writers exclusive rights to publish and sell maps, charts and books for a period of fourteen years. They could renew the copyright for another fourteen years.
In the 19th century, copyrights became available for pictures, photographs, paintings, and drawings. In 1909, the copyright law covered rolls for player pianos. Since 1976, copyright law has expanded to include cable digital photography, TV, computer software, tapes, CDs, DVDs, and, most recently, MP3s.
The length of copyright terms has also gradually increased. Up until 1998, copyrights lasted for the life of the author plus an additional fifty years, before they reverted to public domain (anyone could then use the item without charge). But in 1998, the Sonny Bono Copyright Term Extension Act extended the duration of copyrights by twenty years. The act was supported by a group of large corporations, led by Disney. Most of Disney's famous characters, Mickey Mouse, Donald Duck, Goofy and all the rest, were scheduled to enter the public domain between 2000 and 2004. But now other artists and companies won't be able to use them in their books and movies and songs until at least 2019, which means that Disney has another thirteen years of making money off Disney’s creations.
Whether the Copyright Law is in your favor depends on which side of the copyright table you’re sitting at (publisher or supplier). Hint: Lately, the copyright pendulum has been swinging to the publishers. The most recent issue to cause questions has been "copyright orphans." These are works to which publishers cannot find the author, to be able to either get permission to use the work, or determine it can be considered "fair-use," and used without permission or payment.

Watch for developments in the field of stock photography in PhotoResearcher'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.

Design How-To: Help Photos TELL A STORY - Every photo has a story. With the right crop, you can make it a story people really care about.
http://www.creativepro.com/story/howto/24500.html

Shoppers Want Actual New Vehicle Photos, NOT STOCK PHOTOGRAPHY on Car Dealer
Web Sites - In fact, 74 percent of vehicle shoppers say they are more likely to visit a dealership if they are able to view a picture of an actual vehicle currently available on the lot, rather than stock photography.
http://www.autospectator.com/modules/news/article.php?
storyid=5170

City swats at shutterbugs. Newport Beach is ticketing professional photographers $100 for shooting at Little Corona del Mar Beach WITHOUT A PERMIT.
http://design.netscape.com/viewstory/2006/07/20/newport
-beach-swats-shutterbugs/?url=http%3A%2F%2Fwww.
ocregister.com%2Focregister%2Fhomepage%2Fabox%2F
article_1216708.php&frame=true

ONLINE COPYRIGHT REGISTRATION Gains Momentum - "With on-line registration by the Copyright Office on the near horizon, this feature will make it much easier to actually register your copyright and more fully protect your images," said Richard Anderson, the chair of ASMP's Digital Standards Committee. http://www.creativepro.com/story/news/24489.html

DesignMentor Training Teaches Creatives to Shoot, Color Correct and Edit with Camera RAW through Digital Photography Portfolio-Builder Program - DesignMentor Training offers Creative Professionals the means to add advanced digital photography skills to their portfolios through three instructor-led ONLINE DIGITAL CLASSES.
http://www.creativepro.com/story/news/24492.html

KODAK PHOTOGRAPHY COMPETITION: the entries so far - There are some great entries mixed in with a few that have missed the mark, and as you read through maybe you'll find a few pointers as to what might make a competition winner. http://enjoyment.independent.co.uk/article1185858.ece

PHOTOGRAPHY PROJECT features entire population of Iowa town - "I did it on a lark. I had this idea that I could photograph everybody in this town," said Feldstein. He didn't get everybody. But he came pretty close.
http://www.kaaltv.com/article/view/102570/

Nokia says starts shipping N73 new multimedia computer that boasts of some amazing PHOTOGRAPHY FEATURES.
http://www.3gnewsroom.com/3g_news
/jul_06/news_7122.shtml

Tree VANDALS CAUGHT BY PHOTOGRAPHER - Wilson, a freelance photographer for the Times-Standard, says she saw a group of teen girls vandalizing a tree near the parking lot by carving letters into it.
http://www.times-standard.com/local/ci_4078617

Image of LONDON BUS BOMBING wins Nokia Citizen Journalism award -
http://www.ephotozine.com/news/
fullnews.cfm?NewsID=3155

Famed Arizona Highways photographer Ray Manley dead at 84 - Manley's color-drenched landscape portraits appeared at least yearly in Arizona Highways magazine from 1944 to 1988 and helped define the magazine's PHOTOGRAPHIC STYLE, said Peter Ensenberger, the magazine's director of photography. http://kvoa.com/Global/story.asp?S=
5176147&nav=HMO6

