Hublot/Yahoo/third party: not what any of us expected…

Here is the original situation and the resolution.

I just had a conversation with Mr. Gimbel to a) clarify exactly what happened; b) figure out how we can better protect creatives’ rights, and c) offer any assistance with b). I do intend to let this issue rest but had to clarify exactly what happened for avoidance of any speculation that might be damaging to any party involved.

Pay attention again to the fourth paragraph: “We intend to speak to Hublot SA regarding its practices, especially as it relates to its vendor, with the aim to prevent any further false notices.”
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It turns out that there was no fraud at all; truth can be stranger than fiction.

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Resolution: Hublot/ Yahoo/ Flickr rights, implications for photographers

Here is the original situation. And here is the final development. Please note that comments in the original article are now closed.

Credit to Hublot for taking action quickly, and local agents The Hour Glass (and my contact point) for lending their full assistance to resolve things. They posted this last night on my pages and theirs:

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This morning, I think we have a resolution:

  1. Hublot confirming that they did not take any action or institute copyright claims against me. This was confirmed in writing by the CEO and communications departments
  2. Yahoo’s counsel saying that my images have been reinstated, issuing an apology, and intent to follow up with Hublot.
  3. The images are back online, and the original post on Fratellowatches now works again.

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Valuing your images and managing copyright and intellectual property

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I’ve chosen this image to illustrate the article because although it may have commercial value to say, an old folks’ home, I cannot even let them use it for free because I do not have a consent release from the subjects. Yet it’s fine to use it for editorial – e.g. this article – because there is no commercial value derived, and I’m not promoting, selling or associating with any product. By showing it in more places, I’m also ensuring that more people will automatically be able to attribute the work to me.

“Can I use your image for X? You’ll get credit as the photographer,” is probably something you’ve been asked more than once. How do you respond? How should you respond, from the point of view of something that works for both yourself and preservation of the industry as a whole? How do you ensure that your images are used in a way that you agree with, and with appropriate compensation? Read on. This article will be written mainly for the professional photographer trying to do two things: figure out the value of their images, and then protect it.

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Ignorance, fear and photographic freedoms in Malaysia

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Photograph all you want. Prague, Leica M9-P, 50/1.4 ASPH

Several recent experiences in Kuala Lumpur have prompted me to write this article. They’re all pretty similar: I’m out and about walking on a public road, photographing various objects – never people – and I will be accosted by a rent-a-cop or security guard telling me that I am not allowed to photograph. Photograph what, specifically? Everything and anything which he deems is under his jurisdiction. There are two problems here: firstly, photographing from a public place is allowed so long as you are not on private property; the intended use is actually irrelevant – at least in Malaysia. The second problem is that these people are often immigrants who have both a very poor command of any of the local languages, zero to no education, and often questionable immigration status.

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Think carefully. Though this was shot a few years ago from the street and a good 50m away, I still subsequently had unhappy people waving and holding out stop-hands at me. Nikon D3100, 28-300VR

What this means is that even though you might be able to legitimately convince another person that you’re within your legal rights to photograph where you’re standing, you’re at a dead end because the rent-a-cop you’ve got to deal with is both ignorant and incommunicable. It’s extremely annoying because I’ve had this happen four times in the past week; I know my legal rights and won’t push it in a situation where I’m on private property and I’m trying my luck. The trouble is that this seems to be a worrying trend; it’s happened with increasing frequency over the last year or two. And it’s not because I’m photographing any different subjects than normal, or any more frequently – if anything, I’m shooting a bit less of my own personal work.

Although you could try very hard to convince them that you are a) harmless and b) within your rights, I’ve since found it less frustrating to simply move on to the next place and try to continue shooting – assuming of course that I’m still in the mood at all.

I can see why some of the more interesting places might be off limits – building owners have a legitimate interest in protecting their property rights after all; the problem comes when somebody is trying to protect rights that are not legitimately theirs in the first place. In fact, smart building owners should generally encourage non-commerical photography – in a world that is now full of social-media savvy consumers, you’d be stupid not to do otherwise. I can’t see any downside in having hundreds of images – some of them probably quite good – of your property out there, especially if it’s a commercial building and high tenancy rates are one of your objectives.

