Emerald Bay Photography News and Updates

Over the years of working as a professional photographer, I've come to realize that at least 50 percent of my job consists of educating and guiding my clients through the confusing labyrinth that is the photography industry.

So I thought I'd share a recent story as example for clients and photographers alike. Note: names have been replaced by generics for reasons that will become obvious shortly.

In summer of 2007, I was hired by Client A to photograph a building. The following October, the occupant of the building (let's call him Client B) requested to license three of the images from the shoot for their own advertising uses. The person I was dealing with was billing himself both as the marketing contact and in-house photographer.

A 1-one year license was issued for the 3 images. As part of my standard contract, it was stated clearly that a byline (a small copyright notice usually next to the image or somewhere on the page) needed to appear in conjunction with any website usage. Given that my Client B contact was a photographer himself, I trusted that he would observe the rules of the contract, and didn't bother checking up on them.

A few weeks ago, Client A alerted me that Client B had contacted them, asking to obtain a (free) CD from their firm, featuring all the images from the original shoot, for use on a new website. Client A (whose marketing department is incredibly knowledgeable and respectful, and has always adhered to all licensing rules) instead referred Client B back to me.

Realizing that they were overdue on their license anyway, I searched their website to see if they were still using my images. As it turned out, they were indeed featuring one of my images in both their website header's 5-image rotation, and on their 'Contact Us' page. I politely emailed Client B, offering to renew their license at a reduced price.

They responded with "no, we don't want to pay for outside photography anymore. We will take your image down." I told Client B that was fine, but that they still owed licensing fees from last October until now. We went back and forth a couple of times, solidifying which image exactly the license was going to refer to. All seemed well.

Within the span of only half an hour after that, Client B emailed me with the following statement: "Actually, *I* took that picture. There used to be one similar, but I got rid of that one and took my own."

I was befuddled. How could he claim that? We had just gone through confirming the image. At which point I realized that I hadn't seen that required byline on their site anywhere, which of course made it easier for them to deny my copyright.

So I went back to their site to take another look. As I hit 'Refresh', I found that the image had been erased, both in the header rotation and on the contact page. So now there was no more trace of my image on their site - ergo, no way for me to prove that they should have to pay up. Right?

Wrong. Enter ... Google Cache. In order to be able to serve pages that may have gone offline or changed, Google keeps a copy of every website as a cached version, usually about a week or so old.

So I retrieved the cache, took a screen shot of the contact page, and attached it to my response email as a jpeg. I also added a url to the same image in my online portfolio. The proof was undeniable now - right down to the matching cloud formation in the background. I wrote that I disagreed with his statement, and cited the screen shot and portfolio link as proof that the image had been indeed mine. In addition, I pointed out, my copyright was nowhere to be found, neither live nor cached.

The silence in response was deafening. I decided to make it easy on him, and sent him an invoice. It contained the license fee, and a penalty for omitting my copyright.

The following morning, a meek one-liner: "I will put a check into the mail today." Not a word more. Two days later, an envelope with the payment showed up in my mail box.


So what is the moral of the story?

In my trade, I know that creating and maintaining trust and good relationships with my customers is absolutely paramount - and not just to assure repeat business. It's simply a matter of good practices. I'm up front with my fees, have a detailed and easy-to-understand standard contract, and am always available to answer any questions that might pop up.

In return, I expect that the client shows me the courtesy of being respectful and professional towards the service and images I deliver to them, and that they are considerate when it comes to my copyright and the specifics of the mutually-agreed upon contract.

So if you're a photography buyer - don't be afraid to ask your photographer questions about any area of licensing, or the industry in general. We are always happy to explain in an effort to avoid confusion and costly misunderstandings later.

And if you're a photographer - it's tempting to abandon your rights in this economy in order to maintain good relations with a client. But please remember that not only aren't you doing yourself any favors - you are also hurting your peers, the industry as a whole, and in the end your client, by not making sure that your services, products and rights are assigned their proper value and protection.

In the end - who is going to produce those high-quality, custom images for our clients if we photographers are unable to make a living and have to abandon our profession?

Labels: Bend Oregon photographer, Bend photographer, Central Oregon photographer, client education, licensing rights, photographer advocacy, photography industry

I admit - when I signed up for Facebook, I did not sit down with a nice hot cup of tea and take a leisurely half hour to read their Terms of Use. Did you, my dear pro photographer/artist/filmmaker friend? Didn't think so.

