Industry developments – Photoshop CC and the British orphaned works law

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But how does it affect me? Olympus E-P5 and 75/1.8

There have been a couple of recent developments in our industry that have been receiving a lot of heat lately – firstly, Adobe’s move to put Photoshop CS on subscription only, and secondly, the recently signed (25 April) British Enterprise and Regulatory Reform Act 2013 – or specifically, one portion of it dealing with copyright and orphaned works. I’ve had some time to chew over both of these issues and how they affect the average photographer – both the amateur and the professional. I’m afraid the overall prognosis isn’t good, but it also isn’t as bad as a lot of people are making it out to be.

Photoshop CS subscriptions

Given that a) Photoshop was actually never meant to be used for photography, b) the vast majority of amateurs are on Lightroom, and c) Adobe has been trying to push most photographic users towards LR anyway, it’s actually not a big deal. In fact, the price of LR has even fallen. For most users, it’s status quo – unless you’re trying to get a workflow going that gives you the best balance of control and speed, in which case you’re pretty much in the pro category when it comes to postprocessing.

Lightroom is actually a better tool for batch processing than Photoshop – for wedding and event pros, you’re probably not using that much Photoshop anyway except for the one or two hero shots that need to be retouched properly. For the rest of us, we simply can’t use LR: this is because its main shortcomings are also the ones that matter most. Firstly, there’s the whole problem of parametric editing; some tonal looks need to have operations performed in sequence to achieve, but LR doesn’t permit this. Secondly, there’s very little control over dodging and burning, and even then it’s kludgy. Thirdly, the obvious missing portion has to do with the retouching and digital imaging parts: no layers, very limited retouching tools, and no way to composite in text or other images etc.

Even then, the reality is that Photoshop CS has had all the tools pros have needed for many generations now; I only recently upgraded from CS3 because none of the cameras I was using were supported natively in ACR, and there were some updates to how CS5.5 addressed memory and 64bit operating environments; when you have to process thousands of files a week, that extra step via the DNG converter starts to add up in terms of computer time. That said, if the choice is between slowly bleeding money indefinitely for features I’m probably not going to use (and I think I use more than most because I also use Photoshop for illustration and layout work) and spending a few minutes more per batch, I’d rather spend a few minutes.

Adobe’s argument is that this way, subscribers will always have the latest version; it makes sense if there are features that still don’t quite work right for you, and you could benefit from an upgrade. I’m not in that camp, and I think most serious photographers haven’t been for some time now. The only thing that could make me consider an upgrade is a significant change to the back end that might make handling large files faster; when dodging and burning large areas of D800E files, there’s definitely some lag in the brushes – especially when they start going over 2000px in size, and are feathered. I’m not running an old, slow, or ram-deficient system, either.

My guess is that Adobe isn’t going to back down and offer a regular outright-buy version unless there’s an enormous outcry; the reality is that creative pros who spend all of their lives in front of Photoshop will probably continue to pay if they have no choice, simply because they have no choice: there is no other alternative software suite, and even if there was, you’d have to completely re-adapt and re-learn your workflow. I know I wouldn’t, and as much as this gives Adobe some sort of justification to wallet-rape me, if push came to shove, I’d pay. That said, it makes me wonder how they’re going to handle educational versions etc.

Enterprise and Regulatory Reform Act 2013

This one is a bit stickier. Buried in hundreds of pages of legislation (full version here) is a little clause (68) that gives UK companies or individuals the right to:

  • Use ‘orphaned’ [creative, including photographic] works after a ‘diligent search has been made in accordance with the regulations’
  • Allow third parties to grant licenses to other parties on those works, but no further than that (no sub-licensing)
  • It doesn’t grant exclusive rights to any user
  • The Secretary of State has the right to issue licenses for use of creative work

The crux of the problem is this: what does ‘diligent’ entail? Who determines if a sufficient effort has been made or not, and if it’s the Secretary of State – which is implied – then how is this objective if they also have the right to grant licenses to use the work? Moreover, does it apply to only UK works, or international works? How is a domestic regulatory body going to ensure that a ‘diligent’ international search has been made, if say the information or copyright holder doesn’t speak English or doesn’t come up on any conventional searches? What recourse does the copyright holder have if they discover their work has been used under this exception, and it’s easy to find attribution all along (i.e. the user didn’t bother to look properly)?

Public reaction to this has been rather serious, and understandably so. The problem is not that people are going to use works they can’t find the copyright owners to; this is nothing new and the reality is that it’s been going on for ages. Image theft is an unhappy reality of being online: I’ve had my fair share of images stolen and used for advertising or other commercial gain, even though a) I never upload anything full-size – for this reason – and b) everything is watermarked. I don’t think this law is going to change things substantially to the kinds of people who don’t respect the law anyway.

Here, my advice to all photographers – amateur or professional – is the same: if you don’t value your own work, nobody else will. This means common sense protection like embedding copyright info, contact info and artist info into your EXIF data; watermarking all images; and not uploading anything that is of sufficient size/ quality to use for commercial work. The paradox is of course you want your images to be seen in the best light possible, but at the same time, you don’t want them stolen. This is, and always has been a risk of being online and visible; the better your images, the more unscrupulous people tend to get.

I’ve seen major companies here use famous images from other photographers for advertising – badly done and out of context, on billboards, no less – and I’m sure that the agencies representing these photographers wouldn’t have authorized such usage. Generally though, if you are part of one of the bigger agencies, they tend to protect the images with an iron fist: it is after all their revenue too. In turn, this protects your images – never mind the fact the rates these days tend to be weighted criminally in favour of the agencies.

The bottom line is that you have to do your bit to protect your own work, because nobody else is going to do it for you. Exercise your legal rights if you find somebody has stolen work: a civil email is often enough, but if that fails and it’s a blatant rip, send a cease-and-desist. Threaten to litigate. It might not be worthwhile to take things that far, but it might also scare the offenders enough into complying. In terms of this site, nothing changes anyway – aside from the trademark black border staying firmly in place, nothing much changes for me because all of the images I have online are very easily traceable (via Flickr, or this site) – so there won’t be any change in output from this end. MT


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  1. susodelrio says:

    Off the grid for a while, I found this post and all the many well argumented replies and I just found one important element missing: the freedom of choice offered by open-source software. You have the GIMP (, the GNU Image Manipulating Program, a.k.a. the Photoshop for the Working Class.

    The Open Source community has been alive for quite some time, offering applications that give comparable end user experience to the commercial ones, while addressing some of the most important issues the layman should be aware of. Citing the Wikipedia: security, affordability, transparency, perpetuity, interoperability, flexibility and localization.

    You may or may not agree with all the underlying principles of Open Source, but sure you will acknowlege they give you tools and arguments to combat the abuses of the industry when they reach a dominant position. For instance, we’d be in the hands of Microsoft if it weren’t for Linux and Firefox.

    I’m a very basic user of GIMP and never used Photoshop myself [didn’t want to buy it for its high price tag, and never ever downloaded illegal copies of any software to my computer], so I can’t tell whether it lacks important features or not.

    The main point is that if so, someone in the community can implement them (given the input, the resources, the feedback, the encouragement). More difficult than simply paying a fee and letting others decide, but way more exciting and rewarding.

    Please give a thought to it and consider switching to open source as the clearest answer to this abuse.

    • I actually used GIMP a while back – when I was in corporate and couldn’t load certain things to my work PC.

      I think it’s more than adequate for hobbyists, though I’m a) not sure about raw support and b) full coverage of tools, which makes it less suitable for professional use. And frankly, if I’m making my living off it, I think it’s perfectly fair to pay for my software.

      That said, if anybody from that community does want to collaborate on making it better, I’d be happy to help out. However, it’s not something I’ve got time to actively seek out myself.

      • susodelrio says:

        Couldn’t agree more. Professional usage is better supported by professional tools (you can’t rely on volunteer work and goodwill to fix critical issues), although amateurs would probably find open-source tools a very good alternative, and would find it even fun.

        Raw support in GIMP is given via ufraw, which is solid although a bit outdated. The good thing is, since the specification is open, support for new cameras is possible and relatively straightforward.

  2. I spent an hour last week trying to obtain figures that would show the relative importance of Photoshop to Adobe’s total revenues. I was unable to find that information in the financial statements or the 10K, nor did my online search produce anything–although I know someone has the numbers. I agree, it would be nice to know that information. I also agree that solo photographers are still important to Adobe. Evidence of that can be found in Adobe’s putting people out to explain the decision.

    I am not troubled by your concern over Adobe and online storage. It is a legitimate one. As a lawyer who has focused on copyright and licensing issues, I do need to take a closer look at the EULA, but I am not particularly concerned. In one statement that I saw, Adobe said it did not claim any interest in the photographer’s copyright. Obviously you still need to know whether you are granting Adobe a license of some sort, but at the end of the day, the market will keep Adobe in line.

    In terms of trends, everybody had better get used to the Adobe model. When I recently purchased Norton Utilities, I discovered that they have taken a similar approach. Microsoft Office is headed in the same direction. I used to develop software, and as early as circa 2000, Installshield was building web update features into the installers. This is the logical progression.

    Best regards

    Jack Siegel

  3. Bottom line: I never fully trust any storage service I’m not explicitly in control of. Yes, I’ve got images in many places, but no, none of them are large enough to use for commercial purposes. Those exist solely on drives under my physical control, and will stay that way (aside from work delivered to clients, of course).

  4. I am troubled by the photographic community’s criticism of the change to Adobe’s licensing model. Adobe’s primary market is not solo photographers. It develops and markets software for large creators of content–ad agencies, web design firms, and publishers. I don’t know, but I strongly suspect the new model makes a lot of sense for these folks and may even reduce their direct and indirect costs. No more licensing three apps for this person and five for this one. No need to make sure that the licensing agreement isn’t inadvertently being violated. For $600 per year per employee, all the tools are available and continuously updated without the IT department needing to intervene. Plus you get some nice collaboration tools, and an easy way to keep the office computer program settings, preferences, and interface synced with a laptop, and a showcase for the employee’s work if that is desirable. There is also a large database of job postings, which will permit companies to target job searches to people who already work with Adobe tools.

