## PhotoRESEARCHER Newsletter for August ## 385

Welcome to PhotoRESEARCHER Newsletter, a free monthly newsletter from PhotoSource International. <http://www.photosource.com>

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ISSN 1545-1275

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CORBIS POINTS THE FINGER AT INFRINGERS
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Corbis, the mammoth stock photo agency in Seattle, has decided 2003 is the year it will go after infringers. It has settled 28 cases so far and plans to file lawsuits against 20 more. Although the legal costs to pursue the cases are often more than the resulting awards, Corbis is on a roll to remind the public that it isn't a good practice to download a picture on the Internet and use it for material gain.

This is a benefit to freelance stock photographers who have little time and few dollars to pursue a Web surfer who has not respected the Copyright Law and has violated their intellectual property rights. Corbis is doing the job for them.

PHOTO FINDER

Corbis has a special way of finding out who the infringers are. Naturally, they won't take the time to go after a Boy Scout newsletter or a fraternity poster, but they will let their web crawler discover unauthorized use by commercial entities. Especially those with deep pockets. Corbis has developed a special-detection software that can embed an imperceptible digital code in photos and other media. It has leased this software to Digimarc, the Portland image-detection software company. Corbis in turn, uses Digimarc's knowledge and services to find infringers.

Our Copyright Law works to the copyright owner's advantage in that the photographer can obtain lawyer's fees as well as statutory damages if infringement is proved. The owner of the copyright doesn't have to prove harm, just evidence that the photo was used illegally. Corbis photographers who submit their photos to Corbis (unlike to Getty Images, their competitor) have an advantage, in that Corbis photographers retain their copyright. Corbis registers its photographers with the U.S. Copyright Office.

It will be interesting to see if Corbis photographers receive any of the dollars awarded to Corbis after a court case. Historically, stock agencies of the past century were known to retain all copyright infringement awards, noting that the court costs often exceeded the awards. In a case earlier this year, defendant Movie Market, paid $1 million to Corbis for selling celebrity photos for which Corbis holds the rights. Amazon.com recently got hit by Corbis in such a suit and paid big-time. In such big-dollar awards relating to today's Internet dealings, maybe Corbis and other stock agencies are discovering a surprise profit center. –RE

YOU AND THE LAW
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Valuation of Images -- The Latest Wrinkle

Photographers have for decades attempted to establish that a professionally created and professionally edited image has a value of at least $1,500. This so-called benchmark is commonly used throughout the industry in discussing valuation.

However, it is also routinely challenged as too high by whomever is accused of losing or damaging images. In addition, the courts have refused to accept an across-the-board value for every photograph. They have, instead, required the photographer to "prove" the valuation of each image, based upon various factors, including but not limited to, the uniqueness of the image, the track record of the photographer, earnings history, and potential markets.

A recent New York Supreme Court case takes us to the other extreme and brings the discussion full circle. The case, DuBose v. Warner Brothers' Records, Inc. involved the acknowledged loss by Warner Brothers' Records of a strip of four negatives of the musical group, the B-52's, which had been taken by George DuBose.

One of the lost images had been selected by Warner Brothers' to be the cover of the album in question, as well as for promotion, publicity and multi-media uses. The defendant had paid a license fee of $3,500 for these uses, as well as $2,000 for use in laser and video packaging.

When faced with the photographer's claim that each of the lost images was valued at $100,000, the defendant tried to have the case moved to a lower court on procedural grounds because it claimed the preverbal valuation figure of $1,500 was an established custom in the magazine business and therefore a "cap" or maximum valuation for any image!

The Court had no difficulty in rejecting this argument as contrary to all case law, and in effect, absurd.

The Court traced the history of judicial photographic valuation cases, going into some detail to describe why the facts surrounding each of the listed cases justified the ultimate valuation given. Industry custom, held the Court, is just one of the factors to be considered.

In DuBose, the Court determined that there was ample evidence showing that the lost negatives were unique. This included the impossibility of re-shooting (they were shot over 20 years ago and one member of the band is deceased), and that the license fees of $5,500 paid for limited use, in and of itself exceeded the $1,500 figure.

The case is to be scheduled for a trial on damages, if not sooner settled.

To draw an analogy to the phrase, "beauty is in the eyes of the beholder," the $1,500 figure is or is not an industry standard, depending upon which side of the fence one sits in any given situation!

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.

"E" FOR EXCELLENT
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Three Elements of a Good Photo

Most of the editorial photographers you work with approach their stock photography with a mission. They have a point of view or a story to tell.
They want to change people’s minds or open new insights about the environment, preservation, animals, religion, politics, alcoholism, civil rights, schools, and so on. In a sense, they want to educate the public.

