by Tim Gander

What Is Commercial Photography?

Three ceramic products in a row, an oil bottle, a jug and a garlic roaster, on a blue cloth with broken garlic bulbs lying next to them.

While I’ve been having great fun with personal projects, launching a new website and planning for an exhibition, I feel it’s time to bring this blog back to the subject of commercial photography. Which already raises a question: What is Commercial (note the cap C) photography?

Strictly speaking, I don’t often do Commercial photography. If asked to put myself in a pigeon hole, I describe myself as a corporate communications photographer. This is because although I take pictures for (lowercase ‘c’) commercial gain, Commercial photography in its strictest sense means pictures taken to be used in advertising. This distinction can be an important one in certain contexts.

For example, many people believe that a photo taken for a newspaper or magazine editorial article is automatically Commercial because the photographer got paid (hopefully) and the publisher is a commercial enterprise, but this muddies the waters when it comes to describing such issues as data protection and rights to how a photo can be used.

If I go out and take a photo in the street to illustrate an article, it is covered by editorial standards and can be used without obtaining the permission of every single pedestrian who happens to appear in the recorded scene.

Likewise if I take a picture for a personal project, this is covered by an artistic right for the work to be taken and exploited by me. There would be a vanishingly rare chance that the image could infringe anyone else’s rights provided I didn’t use it in a defamatory context. Or, and this brings us back to my central point, a Commercial context such as an advertisement.

Commercial photography with that now familiar capital ‘C’ refers to pictures taken for the purpose of promoting or advertising a product or service. This extends to advertorial, where a business or organisation pays for the placement of an article within a publication which is made to look like it was written by a journalist, but these by law have to be clearly marked as ‘Advertisement”.

Of course the waters get muddied further by images used in social media where the client may have paid for placement, such as on Instagram, where it’s sometimes less clear. All sponsored posts on Instagram are marked as such, but if a client commissions or buys a photo and puts it on their Instagram feed or on Twitter with a view to it bolstering their brand, well that’s now transformed the image from editorial to commercial and we have to be wary of this.

As a rule, any client who commissions me to take photos for their corporate communications (which includes social media feeds), needs to ensure they have all permissions in place at the time I take the shots. It is the client’s responsibility to organise this and it may include property rights too.

So yes, that capital ‘C’ can make all the difference and it’s important to know and respect

 

 

in Advice / Industry Comment 0 comments
 by Tim Gander

This week, read something else!

I honestly thought I would get to write a post today, but work is absolutely full-on this week (next week too, so we’ll see if I can get something together for then). However, for those of you itching to know why the Government’s changes to copyright law are a VERY BAD THING, I highly recommend this article by photographer Tony Sleep:

ERRA: You could not make it up (short version)

I’m giving you the link to the short version, but the long version is available here for those wanting a more in-depth analysis.

Which reminds me, in amongst trying to do my job I also have to write to my MP again because from what he’s told me already, he hasn’t grasped the full import of what’s happening. I’ll write that up once I’ve had more correspondence with him.

Thank you and have a good week.

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 by Tim Gander

Fact – Myth-busting requires facts

There has been much a-do about the Enterprise Regulation Reform Act (ERRA) and I’ve written about it before and shall no doubt have to write about it again. Much to my irritation.

In response to the many millions of words written about it and an e-petition on the Number 10 website, which currently stands at almost 27,000 signatures, the Intellectual Property Office has issued a statement which it hopes will calm the fears of photographers.

The problem with the document is that writing the word “Fact” in bold lettering at the start of a sentence doesn’t make that sentence irrefutable. There are still too many variables, too many vague answers to specific points and the act has as yet no regulations applied to it, which is why so much that has been written can only guess at what the real purpose of the act will be.

Reading the statement, what kept jumping out for me was the idea that orphaned works could be licensed and licensed “at the going rate.” I’d very much like to know how a government-appointed agent will decide the “going rate” for any particular photo. How will they know whether or not consent for the proposed use would have been granted without the author having been contacted? How will they know what the rights holder would have charged for the use of that image if they were given the choice?

How will anyone not connected to the image or its author know if any people in the photo would be happy for their likeness to be used in any given context? Who will even know which country the image originated in? Or whether the original client for that photo is happy for others to use it? Many images (most of the ones I take for my living) are supplied on an exclusive basis.

I quote here a typical paragraph from the IPO’s response:

“Myth – anyone can use my photos without my permission

Fact – Anyone wishing to use a work as an orphan must first undertake a diligent 

search for the rights-holder which is then verified with permission to use the work 

granted by the Government appointed independent authorising body. If the work is 

not genuinely orphan then the rights-holder should be found, if the search is not 

properly diligent, no licence will be issued.”