    As for the solo photographer–professional or hobbyist(me)–the price for Photoshop has probably doubled if you regularly update in sync with the Adobe’s cycle. It is now $240 a year. Many photographers have annual equipment, paper, and ink budgets that are 10, 20, or even 50 times that amount. While we all pay lip service to getting it right in camera, the fact is that RAW files are meant to be processed, meaning that post-capture processing should not be an afterthought. It is central part of the workflow that leads to a print or a web file. So all the griping on the web and threats of boycotts strikes me as way out of proportion. Moreover, Adobe has given photographers an alternative–Lightroom and Photoshop Elements–but if you want to use the professional tool, you now must pay the professional price. Adobe has simply segmented the market, placing its emphasis on the customers that produce the most profit.

    Too many people have also overlooked the additional benefits that come with Creative Cloud. There is the cloud storage space. I use a RAID system, but I don’t keep files off site. I plan to use CC to store all the files that I have made prints from. Second, there is Behance, which looks like it could become a substitute for Zenfolio, SmugMug, or developing your own site.

    I am a bit surprised by Ming’s and other’s decision not to regularly update. My practice is quite simple: If I use software, I update regularly. Doing so better assures that I don’t have operating system conflicts, particularly given the practice of Apple to regularly issue operating system updates. Although many claim they do not use the new tools, I think they are overlooking the continuous improvements to the interface and existing features. There seem to be regular improvements to the selection tools, sharpening algorithms, and spot removal and fill features. Maybe the camera motion tool is gimmicky, but the radial gradient, sharpening, and perspective tools that are coming in June all look like worthwhile tools. Moreover, the ability to make RAW adjustments in a layer looks like a workflow changer. I am more than happy to Adobe $240 to continue improving their product.

    Don’t count on Adobe to backdown anytime soon. If you read the material that they provided to financial analysts at the time they announced the new model, you will see that these chances represent a major business strategy. Every indication at the time was that Creative Cloud was working as planned.

    • Your points make perfect sense, thought there are reasons to not updating: if everything works, why change it and run the risk of something getting broken – especially if you rely on custom actions or interdependencies between different pieces of software for your workflow to be efficient? I generally upgrade software when I upgrade my computer to maximise compatibility and performance. That’s 3-4 years between cycles. I live in a third world country with abysmal bandwidth; less reliance on the cloud is better. That and the fact that I still don’t trust the people storing my images: it’s a bit like using a valet…

      I never questioned the value of the software; if anything, I’ve always said it’s well worth the money considering it’s probably the only tool that’s indispensable for every single image. I just don’t see the need to upgrade every version – if it ain’t broken, don’t fix it.

    • Peter Boender says:

      You’re right about the fact that, when shooting RAW, post-processing software should not be an afterthought. And, although there are choices (LR, PSE, …), many purchased Photoshop as their tool of choice. Let’s not forget that PS has always been a professional tool, and that everybody always has paid a professional price! That distinction did not just emerge with the advent of Adobe Creative Cloud!
      As stated by many others, one of the biggest problems with Photoshop Creative Cloud for the individual lies in the long run. If, at one point, you decide to no longer pay the monthly fee, then you’re locked out of the software and are left behind with nothing! (This doesn’t concern larger groups or corporations as they will continue to pay the monthly fee). And you cannot edit the files you edited in the Creative Cloud with an older version of Photoshop Creative Suite; Adobe made sure to block that too. In the “old days” this was not a problem, as you still had your purchased version of Photoshop if you decided not to upgrade to the next version. You were still handsomely able to edit existing and new files with your current setup (computer, operating system, camera).
      Adobe now has taken away that professional choice from the serious individual, unless you want to commit now for an everlasting ongoing relationship with a software vendor…
      The individuals (amateur, prosumer, professional) may not be Adobe’s primary market, but my gut feeling is they’re still a sizable portion of Adobe’s customer base. [Who has the numbers anyway? We’re all presuming something, but it would be nice to have some hard facts. How many licenses are we talking about on a worldwide basis?] I can understand why they feel left out in the cold and vent their disillusions on forums (fora?) like this.

      As an aside, be careful when committing your pictures to the Adobe Cloud. Have you read this: ? Who says your pictures are safe with Adobe?

  5. Hello Ming,
    May I ask you next time to separate the issues. You touched upon rwo major issues and it would be easier to follow the comments if you separate them.
    Just a friendly suggestions,
    Best regards,

    • Noted; they happened to be on my mind at the same time so I thought I’d produce a Sunday editorial of thoughts. We got a bit distracted in the comments too…

  6. It is just another reason for me to never visit the UK. (1) all film must be X-rayed. (2) photographers are terrorists – RE: UK’s stop and search ordinances and (3) now this. There are plenty of beautiful places still left for me to explore across the world. The UK will be one of the last because of these rules and because it would be cheaper to travel elsewhere.

    • The problem is that it would appear to apply to any image used by a UK entity: the fact that the work is already orphaned implies that it’s impossible to determine country of origin.

  7. Regarding the changes in Photoshop, many could make do with an older copy of Photoshop, especially if files are saved as standard TIFF. The problem is that eventually hardware ages and needs to be replaced, and that older version of Photoshop (or Illustrator and InDesign) may not load on a future computer. Another issue is the verification system for older software, in that Adobe at some point in the future will no longer support re-installs of old software on old computers. Another thing to consider is that CC forces a hardware and operating system upgrade cycle, as new features requiring better hardware or newer operating system are implemented.

    I think it is definitely time for another company to bring out a competing product. Many years ago Live Picture was that product, but the company who bought that killed the software. What I would need is control over Channels and Layers, and control over CMYK output. Beyond that most changes in Photoshop over the 18+ years I have used it have been productivity enhancements. There are ways of working in more modern versions of Photoshop that greatly save time. Perhaps Google can develop a competitor. 😉

    • Hardware compatibility is my concern; and even if it does work, it might not work well. I’m not sure they can legally stop verification since we’ve already legitimately paid for the product – it’ll probably take the route of CS2 and just become free.

  8. Oskar O. says:

    I understand Adobe’s perspective; a subscription model gives them a constant, reasonably predictable cashflow. It also permits managing software development and rollout more easily in shorter cycles, removing to burden of “big” versions. That said, users obviously lose flexibility. But if someone got CS3 and was happy with that then they wouldn’t have given more money to Adobe anyway, so there is no reason for Adobe to take their opinion into account in future upgrades. This is what I think the key point about your last paragraph; there’s a lot of complaining on the net, but how many of those were actually going to buy and now wouldn’t?

    As for LR and PS, I agree with your assessment. I mostly use LR, but move to PS for some things that can’t be done in LR. However, some sort of hybrid would be useful, with a UI more engineered towards user needs than the technical representation of images. However I see it as too risky for Adobe to make such a product and the market is a niche market anyway, so it’s hard to predict if anyone will do it soon. As far as I can tell, the main problem with competitors of PS is that all of them do some essential part more poorly than PS.

  9. David H says:

    Ming – I’m surprised you’re saying that Photoshop is quick to use. Many say that they find software (plug-in or stand-alone) such as the collections from Nik, OnOne or Topaz to be much quicker than Photoshop (and I agree). All it would take would be for these companies to produce a platform that allows layers, masks and for their filters to be used something like smart filters in Photoshop – and Photoshop would be dead for photographers (except perhaps for those who like to composite and adjust elements in photos – but really, that’s a bit beyond photography anyway).

    • None of those plugins give the desired level of control IF you understand how the fundamentals work. I spend no more than a minute on an image (assuming no commercial-grade retouching is involved) and just use straight PS. You’re welcome to check out my workflow

      • David H says:

        I’m not sure what fundamentals you mean, but I’m pretty sure I have a good handle on the fundamentals of colour theory, how image processing works, etc … I too rarely spend more than a minute on an image, and rarely go into photoshop.

        • Dodging and burning in LR is painful. Very, very painful. And tonal changes that can be made easily with two curves are nearly impossible in LR.

          • David H says:

            Interesting! Why is dodging and burning in LR painful? I find it very quick, easy and effective, and I’m struggling to think of a reason it would be much different in PS. Are you using LR4? A common problem is to leave the automask box ticked, which does make it really painful … 😉

            And I’d love to know more about the tonal changes you mention, but unfortunately can’t justify the cost of your videos – especially as I have a feeling that they may just contain things I know already (sorry – as I freelancer myself I know how that feels).

            • Lack of control and multiple sequential passes rather than cumulative/ parametric effects. If you’re happy wit your workflow, then no need to change it…

              • David H says:

                True – I am intrigued by what you’re saying, though. If you could do a post on why that works better for you I’d donate via your paypal button (can’t justify buying the whole of both videos though – sorry!)

                • That’s why the videos exist. Sorry, but I think the quality and quantity results speak for themselves; I just don’t have the time to spend half a day writing a post for one person and a few dollars…

  10. Peter Boender says:

    If you’re against Adobe’s mandatory Creative Cloud subscription model you can sign the petition “Adobe Systems Incorporated: Eliminate the mandatory “creative cloud” subscription model.” on to add your voice to the public outcry.

    Here’s the link:

  11. Michael Matthews says:

    I bought the $200 CS3 to CS6 upgrade in the last week of Adobe’s year-long offer (my credit card closing date had just passed; life was new and fresh). I made that purchase knowing that I’ll never replace it. When major changes happen in ACR I’ll have to buy a current copy of Lightroom and use it as the front door to CS6.

    Fortunately my needs as a rank amateur — as opposed to an accomplished one — do not include handling massive numbers of images and processing to meet the quality and time demands of paying clients. Were that the case, the subscription cost would be a negligible blip on the operating expense line.

    • True re. cost/ operating expenses, but then again, there really isn’t anything CS6 doesn’t do even if you are a pro delivering a lot of images. I’m using CS5.5, and for a long time, I was using CS3…no issues.

  12. It’s fairly obvious why Adobe changed the licensing model of their CS products (MOAR MONEYS!)…my concern is that a lot of other software companies might follow suit (imagine your CS plugins becoming subscription-model as well, which would probably suck). I admit I have yet to make a full assessment if the consumers (us) is on the winning or losing side of it…i think it depends…but i think it may be more for the latter.

    Reminds me of the rumor of the upcoming XBox which is supposedly “always on” to be able to play games…not exactly the same model, but the intent is the same, nonetheless.