But educating the public to their way of thinking is a lost cause if they approach their mission solely with logic. As the saying goes, "Don’t clutter this argument with the facts." Plain logic very often does not win arguments. Psychologists tell us that how you say something (your body language, tone of voice, and your facial expressions) are much more convincing than what you say (the words). Here are three important "E's" to look for in a photographer's images.

EVOKE A MOOD

Editorial stock photographers don’t "take" pictures, they "make" pictures. In order to be convincing, their images must go beyond the visual representation of what they are depicting. In order to reach and to appeal to the widest possible audience, their pictures must evoke a mood.

A portrait of a cat, yes, evokes a mood, but a picture of a cat with a sore paw being attended to by a young teenager evokes a much stronger mood; i.e. conveys emotion.

They say the Super Bowl enjoys a TV viewing audience of 215 million. The Academy Awards presentation attracts an amazing ten times that amount, 2 billion. The funerals of Mother Teresa and Princess Diana drew even more.

And why is this information important to the photo researcher? It reminds you that your selections of images not only have to be of top photographic quality, but must have emotion or entertaining value to appeal to viewers.

Your viewers are not only interested in what information the photograph can impart, but how it makes them feel. You will always choose a photo that allows readers to "read into a photo" over one that simply documents a landscape, a dramatic event, or disaster. Emotion, then, is an important element in each of the stock photos you select.

Want to read more of this article? Go to: http://www.photosource.com/researcher/gen622.html

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Editors: You can download a time-saver TOOLBAR on your browser. Enter contact info just once. http://www.photosource.com/bar - see how it works!
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How a Photographer Could Lose a Copyright

Let’s say he's been granted, and been paid for, a license for one of his images to be used in a company’s promotional brochure for one year. Does he have a duty to investigate whether the company is still using his image after the term expires? Subsequently, he learns that the company, in fact, continued using the image beyond the first year. If he then waits several years before bringing a copyright infringement action, will he still be able to prosecute his claim?

As a matter of good business practice, he should try to investigate, in good time, whether his licensees are exceeding the terms of his licenses. This is especially true for businesses who are not accustomed to the licensing industry and who have a tendency to "forget" that copyright licenses, like all good things, must pass. However, as a legal matter, one generally does not have a duty to investigate whether the licensee continued to use the work after the term expired, or otherwise exceeded the scope of the license. Although courts have in some circumstances imposed this duty on licensors, copyright owners as a general matter do not have "a never-ending obligation to discover whether anyone to whom [it] ever supplied [its work] would copy it. The Copyright Act does not recognize such an obligation. " MacLean v. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 780 (3d Cir. 1991). This is good news, because it would add a tremendous expense if copyright owners were required to always actively police their licensees for unpermitted uses.

However, once a copyright owner learns of an infringement, it is important to act quickly. If he does not, he will likely be "estopped" or prevented from bringing a claim, pursuant to the doctrine of "laches." The key question is whether you continued to permit the infringement even after you had knowledge of the unlawful use. In the case of Silva v. MacLaine, 697 F. Supp. 1423 (E.D. Mich 1988), for example, the plaintiff was estopped from bringing a copyright infringement claim involving plaintiff’s copyrighted material allegedly used in the defendant’s book. Because the plaintiff reviewed the defendant’s manuscript in 1981, received an autographed copy of the book in 1983, and was later informed of a television series made from the book – and never objected – the court found that plaintiff was estopped from bringing a claim. If the defendant incurs great expense in producing, printing or distributing the copyrighted material, it will be even harder to stop a use after having knowledge of the infringement.

As a matter of good business practice, a photographer should make sure his licensees do not exceed the scope of their licenses. As matter of good legal practice, however, he must act on an infringement as soon as he learns about it.

Copyright © 2003 Stephen Filler. Stephen Filler is an attorney (www.nylawline.com) whose practice focuses on intellectual property, copyright, trademark, technology, media, contracts, corporate and photography law. His office is located at 303 South Broadway, Suite 222, Tarrytown, New York, 10591, 914-332-4114, sfiller@nylawline.com. This column is to be used for informational purposes only, and is not to be considered legal advice. For legal advice, please consult a local attorney.

TRAVELERS ABROAD
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Photobuyers: Watch this column. For the e-mail address, phone or fax number of the traveling photographer, call the PhotoSource International office and ask for Deb Koehler (1 800 223-3860). For an expansion of this list: www.photosource.com and press the Travelers Abroad button, to learn of past international destinations of our photographers.

