StockPhotographer.info

In part 2 of this series I pointed out how stock photography has become less and less expensive over the past years, and how that trend is likely to continue unless some intervention is made. In the past advocates of rights managed stock and opponents of royalty free stock suggested that impeding the growth royalty free stock was the best way to improve stock photography prices.

That was true a decade ago. Today, it is as failed strategy. Royalty free stock dominates the market place. With that domination has come a situational reversal. Today, rights managed stock is impeding the growth in the prices of royalty free. Let’s look at that reversal.

The issue of “orphan works” is a serious one for photographers. “Orphan works” is the name assigned to published copyright protected works, including photographs, to which the owner cannot be found or is not known. Currently, if anyone uses an “orphan work” it by it very nature has to be without permission. If discovered by the copyright owner, the unauthorized user can be sued for infringement. There is an amendment to the U.S. Copyright Law in the works in the Senate that would make it difficult to impossible to sue such an unauthorized user of an “orphan work” for infringement. Photographers need to weigh in on the matter.

In the first part of this series of articles I ended with a promise to offer some strategic solutions for the stock photographer.  This article will explore stock photography so that the reader is fully informed of the options he or she has available when making a strategic plan. Strategy is best made with a full appreciation of the options available.

There are four licensing models for stock photography: Rights Protected, Rights Managed, Royalty Free, and Micro Stock. The names of those categories are contrivances of the marketplace. They are nothing more than marketing terms that have evolved to identify different pricing models from the highest priced, Rights Protected, to the lowest price, Micro Stock. Please never delude yourself into thinking that the names of those categories are important. The only important factors to the stock photographer ought to be what level or rights are licensed for what amount of fee. That said, let’s look at each category individually to understand the models thoroughly enough so we can make informed decisions about whether we should engage in that model of licensing.

Stock photography has become a very lucrative business over the past thirty years. During that time, stock photography inventories went from being selections culled from assignment outtakes to being specially produced images. That transition ran a parallel track to another transition. The cost of producing stock went from resting on the assignment client to resting upon the photographer. Keep that thought in mind. It has a lot to do with a point I am going to make a bit further down the page.

Here’s a scenario I want you to think about.  I want to sell automobiles. I go to the manufacturers, and I ask them to make a special deal for me. I want them to produce the autos at their expense. Then I want them to give them to me on consignment, i.e., I don’t have to pay for them unless I sell them.  I also insist that I be able to set the price, and that they can have no control over the prices I sell the autos for. Then I tell them that I will give them 40% of whatever price I get for any sale.  How many automobile manufacturers do you think would accept my deal?  If you answered none, you were correct. The manufacturers have costs to recover as a result of their production. They have no idea how many autos I can sell or at what price I can sell them. They can’t risk going into production without some reasonable prospect that their costs will be recovered, not to mention recovering a profit in addition to costs.

About a month ago, an attorney looking for an expert witness in a copyright infringement claim contacted me.  He was pursuing a publisher who had far exceeded the number of copies of a book and the period of time a photographer had granted in the original license to use a photograph. It was clear that the photographer was going to get paid in a settlement. The only questions were how much, and how much would be left after the attorney was paid his fees and costs. The infringer admitted the unauthorized use, and it explained that it simply had lost sight of the license’s terms and made a mistake. The photographer was eventually paid a fair licensing fee for the infringing use.

During my forty years in the photography business, I have learned that few clients have any system for tracking the rights they purchase. Most licenses they receive are usually part of an invoice that ends up in the accounts paid folder of the accounting department.

The House of Representatives passed H.R. 683, the Trademark Dilution Revision Act of 2005 as an amendment to the 1946 Trademark Act.  H.R. 683 has been sent on to the Senate for action.  If passed by the Senate, the President will undoubtedly sign it into law. My concern about H.R. 683 is that it seems to open a door for suing a photographer on grounds that amount to defamation of a trademark.  

On my first reading, H.R. 683 seemed to be unproblematic for photographers. Then by applying both experience and a bit of imagination, I found part of the legislation to be potentially harmful. That part has to do with what the legislation terms Dissolution by Tarnishment. My letter to Senator Orin Hatch explains my reasons for concern.

The handwriting has been on the wall for professional photographers for the past decade. The message has been digital image capture will overtake film image capture. New press releases (Jan 31, '06) from Fujifilm and Kodak indicate that the handwriting is true. Fuji is restructuring its operation by cutting jobs in film production and sales and expanding its China (digital) production. Kodak announced that digital product sales now exceed film product sales. Digital is now king of the hill.  Photographers who are quickly losing the choice between film and digital will have to migrate to digital soon, if not already done. But migrating to digital means photographers will have to make some important choices.