    • It’s only more money if the public plays along: the problem is, many of them won’t. I personally won’t upgrade until I absolutely have to: there isn’t anything CS5.5 isn’t doing for me now. Given that I’m probably a bit more hardcore than the average user, I think that probably says a lot, too…

  13. Dennis Ng says:

    If you get CS 6 now and use LR for generating the Tiff for editing and return trip, would it work (as I guess I am still not thinking my current set of camera would last until the day is done; new camera would not be supported by CS6 when the dust settled down later).

    • It would, but it’d just be kludgy – any version of CS would work if you’re willing to use LR as the intermediary stage.

  14. Hello all, it seems to me that Adobe is creating a gap in the market with their cloud thing. Very simple, what about all those users that live in areas where internet connections are not si reliable? I live in Brazil and internet is not so reliable as it should be. So I stop working with PS when my connection fails, and believe me it frustratingly happens to often) At the same time, PS is an overkill for many of us, like many other applications. (how much features in Excel are you using? I bet less than 5%).
    Here is room for a PS basic kind of application. And I am not talking about Elements or LR, they both dont come close to the quality PS offers in those features we use most. I really did not pay attention to other applications, but as I understand from the discussion,s there isn’t much out there. So instead of thinking about the perfect camera, why not think about the perfect photo editing program? (hint, hint)
    My 2 cents,

    • Me too: I’m on a third world internet connection here (amazing that the site continues running at all, given the traffic I get) – I can’t even do digital delivery for clients because my bandwidth is restricted and it would often be faster to just courier a set of DVDs.

      I got the impression that CC would work offline, though – it would be stupid otherwise. How else would you get work done on-location, or on a plane, for instance? I know that would be a deal breaker for a lot of pros.

      I wish I could do coding, but what’s required for an image editor goes way beyond even basic skills…

  15. ‘ ‘ ‘ . . . “Myth – anyone can use a photo they have found on the internet as an “orphan” if they cannot find the copyright owner after a search
    Fact – A licence must be obtained to use a work as an “orphan”. This will require the applicant to undertake a diligent search, which will then need to be verified by the independent authorising body which the Government will appoint before a work can be used.” . . ‘ ‘

    and will these Government appointed agencies/bodies be the same type that looked after our interests on monitoring the banking industry?

    One thing that should be done is to make it illegal for image hosting companies to strip out metadata and exif info from files. If that info is in a file that should give posters some form of security against unscrupulous third party feeders.

    Regards and thanks for a great site Ming.

    JohnL ( from the UK )

    • Agree on the metadata thing: at least you’d still have some vestiges of traceability embedded – between your own copyright notices/ contact info, and increasingly with modern cameras, the serial number of the device, too. Any one of those should be relatively easy to prove provenance of an image.

    • Agreed, metadata editing should only be doable by the copyright holder, and should be illegal for anyone else to do without express permission.

      • this could also extend to other creatives working in digital media, such as musicians

        • I have a nasty feeling that it will, because the wording of the Act itself is not very clear: perhaps this was deliberate, or perhaps not. Sadly we’ll probably only know when the cases hit court.

  16. I’m still on CS (the original one), Lightroom 2.3, MacBook Pro with OS 10.4.11… so technically speaking I’m a Neanderthal! However, it is all I (apparently) need to edit my images, taken on an equally ancient Nikon D300… images which sell week in, week out via Alamy. As for Cloud updates, which in the USofA are projected to cost around $50 a month, and (typically) in the UK/EU will be like £50 a month (£600 a year… WHAT!)… Adobe can go jump for all I care. I think that although they say they have half a million Cloud subscribers already, the writing is on the wall and they will suffer just as Quark (remember Quark Express? LOL) did in the ’90s. Perhaps Apple in 2015 will buy the remains of Adobe…

  17. Tom Liles says:

    Here, my advice to all photographers – amateur or professional – is the same: if you don’t value your own work, nobody else will. This means common sense protection like embedding copyright info, contact info and artist info into your EXIF data; watermarking all images; and not uploading anything that is of sufficient size/ quality to use for commercial work

    Seconded with Torsten that the above is great advice. I’m sure we’re all savvy, but be careful with the T&Cs of places like FB too. Besides the fact that FB will pulverize your EXIF, rip out and replace the colorspace, smash your filename and savagely compress your image—they also claim some ownership rights to your image once you’ve uploaded it to their site.
    A while back FB had someone’s family photo on their landing page [log in page] and I thought, hmm, interesting, wonder if the guy pictured here knows FB is using his picture, or if he’s given permission for them to use it… A bit of googling and rummaging around in FB T&Cs — which they hide WAY away at the back of the site — later, and it seems though they need not even ask: once you upload a picture onto FB servers, it’s no longer wholly yours. If FB wants to advertise itself with an image you’ve uploaded, it’s in their gift to do that. This is the quid-pro-quo for free service.

    I haven’t read what Flickr’s terms are, but I doubt they’re as draconian…

    • Tom, I am not going to defend Facebook in any way and I fully agree with what you say about how they handle images. They did issue a classification about the T&Cs though where they explicitly said they they do not claim copyright. You can find more here:

      • Tom Liles says:

        Hi Torsten and thanks for that!

        According to the terms and conditions of Facebook, any picture uploaded gives them the right to have a non exclusive royalty free license for it

        Yes, this was similar to the passage I came across in the FB T&Cs and which led me to believe that it meant FB were claiming some ownership of an image [in the sense of being a licensee]. Though, yes, I wouldn’t make the assertion that FB was claiming it could act as a licensor for such images.
        Authorship, it seems to me, is incontestable [or more readily provable when contesed] and should really be the bedrock on which the law rests [it may well do! I’m just a layman winging it here]. The author of an image/work is always its owner, etc. As with anything there’d be confounding cases, but I can’t see where this stance’d be deficient, in principle.

        You seem really well up on this, Torsten, it’d be interesting to hear from you too: if you could clap your hands three times and change the law anyway you’d like—what’d you change? Would you even change anything?

        Thanks again 🙂

        • Thanks, Tom. First of all I should say I am not a lawyer and also that I work for an organisation that cares about making content accessible for education and research. So my perspective is that I welcome anything that helps getting museums, libraries and universities access to what we now consider orphan works – society will benefit and as long as we can ensure that there really is a diligent search to identify orphan works then no one will be harmed. I would like to see improvements with regards to licensing and easy access to content for non-commercial research as we will all benefit from that. Just imagine you may want to do an automated analysis of tens of thousands of works for your research – can you feasible ask all the content creators for permission?

          I realise that that was probably not the aspect of the law your comment related to though. Personally, I am not really concerned about the orphan works law at all, but I would like to see clarity about what companies can or cannot do with regards to T&C. As someone making content available you should have the guarantee that unless you specifically give someone else permission/a license all the IP rests with you, and by “specifically” I don’t mean a sentence somewhere in the T&C but a clear message you have to agree to. That would lay many fears to rest, I would hope.
          The problem in saying much more about this is that I don’t have enough expertise about the legal differences in different countries, and I am not sure what aspects are relating to the actual law and what is practice. In line with Ming’s argument I don’t think you can do very much to stop people copying your content once it is out there and no law appears to have stopped this. So we either need to accept that you cannot control content any more and all move to the most liberal Creative Common license – in which case we need new business models for at least some content creators – or we should have better processes for ensuring the content creators can act on their work being used without permission. If I share a few music files online there is a risk music industry lawyers will take action against me via my ISP or a court. If someone copies dozens of my photos to their website I may even have to suffer abuse when I just suggest they should at least link back to the original – so it would be good to have a better process to deal with this at least with regards to commercial use.

          • Torsten, I would agree with you, if these laws restricted usage of orphan works solely to museums and education. In the US at least, Fair Use allows educational institutions to use images for teaching, without the need to worry about Copyright infringement. It is slightly less clear for museums under the Copyright Fair Use provisions in many countries. The problem is that new Orphan Works laws overreach beyond entities who would benefit under the changes.

            Facebook is a different story. After seeing images of friends of mine appear in the sidebar advertising, then I knew what Facebook was doing with all that stripped out metadata image cache. Granted Facebook is providing a free service, but many users do not know that their images they upload are being used by Facebook to sell advertising to companies. The safest approach is to link to images when you want to share on Facebook, instead of uploading.

            Creative Commons is a complete nightmare that effectively kills the content creation business. There was a great article recently where Radiohead frontman Tom York was discussing that downloaded music became a “tip jar” for musicians. The main problem he pointed out was that no one was tipping the musicians. If the only people who can afford to create are those who are retired on fixed income, or wealthy enough to not need income from their creativity, then I think the world loses the great potential of creative people who will never be able to afford to continue sharing their work.

            To put it the harshest way possible, most individuals pushing Creative Commons are either cheap individuals wanting to profit from others, or people with low income who simply want everything for nothing. They are predominantly talentless hacks. Sorry to sound harsh, but anyone advocating ripping off artists, especially through the creation of laws that allow it, should then expect extremely harsh consequences. It’s definitely time for all creative professionals and artists to stand up against this bullying.

            • Even worse: FB here used a lot of people’s images for electoral campaign advertising (!) in an often semi-defamatory context. Not only are they being used to sell advertising, they are the advertising: would you want to see your wedding images turned into part of a before-and-after (the other half including a street beggar) story of how voting for party A will see you happy and successful?

              I’ve been facing the same dilemma re. creation vs income for some time; I’ve posted on this issue several times: this site itself is a macrocosm of that: I can write all day if somebody paid my bills, but that doesn’t happen, which is why I still do commercial work, have referral links, teach workshops etc.

              The sad reality is that most people have no idea how much effort – practice, work, equipment cost etc. goes into becoming skilled at anything: it’s just too easy to get a mass commoditized version that’s nearly good enough for cheap or illegally free. It also doesn’t help that when you’re skilled at something, it looks easy…perpetuating the myth.

              • It’s an unfortunate part of the magic, that when it looks effortless, some get the wrong idea of the true effort involved. When everyone is a photographer, then no one is a photographer.

                Oddly enough I also write articles, and I get paid to do so, though those articles are in the world of finance, private equity, and investing. I write under a pen name to keep that work separate from my photography. Even there, it takes quite a bit of effort to write consistently in a way that is informative and interesting.

