## PhotoRESEARCHER Newsletter for August 2005 ##

## PhotoRESEARCHER Newsletter for August ## 419

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

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Grateful Dead Book –

Fair Use of Concert Posters

Whether a use of copyrighted material, without consent, constitutes copyright infringement or is a fair use, is determined through an analysis of the facts.

A recent case in the United States District Court for the Southern District of New York, Bill Graham Archives LLC v. Dorling Kindersley Limited, has determined that use of thumbnail size visual art images of seven concert posters in a 480 page book, "Grateful Dead: The Illustrated Trip," is a fair use and not an infringement.

Defendants sought permission to use the images in the book to help make it the "definitive Grateful Dead history." Defendants had the blessing of Grateful Dead Productions for the project. Plaintiff responded by offering such permission, but only in exchange for significant additional usage rights to create CDs and DVDs from other material controlled by Grateful Dead Productions. That offer was, naturally, refused as was a further offer of a high license fee.

When the book was published with these thumbnail images, plaintiff claimed rights to three to seven of the images used. (There was a dispute as to whether plaintiff controlled the copyright to four of the images.)

Thumbnail Use O.K.

The Court analyzed the fair use factors and concluded that since the book is a biographical work and the use of the thumbnail-size images did not supplant the market for the original work, the chronological order of the time line in the book added something new or "transformative" to the purpose or character of the images.

Furthermore, this use did not adversely effect the plaintiff’s market for the actual posters.

GOOD FAITH

The Court distinguished Ringgold v. Black Entertainment Television, Inc., which held that use of a work for precisely the purpose for which it was created constituted copyright infringement and not fair use. The difference between the cases was that, in Ringgold, the copyrighted work was used as a set decoration in a church for a television program and bore no relationship to the television program itself. This was the same use (set decoration) for which the original work was created. In the Graham Archives case, the inclusion of the thumbnail-size images in the book was not the intended market of the full size posters, and would not compete with or supplant the posters in the marketplace.

Want to read more of this article? Go to: http://www.photosource.com/researcher/legal124.html

TRAVELERS ABROAD

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 Jonna Zehm (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.

Jurgen Ankenbrand October 8 – October 18, 2005 France, Germany, England

June Morris July 10 – August 5, 2005 Maadi, Giza, Sharm El Shank (Egypt)

Robert Scott August 15, 2005 – August 15, 2006 Kuwait

CHANGES

Each month we report to you moves among, within and between: publishing houses, stock agencies, photobuyers, photo researchers, ad agencies, and design firms.

BILL SMITH STUDIO (450 W 31st St, New York City, NY 10001) Contact person, Scott Haag, Photo Editor, former e-mail: scotth@billstudio.com; current e-mail: S.haag@verizon.net

POLLER & JORDAN ADVERTISING (8205 NW 30th Terrace, Miami, FL 33122) contact person, Bob Poller, Photo Research, former e-mail: info@pjadv.com; current e-mail: bob@pjadv.com

SEA & GO BOATING MAGAZINES (17782 Cowan, Irvine, CA 92614) former contact and e-mail: Laura Kirazian, Editorial Administration Manager, laura@goboatingamerica.com; current contact: Stephanie Porter, Editorial Administration Manager.

COLBORNE COMMUNICATIONS (100 Lombard St Ste 103, Toronto, ONTARIO, M5C 1M3, CANADA) former contacts: Sarah Kisilevsky, Photo Researcher, Jennifer Sweetlove, Editor, Wendy Yano, Picture Researcher; current contact and e-mail: Jack Steiner, Designer, jack@colcomm.ca

Collapse from its own weight...?

A Lesson Learned

What is the largest Information-Technology conference event? There isn’t any.

Why? The IT world grew too big for itself. Like all successful innovations, it has fragmented itself into specialties.

For fifteen years, everyone interested in IT attended COMDEX in Las Vegas. But with unrestrained growth it became too big for everyone to see everything. Visitors decided they would rather attend other conferences that were more focused in their particular area of interest. For the second year in a row, COMDEX has been cancelled.

This is an example of how, in like manner, Corbis and Getty and the other massive stock agencies can get TOO BIG. Photobuyers will eventually seek out imagery in their own specialty areas.

As the supply of sources of images on the Internet grows, we can expect this phenomenon to come to pass. The ease and speed of electronic communication and delivery will allow researchers and buyers to turn to smaller stock agencies and individuals, who focus on their particular (specialized) targeted needs, and where they can expect speed, customer service, direct download and a deep selection of images in the subject area they need. –RE .