Presumably though, if it is decided the search was diligent, but the rights-holder was still not found, the image can be paid for at an un-specified “going rate” and used with permission of the governing body. Therefore, without the rights-holder’s permission. That paragraph, like so many others in this document should read simply:

“Fact – anyone can use my photos without my permission

Fact – Maybe. There will be some kind of procedure as yet unspecified and you might lose control of your image, but don’t worry your silly little head about that.”

It will be interesting to know how on the flip-side of this, the rights-holder is supposed to discover their work has been used and then claim whatever money (or Green Shield stamps or bellybutton fluff) has been held in safe-keeping for them. Are creators expected to constantly check an ever-expanding register of works for use of their images? If the granting of licences is an exception rather than a rule, this might even be possible, but it’s still not ideal and still rides roughshod over the basic tenets of copyright.

IF the IPO had come straight out and said “this act will ONLY apply to works held in recognised historical archives” a lot of fears might have been assuaged, but they didn’t.

The IPO also makes no mention of any plans to strengthen moral rights – the right to be identified as the author of a work, the right not to have one’s work mis-attributed and in particular, the right not to have identifying data stripped from one’s images. Simply by re-enforcing the the creator’s right to have their identity kept with the work would be a start.

The problem with the IPO’s statement is it’s lack of clarity, either through insufficient understanding of their own subject, or because there is unseen industry pressure to keep things vague until the great reveal of the guidelines by which time it will be too late for photographers to properly and comprehensively defend their rights.

Given tight enough regulation, the ERRA could be a good thing for photographers by making it clear our works, even where their identifying data has been removed, are not orphans, but until the guidelines are published we have no idea of the intention of the legislation. By the time we do know, it’ll be too late to do anything about it. I have a terrible feeling we’re being inched towards a goal that was decided upon long before Hargreaves set up his review.

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 by Tim Gander

The sky hasn’t fallen in, but it’s looking decidedly dodgy

On February 26th I wrote about the Economic Regulatory Reform Bill and its likely effects on the ability of photographers to control where and how their work is used and whether or not any payment is exchanged for that use.

Sadly I must tell you the ERRB, including the clauses on orphan works and extended collective licensing, is now law. I say sadly because this has happened even though the moral rights of the photographer to be identified as the creator of their work has not been reinforced ahead of this change in law.

In case you’re not aware, an orphan work is any creative work of which the author cannot be found. Extended collective licensing is the selling of the use of orphan works without the creator’s knowledge or consent.

In relation to photographs, the problem with orphan works is they’re being created every second of every day on the internet. The problem with ECL is that it takes away the photographer’s right to set or negotiate their own fees based on the value of the work, or to limit use of the work, especially where exclusivity has already been sold to a client. It also ignores the rights of people within photographs not to be associated with businesses or causes with which they do not agree.

Now, before we all hit the panic button, the ERRB is primary legislation and will be subject to regulations which are yet to be drafted. In an ideal world, the orphan works and ECL clauses of the ERRB will be regulated to only encompass works held in historic archives, of which there are many and whose archivists would like the ability to digitize and ultimately make money from works held in storage whose authors have long since passed on or vanished.

Even within that framework there will be grey areas, but to gather in ALL orphan works wherever they reside would be a grave mistake, and would almost certainly result in legal actions, especially from photographers in the USA who are allowed to claim exemplary damages for breaches of their copyright. In short, it could get very messy and very expensive very quickly.

Photographers both professional, amateur and occasional all need to be very wary of what follows. It would be a good idea to write to your MP in the first instance asking what the intention of the regulations will be and whether it means any photo you take can ultimately be used by all and sundry, without your say-so and with no opportunity for you to say no or negotiate a fee.

Another area of the law which needs attention is the moral right to be identified as the author of your work. This is currently part of the Copyright Designs and Patents Act (1988), but it is weak and with too many exceptions. To be fit for the digital era it is imperative that identifying data, either in a watermark or as data embedded within the image file is protected by law.

Of itself the ERRB could be benign, but that we don’t know what the regulations and restrictions will be and the fact it can be amended without recourse to Parliament are dangerous factors and should worry everyone concerned with protecting their own creative property.

I’ve merely outlined the issues here. Far more detail needs to be worked out to ensure the ERRB doesn’t cut off the ability of creators to make a living, nor to exploit the works of amateurs in ways they could never have imagined or wanted. The creative industries in the UK are too important to our economy, and too easily harmed by badly-framed legislation.

Keep an eye on sites like EPUK.org and BJP online to keep up to date with developments, but remember also to contact your MP to make sure they’re aware of what’s at stake here.