Rodney L. Johnson
July 19 – August 2, 2003
Bangkok (Thailand)

Valery Rizzo
July 19 – August 3, 2003
Southern Italy

Barry Hilton
July 23 – August 7, 2003
Nova Scotia (Canada)

BUSINESS NOTEPAD
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DIRECT MAIL, is it an antique? Not according to Alamy.com, the British-based stock photo agency. It used slender catalogs to grab a 1 percent market share in the past year from industry giants Getty Images and Corbis. At last count, the 2 1/2-year-old company had 40,000 corporate and 8,000 individual customers from around the world. It publishes a small, handy "magalogue" that art directors have a tendency to keep within arm's reach. The first edition (Spring 2002) generated a 25 percent response. –RE

PHOTOS DON'T LIE. Yes, they do; well, nowadays anyway. Especially if you're a Hollywood star or a well-paid model. Magazine covers, not inside editorial content, sell magazines. Magazine circulation directors have long known this, as far back as the airbrush days. Today, of course, the results of digital imagery delight the publicists of Madison Avenue and Hollywood clients who are cosmetically challenged. Legs and hips can be made thinner, baby blue eyes made bluer, and of course, frown lines and bags under the eyes made to disappear. But digital altering makes airbrushing look like child's play. A couple of recent examples: On Redbook's July cover, Julia Roberts' head comes from a paparazzi shot taken at the 2002 People's Choice awards. Her body, meanwhile, is from a photo at the Notting Hill movie premiere four years ago. Seventeen's May issue featured Sarah Michelle Gellar, who granted the magazine an interview but not a photo shoot. So the magazine purchased a photo from a stock photo agency, retouched it and changed Gellar's shirt color from black to purple. –RE

THE BOSTON GLOBE has become the touchstone for disgruntled freelance photographers, writers and illustrators who feel their copyrights are being challenged unfairly, and in some cases even grabbed away from them, by national and international newspaper conglomerates. Individual freelancers have been joined by a number of Globe staff photographers who have grievances of their own, and together they have staged picketing rallies, passed out leaflets, and let the press and public know of their plight. But, it's not going well. Attorneys representing freelancers in the civil action against the Boston Globe contract, filed another brief this summer. The Boston Globe will respond with an opposition brief. The court will then set a hearing date. The case is on appeal, with the Boston Globe having won the first round. –RE

ONLINE
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Don't Call Me; We'll Call You, Part II

Now it's official. The US of A has a national Do-Not-Call list. Put your number on the list, and telemarketers won't call you. Well, that's what they say, anyhow. The FTC took the lead in creating the list, but the FCC joined in so the list would also cover faxes and calls made within a state. It will be administered by AT&T (fox in the hen house?). The cost will be borne by telemarketers, who will by law be required to check the list every three months. The cost to a telemarketer of an annual subscription to receive the Do-Not-Call list is about $7,000 per year.

To sign up to put your number on the list, call 888-382-1222 (from the number you want to block), or visit the website at www.donotcall.gov. Registration lasts for five years, until a number is disconnected, or until the consumer takes it off the registry. The list goes into effect on 11/1/03. Numbers added before 8/31/03 will become effective on 11/1/03; numbers added after 8/31/03 will become effective three months later. Due to pent-up demand, the website was overloaded on its first day of operation, and the phone lines were jammed. Penalties for calling anyone on that list can be as high as $11,000 per call. To file a complaint, get the company's name and phone number, and use the list's toll-free number or the website to file your complaint. But like "complete caller ID blocking," the list is not complete from a consumer's standpoint. Politicians, survey-taking groups and non-profit groups will still be allowed to call anyone without penalty (unless you've previously specifically requested the calling organization to remove your name), even if you're on the national Do-Not-Call list. And those companies with existing business relationships can continue to call up to 18 months after the program takes effect. Wonder how long until telemarketers redefine themselves as survey-taking organizations. ("We're taking a survey. Are you on the national Do-Not-Call list?") A couple of numbers: Number of daily telemarketing calls made --104 million. Estimated number of numbers that will be on the list -- over 60 million. One final thing: The Direct Marketing Association is pursuing their legal challenge to the list on free speech grounds.

Traveler's Delight

If you like gadgets (laptop, cell phone, PDA, etc.) and do a lot, or a little, traveling, you know how awkward it can be to carry all those separate chargers and cradles and cords (Oh, my!) Here are two solutions. One is a charger that accepts multiple inputs (wall outlet, airplane charger connection, vehicle charger connection) and has charging cable configurations for connection to your portable electronic devices. The AC cords are provided, but you will need to purchase the non-laptop charging cords separately, depending on the device(s) you need to charge. There are two versions, each with a selection of laptop charging cords and tips, so what you need for your laptop will likely be in one of the bundles. It's called the Igo Juice (www.igo.com). It can charge multiple devices at the same time. The other is a cable or cables that allow you to charge the cell phone, PDA, etc., by using the USB port on your laptop. This means you still carry your laptop charger, and the charging rate will be much longer than with the Igo Juice, but may be better suited to some travelers. Check out the cables and other product offerings at www.gomadic.com.

