## PHOTOresearcher NEWS weekly newsletter for month ## 123A

## PhotoRESEARCHER Newsletter for January 2004 ## 400

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

(If you do not wish to receive the PhotoRESEARCHER Newsletter, please see the instructions at the end of this newsletter.)

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ANNOUNCEMENT

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I hope you've found the PhotoRESEARCHER Newsletter interesting and helpful to you and your organization.

Shall we keep you on our mailing list? In order for you to continue to receive this 'closed-circuit' newsletter, we ask that you register (if you haven't already) for the researcher "ToolBar" at:

< http://wwww.photosource.com/bar >.

There is no charge to you for our services, nor for the PhotoRESEARCHER Newsletter. For your part we hope you will want to see how you can benefit by listing photoneeds in the PhotoDaily or PhotoLetter, and the PhotoSourceBANK photo search service.

The Photobuyer ToolBar provides you with a streamlined, easy, one-step method to locate hard-to-find images. It takes only 4-5 minutes to download to your computer. Once loaded, the ToolBar will appear on the top of your computer screen. When you need to find a photo, you can use the ToolBar to quickly and easily list a photo need in the PhotoDaily or PhotoLetter, or to search for a photo directly in the PhotoSourceBANK. (The PhotoSourceBANK lists over one and a half million keyword descriptions of photograph subject matter ranging from Inner Mongolia to St. Croix Falls, listed by photographers across the country and abroad. When you have to have a specific location, personality, animal, celebration, flower, museum, school, etc., the ToolBar is the way to find it. Try it out on a "test" search. You'll like it.

If you need any assistance in downloading the ToolBar, call our Webmaster, Jeff, at 1 800 624 0266 extn 22. Again, it's at < http://www.photosource.com/bar >.

Keeping within budget...

SETTING YOUR FEE

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Your photo suppliers are people with cameras who usually choose lifestyle over monetary reward. That's why most editorial photographers live in small towns or rural areas. Our subscriber address list shows this.

They'd rather shoot ten pictures for a book-in-progress for $200 each, than one fashion shot for $2,000.

One big factor for the editorial photographer is there's no art director hovering over them dictating how they should shoot. Fashion photography, and most commercial stock photography, have a short shelf life.

The long-term dividend for editorial stock photographers is that most of their editorial pictures can be sold and re-sold down the line to specialized or history markets. The pictures can serve as a future annuity for the photographer's family.

Do photo editors set a photographer's day rate?

Most do. If the day rate set is not a fee (plus expenses) that a photographer feels they can work for, there are concessions you or the photographer can make.

CONCESSIONS

Here are some of the things you can say: "I will use the resulting photos for one-time use. You are free to incorporate them into your stock file, provided they will not be published by a competing organization within two years. For any reprint of our publishing project, domestic or foreign, we will re-license the photos at______ (dollars)."

You could also say, "We will send you ten copies of the (project) for your promotional purposes." And/or, "Since our focus is South America, the next assignment project we have in that region, we will put you at the top of the list to photograph for us there."

Since you value the talent and work ethics of this photographer, it's to your advantage to invent ways to keep within budget, yet entice the photographer to want to take on your publishing project.

-Rohn Engh

Elvis Presley's legacy - alive and protected!

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by Joel Hecker

To what extent, if any, can photographs, film clips and music be safely used in a biography without permission from the copyright owners of such material?

The courts have grappled with this issue on a number of occasions with differing results, depending upon the actual facts. The latest court to consider the issue is the United States Court of Appeals for the Ninth Circuit, which upheld a District Court decision finding that such use was, indeed, copyright infringement.

The case, Elvis Presley Enterprises, Inc. (and others) v. Passport Video (and others), concerned the production and sale of a sixteen-hour-long video documentary divided into sixteen one-hour episodes, about the life of Elvis Presley. It sold for $99 at retail. Appropriately enough, it was titled The Definitive Elvis. The promotional material and packaging described it as "an all-encompassing in-depth look at the life and career of a man..." Unfortunately for the defendants, their use of some of the copyrighted materials, such as television and movie clips, still photographs and music, was not limited to brief or short uses, nor were they extensively used with added elements such as narrative voice overs.

As a result, the Circuit Court of Appeals, in a 2-1 decision rejected the defendants' Fair Use defenses, and upheld a preliminary injunction barring the sale or distribution of the material pending a trial on the merits.