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 by Tim Gander

Goodwill Hunting

I’m thinking it would be too easy to write yet another tale of woe about a small business getting caught with unauthorised images on their website, and if you read my blog regularly you won’t need me banging on about copyright yet again so I won’t. Of course if you want to know more about this, read The Guardian consumer column which will enlighten you further.

Instead I’m going to tell you a new and surprising fact; Photography is more crucial to the promotion of business than it has ever been.

That I’m saying this isn’t perhaps all that surprising. What IS surprising is that it’s been said by John Owens in PR Week. If you’re a photographer, you might be peeling your eyebrows off the ceiling after reading that. Yes, an organ of the public relations industry is extolling the virtues of photography in brand awareness. I utterly commend the article as essential reading to all PRs who either don’t know, or who might need a reminder of the importance of good quality, engaging imagery for their campaigns.

Richard Noble of Bloodhound SSC project on the phone

Behind the scenes, un-staged photos (such as this one of Richard Noble of the Bloodhound SSC project) are championed by the PR Week article.

The piece even concludes with an immensely useful check list written by Matthew fearn, picture editor of The Daily Telegraph, for PRs wishing to get exposure in national newspapers, but which is also a perfect outline of good practice for PRs sending images to trade and local press too.

There are one or two points in the article where I would advise caution, as you would expect me to (knowing what a cynic I can be), but I think they’re worth a little extra consideration.

The author sites a couple of examples where big name brands have engaged the goodwill of their customers to help with social media campaigns on Facebook and Twitter. In one case Lego asked customers to send in creative images of their models for use in what was a highly successful Facebook campaign. Lego’s head of social media Lars Silberbauer says, “At Lego, we are at a stage where we would rather build a stage around our customers’ content than a campaign using fixed assets.”

I say, “Yuhuh I bet you would.” Fixed assets are expensive and customer-supplied content is free. I’m not actually saying brands shouldn’t do this, but it must be done in good faith and brands need to be aware that crowdsourcing can backfire.

In the case of Lego, where customers knew exactly how their images would be used, the campaign was a success. In the case where Instagram wanted to grab rights from its users for unspecified use, the exercise blew up in their face. I wonder how many times a brand loved even as much as Lego could use this exercise. People are increasingly aware of the commercialisation of their non-commercial photos, and while I don’t condemn crowd participation per se, I would urge brands to ensure their use of freely-offered images is circumscribed and boundaries are clear.

You might conclude I’m worried about the public taking PR work away from me, but that isn’t such a concern. As long as the public aren’t being taken for fools and brands play fair, I’m comfortable with this. Any business doing PR properly will have a range of different avenues for exposure, including social media and low-end imagery alongside higher-end imagery, press PR and advertising. It shouldn’t be treated as a one-or-the-other equation.

PR is vital to any business of any size. It’s bad PR to use other people’s images without permission, it can be good PR to ask for pictures if the deal is fair, and a good photographer with real newspaper training and experience can help you get exposure at a fraction of the cost of advertising. So go hunt goodwill, just don’t shoot Bambi’s mother in the process.

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 by Tim Gander

I’d rather be writing about something else

Here we go YET AGAIN! I’m starting to get just the tiniest bit annoyed* at attempts by government to destroy copyright law while claiming it’s progress.

This time it’s the Intellectual Property Office (IPO) showing a distinct lack of intellect on the issue.

Last time this was tried, back in 2010, we were at the cusp of a new government and the Digital Economy Act was being hammered out in Parliament. The clause of contention for photographers was Clause 43 which would have allowed the use of orphan works (photos whose author could not be traced) without the copyright holder’s permission.

Luckily for us, after intense lobbying by photographers, the Stop43 campaign and others, the Conservatives (then in opposition to the Labour government) agreed to pass the act only if clause 43 was removed.

Now it’s back, but this time it’s even worse and it’s now part of a bill, the Enterprise and Regulatory Reform Bill, which is unrelated to copyright and therefore fewer people are aware of its existence. Even worse, if passed as primary legislation any future changes to the act will be permissible as secondary legislation without the need of a return to Parliament. Didn’t I previously say democracy was being undermined?

Clauses 67-69 effectively strip the automatic right of copyright from anyone who creates a work including photographs. Within those three clauses you lose the right to control your images if they are found on the internet but not easily traceable to you, you lose the right to say whether or not a photo can be used in any given context and you lose the ability to negotiate your own fees should you decide to sell rights in your photo. In addition, the bill extends exceptions to copyright so more people can use your work, including commercially, with no need to ask permission first.

