Here’s a question of moral fiber for you: if you were moderately hungry, for a let’s say a piece of fruit; you happened to walk past an apple on a table. Would you take it, if:
a) A sign said ‘please help yourself’
b) There was no sign, and no obvious owner
c) There was a tag on the apple saying ‘this belongs to’
d) The table with the apple on it was in a grocery store.
Most people would take it in situation a); some might take it in situation b); and almost nobody in c) and d) because it would be outright theft. Simple, right?
Let’s look at this situation again. Suppose you needed an image of an object. You find one on the internet that suits your purposes. Would you download and use it, without asking, if:
a) The image was under a creative commons license
b) The image was a sample for royalty-free or licensed stock
c) The image was on somebody else’s gallery site, say Flickr
d) The image was on somebody else’s site with a watermark and ‘all rights reserved’ in the fine print.
Not such a straightforward answer now, is it? For one, people tend to behave with much less regard and decency in the anonymity of the internet than in the real world. Images are intellectual property. This has monetary value, especially if you are a photographer; taking them without permission if you are not allowed to do so is plainly theft. The answer to the above dilemma is that only in situation a) would you be able to use the image without obtaining the image owner’s permission. b), c) and d) are all theft. However, most of the time asking nicely and offering credit is usually enough for the image owner to agree. After all, everybody knows that anything and everything put on the internet is fair game for viewing and public consumption.
Returning to the fruit analogy, the problem comes when there’s nobody doing any policing; how many of you would still follow the law to the letter if you were almost certain you’d never get caught? The reality is that it’s impossible for a photographer to police their own IP on the internet; there’s simply no way to prove that an image hasn’t been used other than by seeing every single image on the web and coming to the conclusion that none of those images are yours.
It gets even more complicated: although use of an image for any sort of use other than the license granted – and creative commons is the only license that lets you use an image without attribution (usually) for non-commercial purposes – is theoretically theft, there’s no point in following legal recourse if there’s no value to be gained. In such situations, the only people who win are the lawyers. Thus we are left with a perceptive difference – even amongst photographers – that ripping an image that’s not yours for editorial or blogging purposes isn’t as ‘bad’ as commercial use.
True, but theft is theft – would it matter if somebody stole the apple to eat themselves or to sell on to somebody else? No.
It doesn’t help that the majority of photographers are completely unaware of their own rights, and don’t bother issuing licenses or clear terms of engagement and usage conditions to clients or recipients of images; the problem here is that there’s now no way of proving whether the user of the image is a rightful licensee or not – such claims will be extremely weak in a court of law, because of the precedent that the photographer himself/ herself does not value their own images or intellectual property.
There’s an obvious cascade here: If the photographer isn’t aware of their rights, and doesn’t stand up for them, how can they communicate that to clients or persons infringing? The answer is, they can’t. And you can be sure that nobody else is going to, because it simply isn’t in their best interests to do so. This results in a wide base of consumers of media who simply expect it to be free, and pout and lose their temper when they’re told it isn’t.
I’ve recently had several cases of unauthorized image use – some on blogs, some editorial, and some commercial – not one single person bothered to have the simple courtesy to ask if they could use the images in question. I would have given permission for editorial use with attribution; for commercial use with licensing (if you’re using it to make money, it’s only fair that I should receive a license fee for helping you to do so). The most ignoble part of it was that in all cases, images were stripped from the server or screen capped, most of the time with the watermarks cropped out, and in some cases, manipulated to form horrible collages or crops – with the watermarks in. There’s another obvious problem with this: not only does it clearly demonstrate that all of the offenders knew what they were doing, but they also didn’t care. Do you think they would feel happy if somebody did the same to their content? Would they sit back and do nothing? I don’t think so, somehow. I put a lot of time and effort into creating content for this site – images, text, graphics etc – and it angers me when I see somebody else profiting off it without even the courtesy to ask permission. Only one apologized when confronted. The rest didn’t even respond, and will be the recipients of legal documents in short order.
It gets worse: what if one of the images used without permission is used in a defamatory or negative way? Or even displayed badly, but with the photographer’s watermark in place? The reputation of the photographer is on the line here – both professionally (what if influential people/ potential clients see the poor crops or presentations and make conclusions unfairly, leading to loss of business?) and legally – if used for defamatory purposes, the photographer can be liable – the onus of proof is on them to demonstrate that that was not the intention, and use was without permission. As with all demonstrations of negative proof, it’s extremely difficult to do and highly time consuming. You as a photographer have a responsibility to your own work and image to ensure that they are not used in a negative manner.
