The ImageMultipliers.com

Advance Notes: The way the Copyright Law is written and currently interpreted, it’s easier than ever to legally combine parts of several digital images to make an entirely new image. The Big 3 (Getty, Corbis, and Jupiter) have the resources to employ this as a standard procedure.

The race is still on between the three giant stock photo agencies, CORBIS, GETTY IMAGES, and JUPITER IMAGES. The three have just about pulled it off. They own the rights to a major portion of the commercial stock photography in the world.

Like the view under the microscope of the ever-expanding organism dividing and reproducing itself, the Big 3 present a macro view of how the world of commercial stock photography is expanding. And it’s not through photographers tramping the globe, taking more photos. Instead it’s due to an incestuous technique (like cloning sheep) that the Digital Age has given birth to.

The Big 3 hold this hidden trump card each time they buy up another stock photo agency:
Each time they acquire a new stock agency, they gain certain electronic rights for that agency’s photos. They also take steps to gain the right to digitally combine those images with other images in their files, by use of a waiver clause in their contracts with photographers. Typical is the Getty contract, in section 106A (see this at http://www.photosource.com/106A.html) subsection (a) e “Transfer and Waiver.” Photographers who are not aware of what they are signing can inadvertently waive the attributions and integrity rights to a single photo or group of photos.

The mathematics of this process are ingenious. Not only do the Big 3 acquire new companies and new images, but an exponential expansion of certain of those images, whose copyright can become their property, according to current Copyright interpretation.
As we move into the Digital Age of photography, this new genre of photo is emerging. It has not arrived on main-street-digital yet -- but we see prototypes of it in print ads and especially on TV.

I call this the Kaleidoscope Strategy. (Remember the tube toy you used to raise to the sky and then marveled at the changing myriad images as you turned the tube?) In terms of arithmetic, it goes like this: Any one of The Big 3 select five of their waivered pictures, digitize them, combine elements from the five into a variety of 25 new pictures, each substantially different from the original (green sky on this one, a small tree from that one, a vintage automobile from this one, etc.) and presto! You have a completely different mood, expression, and feeling to each new photo –and none are recognizable as any of the five original pictures.

Photographers who have signed contracts with the Big 3, signed in good faith expecting their pictures to continue to belong to them. Their original contracts may discuss not altering their original photos, but never mention extracting parts of an image to produce a new image of separate copyright. Some “work for hire” contracts, for example, stipulate “we retain usage rights in any medium now known or hereinafter developed for no additional payment.” As you can see, the photographer loses control of his/her picture when it is combined with parts of other photographers’ images.

CAN THE COURTS HELP?

No doubt court cases will toss the Kaleidoscope Strategy back and forth for years to come. The U.S. Copyright Law is a balance of interests: the user, the creator, and the publisher. In the end, those in judicial command who interpret the Copyright Law, will probably decree that it would interfere with “creativity” to disallow the process of combining images to make new images, in the spirit of how Picasso and other artists would combine images and items to make a collage or sculpture.

         Who then owns copyright to these newly authored images? Whichever one of the Big 3 who created them. According to the Copyright Law, if sufficient "authorship" is invested in the re-making of an image, the copyright of this new composite belongs to the new author. With hundreds of thousands of images to work with, the Big 3 can conceivably more than double or triple their inventory of images. New Age images could be made on demand –not by photographers but by in-house experts in the art of digital manipulation.
Smaller stock houses probably won’t have the expertise, software, or legal resources to pull this off, but we can expect that the Big 3 will.

It’s important to remember that we are not talking about original images being altered, like the example reported in the May 2000 issue of PhotoStockNotes, page 7, where a T-shirt company altered a photographer’s photo, and the result was still recognizable as the original.

Want to read more of this article? Go to: http://www.photosource.com/researcher/gen434.html

Lois Olson

Oral Agreement Exception Clarified
by Joel Hecker, Esq.

There is a well-known phrase which goes “an oral agreement is not worth the paper it is written on.” This is a common misunderstanding since oral agreements may be enforceable under certain circumstances. A new case in the United States District Court for the Southern District of New York involving an alleged breach of contract has clarified the circumstances in which an oral agreement is enforceable.