Of course this is a dire situation for photographers whose livelihoods are built on copyright, but it will affect anyone who takes a photo they wish only to be used in limited ways. Amateurs and professionals alike will be affected.

The clauses also ride roughshod over the rights of the subjects within photographs to decide the limits of use of their likeness. It breaches international copyright laws, though apparently the IPO don’t know enough about copyright to understand this. In short, it is an ill-conceived mess reminiscent of reforms to the NHS, education, just about anything ministers decide to change before they’ve properly considered the issues involved.

What professionals and amateurs need to do is lobby their MPs, lobby the Lords and make it clear these clauses do not belong in this bill. Copyright may well need reform, but it’s too big an issue to shuffle past our noses disguised within another bill, and these clauses are not the answer. If the question is how do we stimulate growth in the UK economy, the answer has to be better planned than this.

Further reading and guidance on how you can get involved:

http://thebppa.wordpress.com/2013/02/19/the-copyright-fight/

http://www.stop43.org.uk/ 

*My entry for Understatement of the Year Awards 2013

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 by Tim Gander

Cool new tool

Reverse image searching has been around a little while. This is where you find an image and want to know who took it or you’re a photographer who wants to know who is using your work, you point a service like Tineye or Google Image Search (GIS) at the photo and they search the internet for all instances of that image appearing and return a list of results.

Google Image Search will also return similar images for you to look at, which can be useful for designers looking for inspiration.

Well now a new little tool has just made GIS that little bit slicker and easier to use. It’s a browser ‘bookmarklet’ you add to your bookmarks bar so it’s there when you need it.

You’ll find the bookmarklet here. Follow the simple instructions and you’re away.

When you’re on a web page with an image or images you want to search on, just click the bookmarklet and you’ll see question mark boxes appear over any images detected on the page. Click the image you want, and the GIS search results are brought back to you very quickly.

No more guesswork about how often a particular stock image is being used, and photographers can track valuable images more easily and follow-up infringements with much less detective work required than was the case in the past.

The following images describe more graphically how it works. Of course it’s not perfect. Photoshelter users will know what I mean, and to get rid of the image search boxes you have to reload the page each time, and you can only search images which are already on a web page, but have a play and you’ll get the measure of its worth for you.

Click the images below to see them in detail.

Demonstrating Google Image Search

With pictures on the page, click the bookmarklet

Demonstrating Google Image Search

Every visible jpeg will then look like this

Demonstrating Google Image Search

Clicking an image will return the GIS results page

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 by Tim Gander

Copyright’s Last Stand?

The Hargreaves Review of Intellectual Property and Growth having published its conclusions, creators of copyright material can now submit views to the Digital Copyright Exchange feasibility study being run by former chairman of Ofcom Richard Hooper which will look into what form a DCE would take.

One vision of DCE was described by Hooper during an interview on Radio 4s Today programme as an Amazon-style market place where creators could set prices for their work and buyers could browse, buy and take possession of licenses of high-resolution versions of digital works in a very streamlined process.

It’s not clear to me how this would work. How would the DCE be populated with works? Who would be adding them? Would it become a facility that can bypass the Getty-like stranglehold on licensing? Perhaps photographers would be able to upload images and sell direct, negotiating their own fees and keeping a much higher percentage of the revenue from sales. Clearly this would benefit photographers and end-users as there would be a renewed incentive for quality images to be made available.

I do fear however that fees will be set independently as it’s envisioned that the process should be as much like online retail as possible, but that this will ignore all the factors that a photographer would need to take into account such as end use or commercial/non-commercial requirements of an image.

Meanwhile, would Getty stand for this? They might find their traditional suppliers drifting away if the scheme offered better returns on their images. Alternatively, an organisation like Getty or Corbis (owned by Bill Gates) might offer to host and administer such a scheme, but that risks bringing us straight back to where we are now.

Is there not a risk that a DCE would create a two-tier copyright protection where your images are better protected if they’re in the scheme? And how is use of the scheme and images sold through it to be policed? This isn’t going to be an easy thing to set up and administer, and the internet has a habit of suddenly shifting and going off in its own direction once you try to coral the content.

Stop 43 is campaigning for better protection of photographers' copyright.

I don’t feel I’m best placed to investigate all the issues as I’ve not had the time to fully absorb the conclusions of the Hargreaves review, but take a look at the Stop 43 site which has some really useful info and ideas, and visit the Intellectual Property Office website where you can submit your views on the Digital Copyright Exchange. I urge both professional and amateur photographers to do so as this affects our ability to say where and how our own images are used. You may not like what’s coming, but this might be your only chance to shape it.

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 by Tim Gander

Let’s play look-a-likey!