This problem isn’t just limited to images – music, articles, writing, artwork – anything creative that can be easily replicated and distributed – is also fair game. The more effort required to produce something, the more likely the creator is to defend their rights – you can bet your bottom dollar that there will be almost no court cases involving camera phone images, but no end of those for piracy of big-budget movies. Simple rule: the more effort you have to put into creating something, the more value it should have – else economics simply don’t make sense.
Speaking of economics, there’s a concerning trend here, too: free markets are dictated by willing buyer/ willing seller; prices fluctuate proportional to demand. If there are no or few willing payers for photography in today’s marketplace, what does that mean for the industry as a whole? Aside from the big budget productions that still require commissions, you can be sure that will translate not only into falling photographer rates, but also increasing image theft or copyright infringement. It’s happening already, and looking rather grim.
So as a photographer, what can you do to prevent this? What can you do to safeguard your rights and preserve the value of your images? Several very simple things:
1. Do not use anybody else’s images without permission, except if the images are available under a creative commons license, and even then, only for non-commercial use. If you have used images in the past or are still using them, either remove them or seek permission from the owner of the image. Don’t forget to give credits.
2. Issue licenses to all users of your own images, that clearly state the parameters of use (consideration, applicable images/ file names, date and region of validity, permitted media) and some form of signed agreement.
3. If you see images being used which clearly do not belong to the photographer, please make the photographer aware if you can – often this is the only way we will find out (and thank you to those readers who’ve drawn such situations to my attention in the past)
4. Support photographers who are exercising their rights. If there is enough social pressure not to do something, it will reduce in prevalence and hopefully eventually cease.
I want to finish this article by talking about a new act that’s coming into force affecting all Malaysians: Section 114A of the Evidence Act 1950, amendment passed April 2012. It’s the complete opposite of intellectual property rights: the implication is that we are now legally liable for every single distributed piece of information via whatever networked means we are deemed to control or have administration rights over, whether we posted it or not. If somebody hacks your site and posts a defamatory, libelious comment or something similar, you are responsible. If somebody leaks confidential information, you are responsible. If somebody uses your site, your devices, or even your internet connection, you are responsible – regardless of whether you did it or not, or whether you were a willing participant or not. Yes, that means if your laptop was stolen at gunpoint, then used to rob a bank, you are legally liable to be prosecuted for the bank robbery. The onus of negative proof is now on you, the site owner – and every good scientist will tell you, that’s impossible to do. Notably, the act does not cover copyright infringement – so that means you have no additional legal recourse if somebody decided to steal one of your images.
If this seems a bit stupid, it is. At the moment it is unclear how the act will be enforced, but you can be sure that if it’s anything like ISA, it probably won’t be fairly applied. The troubling thing is just how much power this gives to criminals and would-be hackers – if you’re webmaster of a popular site, it’s probably time to change your passwords and increase the security around your servers. Sad to say this, but between poor recognition of legitimate intellectual property rights and enforcement of liability against something you didn’t do, Malaysia has taken one enormous step backwards for creativity and e-commerce. I’m not shutting down this site yet, but I’m also not ruling it out if enforcement of the law becomes unreasonable. For more information or to support the opposition to 114A, visit www.Stop114A.wordpress.com
Apologies for the very serious, heavy article, but I feel that I must use my little soapbox as well as I can to raise awareness and defend the fort for all fellow photographers. Let’s keep this business viable for all of us. MT
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Visit our Teaching Store to up your photographic game – including Photoshop Workflow DVDs and customized Email School of Photography; or go mobile with the Photography Compendium for iPad. You can also get your gear from B&H and Amazon. Prices are the same as normal, however a small portion of your purchase value is referred back to me. Thanks!
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Prices are the same as normal, however a small portion of your purchase value is referred back to me. Thanks!
Observations and commentary on the state of the photographic industry
The photography industry as we know it is changing. In this article, I want to examine some of the dynamics of the ‘old’ industry, and the ‘new’ industry – and how we as photographers can survive commercially. In some ways, this is the state of how I perceive the actual roles of the various job titles in the past, and how they’ve now evolved to fit the new ecosystem.
In the pre-digital era, and up to the transition point – oh, I suppose 2004 or so, when DSLRs became accessible to the mainstream:
Camera companies – Made cameras and lenses only. Made money from both of these; product generations were long (10+ years!).
Camera shops – Made money from selling photographic equipment to individual consumers.
Film companies – Made film for those cameras, and sometimes cameras and lenses too. Made money from this.