Today however (and only a day after I uploaded the first part of my portfolio to Emerald Bay Photo's custom Facebook page), a nudge from a friend prompted me to go take a closer look at the Terms of Use. I was shocked - to say the least. The verbiage has all the elements of a pro photographer's worst nightmare.

User Content Posted on the Site:

When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content. Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.

While this all may seem like legalese to most people, to me, it's not. I've read, edited, and written enough legal contracts for the photo industry over the past 12 years that verbiage like this sends shivers down my spine (and those who know me, also know that photographer advocacy is a cause close to my heart).

Because in plain English - the second you upload an image to Facebook, they'll forever have a copy of it, and they'll also forever be able to use it. Because, as they claim, you've granted them a full and irrevocable license to your image, and they are from now on able to use it, modify it, give it away and - yes - license it to a third party. (Take a deep breath now, and ask yourself: why would they want to, and what for exactly, if there was no exchange of money?)

Naturally, Facebook has already caught a lot of flack for these terms. Founder Mark Zuckerberg justifies them like this in his response: "When a person shares information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people they've asked us to share it with. Without this license, we couldn't help people share that information."

Part of me understands that - another part of me cringes at the mere thought of opening myself up to yet another way my images could potentially be abused. And yet another part of me knows that it's a spectacularly difficult situation people don't usually have the bandwidth or knowledge to truly grasp, and therefore their initial reaction is to simply cry wolf.

What it really does though is highlight the complexity of copyright in the digital age. For example - you probably use Google every day, right? You search for content, images, use your Gmail, calendar etc.. But have you ever thought about what kind of license you enter into with Google for these most basic services? Have you read Google's Terms of Use? Here's what I found:

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

11.2 You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Google to take these actions.

11.4 You confirm and warrant to Google that you have all the rights, power and authority necessary to grant the above license.

Hm. Sounds an awful lot like Facebook's license, no?

Taking a step back, it occurred to me that too often do we take the Internet and its vast resources for granted. When we use Facebook or Google, we don't think about the enormous amounts of time, effort, and money it takes to run these companies and sites. Or that we can access their services 24/7, from literally anywhere - FOR FREE.

For us pro photographers that means: having our websites show up in Google, or being able to upload our portfolios to Facebook (and share them with our friends, peers, clients) - which (let's be honest) gives us a whole new (and huge) channel of marketing. FOR FREE.

Should we have to trade the potential of having our images abused by a company such as Facebook or Google for the opportunity to display (and market) our services? Maybe not. We certainly have a choice. We can choose not to put our images out there, based on the rationale that if nobody can see them, nobody can abuse them. But if we don't put them out there, we also forever stay in the stone age with our businesses, doomed to having forever missed the train to the digital age. I, for one, readily acknowledge that over the past few years, the main bulk of my business has been generated by my website, its vast portfolio - and its excellent Google rating.

In his note, Zuckerberg talks about respect and trust. How do we know Facebook won't turn to the dark side one day, and start to utilize that trust (and that licensing agreement) for their own profit? We don't. We can only trust that they won't.

In the meantime however - we can be responsible digital citizens, protect our content as best as we can (by keeping your FB privacy settings restricted to only your friends, or watermarking all of the images on our website), and hope that FB does the right thing.

In the same meantime - let's not forget that we all reap the rewards of an open web of connections, such as the Internet or Facebook, to promote our businesses and help us earn a living.

Update: this post was originally published on Facebook, where it generated some interesting feedback links. I thought I should add them here to further the discussion and let other voices speak as well:

Photo Business Forum
APhotoEditor.com
Sportsshooter.com
UsePlus.com

Labels: Bend Oregon photographer, Facebook, photographer advocacy, photography

Today, I'd like to address an issue that a lot of freelance photographers face: The task of buying individual health insurance.

Like so many of my peers, I want health insurance, but cannot afford the premiums even my husbands employer wants from me (something like 250 bucks a month). So I've been on the lookout for good, affordable health insurance by a reputable company for a while now.

A few months back, a fellow freelancer warmly recommended Pacific Source, an Oregon-based company with terrific rates and a very high consumer satisfaction rating. I instantly downloaded their lenghty application, filled it out and sent it in. 3 weeks later, I get a letter of rejection.