                The Facebook model of crowd-sourced images, without the crowd knowing in many cases, is one that unfortunately may be repeated elsewhere. Privacy laws in some parts of the world limit the usage of images that are of people, yet once an image is out there, the damage may already be done. It is important, at the moment, to have a presence on Facebook, yet there are consequences of being there.

                • The things I find interesting in finance and private equity would kill my own fund strategy if they ever got popularized, so I don’t write about them. If it works, it’ll probably be the biggest success nobody has ever heard about. (You didn’t think I intend to blog/ commercially photograph forever, did you? 18 hour days are simply not sustainable for an extended period. 🙂

                  As far as I’m concerned, the fewer large companies are involved, the better. I try to avoid dealing with them because you a) have an overarching attitude of profit at all costs, and b) the individuals involved rarely know enough or care enough about their jobs to do them well – a little knowledge is a dangerous thing.

                  • Definitely true and I think you have an idea of what I am doing. Of course the best ideas in finance are ones you use for yourself and for your family. As independent professionals, I feel we need to be adept at managing our money, so I learned everything I could about that. I learned quite a bit from my photography clients too, though initially the idea was that if I understood what they did, then I could create the best images for them. In that process, I learned quite a great deal of information that I also found useful in managing investments. I do my best to avoid being thought of as a “dumb artist”.

                    I do hope to photograph for a long time, though at some point getting away from the corporate work, to pursue subjects I want to do, would definitely interest me. At least for now I really enjoy what I do, but if the changes in laws and push from some corporations makes that difficult to continue as a creative professional, then I would look elsewhere.

                    • You’d be surprised how rare that nugget of wisdom is amongst the self-employed: most of these small businesses fail because of cashflow and poor collection. I hated every minute of my accounting/ audit career, but boy is it coming in handy now…especially around tax time.

                      One of the reasons why I shoot such an odd ecclectic collection of subjects is because I believe that you need to understand what you’re shooting in order to portray it best; it’s something that I find clients really value, especially if you’re shooting anything requiring creative interpretation – like buildings, or high end watches…

                    • Tom Liles says:

                      Excellent posts on this thread, all day today, Gordon. Bravo!

                      Can I just chip in on the finance stuff? It’d be sad to someday lose you both to your portfolios, but I can certainly understand the reasons why you begun them in the first place. Make sure the last laugh is yours. My Grandad gave me that one when I was 16—good advice. This said, his next words of wisdom were: never get married 🙂

                      I’m an expat in Japan, over 10 years in country now [off and on]. I’ve resigned myself to the fact that I’ll be here until the kids reach Uni age, at least. That means I’ll spend the lions share, if not my entire, working career out here. I came out East straight from university, so I’ve never built up a pension position [national or private] in the UK; I’ve paid into the Japanese pension system all the years I’ve worked here, but the first company I worked for had funneled what were supposed to be my, and all its other overseas workers’, pension contributions into a private fund. When the authorities found out, the CEO fled the country with the metaphorical suitcase full of money. They say he ended up in a South American country, somewhere… But it was neither here nor there to the Japanese Ministry of Health, Labor and Welfare; they just demanded I fill in the blank [3 years worth in my case] if I wanted to receive the due amount. Which I did. I continue to pay in, but as a non-Japanese resident it’s far from a given that I’ll ever get any back. And furthermore, as I’m sure you two will know, the Japanese national pension scheme has been unequivocally found out… Others have already done it, but you can do the accounting to figure its future commitments, look at its future income—the outcome is plain for all to see. About five years ago the Ministry itself came clean and admitted it didn’t have a proper grip on who had paid what, and — alarm bells ringing — whether it could meet its commitments for the generation of men and women that built modern Japan, the current crop of retirees. Nevermind their children [in their 50s now]… Those in my generation and below: the message for us was quite plain: you’re on your own
                      [if you read between their lines]

                      So I’m very aware that I’m going to have to provide for myself and my wife [but hopefully not my kids] when I retire. The markets are an obvious, but intimidating, choice. There’s no room to be a wimp, I’m assuming that the buck is going to stop with me and no government, UK or Japanese, is going to swoop in and help us. So I’m starting on this track that you’re both already way ahead of me on. I’m 34, so I’m really already late, but I’ve started to divert a little of our ongoing savings into a few different investment pots and will watch these for the next five years, after that have a state-of-the-union vis a vis our investments’ performance and then try and modify my approach as necessary. I’m mainly [but no more than 60%] in index-linked ETFs at the moment.

                      I don’t have the time or skill to mess with it, but the FX market interests me greatly. And as a Japanese speaking British expat, I thought it’d be a good idea for me to focus on the GBP-JPY pairing and master it [and the FX market is too massive and complex for me, in my limited talents, do any more than that one pairing]. If nothing else, this interest has helped me time money transfers [or should I say, re/de-patriating currencies in multi-money accounts] very well. Scary market to dabble in though—the leverage is huge and the deltas small…

                      It’s a scary future when you know you’re on your own 😦


                    • That’s like ours, except the government officials are the ones
                      sticking their fingers into the pot. Retirement age keeps getting longer and longer, and I’ll be lucky if there’s anything left by the time I’m eligible to take it out – 58, now. That’s 31 years away for me. I’m not banking on there being any; anything is a bonus and perhaps I’ll buy a Porsche or something.

                    • Tom Liles says:

                      I think you’d go well with a 912, Ming. Your kind of Porsche? 🙂

                      [un-mistakeably Porsche, they’re air-cooled, though… so v.v.noisy!]

                    • I admit the new 991 looks awesome, as does the Cayman R. But both are far, far out of a photographer’s budget – especially in Malaysia, where we’re grossly undervalued compared to our corporate counterparts and overtaxed (try 100-200% for imports – I’m still paying off the BMW I bought four years ago while still in corporate – 10 year car loans are normal if you want to drive anything other than a locally-made jalopy).

                    • Tom Liles says:

                      Cars, finance, IP law, Camus, DNG scripts, fine art and photography. And all in the same thread.


                      I’ve thoroughly enjoyed contributing and reading the last few days. Thanks Ming and thanks everyone m(. .)m

                      P/S on the imports. Japan’s not as bad as Malaysia — 100%~200% markup is MENTAL! — but overseas cars are ridiculous over here, too. 40K (GBP equiv.) for an entry level Golf anyone? Sheesh… And just to make it all the more confusing, in Tokyo every other car you see on the road is a Mercedes Benz. There must be more G Wagens per square meter in this city than any other place on Earth, I’m convinced. How the hell do they do it? I’m sure the more gray money lending channels are booming over here [and have been for some time].
                      I’m a fan of the Citroen C6 — please don’t laugh — and clean used ones are perfectly within reach, if I lived in Europe. Over here, well you already understand this Ming, your eyes would water… seriously. [And this foreign marque mark-up is not about import tax. I have this on very good grounds: a friend, from France as it happens, who works quite high up the car trade over here]

                      The ultimate driving machine, eh Ming. Very slick.

                      We have a 2001 Nissan Serena. In white.

                    • I think pretty much anything is fair game. And I’m sure once again that this level of intellectual discourse probably can’t be found at any other photography site on the web, and I’m grateful for that. Hell, it makes the comments frequently more interesting than the original post! 🙂

                      Most of our imports come from Japan and the UK – one of the two few mass RHD markets which is affluent enough to frequently change cars, providing cheap second hand fodder for consumption by lesser third-world countries whose governments introduce such high import duties to protect the local inefficient and low-quality carmakers. An entry level Golf here is about the same. And I noticed in Japan that nobody buys base spec: it’s always loaded to the gills if it’s continental; the exotic metal I saw on one afternoon in Ginza was simply eye-watering. (As an aside, I’m very, very tempted to come back again in early June since the yen is so low. I could really use a vacation and some personal shooting time.)

                      If it’s not about import tax, then is it some sort of exclusivity? Snobbery? Charging it because the market it small, or because the local brands must be protected? Or simply because people will pay it?

                      My ultimate driving machine is a base level 3-series diesel that’s now four years old. Not so slick. Not enough power to get into any real trouble or challenge the fantastic chassis. And still cost as much as a bloody house. Ah, the mistakes we make when young, foolish and corporate…the aforementioned Porsche Cayman R would cost close to the better part of US$200,000…second hand!

                      Odd question, perhaps: but why would you need a car in Japan? The public transport is excellent. Here, it’s non-existent, and to fix it they’re building a mass transit system: in the process digging up everything, reducing lanes, redirecting traffic and making getting anywhere a nightmare that takes at least an hour. I’m glad Siri works reasonably well so I can at least dictate emails and posts in the car while stuck in jams…

                    • Tom Liles says:

                      Yeah, this guy tells me it’s, predominantly, the last two: because the local brands must be protected …because people will pay it

                      But, I dunno, if I were Ford or Volkswagen, etc., I’d be chomping at the bit when I heard that. There’s no reason to be bashful. What’re they waiting for? Well they’re definitely waiting for something. So, in my personal opinion, I’m sure there’s something legal-political in the way.
                      Foreign brands are generally sold at mark up over here, I’m sure it’s the same in MY. From cereal brands to cars, marked up. The retailer sets that bar, usually. But I suppose you could argue that the foreign marques think: well, the Japanese punter’s not going to go all out for a “people’s car” that isn’t from Japan, so why not keep the low volume high value model?. It’s no more than a niche market to them. And fair enough—the track record of foreign, no scratch that western, companies trying to break Japan speaks for itself. But that seems to me like one of those Emperor’s New Clothes type deals, where all that keeps it together is everyone’s investment in the facade. It’d just take one brand to try and try and try—it’s not impossible. Look at Disney’s success here. It’s literally inculcated a kind of mass hysteria.