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.

SIDEBAR
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Digital Cameras Take the Lead

Will sales of digital cameras surpass film cameras soon? According to InfoTrends Research Group, digital camera sales in North America are expected to win the battle sometime this year.

And what's a new digital camera going to cost? It depends on the focus of each photographer: recreational use, professional sports coverage, nature, etc.

One advantage in creating editorial photographs is that many of the images are going to be used 1/4 page or smaller, which means the editorial stock photographer could get by with $800+ (4 to 5 Megapixels). Of course, if a photographer expects to publish covers, their camera will cost $1500+ (6 and up Megapixels). And for commercial work, a photographer needs to pay $8,000 and more (lens, back, etc.)

An advanced point and shoot type model (Olympus C5050 for instance), makes a smaller dent in your checkbook than the Canon 10D, 1Ds, Fuji S2, or Nikon 1DX.

As always with equipment purchases, make sure the camera you are interested in fits you, your hands, and your way of working. It doesn't matter how many bells and whistles a camera has if you can't easily reach and use the controls.

Keep up with the times by learning what photobuyers expect in the way of digital submissions. The PhotoSource 2003 Photobuyer Survey can tell you. www.photosource.com/101/survey2003.php . http://www.photosource.com/101/survey2003.php

Photojournalist Mikael Karlsson has 14 years' experience of working for magazines and newspapers in more than 30 countries. He moved to the United States in 1998 from his native Sweden. He lives in Nebraska and is currently US correspondent for 11 Swedish magazines and a regular contributor to a wide variety of U.S. publications. Reach him at mike@photosource.com

GOOD STUFF
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422 TAX DEDUCTIONS FOR BUSINESSES AND SELF EMPLOYED INDIVIDUALS, by Bernard B. Kamoroff, C.P.A. This fully revised and updated book tells you about deductions you never heard about; deductions your accountant forgot to ask you about; deductions your software program got wrong; and deductions the IRS chose not to mention on their tax forms. ($17.95; ISBN: 0-917510-19-4; 224 pages) Contact: Bell Springs Publishing, Box 1240, Willits, CA 95490. Phone: 1 800 515-8050. E-mail: info@bellsprings.com .
http://www.photosourcefolio.com/bookstoreone.htm#0917510216 .

ADOBE PHOTOSHOP ALBUM FOR WINDOWS, By Nolan Hester. This visual QuickStart Guide takes an easy, visual approach to teaching Photoshop Album. (http://www.photosourcefolio.com/bookstoreone.htm#B00007KLFK) It works like a reference book – you look up what you need and then get straight to work. Has a companion website that includes further examples, tips, and insights. ($19.99; ISBN: 0-321-19402-0) Contact: Peachpit Press, 1249 Eighth St, Berkeley CA 94710. Phone: 1 800 283-9444. Fax: 1 510 524-2221. http://www.photosourcefolio.com/bookstoreone.htm#321194020 .

CHANGES
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SPORTS ILLUSTRATED FOR WOMEN, contact person is Heather Brown, Photo Editor. Former address: 1271 6th Ave, New York City, NY 10020; current address: 135 W 50th St, New York, NY 10020.

AVALON TRAVEL PUBLISHING, former contact and address: Laura VanderPloeg, 5855 Beaudry St, Emeryville, CA 94608; current contact, e-mail and address: Deb Dutcher, Production Assistant, deb.dutcher@avalonpub.com; 1400 65th St, #250, Emeryville, CA 94608.

CAT FANCY (P.O. Box 6050, Mission Viejo, CA 92690) former contact and e-mail: Sandy Meyer, Associate Editor, smeyer@fancypubs.com; current contact and e-mail: Steve Triolo, Associate Editor, striolo@fancypubs.com.

NATIONAL CASA (100 W Harrison N Tower Ste 500, Seattle, WA 98119) former contact and e-mail: Jim Clune, Communications Director, Jclune@nationalcasa.org; current contact and e-mail: Carla Spaccarotelli, Publications Specialist, Carla@nationalcasa.org .

DEFENDERS OF WILDLIFE (1101 14th St NW Ste 1400, Washington, DC 20005) former contact: Maria Cecil, Editorial Associate; current contact: Mark Cheater, Director of Communication.