Amateur photographers – Bought mid-level cameras and film, used services of labs, publishers, photo schools etc.
Professional photographers – Bought cameras and film, especially the aspirational products; used services of labs, publishers, galleries, taught at photo schools. Made money by charging for images and prints.
Stock agencies – Held large collections of high-grade images for licensing; made money through royalties. License fees in the same order of magnitude of cost as hiring a professional for the job (usually).
Printing companies/ labs/ developers – Processed film, made prints, made money from this.
Publishers – Produced books, magazines, etc; made money through advertising and sales.
Galleries – Exhibited and sold prints.
Photo schools – Made money through selling courses to amateurs.
Today, the landscape looks very different (old guard remains in bold):
Camera companies – Made cameras and lenses only. Some now make sensors and electronics, too; have begun a battle of attrition killing each other on price in the hopes of increasing market share. We’re in the odd position of having CSCs that cost less than some compacts, and CSCs that cost more than some DSLRs. Money is made on the lenses and accessories, rarely on the camera bodies, and almost never on the compacts. The smaller players who can’t compete on price or incredibly short-lived generations have and will die or merge (e.g. Ricoh Pentax, Sigma).
Camera shops – A lot of the larger brick and mortar chains have gone; sunk by huge overheads that can no longer be sustained by narrow margins or price wars with online companies. In developed markets, people go to fondle, but not to buy – the prices are poor, and the service is abysmal – usually, nobody has any clue what they’re selling. In developing countries – like Malaysia, for example – only the large volume dealers survive; again, it’s a price thing; we are an even more price-sensitive environment than the US. RM50 ($15) can often make the difference between selling an M9, or not. Even the rich here – perhaps especially the rich – are very, very price sensitive. To make things worse, the local distributors give bonus payouts if a certain volume threshold is met; in order to meet the volume, you have to lower prices…you can see where this destructive spiral goes. It’s possible that these places may form small chains, but unlikely because it doesn’t make sense to have multiple physical locations if you can serve a lot of customers via the internet. Basically: the days of your corner pro shop are long gone. Interestingly, the lack of availability for niche models means that even more attention is paid to what’s written on the internet by pros and so-called ‘experts’.
Film companies – Kodak has gone under, and sold off the digital business – need I say any more? Although it seems that film is making something of a revival in amateur circles, I don’t see the businesses supporting it – there are only two proper pro labs left in Kuala Lumpur that can handle slide film well; even finding a minicab that can handle normal color negs is becoming challenging. The reality of professional work these days means that it is not a viable option because of falling rates and increasingly demanding throughput and deadlines.
Amateur photographers – Now represent more sales of ‘pro grade’ equipment than professionals; photography has become in vogue again. Consumers of content, makers of content, some excellent, some utter rubbish; supporters of the voracious demand for teaching and new product. Often swayed by marketing gimmicks – first it was more pixels, now it’s higher ISO numbers and ‘art filters’ or ‘scene modes’. This market is by far what keeps the camera companies in business.
Professional photographers – There are many breeds of pros these days – assuming the definition of pro is ‘makes all or most of their living from photography or related activities’. There are those who work for studios, or as press photographers – i.e. drawing a salary. There are those who shoot weddings and events; in this part of the world, they are mostly amateurs who charge for their work, but do not deliver consistency of quality or reliability. Unfortunately these people are the group the public interact with the most, and frankly, give the true pros a bad name – even those in the same industry. There is a small group who shoot for stock, or international agencies. Finally, there are the commercial photographers and studio owners, whose jobs are increasingly being supplanted by the huge quantity of stock out there, or worse, being taken by the amateurs who vastly undercharge, do a poor job, and generally threaten the sustainability and image of the industry. The reality is that the jobs that pay well – commercial work, advertising – are both shrinking and being heavily guarded by the established photographers; and the portion of the work that’s evergreen is becoming commercially unviable – there are event photographers in Malaysia who charge about RM50 an hour (that’s US$15) including processing (assuming they do any at all) for a huge number of images. In this price sensitive environment, that’s death. Needless to say, at those rates, it takes you 20 hours of work to pay off a D3200 kit; you’re not going to be having backup bodies in case things fail, nor are you going to be able to produce anything indoors except with direct flash.
The upshot of all of this is that the smart pros are doing many other related things – notice the increasing number of workshops and seminars offered; product endorsements; sponsored or ad-driven blogs; etc. You can’t just produce photos for money anymore. About a third of my income is from teaching; I’m staying away from advertising because it affects my credibility; but I will use other unique tools like the Email School of Photography, paid competitions and Amazon referral links.