                      And I noticed in Japan that nobody buys base spec: it’s always loaded to the gills if it’s continental; the exotic metal I saw on one afternoon in Ginza was simply eye-watering

                      Spot on. Agreed. Honestly, Ming, I can’t help just thinking where ON EARTH do they get the money from!? Are there really this many millionaires and six figure salarymen in Tokyo? This mystery will go to the grave with me, I’m sure.
                      The other thing is, if it’s a foreign marque, the Japanese punter wants LHD. I even see LHD Jaguars and RangeRovers [they’ve paid extra yet again to have an American import]. Beyond silly. For them, the LHD is a status symbol because it’s a confirmation of authenticity. They have a fixed logic: LEFT HAND DRIVE IS FOREIGN CAR / RIGHT HAND DRIVE NOT FOREIGN CAR. The badge is important but almost secondary. Though Japan is very much a first world country, things like this confirm that, generally speaking, the Japanese consumer is quite unlike his western counterparts. Really, in this respect [the psychology of retail that is] the Japanese consumer has much much more in common with third world punters. That’s not about affluence; I’d lump oil rich middle-eastern punters in there too. They want shiny, they want conspicuous, they want tacky. Not baroque tacky, cartoon characters on sleeveless v-neck sweaters tacky. We’re talking about the kind of mind set that takes kindly to Kim Kardashian. This is very rude and coarse of me… but, listen, I work in advertising, if you want rude and coarse, this is not yet close. Misanthropic, certainly.

                      As an aside, I’m very, very tempted to come back again in early June since the yen is so low. I could really use a vacation and some personal shooting time.

                      Good for you. Welcome. Completely random unsolicited advice, but, if you haven’t been to “Shikoku” [the fourth island] I’d recommend a trip. Quite rural, but still some unspoilt green there as a result—you get a glimpse of why early Chinese diplomats wrote about Japan being the gem of the orient. And green is always good for relaxing the brainbox, I find. June will be a bit warm and definitely sticky, you’ll have that in KL too, so if you’d like to escape the heat and humidity, somewhere up north in Hokkaido would be a pleasant choice. Anyway, I think you have quite a few readers in Japan and I’m sure they’d love to welcome you, too. It sounds like a personal trip so without wishing to impose: if you were visiting Tokyo and were up for a coffee between shooting stints, I’d love to share a cup. Maybe other Tokyo readers would share a cup too? It’d be like one of those Hells Angels meet ups— “ Tokyo Chapter,” etc 🙂

                      Or not!

                      We’ve talked about art a bit today—I think when you’re tapping into that part of the psyche, being unattached is important. You might want to just be anonymous for a week or so.

                      My ultimate driving machine is a base level 3-series diesel that’s now four years old… And still cost as much as a bloody house.

                      Haha. You want to hear about mistakes—we moved back to the UK for a couple of years, my wife fell in love with a house, I’m in love with my wife, so I went and sorted the appropriate financing out, and bought it.
                      Within a year we’d decided that we were going to move back to Tokyo.

                      Ouch 😦

                      [Our house’s still on the market, unsold as we speak… fingers seriously crossed for the UK economy over here…]

                      P/S that’s life

                    • Same here – foreign brands are sold at a premium. A VW costs nearly as much as a BMW, and my wife was pleased to discover that designer handbags are 20% (or more) cheaper in the US. Admittedly, quality of imported products tends to be quite a bit better than local stuff, but for things like salt and toothpaste…does it really matter?

                      LHD is completely impractical: especially when you have to get in and out of carparks, or negotiate right hand turns (or tight left turns, for that matter). It’s stupid and dangerous. What really boggles the mind is not that there are this many 6-figure salarymen and millionaires (probably foreign-goods importers/ distributors/ resellers) but that they’re silly enough to pay over the odds for an unsuitable product…yet they’re supposedly successful/ intelligent/ whatever…

                      Actually I’ve been to Sapporo and surrounds several times. Skiing in Niseko is magical, and the place is pretty nice in summer, too.

                      If I do come to Tokyo – I’d definitely at least do a reader meetup, if not perhaps a mini-one day workshop or something. Not sure about the Hell’s Angels’ thing, though; perhaps the closest we can get is collectively bringing out our chrome Hasselblads. 😛 I can be anonymous for a few days on either end – not really an issue. And it’s not as though I’m Kim Kardashian or something…I shoot with a black Hasselblad, for crying out loud – not a gold one!

                      Please don’t tell me you bought the house it pre-2008…

                    • Tom Liles says:

                      P/P/S Yes, perfectly sensible question!

                      My wife is 5 months pregnant, my daughter’s started kindergarten — she needs to be taken and picked up — and we have an almost two year old son; the electric powered “mama-chari” [mum’s bicycle with child seats on it] wasn’t cutting it and it became obvious that she needed something to cart man and materiel around in. When the new one comes, that really would be it, so we figured get the car now.

                      Honestly, even with two, taking the kids on public transport is just too much. Not impossible but really not fun. You’ve got all this waiting for you, Ming—the wonderful world of fatherhood: camels have it better. They don’t try and stick a D7000 on top of all the other bumpf they’re loaded down with! 🙂

                      But you’re correct: the Japanese transport system is unparalleled.

                    • Frankly the prospect of children scares the crap out of me, but like marriage, I suppose it’s one of those things that one day you’ll wake up and feel ready for. I hope. So does the wife.

                      In the meantime, I wonder where I can find a two-seater here for a price that isn’t eye-watering…oh wait. Not gonna fly: I can’t fit my lighting gear in on assignment 😦

                  • Tom Liles says:

                    Thanks for the concern, Ming. But, no, no need to worry. We bought in 2010 and I did my miserable sod routine with the seller’s agents and we got it at a good price. We’ll still lose a bit on the sale, but nowhere near the market norm—I’d say less than 20% of sigma [for typical haircuts on houses, post 2008].

                    But it’s just money. I can work hard and make that back. Time and family: these two you don’t get back and should be valued. So I don’t feel bad about making my wife happy. And I don’t feel bad about the two lovely years we had in that home…
                    I think I’ll consider that house “mine” until I keel over! 🙂

                    We have a buyer lined up at the moment, actually, but it’s excruciating because no contracts, not even draft contracts, have been inked so it’s better not to think there’s a sale on at all. That’s what it’s better to do, but not how the human brain works, unfortunately. Bit of an emotional roller coaster, but hopefully we’re inching in on that goal line.

                    Ah, I almost applauded the whole post at 6:17. I’m with you re: LHD in RHD country. Never mind doing it for show.

                    Good luck finding a runabout—would lighting equipment go in the back of a mazda mx-5? 🙂
                    I’m joking but they are FUN little cars… something I think that’s almost gone from new cars now
                    [which are almost solely sold on how economical they are, even 4x4s for God’s sakes!]

                    You have it spot on re: kids. Not being analytical about it is perhaps the ticket, as you say: when it’s time, it’s time. In my case, for both marriage and kids, we just sort of matter-of-factly did it [so to speak! Ha]. No pomp or ceremony, or much planning really, at all. And I can’t imagine ever having done other, now. And I DEFINITELY could never go back to my old life before any of this. Never.

                    There’s a Francis Ford Copolla story I like: he was a struggling film-maker in SF, had been for a bit, he was the typical choosy artistic type but with no work in the public sphere. He had his first child. The next thing he did was THE GODFATHER.
                    Having kids is a real motivation to do something, not axe over your head type motivation, but self-evidently not casual “it’s OK if you mess up” territory either… it’s hard to verbalize, but what’s easily said is that they do change everything. Maybe just a little, but irreversibly. I suppose it’s when you’re ready to go there. Just like you said: when you know, you know. Everything else just falls into place somehow: the money, the time, the effort—the patience! The DNA will kick in.

                    But look at me. I’m a rookie! There are bona-fide Mums and Dads on here that have gotten the kids all the way to adulthood—I’m in awe of every one of them. Those are the kind of faces that give you good photographs, don’t you think?

                    • I thought about an MX5 at one point, but there’s no way that would work. And they’re hideously overpriced (again) in this country.

                      Somehow I don’t think having a kid is going to make me THE GODFATHER of photography. I’ve never had the ‘it’s okay if you mess up’ option – being under a microscope because you’re anywhere from 6 (school, university) to 20 (professionally – when I left corporate I was a senior director at McDonalds Malaysia) years younger than your peers will tend to do that – so I’m not sure how stuff will change. Leaving corporate basically means that I can’t go back, ever. If I have any bigger an axe over my head, I think I’d probably have a breakdown from the pressure.

                      Good photos of parents if you like stress lines and texture…

                    • Tom Liles says:

                      MX-5s are just unabashed fun, aren’t they. Never owned one, but have driven a couple. But MY pricing may have saved you one there, Ming: outside of fresh retirees who want something to bash about the country lanes in, the only people under 50 who buy them are single career-women. Maybe that’s just my acerbic tongue again…

                      Even Japanese marques are marked up, though? Sheesh, that’s hard to deal with, isn’t it. We’re right next door!

                      Speaking of which: I think I got the tone of my waffle about kids all wrong, Ming. Sorry about that. Framing personal experience as some kind of general truth is slack. Mainly just cringeworthy. Yuck. But it’s just enthusiasm—and tone deaf writing, my speciality! The Coppola vignette certainly didn’t come off as intended. Wasted. The story was Coppola’s, by the by, he reeled it off in one of those Actor’s Studio type things. I saw this whilst I was still a young and single lion. Probably best left a memory 🙂

                      I’ve never had the ‘it’s okay if you mess up’ option…

                      I have no idea, literally no autobiographical touch point from which to even try and extrapolate from to get a just the hint of a semblance of an idea, what this could have been like. So I think the option with most probity would be to leave it alone. But I can’t, as it would be dishonest of me to say I didn’t wish I knew what it’s like to be this gifted…
                      [I can’t, no-one, who isn’t, can—can we?]

                      When I mentioned the “can’t mess up” option with regards offspring, though, it in included some sense of “the life of this baby is now in my hands… Wait, what? Oh God!” That’s all I meant. There’s no returns policy, failsafes, second chances. I think you get that and are saying—I’ve had analogous pressure all my life. Heavy stuff…

                      If anyone needs a backrub, Ming…
                      [I’m joking, I’m joking—though perhaps your wife might see this and oblige?]

                      …if you like stress lines and texture…

                      I like. Verity by another name! In my book, at least 🙂
                      [And God knows, through my line of work I know that whatever John Q Public may say he wants to see, or not, what images he acts upon are perfect, unblemished, idealized line-free, wrinkle free, aberration free ones… I try not to enquire as to why that is: I don’t think I want to know the answer…]

                    • I have no idea, literally no autobiographical touch point from which to even try and extrapolate from to get a just the hint of a semblance of an idea, what this could have been like. So I think the option with most probity would be to leave it alone. But I can’t, as it would be dishonest of me to say I didn’t wish I knew what it’s like to be this gifted…

                      Short answer: crappy. Societal, professional and familial expectations are high, and if you don’t meet and exceed them, then you’re marked down as hot air and never given another chance. I’ve experienced this multiple times.