TRAILER BOATS MAGAZINE, former contact and address: Randy Scott, Editor, P.O. Box 5427, Carson, CA 90749; current contact and address: Steve Quilan, Editor, 20700 Bellshaw Ave, Carson, CA 90746.

BATES SW ADVERTISING (5847 San Felipe Ste 400, Houston, TX 77057) former contact and e-mail: Anthony Drago, Production Manager, Skline@batesww.com; current contact and e-mail: Holly McAllister, Creative Coordinator, hmcallister@batesww.com.

HERMITAGE ART COMPANY (5151 N Ravenswood Ave, Chicago, IL 60640) former contact: Bette Powers-LeVerso, General Manger; current contact: Jane Wheaton, Art Director.

ABARTA MEDIA (118 SW Blvd 3 Fl, Kansas City, MO 64108) former contact and e-mail: Matt Wasko, Director of Design, mwasko@abatapub.com; current contact and e-mail: Jose Santa Cruz, Director of Design, jsantacruz@abartapub.com.

MOMENT MAGAZINE (4710 41st St NW, Washington, DC 20016) former contact and e-mail: Dan Richards, Editorial Associate, drichards@momentmag.com; current contact and e-mail: Rebecca Frankel, Editorial Associate, rfrankel@momentmag.com.

NEWBRIDGE EDUCATIONAL PUBLISHING (333 E 38th St 10th Fl, New York, NY 10016) former phone: 1 212 652-0200; current phone: 1 212 478-1700.

STEIN ROGAN & PARTNERS (440 Park Ave S 3rd Fl, New York, NY 10016) former contact and e-mail: Allison Abreu, Production Manager, aabreu@srpadv.com; current contact and e-mail: Ed Burgoyne, Production Manager, eburgoyne@srpadv.com.

A SHARED VISION, former address and phone: 19 Issaquah Dock, Sausalito, CA 94965, 1 415 860-5242; current address and phone: 22161 Koftinow Dr, Jenner, CA 95450, 1 707 847-3137.

SOUNDINGS PUBLICATIONS, former address: 35 Pratt St, Essex, CT 06426; current address: 10 Bokum Rd, Essex, CT 06426.

SUN HERALD (P.O. Box 4567, Biloxi, MS 39507) former contact and e-mail: Barbara Lowell, blowell@sunherald.com; current contact and e-mail: Scott Hawkins, schawkins@sunherald.com.

Watch for developments in the field of stock photography in PhotoAIM's
PHOTOGRAPHY IN THE NEWS
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You'll be the first to know…

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

Kodak struggles with digital film - First, it was new competition. Then new technology. Now, analysts believe struggling Eastman Kodak Co. has only two to three years to find a place in the world of digital photography.
http://www.globeandmail.com/servlet/story/RTGAM.20030728.gtkodak0728/BNStory/Technology/?query=photography

Recent Announcements Reaffirm Fujifilm's Leadership Position in the Digital Imaging Industry
http://investor.cnet.com/investor/news/newsitem/0-9900-1028-21356689-0.html

Photographer shares memories - Carmel Valley resident Chuck Scardina was there as a photographer for the Palm Springs newspaper, the Desert Sun. For 13 years, Scardina, 71, got rare invitations to document Hope's activities as the reigning social king of the many A-list celebrities who took up residence in the desert town south of Los Angeles.
http://www.montereyherald.com/mld/montereyherald/news/local/6408634.htm

Wounded Photojournalist Airlifted from Liberia - French freelance photographer Patrick Robert, had been covering the siege of the capital city of Monrovia for Time magazine when he was shot in the arm and back.
http://www.pdn-pix.com/news/ - 1

In Memoriam: Rollie McKenna, 84 - Rollie McKenna, who photographed the many of the greatest writers and poets of her generation. She was best known for a portrait style that utilized natural light and comfortable settings to create lasting images of literary figures.
http://www.pdn-pix.com/news/ - 2

For $11, skittish photographers can dip into digital - The Ritz Camera chain today will introduce a one-time-use digital camera for about the same price as a typical "disposable" film camera in about 100 of its stores. Walgreens, which was testing the camera in Madison, is expanding the test to all 140 Wisconsin pharmacy outlets
http://story.news.yahoo.com/news?tmpl=story&u=/usatoday/20030728/tc_usatoday/11433646

QUOTE OF THE MONTH
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"If you can find something everyone agrees on, it's wrong."
–Mo Udall

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PhotoRESEARCHER Newsletter is a free newsletter for photo researchers. It consists of excerpts from the 8-page newsletter, PhotoStockNotes, available for subscription at $3 per month. (Back issues are available free each month on our Web site.) Both newsletters feature 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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