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This week's featured photographer on PhotoSourceFolio:

Phillip Woody (http://www.photosourcefolio.com/2504)

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For the aspiring freelance researcher

Goodbye Taxes

by Rohn Engh

Arithmetic in grammar school and algebra in high school never appealed to me. But when I discovered later on in life that I could save hundreds of dollars every year, I soon became fascinated by mathematics.

Once a year we have to get serious about taxes. Most independent business operators have the same comment. "Taxes...Oh! I leave that subject to my tax accountant."

It turns out the tax accountant is usually Uncle Harry down the street, or someone picked out from the Yellow Pages. In other words, non-experts, who are possiblycosting the entrepreneur mucho dollars.

If you’re operating at a distance from your taxes, let me make two points: 1) you may be missing an opportunity to save anywhere from $10 to $1,000 a year (or more) on your taxes, if you are a salaried person and your involvement in the stock photo field is a supplemental income for you, and 2) what I'm going to say has nothing to do with evading taxes -- that's illegal. You will avoid taxes -- that's your legal right.

THE IRS RULES ENCOURAGE YOU

The IRS encourages you to avoid taxes. Sound odd? It's correct.

The reason the IRS doesn't want you to pay so much in taxes is that our free enterprise system recognizes that it takes courage to start up a business, thus, the IRS wants to en-courage you. They know that if you succeed, you could very well help stimulate the economy by hiring more workers, who in turn will pay more taxes.

Perhaps you thought "write-offs" were only for the big boys, and that it costs big dollars to ask questions about tax advantages. Not so. The IRS provides you with all the information I'm about to reveal to you, in their free and informative, "Taxpayer's Business Kit." (Phone them at 1 800 242-1040 to order a copy.)

But if you're like most of us, you'll take one look at that two pounds of information and put it away in a drawer for "later."

A costly mistake. Here's what you’ll discover when you sift out the information as it applies to you, the stock photo researcher. The government will give you five years to get established. Within those five years,* you should show a profit ($1 is a profit), at least two of those years. That means you could go three years without showing a profit and still reap tax benefits (more later). Again, this applies to someone who holds a salaried position and operates their photo research business on the side. If you are self-employed, with your involvement in the stock field as your only enterprise, you don't have to make a profit in any of those years to qualify as a full-fledged business.

You don't have to "get a license" (unless your local city or township requires it). You only have to show intent to operate as a business, rather than as a hobby.

Intent translates into "putting up a shingle." In other words, get some stationery printed, build a website and open a separate bank (business) account. At income tax time, fill out Schedule C, a form that lets the IRS know whether you made a profit or a loss on your side business.

Now here's where your savings come in.

Want to read more of this article? Go to: http://www.photosource.com/researcher/clmn86.html

Do Your Photographers Need

Model Releases?

Photo columnists, unaware of their First Amendment Rights, have been fanning the fires of this hotly debated question for decades. A wall of mythology has built up around the subject, and I'll make the first move to break it down for you. To give you a simplistic answer: No, they do not need a model release.

You may now get up off the floor and sit back down. I'll ask you to be open to a re-programming process. First, a few questions: Have you ever seen a newspaper photographer ask for a model release? Did the video photographer in the Rodney King case ask the policemen or Mr. King for a model release?

If the photo you are using is informing or educating the public, you do not need a model release.

And this is where the confusion comes in. Here at PhotoSource International we encourage you to follow the trail of the new generation of new media. Its emphasis is the publication trade: magazines, books, and electronic media. About a million dollars a day are spent in this category of stock photography, whose essential use is to INFORM and to EDUCATE. Photobuyers in this arena rarely require a model release, unless the photo is so sensitive that it might compromise a person in some way. Short of highly sensitive areas such as drug abuse, sex education, mental retardation, certain medical subjects, religious issues, you won't find photobuyers asking for a model release.

"How and why was I under the impression that model releases are always required?" you ask.

Most of the teaching and training in the USA for people working in the photography field, is slanted to COMMERCIAL photography, where a model release is always needed.

As stock photography grew and became more prevalent, commercial photographers switched over to media photography, and brought along with them the rules for commercial photography: i.e. a model release is needed. Since most classic stock photography is used for commercial purposes, these photographers are right, a photo needs a model release if it is being used in the commercial sector (for advertising or promotional use).