                      If anyone needs a backrub, Ming…

                      The wife wants kids…

                    • Tom Liles says:

                      and not reading back the post strikes again!

                      Cross out the “Speaking of which…” bit 😦
                      [it was an out of place reference to my tongue]

                      OK, I’m clocking out here. Night Ming, night all. Been a pleasure! 🙂

            • Gordon, it seems we are on the same page with regards to Facebook. However, with regards to Creative Commons I disagree fundamentally, and also with regards to orphan works.

              First of all orphan works: If there is no rights holder to be found, why is it bad if a company can license content to use commercially? No one will be harmed, especially as they still need to pay so it won’t undermine those selling their content. I really cannot see what the issue might be you refer to in terms of overreaching.

              Secondly Creative Commons: I am not sure how you strengthen your argument by insulting people who favour CC. I do and strangely I still pay for music and movies, and I earn a professional salary too. Everyone else I know who recommends CC does too. Even if it was not the case I fail to see any argument against CC that comes from the salary of those who advocate CC. CC simply is a useful way for those who want to share content to be able to do so. It even includes restrictions against commercial use as options. I also fail to see how the music example you cite makes any argument against CC. The situation in the music industry pre-dates any widespread use of CC. I honestly cannot see how giving those who want to share content a means to do so is ripping off artists. No one forces anyone to use CC.

      • Tom Liles says:

        Just to follow up on this, as it was nagging at me, from the horses mouth:

        you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

        From here. Under 2.1

        • This doesn’t sound good to me at all: the trouble is if you’re in a social media environment, you can’t NOT be on FB, but at the same time you run the risk of image hijack (or anything else – words, songs, etc) for that matter. We have to a) watermark and hope for the best if we have no choice, and b) hope like hell the sheer volume of stuff puts us under the radar. I’m increasingly convinced that simple visibility is the best way for IP protection…

    • Absolutely – FB doesn’t claim ownership rights anymore – I’m fairly sure that changed after a huge legal debacle about a year back – but I still leave the watermarks there regardless.

      Flickr is veyr clear about licensing: you select precisely what kind of license is applicable to the image; “all rights reserved” is the default – and I highly recommend leaving it there.

  18. The passage of the Orphan legislation in the UK is frankly abhorrent to me…sloppy, ill conceived and irresponsible. Just one more example of how our government and legal system is no longer for the protection of the individual from exploitation (for whom such exploitation can be life-changing), but favours the “rights” of corporates, lobbyists and party contributors (for whom fair payment for a licence represents a tiny proportion of their advertising budget). Bad enough for photographers, who can at least take the steps you have described Ming, but what about, say, musicians? How do you indelibly watermark a digital music file? Especially if the creator didn’t upload it in the first place? It saddens me deeply that, rather than being a liberating force for creatives, and a potential for renaissance, the digital age is in danger usurped by greed and instead could be a shackle to creative sharing.

    From a purely legal standpoint, Tom’s question is one I immediately asked, and for which I havn’t seen an answer yet. You make an image for non-commercial use, and forego the model release, but someone, after a failed “dilligent” search (whatever that means) for your consent, uses the Orphan Law to use the image commercially. The person in the image sees it and recognises it as having been made by you. Who do they sue for their royalties? You or the commercial user? How could they prove there was no model release inorder to substantiate their claim to royalties due? I guess at least in this scenario the location of the original copyright holder (the image maker) would be known to the person litigating, but what happens then to the notion of Orphan status when the copyright holder’s identity and location become retrospectively known? And whatever way you cut it, the original image maker will still be drawn into the legal debate, at detriment to personal time and stress levels, whether they like it or not, by virtue of the fact that the litigator (the person in the image) will want the creator to verify the model release status, without which I do not see how a legal case (however legitimate it may be) can proceed (which only serves the interest of the abuser of the image).

    What a mess 😦

    This will not affect me directly, I am not a professional creative. I do genuinely feel for those whose livelihoods depend on their creative talents, and I do worry about how it will affect me indirectly as someone who enjoys their works.

    • Ian – have you seen my comment before posting yours? I think you will find that the IPO document should address your concerns. If not I’d be interested to hear what specifically concerns you. I work with people engaged in this debate and I know people at the IPO (including photographers) and could feed back…

      • I was probably typing as you were Torsten. I will certainly review the link, but I suffer from a cynical nature – unless the law and its enforcement are cast iron, accessible to all equally regardless of resource, and transparent, some less admirable human tendencies will push the spirit of the law to breaking point given half the chance.

        • Sadly, that’s typically what happens…law or not.

          • Well, I agree that it is best not to trust in announcements and wait until all details have been clarified. What wanted to get across is that from what the law intends to do and also in the context of how it has been presented there does not seem any reason to panic. Continuing to watch the process and how it is handled would still be a good think. I am just concerned that if outraged photographers complain about something that is just their misinterpretation people are less likely to listen when it turns out that the actual implementation of the law is really disastrous. I have heard from people working in the orphan works policy context that the current outcry mostly led to people shaking their heads in confusion. So my position would be: watch this closely and if it goes wrong then make a solid case against it (although I am aware that this may get less media attention than the current overblown reactions).

            • I’m wondering if it’s a case of those writing the law not fully understanding the implications: it wouldn’t be the first time. I doubt any of them involved have any creative/commercial interests. What’s doubly concerning is that they didn’t appear to consult with anybody in the industry, either. But as you say, let’s wait and see. The hard reality is that even if we don’t like it, there’s not a whole lot we can actually do about it.

    • I have to be honest, I didn’t think about it in the context of non-visual works: you bring up a very good example for musicians. There’s no way to copyright a piece of music easily.

      Ironically, the easiest way to achieve attribution would be to have widespread visibility/ accessibility/ distribution: think Psy and youtube…whether it was yours originally or not, if you shout the loudest, everybody might well think it is. It’s therefore up to you to make sure you’re seen and heard…

      In your cited situation, since you couldn’t be found, the person in the image would sue the user, and you could sue the user. Or at least that’s how I’d see it.

    • Anthony says:

      This is another example of the overreaction to this legislation. In the UK, which is where the law will apply, there is no right to compensation for being included in a published photograph unless this is a breach of privacy (which only applies in extreme circumstances) or defamation (also very hard to establish). In either case the publisher would be the person liable.

      • You are correct Anthony, my over reaction is based on the erroneous assumption that UK Image Rights Law is similar to other Western Democracies…as you say, it is not. Thankyou for pointing this out, it certainly removes some of the “what-if” scenarios that fuelled my disregard. Counter-balancing this reassurance regarding the orphan legislation in the UK is the new-found feeling of disbelief at the UK’s stance on image rights!

      • Tom Liles says:

        I’ve spent an hour or so, now the kids have gone to bed and I have a minute [or 60!] to do my things, rummaging through google trying to understand this: I can buy that there is no right to compensation for publication of your likeness in the UK press, unless infringement of privacy or defamation can be proven [in a court]. Or the image could be construed as child-pornography. Or it harmed your human rights as enshrined under EU law…

        So not really much right to compensation. OK. What I wanted to know, and can’t find the answer to is—but what rights do you have?
        [if you appear, without your permission, in a publicly published photo]

        This is not the case of someone looking for cash-money compensation; it’s the case of someone saying: hey, that’s me in your photo—I didn’t give you permission for that, I demand you destroy the image.

        Would they have the right to do that?
        [my gut says no, as granting that power would assume the person portrayed had some stake in the image, then you face the corollary: if they have a stake and a say whether the image can be published, or not, then why not any financial compensation? So no, yeah?]

    • The UK Law is somewhat similar to proposals put in place by Google and others in the United States. The idea was that a central clearing agency would record image ownership, though oddly enough not the US Copyright Office, but a separate “appointed” agency. The bad part of the US legislation was that the infringer was limited in any liability, covered under a clause that capped compensation to the originator/creator of an image.

      One thing of Berne Convention and Madrid Protocol treaties is that it allows the holder of a copyright to determine usage. The problem with Orphan Works is that the barrier against improper usage is lowered. Basically we are no longer in complete control of our images, especially when anyone can upload our images somewhere without us discovering it. The UK law limits the liability of potential infringers.

      • I wonder why this wasn’t implemented in the US in the end.

        The reality is that we’ve never been in control of our images from the moment they go in the public domain. Chances are you’ll never find out about it either, if the use isn’t widespread. The difference is now such image theft has potentially been given a quasi-legal loophole that might well encourage it to the point business is severely affected.

        • That is sort of the business model in some sectors of banking and finance. The ability to push away litigation through offers of settlements below the cost of litigating has changed the face of legal claims against financial companies. There is also the issue in regulations that if it is more profitable in the near term to violate regulations, and pay fines years later, then regulations become less of a hindrance.

          In the US there was a great deal of opposition to the first Orphan Works proposals. Partially this was due to too much oversight being placed amongst a very small group, which created a non-competitive legislated monopoly in search and discovery. This was also similar to the blocking of the Google books initiative, because the wording would have given Google a monopoly on Orphan written content.

          At issue in legal challenges is that the US legal system benefits those with deep pockets, who can afford to litigate for years. Simply the expense of going to court has become a deterrent. Another somewhat unspoken issue is that taking a corporation to court to fight for your copyrights could place you on a blacklist and limit your chances of doing work for other corporations.

          What I think creative professionals need is image insurance. If we are infringed upon, then let the insurance company litigate and move to collect compensation. At least the insurance industry has enough attorneys to make that viable.

          • Insurance…there’s another banking and finance ripoff. Maybe what we need is a cooperative scheme owned by the creatives…

            • The Graphic Artist’s Guild (GAG) in the United States tried that. Various photographer agencies back off from such an approach due to fear of anti-trust issues, and because of some legal challenges in the past. Meanwhile every plumber or auto mechanic charges nearly the same.

              Creative professionals are being targeted because as mostly individual creators of content, we have almost no collective power. When GAG tried to make design and illustration creatives a new union, many in the US were opposed to that out of great dislike and distrust of unions. The insurance industry is the only corporate sector in the United States specifically exempt from anti-trust laws.