The Court found the use to be clearly commercial in nature, which seeks to profit directly from the copyrighted material used without a license. It further found that the use was not consistently "transformative." That is to say, many of the clips were validly used only for a few seconds for reference purposes with narrative talk-over, but other clips and material were played without interruption beyond the scope of reference. These clips and materials were used simply for entertainment purposes, thereby taking the heart of the copyrighted material which was available for commercial licensing by the copyright owners.

Want to read more of this article? Go to: http://www.photosource.com/researcher/legal106.html

Sensitive Photos And the Law

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As our government officials tighten security restrictions under the banner of making us all more protected in our homeland, we should examine the impact on our own photographic industry.

Let's take the case of a nursing home. It's a sensitive situation for photographing.

Granted, none of us who have relatives residing in a nursing home need unwanted visitors in the form of snooping photographers taking pictures of our loved ones. But what if a loved one were suffering indignities, let alone poor care, at the hands of an unethical and incompetent nurse, doctor, or other nursing home employee?

Our reaction would be different.

Perhaps you've bumped up against this constraint: when you attempt to assign a photographer to take photos in a nursing home:

"You need a model release to photograph any patient in a licensed health care facility in any U.S. state." Such statements are not law -- and they often come from a nursing home health care professional, "protecting" their turf. Yes, we all honor laws that protect private health care information, such as tests, x-rays, financial background, etc. These laws don't apply to "right-to-know" documentation of living and working conditions.

THE OTHER SIDE

We can all agree on the "ethics" of taking photos in a nursing home. But we must also view the other side of the question, "What if photos actually were not allowed to be taken in nursing homes unless the photographer had model releases from the persons pictured...?"

I am reminded of an article that appeared last year in the New York Daily News, "Fatal Errors - Report Finds Nurses' Mistakes Led to Thousands of Deaths."

To quote from the article:

Want to read more of this article? Go to: http://www.photosource.com/researcher/cb60.html

Finding Photo Dollars

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The best of both worlds... The following proposed system could prevent any misuse of stock photographers' on-line photos, yet still allow photographers to reap the benefits of free (publicity) exposure of their images on the Web. The system would entail adapting the movie industry's "windowing" strategy, which allows one movie to make money in different forms at different times.

For example, in the movie industry a new film is 1.) released in theaters; 2.) released later as a home video and a cable pay-per-view movie; 3.) five months later, the same movie will appear on a cable premium service like HBO; 4.) followed 15 months later with a showing on a commercial-supported broadcast network or station.

A PROPOSAL

In the stock photo industry, it would work like this: The photo would first be displayed on a private or commercial web gallery. An "inauguration" date and the photographer's name would go along with the photo, much like the barcodes and dates on milk cartons. (In order to be effective, this strategy would have to be included in a forthcoming revision of the Copyright Law.) The time of posting would be the "inauguration date." Search engines would be allowed to display the images, provided the attached photographer's web address is displayed along with the image.*

During this time, the image could be licensed as "rights protected" (RP) for a standard fee, followed six months later by its release in a Royalty Free form for standard RF fees.

Subsequently, the image would be available as one of a larger selection of images available on a membership service like Corbis, Alamy, or ImageState, which would charge $10 to $20 per month to access the photos for public non-commercial purposes.

Want to read more of this article? Go to: http://www.photosource.com/researcher/gen548.html

CHANGES

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KENNEL CLUB BOOKS (716 Devon St #8, Kearny, NJ 07032) Contact person Amy Gilbert, Senior Editor. Former e-mail: amygil@att.net; current e-mail: amygil@comcast.net .

USA EQUESTRIAN-EQUESTRIAN MAGAZINE (4047 Iron Works Parkway, Lexington, KY 40511) former contact and e-mail: Diane Alexander, Production Assistant, dalexander@equestrian.org ; current contact and e-mail: Jennifer Singleton, Photo Research, jsingleton@equestrian.org .

EQUAL OPPORTUNITY PUBLICATIONS INC (445 Broad Hollow Rd Ste 425, Melville, NY 11747) former contact and e-mail: Claudia Wheeler, Editor, cwheeler@eop.com ; current contact and e-mail: Lana D'amico, Editor, ldamico@eop.com .

PHOTO NETWORK, Contact person Cathy Aron, Stock House. Former address, phone and fax: 1415 Warner Ave Ste B, Tustin, CA 92780, 1 714 259-1244, 1 714 259-0645; current address, phone, fax and e-mail: 1520 Brookhollow Dr Ste 30, Santa Anna, CA 92705, 1 714 429-9111, 1 714 429-9110, info@photonetworkstock.com .