Under the Statute of Frauds, which varies from state to state but has the underlying principle that an oral agreement is not enforceable unless by its terms it cannot be performed within one year of the making thereof. It does not have to actually be performed within one year.

For example, an agreement at will which is terminable on thirty days notice can therefore be performed within one year (theoretically one day of service plus thirty days notice), even if the actual relationship lasts for years. On the other hand if the term of the oral agreement is for two years, it obviously cannot be performed within one year.

The recent case, Pearce v. Manhattan Ensemble Theater, Inc. involves the plaintiff actress, whose stage name is Patty Duke, and her claim that the defendant breached the contract under which she was hired to portray former Israeli Prime Minister Golda Meir in the touring company for the play Golda’s Balcony. The alleged oral agreement was that she would perform as Golda Meir from September 2005 to on or about May 2006, would accept no other entertainment engagements at that time, and would receive specified compensation. In addition, she would receive no less than 15 weeks of full salary even if the show closed before the end of the scheduled run. Thereafter, the defendants distributed press releases and advertising that she would appear in the play.

The complaint further alleges that the defendants terminated the agreement on the incorrect belief that plaintiff’s heart surgery had disabled her and hired Valerie Harper as a replacement actress.

The defendant moved to dismiss the breach of contract claim on the basis of the Statute of Fraud, claiming that the complaint alleges that the agreement was made in December 2004 but that the tour was not to conclude until May 2006, which is a period of more than one year.

Want to read more of this article? Go to: http://www.photosource.com/researcher/legal144.html

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.

TOUCHY TOUCH-UP Toledo Blade Ran Doctored Photo On Front Page - The photographer admits he altered the photo on his laptop at the scene, but says he meant to keep that file for personal use and transmitted it to his editors by accident. http://www.pdnonline.com/pdn/newswire/article_display.jsp?vnu_content_id=1003568113

IS ALWAYS RIGHT The Art of Business: Seven Strategies for Better Customer Service - Customer service starts by offering both a professional experience and a great creative product. But it doesn't end there. Superior customer service is also about anticipating and meeting your client's needs.
http://www.creativepro.com/story/feature/25345.html

PERMISSION DENIED. Man arrested on Mill for illicit photography. A man on Mill Avenue was caught snapping photos of more than just scenery. According to Tempe police, witnesses observerd Wayne Roberts, 58, walking behind women and reaching under their skirts with his camera without their permission.
http://www.azcentral.com/12news/news/articles/0406tr-camera0406-ON-CP.html

DIGITAL MAGIC Pictures Posing Questions-The next steps in photography could blur reality; When a celebrity appears in a fan-magazine photo, there's no telling whether the person ever wore the clothes depicted or visited that locale. The picture may have been "photoshopped," we say, using a word coined from the name of the popular image-editing software, Adobe Photoshop. Welcome to the world of computational photography, arguably the biggest step in photography since the move away from film.
http://www.sciencenews.org/articles/20070407/bob8.asp

IT’S IN THE MAIL Getting Paid- Part 1 - Nothing is more frustrating than committing your time and money to doing a job, and then not being paid for months or perhaps never being paid.
http://www.stockphotographer.info/content/view/476/99/

OUR HANDS ARE CLEAN Dear "Content Providers": - So when is an "agency" not an "agency"? The agency's legal position instantly morphs to, "We are only a content distributor. We have no special obligations to our content providers
other than to try to sell (sic) their work". http://www.stockphotographer.info/content/view/475/

FREEBIES New Trend to offer more Free Stock Photos? - Another micro payment stock agency dips into zero payment stock photography.
http://www.stockphototalk.com/phototalk/2007/04/123rfstock.html#more

WHO OWNS THE PHOTO? Understanding Work for Hire - http://nylawline.typepad.com/photolawyer/

CELEB PHOTOGRAPHER MFA Boston gets $2.5M in honor of celebrity photographer Ritts - The foundation established after the death of Los Angeles celebrity photographer Herb Ritts is donating $2.5 million and 189 of his works to the Museum of Fine Arts, Boston, which plans to create a photography gallery in his honor.
http://news.bostonherald.com/localRegional/view.bg?articleid=193225

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