This level of ignorance is a very sad thing for Malaysia, because it compounds the existing lack of appreciation for art the population at large already suffers from. People are very happy to pay hundreds of thousands of dollars for a stack of PowerPoint slides that contain absolute garbage and executionally impossible strategies, or for life insurance schemes with an EV far less than parity – yet something that actually requires skill such as the production of a photograph, or copywriting – goes completely unappreciated.

The underlying problem is twofold: firstly, education, and secondly, something a little more deep-seated that’s a cultural mentality which we shouldn’t be proud of – and certainly shouldn’t keep encouraging. The lack of education keeps the population as a whole focused on assigning value to tangible things only – ignorance keeps people from realizing the added value of service, design, packaging, visuals – in short, the whole customer experience. It seems that repeat customers are not really a high priority for most businesses here – they just want your money; whether you come back or not is not their problem. It certainly isn’t the problem of the minimum wage employees actually doing the work.

A viciously destructive cycle is born: you don’t get repeat customers because the service is crap, so you have to cut costs to maintain profitability, which means even worse service, and even fewer customers. Do something wrong, and everybody is reading about it on Facebook or Twitter in a matter of minutes. Make the wrong person angry, and that number can easily run into the tens of thousands. The inverse is also true, of course. (It’s just one of the many reasons why I try to reply to every single message I get.)

I can’t help but wonder if a lot of why we’re stopped from photographing things is because there may be some borderline illegal elements at play – foreign workers without permits or operation without permits or licenses are at the top of the list, and both are rampant in Malaysia. In cases like this, I can understand why proprietors get understandably nervous about any form of documentary, especially cameras. A government that seems to turn a blind eye to this kind of thing for the right amount of ‘convincing’ does not help things, either. Once again, it boils down to a lack of education – forget prioritizing a sustainable business over a profitable one – and the cultural obsession with making money any way possible. Again: if you’re running a legitimate operation, a smart person would want as much publicity as possible to create awareness. It would seem that there are not so many smart people here.

On the whole, I’m both saddened and frustrated. Malaysia remains one of the most rich countries for photographic opportunity because of both the pace of change, depth and variety of cultural traditions and large social contrasts. It’s a great place to practice social documentary and architectural photography – or it would be, if we could just photograph within our rights. Interestingly, I’ve almost never experienced this kind of restriction overseas – I don’t know if it’s because I fit the stereotypical Asian tourist profile, or because the general level of education is higher, but the difference can be felt. In fact, I think I only remember being stopped from photographing something once in London – and I was at fault because I was trying to be stealthy despite the liberally posted ‘No Photography’ signs inside a private museum.

There is one workaround, however. Despite proliferation of cameras and variety, the perception of ‘big black camera equals threatening’ remains; use a small, nondescript compact and you’re generally ignored. (In fact, I was most frequently stopped when shooting with the F2T; it probably doesn’t help that I’m very, very slow with this camera due to a lack of built in metering, manual focusing and general care with film.) Fortunately, compact camera technology has evolved enough that using one doesn’t entail as much of a compromise in image quality as it would have done a few years ago – even under low light conditions. Granted, I love the D700+85/1.8G’s ability to make beautifully cinematic stills at night, but I can still do exhibition-grade work with the RX100 and it’s 28/1.8 equivalent. What it does mean is that a change of style is in order; mainly because I no longer have the same freedom of choice in equipment if I want to shoot the same subjects – or, I simply have to shoot different subjects.

I suppose one really has to look at the bright side of things here – I could continue to bemoan the ignorance and diminiution of photographic freedom, or I could embrace the forced change as a challenge to push me out of my comfort zone which would in turn force my evolution as a photographer. I might not like it, or think the overall change in societal attitude is a good thing, but it’s not as though we have much of a choice is it? MT


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Images and content copyright Ming Thein | 2012 onwards. All rights reserved