Next Month: Appeals Court Upholds Fair Use Poster Use

Better Information

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qaphotobuyers.htm 1 800 223 3860

Dennis Cox

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This week's featured photographer on PhotoSourceFolio: Randy Pomeroy (http://folio.photosource.com/2317)
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GOT A PHOTO NEED? Send it to eds@photosource.com
(Just write up your photo listing in any way you feel clearly gets across what you need) or use our standard form at <
http://www.photosource.com/photobuyer/
request.php
>. It’s free. No charge.
Once you use our photo listing service, details of contact info, budget rouge, w/color, any specifics like “requests no phone calls,” etc., will be saved on your personal computer so you don’t have to re-type them when you make a photo need listing the next time.

CHILDREN’S BOOK AUTHOR
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You can begin this evening when you sign up for this tutorial:
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Looking for “Non-Generic” photos for your next project?
You’ll find real-life photos at “PhotoSourceGROUP”.
Click here for more details.
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Mike Karlsson

DO YOU LIKE OUR NEWSLETTER? Give us a quote. Let us know what you think.
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Shooters
Dennis Cox has announced that his 2007 China Memories calendar is now off the press and available at
http://btobsearch.barnesandnoble.com
/books earch/isbnInquiry.asp?z=
y&btob=Y&isbn =0761142290&itm=1
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iView MediaPro3 is a powerful and competent cataloguing tool. The software makes it easy to quickly sort, catalog, categorize and caption digital images. Once the digital images are catalogued, it is a snap to find any image through the powerful and blazingly fast search function. I wouldn't hesitate to recommend this software to anyone who works with digital images. It is well worth every penny, and the time saved by the search function alone is worth ten times what the software cost. Adding files is very easy, so getting started is fast and intuitive. This product boasts the rare combination of being both incredibly good at what it does but also very user friendly and easy to use. -Mikael Karlsson (Software $199; upgrade $129) For more information go to http://www.iview-multimedia.com/ .
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Travelwriter Marketletter… for writers and photojournalists

Travelwriter Marketletter is a monthly publication available online
( http://www.travelwriterml.com ) and in hard copy format. Travelwriter Marketletter is in its 28th year.

If you’re a travel writer or photographer, TWM tells you about new markets, payscales, editors, specs and trips.

If you’re in travel PR, TWM tells you which publications are likely targets.

If you’re a travel editor, TWM tells you about trips, and about your competitors.

TRAVEL WRITER?

Does your job allow you to travel – or would you like to travel because of your job?

Become a travel writer.
Visit some of the most breathtaking locations in the world absolutely free. And you’ll get paid to go!
Could you describe your travel experiences to a friend with passion and clarity? If so, you might well have what it takes to be a successful travel writer.

Look into this Ebook. It lays out a blueprint on how to become a successful travel writer.
Click Here!

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New!
See exactly how a photobuyer finds pictures by using the PhotoSourceBANK. Check out our brief video that shows researchers and photobuyers the simple and quick system that leads directly to photographers who have the pictures they need.
Finding a specific content photo using the Internet.
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LICENSING PHOTOGRAPHY, by Richard Weisgrau and Victor S. Perlman. Today, photographers can make every image pay and pay again by controlling and pricing the rights to their work. In Licensing Photography, a veteran photographer and a well-known attorney team up to present the complex subject of licensing in clear, understandable terms. With this step-by-step guide, photographers will be able to forge profitable, legally sound agreements. Digital photography and internet technology mean the market for licensing is bigger than ever—and Licensing Photography can help every photographer protect their income potential. While targeted to photographers, this book is valuable to picture professionals working with stock photography. (ISBN: 1-58115-436-4; $ 19.95) Allworth Press, 10 E 23rd St, Ste 510, New York NY 10010. E-mail: PUB@allworth.com .

John Gordon

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PhotoRESEARCHER Newsletter is a free newsletter for photo researchers. It features carefully researched coverage of trends, methods and the latest information that can help you in your photo research. Feel free to forward this issue of the PhotoRESEARCHER Newsletter to fellow photo researcher friends.

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## PhotoRESEARCHER Newsletter monthly newsletter is produced by PhotoSource International, Rohn Engh, Director, who is solely responsible for its contents.
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ask for Lela LaBree
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