ROMETTA INC (7801 Montgomery Ave, Elkins Park, PA 19027) Contact person Mimi Caruso, VIP. Former e-mail: mimicaruso@hotmail.com; current e-mail: Rometta@comcast.net.

D'ARCY WORLDWIDE, Current contact person Samantha Jaffoni, Senior Art Buyer. Former company name, address, phone and e-mail: D'Arcy Worldwide, 1675 Broadway 15th Fl, New York, NY 10019, 1 212 468-3880, Samantha.jaffoni@darcyww.com ; current company name, address, phone, e-mail: PUBLICIS NY, 4 Herald Square, 950 Sixth Ave, New York, NY 10001, 1 212 279-7188, Samantha.jaffoni@publicis-usa.com .

JOURNAL OF PSYCHOACTIVE DRUGS (G12 Clayton St, San Francisco, CA 94117) former contact and e-mail: Jeffrey Novey, Editor, hapipd@pacbell.net; current contact and e-mail: Richard Seymour, Editor, journal@hafci.org .

HEINEMANN-RAINTREE (100 N La Salle Ste 1200, Chicago, IL 60602) Contact person Stephanie Miller, Photo Assistant. Former phone: 1 312 827-1691; current phone: 1 312 324-5247. Contact person Jill Birschbach, Photo Editor. Former phone: 1 312 827-0004; current phone: 1 312 324-5246.

DENA DIGILIO BETZ, Freelance Photo Editor (204 Westbrook Drive, West Chester, PA 19382) former e-mail: denabetz@msn.com; current e-mail: denabetz@comcast.net .

THE BRAVO GROUP (20 Cooper Square 3rd Fl, New York, NY 10003) former contact and e-mail: Jeanine Fijol, Art Buying Coordinator, jeanine_fijol@nyc.bravoyr.com; current contact and e-mail: Nidia Cueva, Art Buying Coordinator, nidia_cueva@nyc.bravoyr.com .

NATIONAL GEOGRAPHIC MAGAZINE (1145 17th St NW, RM 809, Washington, DC 20036) Contact person Leah Boonthanom, Illustrations. Former phone: 1 202 857-7185; current phone: 1 202 857-7199.

ON-LINE

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by Bill Hopkins

Random Note Taker

If you don't like your current way of taking notes, you might want to check out this new program from Microsoft (yep, Microsoft!). It's called OneNote, and is designed to help you take and manage random notes, just like you might use a napkin or scrap piece of paper. It integrates well with Microsoft's Office line of products. OneNote uses tabs to keep track of your notes, and you can arrange the notes anywhere on the page. With a microphone and sound card, you can create audio notes (it won't convert to text, however). To download a free 60-day trial, go to http://www.microsoft.com/office/trial. If you decide to give it a try (or already have the full product), let us know how you like it.

Yeah, California!

No, I'm not talking about the new governor, but about California winning its first anti-spam judgment. PW Marketing was fined $2 million (under a 1998 state anti-spam law) for sending out millions of unsolicited e-mails advertising how-to guides on spamming, and long lists of e-mail addresses. That 1998 law has since been beefed up, including greater penalties. The judgment forbids PW Marketing from sending unsolicited commercial e-mail, disguising their identity in e-mails, and more. Two of PW's principals were also barred for 10 years from owning or managing any business that advertises over the Internet. It's a baby step to be sure, but an important one nonetheless.

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.

SPAM INSPECTOR 4.0.

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Spam Inspector's powerful spam filtering engine quickly identifies and separates the hazardous and annoying spam from your legitimate e-mail. Based on personal and global learning networks, Spam Inspector adapts itself to your e-mail automatically, filtering out all of the junk mail with close to 100% accuracy. No adding rules, no complex training, no forcing your friends and colleagues to jump through hoops to communicate with you. Works with any POP e-mail client, including Microsoft Outlook, Outlook Express, Incredimail, Eudora, and MSN Hotmail (via Internet Explorer). This is a new version ($29.95), much improved over the prior 3.2 version, especially for Outlook Express users. I've been using 3.2 for a while, and now am using 4.0 with excellent results. Upgrade pricing for 3.2 users. 15-day trial version available, and 30-day money-back guarantee on the product. -- Bill Hopkins http://www.photosource.com/pbk/spaminsp40

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You may at times want to find a SKETCH, DRAWING or PRINT to serve your publishing project. Here's a website that will help you quickly locate the illustration you need: http://www.portfolios.com

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TRAVELERS ABROAD

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Photographers: We broadcast your foreign destinations along with contact information, departure date, length of stay, etc. Contact PhotoStockNotes (1 715 248-3800) at least two months in advance.