Stock agencies – The old guard of stock agencies is still charging an arm and a leg, for (admittedly) higher quality images; however, they’re also giving the photographers a rather lousy deal. Getty takes between 60 and 80% of the royalties for each of my images it sells; ouch! The alternative is no money, or micro stock – where you get 20-30 cents, and hope like hell you sell a lot of images. The question is, would you rather have nothing, a bit of a lot, or next to nothing?
Printing companies/ labs/ developers – Almost dead, at least in this part of the world; the labs that survive are focused on digital printing; there are good ones, and bad ones, and few who really understood the transition well enough to be considered master printmakers. I’m lucky to have one here in Kuala Lumpur who takes care of my printing and is also a HP Master Printer. (Wesley Wong @ Giclee Art). Online print-on-demand bookmakers like Blurb are doing very well – there have been more and more of these emerging, though quality is somewhat hit and miss – even with Blurb, who appear to subcontract the actual print work to many different vendors. Getting replacements usually isn’t too difficult, though. And you can now print small runs instead of hundreds, as was the norm for offset printing.
Publishers – While amateur photography magazines have proliferated with the increase in interest in the hobby, they’ve also suffered stiff competition from websites, who can put out more content in a more timely manner – and offer things like full size files to play with – that the magazines simply can’t compete with. The magazines are trying to maintain their edge based on content quality, but I feel even that’s eroding. (I used to be Editor of a photography magazine here; finding people to produce quality content was so difficult that in the end I was writing and shooting nearly 90% of the magazine myself.)
Galleries – I can’t speak for overseas, but there just isn’t a market for photographic prints in Asia. While there seem to be a lot of galleries in Europe (at least there were on my last trip there) – I don’t know how they make money; it isn’t from print or ticket sales. I suspect that most are sponsored by camera makers or wealthy patrons.
Photo schools – Nothing much has changed here, but there are now more of them – though a lot of the ‘photo schools’ in Asia are just one-man shows who hire some seminaked models, set up some lights, and charge for entry. Needless to say, you’ll learn nothing. On the other hand, there are a number of very good pro shooters who’ve now turned to teaching to supplant their dwindling professional income; I’m one of them. You have the opportunity to learn from people who perhaps five or ten years ago, would have jealously guarded their secrets and techniques. Choose wisely, is all I can advise – looking at the quality of the person’s portfolio is an excellent way of doing this.
Photography blogs and news sites (like this one) – The majority of sites exist to satisfy the desire for content – reviews, validations of personal equipment choices, or information on whether one should buy camera X or camera Y. Preferably yesterday. Traffic spikes are huge when exclusives are in play (from experience, here) – and advertisers and referral fees are how these sites are supported. Some of us try to be a bit more esoteric in our choice of topics and deal with other photography-related things beyond equipment, but that’s not always the case. And it’s clear that while a lot of these sites still respect IP – I’m fine with people syndicating my articles/ posts with proper credit, and it does happen – but there are an equal number who frankly just don’t give a shit about IP, image rights or NDA agreements.
Rumor sites – They exist only because human nature wants the latest and greatest. I’ve been asked on more than one occasion to break NDA and reveal what I know; I can’t think why anybody would violate their position of trust for…well, precisely nothing. No money, (obviously) no credit, and nothing else whatsoever. I can’t help but wonder if some of the camera companies are leaking things directly to stir up interest in advance of product launches, though. They support themselves with referral links, of course.
Image sharing/ hosting sites – While most are free in some form – basic services of Flickr, Picasa, etc – the premium services for serious photographers are charged. Though how Flickr makes any money off me is baffling; I more than get my annual subscription worth through hosting and server bandwidth alone. I suppose there must be others who don’t have 14,000 uploads, though. Notably some have folded, though – Kodak’s PictureGallery, for instance.
Computer companies, software companies (e.g. Apple, Adobe) – I’m sure part of Apple’s meteoric success in the last few years is due to digital photography and the support/ processing requirements – actually, I’m surprised that there isn’t an Apple camera yet. Without the support ecosystem – photoshop, a decent machine to run it on – digital is pretty worthless, because I still haven’t seen a single out of camera jpeg that I’d be happy to present to a client. I don’t know how many iPads were sold for use solely as portfolio devices, but I’m sure it’s a lot; if I hadn’t won one in a contest, I’d probably buy it solely for that purpose. Beats carrying around a print portfolio, and it’s cheaper, too.