              I don’t like the idea either. Copyright does not seem broken to me, yet so many politicians are trying to “fix” it. Instead they are breaking it faster. Meanwhile the financial world, especially insurance, have a great deal of influence amongst politicians.

              Really I’m just looking for something that will work, because I greatly enjoy what I do for a living. I have been through three legal challenges involving my copyrights, in which I prevailed each time, but the process brought me close to quitting each time. We need workable solutions, but that new UK Law is not it.

              • Sounds like that’s not really an option, then.

                I’m used to living/ working in an environment where there’s absolutely no respect for IP rights or copyright whatsoever; I suppose it makes you cynical and lowers your expectations, but a good portion of the tough discussions I have with clients aren’t over pricing but over licensing: those of us who understand have to educate the ones that don’t. In the long run, it’s in everybody’s interests as if we stop shooting because it’s not commercially viable anymore due to lack of perceived value, or because it isn’t worth the hassle, everybody suffers.

  19. The orphan works issues has many people in the UK considerably concerned, but that is partly due to misinformation. I fully understand that people are worrying about the definition of “diligent search” but claims that this law takes away copyright or that big American companies can take everything is just nonsense.

    The UK Intellectual Property Office, a government body, has just published a document explaining the details of the law and while a few issues still need to be addressed this should make it clear that there is not much concern. Let me quote from the document:

    “Myth – anyone can use a photo they have found on the internet as an “orphan” if they cannot find the copyright owner after a search
    Fact – A licence must be obtained to use a work as an “orphan”. This will require the applicant to undertake a diligent search, which will then need to be verified by the independent authorising body which the Government will appoint before a work can be used.”

    “So how will the Orphan Works scheme work? Any person wishing to use an orphan work will need to apply for a licence to do so and payment for the licence payable up -front at the going rate As part of that process they must undertake a diligent search for the rights -holder which will then be verified by the Government appointed independent authorising body Only then will a licence to use the orphan work be issued. Licences will be for specified purposes and subject to a licence fee which is payable up -front at a rate appropriate to the type of work and type of use. The licence fee will then be held for the missing rights -holder to claim.”

    Click to access hargreaves-orphanmyth.pdf

    What this work mainly does is help bodies such as museums, libraries etc. to be able to use real orphan works in ways they could not have before. It is intended to let society enjoy works it cannot currently as there is no owner who could give a license.

    With regards to what photographers need to do who want to control their work nothing much has changed and your advice is very sensible, Ming. The law does not really change that at all. I hope that clarifies things!

    • I think it makes sense overall, though we still depend on the implementation of it to be in the right spirit for things to work out well for everybody.

    • Tom Liles says:

      Any person wishing to use an orphan work will need to apply for a licence to do so and payment for the licence payable up-front at the going rate

      Torsten, this line has bothered me since first reading it. I know you didn’t write the law, that you don’t represent the IPO or Her Majesty’s government—but I’ll ask you anyway! 🙂

      It seems to imply that if a work is confirmed an orphan, then the British Public becomes the defacto copyright owner [or is Licensor a better phrase?]. If not the British Public, then the IPO [but since it’s a public institution, the IPO is effectively just acting as a proxy for the British Public, the tax payer].

      Point 1) Confirm, after a diligent search, that no owner exists—shouldn’t the next logical step be to make this work a “free for all” public domain work? The IPO seems to arbitrarily step in and claim ownership [since it is the sole source of licenses to use the work!]

      OK, so if I, say, as a tax-paying member of the British Public wish to take out an “orphan license,” would the IPO ask me for a license fee? I can see why they would, and should, ask for a fee from private institutions or businesses; but from public ones or members of the public—doesn’t that seem a bit like a stealth tax?
      [charging me for something I already own!]

      Point 2) Confirm, after diligent search, no owner of work; IPO then appoints itself as owner, or sole Licensor, at any rate; IPO then charges all comers wishing to use the work a licensing fee…

      Doesn’t feel quite right to me 😦

      • Next question: what’s the going rate? Who determines it, and does anybody consider the impact the rate itself has on the rest of the market?

    • Brings up an old saying: “The road to hell is paved with good intentions”. I like the argument to put through these laws, in that the “intention” is to help out entities who may not “intend” to profit from usage. There are numerous problems with this concept, especially the “appointed” agency of screening, and the idea that large corporations will not try to take advantage of somewhat loose rules, which are up for interpretation.

      It was not long ago there was a story making the round about several articles referencing an image as attributed to Henri Cartier-Bresson, while is was actually an image from a photographer still very much alive. One issue is that many places on the internet that allow image uploads actually strip out all metadata that identifies the creator/owner of an image. This bring up the “diligent search” issue, in that there may not be any metadata attached to an image. While there are TinEye and other image finding services, the effectiveness is limited.

      There is also a practical matter of discovery of illicit usage, and successful prosecution, especially across borders. An image may be in circulation for a while before the creator of that image discovers the unauthorized usage. Given that the UK Law does not allow “exclusive” usage, then an image used in one place as an “orphan” suddenly becomes a viable target usage for many companies. All this would happen at a usage rate determined by the government, and collected by the government. I suppose we should be “grateful” that the UK government is determining and capping the value of our images; do they do that with any other industry?

      • I wonder what that value level is going to be, who’s going to determine it, and how it will affect the rest of the industry. If the value is set too low, there’s suddenly a whole load of incentive to start stripping and altering images so they’re impossible to trace. This is obviously very, very bad.

        Large corporations will do anything that makes them more money than they have to pay their fleets of slippery lawyers to defend. In the end, the little guy almost always loses: we simply can’t afford the suits.

        Again: the more I think about it, the only defense we have is visibility: if your images are easily locatable, then TinEye/ Google Image Search etc have a much higher chance of finding and correctly attributing them. Good, but obscure, images are the ones that are most at risk.

        • Ming, do you think you will change your visible watermark in the near future?

          • Nope, I don’t think there’s a better solution: firstly, it isolates the image from the page, secondly it doesn’t require me to put text in a place that would interfere with the composition. Thirdly, it seems to unintentionally have become a recognized ‘Ming’ trademark…

  20. Just shoot film and forget post processing. 🙂

    • Not entirely true: how you handle developing and scanning matters too; underexposing a stop and then pushing a stop in post has different tonal results to overexposing and pulling, or exposing perfectly. Ditto push/pull in the scanning or printing…

  21. Tom Liles says:

    Afternoon Ming, afternoon all…

    I would have obtained a model release

    Aha, OK. So this is also what the law requires, I assume. Interesting. It must have kicked in in relatively recent times, as for example, the images of HCB are widely licensed, printed, used for profit—yet I seriously doubt he had to contend with things like model release forms!

    if you have no integrity for IP and image rights as an artist, how can you expect it of anybody else?

    This seems to me, the only sensible course.
    [And the morally correct one]

    • Good question. There’s another very grey area that permits use as art without releases, but it’s really contestable either way – what’s the difference between a PJ moment that happens to be reproduced later because its great, as opposed to photographic work shot deliberately with commercial art in mind from the outset?

      • Tom Liles says:

        Exactly. This area of images and ownership seems so massively grey to me… the argument from intentions, for a start, seems far from a given [it’s being relevant seems far from a given: I do think it needs to be demonstrated as being relevant].

        But just from a philosophical stand point: I see everything I take, and of course much much more, with my eyes. I need no permission to do that [to see!]. Yet, the exact same photons, hitting a silicon wafer instead of my retina—somehow changes the situation qualitatively. Yes, I am recording in the case of seeing with a camera. But so does my brain. What if I were to sketch/paint what I’ve seen, a photorealistic sketch [as many artists are capable of, see here for a prominent recent example], of a street scene I saw, then sell the painting for gazillions or lease it for commercial use in a Coca-Cola campaign, or something. Would one of the players in the scene then have recourse to sue me? I think everyone’s gut feeling would be “no.” But what’s the difference, really? Photographic reproductions are no more real than artistic ones. And if they are: I look forward hearing that explanation of why from the brave soul who so has managed to nail down the definition of real.

        Still, you have to draw a line somewhere or no-one’d get anything done, ever…

        I suppose the line is in about the right place at the moment. I suspect you might disagree, Ming. If you could clap your hands three times and have the law anyway you like it, what’d you have it be?

        • Perhaps it’s the difference in interpretation/ reproduction? Though there are artists capable of photorealistic drawings/ paintings, they are exceptionally rare compared to photographers – even good ones. I think they’re generally recognized as savants rather than being sued for image use…

          If I could summon the genie, I’d have it so that you could submit works to a central body to recognize copyright and derivatives thereof – big enough to identify, not big enough to reproduce. Theft should be treated like theft of any other physical object. If you don’t bother to take the effort to protect your work, then too bad. It really has to go both ways to be fair and implementable.

          • Tom Liles says:

            I think they’re generally recognized as savants rather than being sued for image use…

            And what happens here is we smuggle in a value judgement on photography vs. painting [most people would just say “photography vs. art” if we’re honest, I think]. It’s the “anyone could do that” angle. And the converse with respect to the painting, drawing, what have you…

            And it’s an accusation I think photography has to answer. I’m a beginner, but I’m already aware that this is going to be a hobby of diminishing returns: it seems like you’re going to get reasonably good, reasonably quickly; thereafter a LOT of effort for a little gain; and after that, straight up Sisyphian territory!
            [that’s not to be taken negatively. I liked Camus’s take on Sisyphus]

            So I don’t see that general public is so off base with the “any one could do that” charge. I would definitely argue against it, but, yes, I’m not confident, at all, I could convince listeners that they were mistaken.

            But yeah, the gut feeling that money’s coming your way if it were a photo; but isn’t if it were a fresco… I think that’s really about the above value judgement. Shame…

            I’ve forgotten how we got onto this, now 🙂

            Please excuse my ramblings m(. .)m

            • You’re right, except it’s not a rock you’re carting up the hill, it’s a Hasselblad on a Gitzo 5 series tripod…

              The difference between art and reproduction/ direct copies. It’s a similar argument with derivative works, e.g. heavily edited images: who owns the copyright?

              I think perhaps I should start taking up painting.

              • Ray DuBois says:

                There’s a certain practicality to the idea I’ve heard, that existing work is there to get you future work, not to serve as a money source all on its own. ‘course, I might feel different if I had a “base of work”, but lacking that… it does seem simpler than trying to regulate copying in an age of computers.