Most of the horror stories concerning model releases that you may have read about have to do with commercial photography (for ads and in relation to sales and products for purchase), again, where YES, you do need a model release.

Enter the publishing world. Stock photographers, focussing on editorial (not commercial) photographs and operating in a free enterprise society, have a powerful law on their side, namely the First Amendment of the U.S. Constitution. The First Amendment in effect says anyone can freely photograph in public as long as they are not breaking any local laws, such as trespassing. Large publishing houses, which spend $50,000 to $150,000 per month for photography, are vigilant about protecting their First Amendment Rights, and in so doing, they protect photographers’ First Amendment Rights. If Houghton Mifflin, Harcourt Brace, etc. were to require model releases for the pictures they use, they would soon go out of business, because media photographers would not put up with the chore of getting model releases for slews of editorial, "non-posed" pictures.

This article opens the window and lets some fresh air in on this subject. If you've been relinquishing your First Amendment rights up to this point, I hope this article helps you regain them.

Want to read more of this article? Go to: http://www.photosource.com/researcher/clmn106.html

ON-LINE

by Bill Hopkins

SPAM Is Good For You?

Of course, it all depends on your definition of SPAM. For 12 weeks, volunteers at five large Canadian companies received weekly e-mails reminding them to eat healthful foods and keep active. These folks were already participating in a larger study about health and exercise. The report (in the American Journal of Health Promotion) stated that those who received e-mail reminders exercised more, reduced their body mass index (BMI), and knew more about the benefits than those who did not. The group that did not get the reminders gained weight.

Yes, It's (Sadly) True

Kodak has announced that it will discontinue manufacturing black-and-white photographic paper by the end of this year. They will continue to produce B&W chemicals and film. (In case you're interested, the paper is made in Brazil.) Many reasons are cited, including the huge move to digital, and Kodak's need to trim their workforce while trying to stay profitable. Ilford, another B&W paper maker, was rescued this year from bankruptcy (filed last year) by a management buyout, and AgfaPhoto (Germany) filed for bankruptcy this last May. So if you want to continue your fine-art B&W photography, consider stocking up on your favorite paper, especially if it's Kodak's.

Firefox Flaw

If you're using Firefox as your Microsoft Internet Explorer replacement browser, you may be vulnerable to a couple of severe security risks. These flaws could allow a malicious web page to make software installations appear to be from a trusted site, such as Mozilla's own update websites (update.mozilla.org and addons.mozilla.org), which are listed in the browser's whitelist. This has been mostly fixed by changes made to those websites, that alters the installation process. You may still be at risk if you have added your own sites to the whitelist, however. So check out and verify the legitimacy of any other URLs in your Firefox whitelist. And it wouldn't hurt to get the latest version, either.

Want to read more of this article? Go to: http://www.photosource.com/researcher/onlin159.html

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Need the answer to a tax question? Use the free

IRS hot-line. Best time to call is Tuesday,

Wednesday, or Thursday. 1-800-829-1040.

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Edward Wallowitch. His outstanding editorial

photography inspired yours truly in the early

70’s to enter the field and begin selling images

to book publishers. Wallowitch passed away

some years ago, and his heirs have now decided

to offer Wallowitch’s entire collection for sale,

to a private collector, museum, or stock library.

For more information, contact John Wallowitch,

411 East 51^st Street, #1, NYC 10022

(212) 753-5748; wallowitch@juno.com

– Rohn Engh

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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.

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LOOK LIKE A PRO when mailing your next

print, ad, or disk: The "Way Less" envelope

stiffener will not only create a high-tech look

to your project but save you more than fifty

cents in postage on an average mailing. (They

pay for themselves!)

Made of extruded sheets of stiff corrugated

polypropylene, the "Way Less" envelope

stiffeners are lint and dust free, and unlike

cardboard are impervious to moisture. Available

in all popular envelope sizes. To learn more,

order, or request a free sample, visit:

www.envelopestiffeners.com

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Getting Good Guidance

In grandfather's day, before the technical revolution, it was customary to pay attention to the wisdom of "the older voice of experience." Grandfather (and grandmother) passed down the wisdom of the ages. When it comes to ethical and moral thinking, that's pretty much true today, yes. But when it comes to today's business operations, including photo research business operations, such as delivery, temporary storage, research, and development, grandpa is usually clueless.

Too often, I hear a researcher say, "So-and-so, who has been doing photo research 30 years, told me that..."

And too often, so-and-so's advice was not on-target. Why?