Mobile phone companies – The fact that we’re seeing innovation in this space – the Nokia 808 PureView comes to mind – says that photography is being taken seriously even by non-camera makers. Coupled with internet connectivity and social media, picture sharing has skyrocketed – however, it’s unclear who on the hosting end is making money out of this. I’m sure Facebook will eventually find a way to charge us for sharing our images using its platform – never mind that it’s one of the worst image sharing platforms ever, between compression, sRGB color spaces and horrible interfaces – but we still use it anyway, because it’s the easiest way to ensure that all your friends see something.
Microstock agencies – Microstock only works with volume – high numbers of purchases for newly-minted content and websites; and high numbers of eager photographers to make some money out of their images, even if it’s only cents. Without that huge amount of content to trade in, the micro stock model just doesn’t work. I don’t know how sustainable this is in the long term, either.
Accessory companies – The burgeoning increase in amateurs also means a bigger market for what would formerly have been very niche accessories – there are businesses making nothing but stick-on grips, or replacement rubbers, for instance. I welcome diversity, cottage industries and craftsmen in general – I hope these are sustainable, and honestly, given current camera sales volumes, see no reason why they wouldn’t be.
Self-proclaimed ‘experts’ – People with no clients, a crap (or worse, nonexistent) portfolio of work, no credentials but very, very loud voices have come out of the woodwork in recent years; the problem is that the louder the voice, the more they get heard – especially on the internet. Controversy is seen as a good thing, even if there’s no substance behind it – because it gets traffic, and traffic is directly proportional to advertising revenue. The problem is not that they exist, but that they’re assigned far too much weight by both consumers and camera companies alike. I would be very, very weary of any opinions by ‘experts’ who obviously are incapable of taking a halfway decent photograph. This of course assumes one can tell the difference at all; perhaps a better litmus test is to look at the proportion of disparaging or negative comments received: in over 700,000 views, I’ve had no more than 5 negative emails/ comments. I know you can’t please everybody, but I try hard to have the bases covered.
Online retailers – Almost all of today’s successful brick-and-mortar retailers also have an online presence; not necessarily the opposite. And the unsuccessful brick-and-mortar retailers simply don’t exist in cyberspace. Correlation? I think so; the online portion of a physical retailer’s business gives them enough volume to be competitive on price regardless of the sales channel; this is self-reinforcing in that you’re more likely to buy from say, the B&H Superstore in NYC if you’re there, since you know the prices are the same as on their website. But if your local camera shop is more expensive or can’t afford to keep the inventory range in stock because of lack of volume, the chances of you making a purchase there decrease dramatically. And there may be a store on the other side of the country (or even in another country) that does mail order – but if you don’t know about it, how are you going to make a purchase at all?
Online bulk retailers (e.g. Amazon) – Photographic equipment is a natural progression for existing retailers of electronics and other consumer goods – the one thing you have to be careful of is that descriptions are accurate, and goods are in stock. What we consider to be important differences – kit lens types, for instance – probably get overlooked by the clerk doing the data entry into the system. And not always having a number to call to confirm (or having the number, but a person who obviously can’t remember the details of the hundreds of thousands of products they sell) can sometimes make things risky. The flip side, of course, is that the enormous volumes and lack of sales tax can make these a very attractive option price-wise. They’re also often the first to receive new product in any significant quantity, simply because initial order volumes are so huge that manufacturers allocate priority stocks to them.
So what does this all mean? When the dust settles, we’re going to see a lot of consolidation in some areas – manufacturers, retailers – and a lot of proliferation in others – blogs, self-proclaimed ‘experts’, workshops, etc. I think we’re not quite done with the change yet; the shift to digital has killed or nearly killed a lot of industries, but at the same time opened up entirely new sectors to the enterprising individual or company. If you’d asked me even five years ago whether I thought there was any other way to make a photography-related living than from selling images or perhaps sales referrals through blogging, I would have said no. But here we are today – who knows where my income in another five years will originate. All I do know is that as photographers, we’ve got a whole load of new tools at our disposal to master, but once we do, we can always improve the quality of our images and broaden the shooting envelope. I may not be making most of my living from my commercial clients in future, but I do know that I’m going to continue using everything available to up the standard of my work, and help those who are interested to do the same. MT
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Visit our Teaching Store to up your photographic game – including Photoshop Workflow DVDs and customized Email School of Photography; or go mobile with the Photography Compendium for iPad. You can also get your gear from B&H and Amazon. Prices are the same as normal, however a small portion of your purchase value is referred back to me. Thanks!
Don’t forget to like us on Facebook and join the reader Flickr group!
Images and content copyright Ming Thein | mingthein.com 2012 onwards. All rights reserved