    • Peter Boender says:

      Aren’t images over a certain age (I don’t know exactly, but like 50 years or so) automatically become part of the public domain? I think that’s the case with Ansel Adams’ pictures, so the same may apply to Henri Cartier-Bresson….

      • Tom Liles says:

        Hi Peter,

        Yes, that’s certainly the case for films and patents, isn’t it.

        I guess what I was driving at was this business of “model releases” etc must be relatively new, as even at the time HCB’s images were made, they were printed in photobooks and sold to punters, but I doubt, very much, the players in the frame had signed things like model release forms.

        Even editorial images seem a grey area to me. News organizations have to sell news to stay in business; the editorial images are part of that sale. The most vigorous example would be a front cover picture… Imagine the cover of TIME was a street doc shot — I don’t know if that happens anymore, but it certainly has happened in the past — this image is being used for the purposes of making money, without question. Punters are going to decide whether to buy the paper/magazine, etc., based on that image. Yet I bet you, with the historical examples, the players in the scene didn’t sign any releases. Do/Did they have a right to sue? And doesn’t this example prove that no image is innocent of [possibly] being used for financial gain…

        Right, I have to get the kids in the bath!

        Cheerio Peter, Ming, all 🙂

        • Peter Boender says:

          You’re right Tom. Everything seemed to be a lot easier “back then”. At least that’s my impression too. Nowadays everything seems legalized, sometimes (many times?) to a questionable and invasive degree. Thanks to the lawyer business and to an ever more world-spreading “comply or otherwise I’ll sue you” attitude…

      • I don’t think so. That’s for patents, I believe.

  22. Tom Liles says:

    I suppose it’s more of a philosophical question, but regarding ownership and images: how does this work for street photographers, say?

    Take the top image on this article of the smoking gent, Ming. You made this image; but is its content wholly yours? That’s to say, what would happen if that guy saw this picture and requested you destroy it for reproducing his likeness without permission [I’ve used the instance where it’s not being used for explicit financial gain, but is being shared publicly]. Would he even have the right to demand that? I wonder…
    Or another scenario: a business client saw the same picture, liked it, licensed some international rights from you for millions [this is just make-believe, remember!], and used it blown up to billboard size in a global ad campaign… and that gentleman approached you then, with his hand out. How does the law respond to this?

    On PS,

    I apologize for the following course language, but frankly Adobe have just sh@t the moneybed. Many online writers have framed this move as some kind of insurance or hedging for future revenue, as though Adobe were in trouble or realized they were going to be. I don’t see that at all. I think it’s just a classic case of getting bored with success. It’s the death motive, we all have it. The same thing happened at Porsche—they were wallowing in money, so much they didn’t know what to do with it all. Decided they were going to buy Volkswagen. Tried to. Turns out they’d bitten off more than they could chew there, they basically lost the shirts on their back in the process and so in a massive reversal Porsche were now the ailing company with an unhealthy balance sheet and Volkswagen bought them out. Then we get the Cayennes and Panameras, etc., etc. Some people like those models; but none of these people are bona-fide Porsche people, who know an RS from a Carrera 3…

    So, honestly, when I read that news, I thought “well, that’s the beginning of the end for Adobe then…”

    I dunno, this may turn out to be the most successful business move they’ve ever done. But it makes no sense to me at all.

    By the by, creative businesses that have to buy tons of machines and copies of these creative suite applications to run on them; are they happy about the news? I think this will be a good barometer…

    My personal case:
    I have CS3 and at first I thought it was utter overkill for my needs; I have a copy of LR on my machine at work [and spend my lunchtimes furiously editing photos :)] which seemed more like it. But I have completely changed my mind. The sheer number of tools and techniques available in PS is overkill for me, yes. But the few tools I do regularly use — that also appear, in a different format in LR — are streets ahead in PS. I feel like there’s no competition. I use LR much more regularly [mon-fri] than PS [at home on weekends, if I’m lucky] and still get MILES better output from PS. Same operations I’m doing [tools that are available to me in both apps]. Go figure…

    Ming’s multiple pass methodology is one part of it; I’m also convinced the quality of the algorithms, is different. That might be a bit of price induced “Leica effect” though 🙂

    Ming hit my main frustration with CS3 on the head though: ACR support ends at anything made after 2009. If they could make a way to keep updating ACR without needing to update PS, that’d be mana from heaven. They’d never do that though—be too kind to customers!
    [and there’s not much mula in that :)]

    • No question about it: if I intended to use the image for commercial gain, or advertising, or any other use than editorial – I would have obtained a model release. I’ve been approached many times in the past by various organisations and individuals wanting to license images for such uses, but I’ve always turned down the offers if I didn’t have the correct releases. It’s not worth the liability, and above that, if you have no integrity for IP and image rights as an artist, how can you expect it of anybody else?

      As for PS: if they offered paid upgrades to ACR for future camera support, I think that would actually work as a great compromise without alienating users or killing the revenue stream. Even if cost were not a consideration, I still prefer the output of PS – and it’s just much easier to use. What takes me 30s-1min in PS takes a significantly longer amount of time in LR, if it can be done at all – multiple curves, fine live dodge and burn brushes and simple retouching, for instance.

      • Peter Boender says:

        On PS: I think there are much more “amateur” PS users out there than realized. IMHO, with the implementation of the Creative Cloud model, Adobe just cut the chord with the majority of those users, and with a significant amount of professional users as well. The problem is the “long run”. I can still edit today’s image with (bought once) PS CS5, 5.5 or 6 with ACR 6 or 7 in five years from now, but in order to edit it in PS CC at that time, Adobe requires me to pay the monthly subscription the entire time. Sure, they’re gonna upgrade the CC software on the go, but as is stated everywhere, will that be with features we need as photographers? I’m pretty happy with PS CS5.0… And be careful, when you edit an image in PS CC, you cannot go back and edit it again in PS CS6 or earlier… Just make sure your edits are done on copies… So I’m with Tom Liles on this one: its just blatant arrogance on Adobe’s part. This product announcement is giving them a lot of bad press and they seem oblivious to it. We can only hope the outcry is big enough for them to start listening to their user base. The solution could be to make ACR upgradable in the non-cloud PS versions, so we can still use PS CS6 and earlier with camera RAW files of a later release date (not to mention a fully functional gateway between PS CS6 and earlier with LR 5 and later…). But I think it’ll never happen….

        • I think the ACR solution is one they should really look into: but they’re just going to tell us to buy LR, which is basically ACR on steroids. The problem with this is the workflow just isn’t as fast or smooth as all-PS.

      • Graham Wood says:

        “if they offered paid upgrades to ACR for future camera support”… they do it for free. it’s called Adobe DNG Converter. so if you’ve got CS3 and a D4, just run the D4 raws through the converter and CS3 will open them. you won’t get the improved algorithms but it’s a lot of R & D that Adobe continues to give away. and they’ve promised to continue to make Adobe DNG Converter available.

        i’m glad of the CC change. will make my favourite editor (PhotoNinja) more appealing.

        • Agreed, but it adds another step to the process. Since it seems to be a plugin module/ patch anyway, I don’t see why they couldn’t just do it so we had native support in ACR/Bridge – it reduces processing time, enables previews etc.

      • Tom Liles says:

        I suppose the other option is using LR in the capacity that you use ACR now…

        They update it, it has all the ACR tools — in near as dammit the same form as ACR — and it can output DNGs, etc. Not saying it’d be pleasant; I doubt there’s an interface to seamlessly go from LR environment to PS, as we do with ACR and PS…

        But it keeps up with RAW formats [and has the top snuff algos, I presume, c.f., Graham’s mention of DNG converter]. Workable, but definite annoyance and time issues…

        I’m a bit of a aesthetic Nazi when it comes to things like this: I want it all just so, or I’ll go without…
        [cutting your nose off to spite your face, I think they call that :)]

        • You’re right, there isn’t – you have to export them one by one to PS. It just seems kludgy. I’d rather use the DNG converter method.

      • Hi Ming,
        A number of the features that you mention are missing from LR are present in CNX2: multiple layers (which I learned from your videos) is possible, local dodge & burn using u-point tech, brushes useable on any edit step and simple retouching. In addition, batch processing and saving frequently used edit steps in the batch menu are other time-savers. I also much prefer the way CNX2 implements plug-ins ie. seamlessly in to the workflow like all other edit steps. LR’s plug-in implementation isn’t a plug-in at all; its simply exporting to a different piece of editing software and returning you to LR; the very definition of a kludge. Whether or not the arguably old-school UI is anyone’s cup of tea, I think there’s a real opportunity here for a software vendor to step in and scoop up a large user base by exploiting the niche you suggest is present between LR and PS. A major revision to CNX2 by Nikon could be just the thing but I’m uncertain that Nikon will recognize or act on the opportunity.

        Truly love and appreciate your extremely insightful and wonderfully written blog posts. Your sight and app are a valuable resource as I learn photography. I can’t wait to join you on a future course. You mentioned you were considering Canada next year. We’d welcome you with open arms!

        • The problem with NX2 is obviously incompatibility with anybody else’s raw files, and painfully slow speed…

          Hmm, sounds like Canada is looking more and more promising for next year…I’ve always wanted to photograph polar bears in the wild, too.

  23. I think Photoshop CS3 reached the “level of sufficiency” for most photographers. I suspect Adobe’s biggest concern is that people are going to wise up and stop upgrading and then Adobe would lose a revenue stream. By forcing people to rent the product, Adobe guarantees an income stream even if they don’t improve the product. There’s very little Photoshop doesn’t do (include plug-ins as well) … image de-convolution is one.

    • I think you’re right. That said, I could see room for a product in-between full blown PS and LR – NOT elements – aimed at hardcore photographers and pros who actually need the brushes, retouching and limited layer capabilities. Such a product would have more focus on workflow and consistency, perhaps fully customisable palettes to hide the infrequently used tools, and more of a sequential/ systematic approach to processing. In my mind one of the biggest weaknesses of all of the Adobe products now is that though they are extremely flexible for the experienced user, there are so many ways of doing things – each with slightly different results and greatly baring efficiency – that it’s still intimidating. I tried to solve this to some extent with my workflow for photographers videos, but that’s a small drop in the ocean…


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