Because photo distribution, storage, and the actual production of stock photography has dramatically changed in the last decade. If a veteran researcher is giving you advice, and still depending on a film-based system, you can be sure he or she is advising you from a limited and a biased position. Photo researchers are like most of us, -they don't welcome change.

RAPID CHANGE

With the speed of recent technological advances, most disciplines, not just photography, are also experiencing rapid change-- physicians, mechanics, engineers, the military. Today, to get advice, for example, from a retired physician, soldier, automotive repairman, who has not continued his or her education on an ongoing basis, would not be wise. In photo research, it can even work against your success.

This sounds like an indictment of senior citizens. It's not. It's aimed at cautioning against the myths that some veteran researchers, albeit with good intentions, pass on to those just starting out. My point is to watch out for faulty consulting. What worked in the last two or three decades regards business operations in stock photography research, frequently doesn't work at all today.

Want to read more of this article? Go to: http://www.photosource.com/researcher/gen692.html

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.

CORBIS inks deal with London photo agency-

http://www.bizjournals.com/seattle/stories/2005/07/18/daily38.html?from_rss=1

Columbia waitress finds skimpy pictures of her on boss' computer-

Police have now arrested that restaurant owner on felony charges of

UNLAWFUL photography

http://www.wkrn.com/global/story.asp?s=3629705

Digital photography BOOMS, film on the decline - Though some professionals were initially resistant to digital cameras, this is no longer the case, said photographer Robert Burley, who also teaches at Ryerson University's School of Image Arts. http://www.cbc.ca/story/arts/national/2005/07/21/Arts/digiphoto050721.html?ref=rss

A new angle on the Capitol - A photographer describes how he shot a worker rappelling off the CAPITOL dome. http://www.csmonitor.com/2005/0725/p18s05-hfes.html

Number of MAGAZINE Printers Remains Stable - While plants in the "magazine, periodical" market are, and will remain, the healthiest of firms in the industry, we expect to see more diversification in the types of products they produce-and the media they work in. http://www.trendwatchgraphicarts.com/fastfacts/fast291.html

Digital Infrared Photography: Make Stunning Photos with INVISIBLE Light - One of the most beautiful and unexpected kinds of photographs can be produced using digital infrared photography techniques. http://blog.fotolia.com/us/archive/001132.html

Wedding photographer captures spontaneous moments - Wedding photography has changed dramatically in the past few years. Not long ago, everything was carefully posed. But posed photographs lack SPONTANEITY , naturalness and life. http://www2.ljworld.com/news/2005/jul/25/wedding_photographer_captures_spontaneous_moments/?living

Photographer chronicles the spirit of TOBACCO farmers - In 2004, the Clibornes attended the final tobacco auction in Farmville. Luckily, images of the auction and their final growing season have been forever preserved thanks to a local photographer and Cliborne http://www.zwire.com/site/news.cfm?newsid=14910932&BRD=2271&PAG=461&dept_id=462946&rfi=6

Photostockplus.com: Business In a Box for Event and STOCK PHOTOGRAPHERS - The most notable change in the photography industry has been the jump to digital equipment, as the technology has greatly improved. Concurrent to this change has been the exponential growth of the online photography market, currently a $50 Billion dollar industry. http://www.creativepro.com/story/news/23180.html

STUDENTS learn photography - The Press-Citizen photo staff visited two neighborhood centers to give area children a hands-on lesson in creative photography. Each kid a disposable camera donated by Iowa State Bank & Trust to take pictures during the next week. http://www.press-citizen.com/apps/pbcs.dll/article?AID=/20050723/NEWS01/50723001/1079/RSS01

ART of photography. The Loke Legacy: The Photography Collection of Dato’ Loke Wan Tho,

which opened at the gallery in June, kicked off the Kuala Lumpur

International Photography Biennale 2005 (KLIP)

http://thestar.com.my/lifestyle/story.asp?file=/2005/7/24/lifearts/11529410&sec=lifearts

Largest Database of MASTERWORK Photography on the Web Underway:

http://websearch.about.com/b/a/187342.htm

FREE database of photographic treasures

http://www.iht.com/articles/2005/07/20/business/photo.php

Printing Tips: Go from HARD DRIVE to Hard Copy - If you're new to print design, you may not know that jobs destined for a professional print house must follow very particular parameters. http://www.creativepro.com/story/feature/23174.html

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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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419

Next Month: Supreme Court Establishes New Concept For Copyright Infringement