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 Hanni Peterson/. (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.

Jake Norton

November 22 - December 22, 2003

India

Brett R. Henry

December 25, 2003 - January 10, 2004

Lancashire, England

Henry Westheim

December 1 - January 12, 2004

Taiwan

January 13 - February 4, 2003

Philippines

February 5 - June 27, 2004

Taiwan

Heath A Korvola

February 15 - February 28, 2004

Alberta Canada

Contract Carving

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You send out your first contract. What's next?

Be prepared to negotiate.

You want to anticipate all options that might come up in the digital era we now find ourselves in. So, you want to make your contract as broad as possible. It's up to the photographer to whittle the contract down to reality. Here are some suggestions for you:

-- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --

Contract: Photographer hereby grants to Publisher one (1) time publication rights

to Photographer's stock photograph(s) and ongoing rights, as described below. The rights granted are nonexclusive.

Translation: This means the photographer can sell and resell this photo to other publishers and it is not an "all rights" sale exclusively to you. If it were an "all rights" sale, the photographer would want to charge a higher fee than the original asking fee.

Contract: The rights granted are applicable in all media, including, but not limited to, all electronic, world-wide web, CD-ROM, optical, digital and other media whether now known or hereafter invented.

Translation: As we move into the Digital Age, you'll want to be sure you don't run into any future snags where it is not clear whether electronic rights are also included in the license fee.

The photographer might want to tack on an extra charge in case the you want to (in the future) use the image for an electronic purpose, such as a one-time use on your Website, or in a sample CD-ROM. But not necessarily. Unless the photographer's name is a household word in the industry, he/she should go along with your request for electronic rights, for no extra charge.

This might come as a jolt to long-time stock photographers who see electronic rights as an additional use. However, as we move further into the digital age, "electronic rights" are going to be a "given" and undistinguishable from standard "print" rights. The door instead is open for a photographer to charge a higher basic fee than he/she has usually been charging. They have the option of charging an extra fee for electronic rights, but they might, price themselves out of the market. The answer to this dilemma for the photographer, is probably to originally charge 10 to 25% more for the one-time use of photos. If you really are interested in using the image, you'll find a way to cover the cost of this higher fee.

Want to read more of this article? Go to: http://www.photosource.com/researcher/gen535.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.

NGS Beats Infringement Rap in New York - In a stunning rejection of the

Greenberg v. National Geographic decision, a federal District Court judge in

New York has ruled that the Complete National Geographic CD doesn't violate

the copyrights of several freelance photographers after all.

http://www.pdnonline.com/photodistrictnews/headlines/article_display.jsp?vnu

_content_id=2054645

Korean navy photo ban angers amateur photographer - The behaviour of Korean

sailors and guards on a wharf who tried to stop photos being taken of their

destroyer has angered an amateur photographer.

http://www.stuff.co.nz/stuff/0,2106,2762886a11,00.html

Photographers seek to document human condition at home and abroad - The best

photographers do it time and time again, leaving behind a legacy that

becomes representative of a person, a people, a place or an event. This

year, photographers have travelled the world, producing books that strive to

document the human condition in all its struggles and triumphs.

http://story.news.yahoo.com/news?tmpl=story&u=/cpress/20031217/ca_pr_on_en/b

ooks_photo_1

Digital cameras snap open market for Web photo services - The popularity of

digital cameras, is paying off for online photo services. Market leaders

Ofoto, Shutterfly and Snapfish report big sales increases over last year.

Research firm IDC estimates revenue for the sector will be up 50% over 2002.

http://story.news.yahoo.com/news?tmpl=story&u=/usatoday/20031215/tc_usatoday

/12069719

Two Photogs Awarded Alicia Patterson Fellowships

http://www.pdnonline.com/photodistrictnews/headlines/article_display.jsp?vnu

_content_id=2055611

Want to read more "Photography in the News? Go to: http://www.photosource.com/researcher/pitn.html

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PhotoRESEARCHER Newsletter is a free newsletter for photo researchers. It consists of excerpts from the PhotoStockNotes, available for subscription at $5 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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Reproducing or copying photoRESEARCHER Newsletter for non-private purposes is not permitted without written consent of the publisher, except for review purposes where source credit is given.

## 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 Hanni Peterson

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Next Month: Our Changing Industry