For some time now photographers have been waiting in hope for the application that would help them track use of their images. Something that, without prohibitive amounts of effort and financial investment would allow them to find illicit uses so they could chase infringers for payment and to have the work removed from websites where it’s not licensed to be used.

Of course photographers are keen to ensure they get paid for infringements, and this is the side of the copyright argument that is so often flagged up by those who would like to be allowed to infringe more freely (sometimes known as freetards). Having photographers portrayed as money-grabbing monopolists is a handy way of demonizing those who merely want to protect the work they create.

What gets mentioned less is the harm it does to a photographer when work they have shot and charged to a commissioning client gets hijacked by someone who is just not in the mood for paying for the stuff they use. If an image is licensed to a paying client, and they see someone else using it for free, it can harm the photographer/client relationship and also cause problems with exclusivity, model releases and further legal issues where a stolen image is being used in a libelous context.

All these are issues faced by the photographer today, and it can take a lot of valuable time just to ensure images are not being appropriated by inappropriate people and used in inappropriate ways (that’s easy for me to say).

So while the tineye service has been around a while, and it can be very good at “reverse image searches” it’s also clear it can’t possibly keep up with indexing every image that gets uploaded to a website every minute of the day. Better perhaps if a service like Google, which seems to have web crawling and indexing off to a fine art, could come up with something more powerful.

Cue Google image search, where you chuck an image from your hard drive into the search box on Google which then returns matches of that image, plus any similar images it finds.

However, if photographers thought Google had the answer, they may be disappointed to discover that Google’s image search function was starting out with a different question.

I’ve been playing with Google’s image search function, and to me it’s more suited to finding images which represent the feel or look of an image you already have, but which might not quite match what you’re after, rather than a tool for photographers to use to find infringing copies of their images.

Having run a few of my images through the system, I found some bizarre and vaguely humourous results, which I’ve set out below. Try it with some of your own images, and see what happens. I’m sure there’s a great game waiting to be invented.

Tim Gander, Photographer, Frome

Starting with Yours Truly: None of these women looks like me, but one appears to be holding a camera.

 

 

Tony Benn

Seriously?!: Tony Benn is, among other things, matched with Einstein, a tapir and an X-ray of a pelvis. Squint and some of them do look similar.

in Industry Comment 16 comments
 by Tim Gander

Don’t be the bird that swallows the plate.

I’m a huge fan of Black Adder, and there are many hilariously memorable scenes, but the one which springs to mind as I write this week’s article is in Black Adder II when Percy enters Black Adder’s chamber wearing an outrageously large neck rough. On seeing it Black Adder remarks that Percy “looks like a bird who’s swallowed a plate!”

Why is this relevant to anything I have to say about photography? Well it’s simple really, dear reader; When a business plans its photography in small, manageable chunks throughout the year it can cope with getting what it needs without too much drama, but leave it for a year, two years, five years, and the project becomes rather like a bird swallowing a plate. Trying to ingest the ingestible, and risking some kind of injury in the process.

I’ve said before that photography should be treated as part of the over-all marketing plan, not as part of the web budget, because photos can be used in print as well as web. Try printing a website as a brochure, and you’ll start to understand what I mean – they’re separate budgets within the over all marketing budget.

By keeping your photography fresh and up-to-date you might very well spend a little more over time, but at least you won’t have a colossal expenditure to make in one go if you’re trying to start from scratch, having neglected the photography for some years. And since business people like to say “cash is king,” doesn’t it make sense to make smaller investments that add up to a solid image library than to trying to buy your entire photo library in one huge gulp?

So keep headshots up to date regularly, don’t wait until there’s a week’s worth to be shot unless you’re prepared for the cost. Keep on top of product, site, process and PR images. Consider planning a shoot every three months (or whatever suits best, so long as it’s regular). Or at the very least, review what you have and what you need on a quarterly basis.

espresso cup and small change

You’re buying the coffee, not the cafe. Buy in stages and don’t insist on all copyright.

To extend the subject a little, think more carefully about the image rights you need. Consider restricting your requirements to (for example) a three-year time limit. Certainly avoid all-rights or full copyright buyouts as it’s extremely rare for a business to actually require these rights, and most sensible photographers will charge more if you demand full copyright because they’ll assume you wish to allow other businesses use of your images, when the photographer might reasonably expect to be able to re-licence the images to those third-parties (with your permission, of course).

Certainly it’s normal for editorial images to be bought on licences that are limited by print run, territory/language and duration of use. Commercial images tend to be sold on wider licences, but limits can help in the negotiation process and you can always top-up the licence later.

If you have any questions about anything I’ve said here, or have a favourite Black Adder scene, feel free to comment below.

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