Now, I'm one of those blessedly healthy individual who doesn't see the point of going to the doc unless something seriously traumatic happens (like I'm suddendly missing a limb, or the like - for which I *do* would like to be insured though). But apparently the fact that I was honest and told Pacific about a rotator cuff injury I sustained (and healed out) last winter while shoveling snow, was enough for them to turn me down. I was bummed.

Suddenly though, my mailbox filled with ads for health insurance for the self-employed. I didn't bother to take a closer look, until today, when a lady named Sally Hite called me and wanted to set up a meeting to "customize a quote" for me. I indulged her for a bit, telling her about my Pacific Source experience (she didn't seem to concerned with my rotator cuff problem), trying to glean as much info as possible from her through her hard sales pitch about the company she represented . She told me she worked with/for Mega Life & Health Insurance, but upon requesting she'd send me some information about the company prior to the meeting, she told me she'd rather not send anything because "most consumers don't understand the information anyway, and I'd rather not get you confused". Aha. I'm an idiot. News to me. But hey. She fussed even when I asked for a website URL.

So while still on the phone, I pulled up the company's website - where I found no information of any use, except the impression that for a national insurance company, they sure didn't splurge on web design costs. I finally hung up, and smelling the rotting fish from a mile away, went looking online for more information on the company.

Of course what I found was less than encouraging:
The Texas Dept. of Insurance had a lengthy profile of the company, complete with a history of fines Mega had incurred in the past years for "market conduct".
Selfemployedweb.com had an interesting article on deceptive practices some health insurance companies employed to get people to sign up - with Mega Life and its parent company, UICI, highlighted as an example for just such practices.

And then there was this interesting note in the article, saying how insurance companies employed associations and other similar groups to help them sell insurance. That's when I remembered that Sally had mentioned that I would need to sign up with the NASE (National Association for the Self-Employed) to be eligible for her insurance. And looky here - the NASE wants $96 just for their basic membership, with "benefits" that seem only a thinly-veiled list of companies that just love to market to the self-employed.

Add to that this fascinating thread in the Google Answers forum - and I swiftly cancelled my appointment with Sally. This little gem from a PR Newswire report in particular did it for me: Since late 2002, UICI has been beset by lawsuits alleging the company sold insurance policies through business associations without properly revealing close links to those organizations. The associations, including the National Association for the Self-Employed and the Alliance for Affordable Services, were managed by executives with direct ties to UICI.

So the moral of this rather lengthy post? Fellow freelancers out there beware - there are insurance companies on the loose with less than stellar morals, trying to take advantage of you. If you can, instead sign up with the AMSP, and get insurance through them. Of course the hang-up here is that their conditions specify you to need "three or more consecutive years of substantial publication experience" and you need two ASMP members to sponsor your application...

I'm not quite there yet, so I'm still looking for insurance. If any alert readers come up with any bright ideas, email me or post in the comments.

Labels: photographer advocacy, photography

If I ever assumed that time could stand still somewhere, I would have thought it could be Mexico, especially Southern Mexico. With its slow lifestyle and vibrant Mayan culture, reaching back many centuries, to me, time always felt like molasses down there, trickling by at a decreased pace, turning minutes into hours and hours into afternoons.

Judging from a travel report by my friend Paulie though (who has just returned from a 4-week trip to Guatemala and Southern Mexico), times indeed have changed now.

The next day we went to the ruins outside of Palenque. Tons of people. At least outside the entrance. We never went inside. I got into a pretty serious argument with the guard at the entrance. They wanted me to pay $300 US for the privilege of being allowed to bring my tripod into the compound containing the ruins. Needless to say, this was not in my travel budget. It seems that regardless of who you are or what kind of still camera you have, it's the tripod that means you are going to make big bucks. They also had a $250 daily fee for any video camera.

What? 300 bucks to bring your tripod into the ruin compound at Palenque? Since when?



My idyllic picture of this area has been utterly crushed. In April of 1994, when I travelled through Palenque, the ruins were pretty much devoid of tourists. Sure there were a few stragglers, but that was it. I faintly remember paying a small fee to gain entrance to the park, but certainly no outlandish charge for bringing in *a tripod*.

Mexico has lost its mind.

Labels: photographer advocacy, photography, travel, travel photographer