Month: July 2009

There is more and more good news globally on the anti-piracy front. Just today comes this news that Pirate Bay is in even more trouble. This time, there’s an injunction against them and a separate one against the group buying the evil company.

By the way, that whole deal may be swirling the bowl anyway.

As a side note, Pirate Bay really are a bunch of weasels. Love the bit in the article about them claiming they never got a summons but there is an electronic trace of someone from their IP accessing it. Talk about being hoisted on your own petard!

The Motion Picture Association of America (MPAA) is going after them as well. Go get ’em!

Most hopefully, and this is not getting the press it should, a judge in the Tannenbaum “filesharing” trial issued a partial summary judgement on the issue of whether a “fair use” defense could be used. The judge said, essentially, “No.” In the ruling she issued (ironically, perhaps, by email) she noted that the defense, if used, would, “shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment” and would “swallow the copyright protections that Congress has created.”

Woo hoo! This is a big deal and a win for creators who have to fight the “everyone does it” rationalization. So good news all over in IP law today.

Over on Heather Morton’s fabulous blog, there is a post by Myles that brings up a really important point: it doesn’t matter what tricks you know in Photoshop, if you start with your own way of seeing, your own great images, you will have much better work.

The comments need to be read as well.

I don’t think that computer tricks and skills are bad, that is not what I am saying. I just think that if you start with strong work, strong images you have made, then add strong post skills, the combination can be devastating (in a good way). But if you just take a picture, then use the same skills in post, meh.

And like Myles was noting, it is too easy to get sucked into trend-following if you aren’t making your own best work first.

Think about it: are you making your work or the work you think that people want? Are you making your work and then turning it into what you think people will want? Or are you making your work, using whatever tools are appropriate, and then finding the right people to show your work to?

Only the last option will bring you lasting success.

The first of the new Creative Lube podcasts is now available. You can purchase it individually or buy a subscription for a whole year’s worth of them. A subscription will save you money as you will get at least 2 episodes free (over buying individually), maybe more if I get inspired and post extras.

The purchase is done via PayPal and the podcasts and system are hosted through PodBean. If you have any issues, please let me know. I want this to work for everyone, of course.

I know some of you will be upset about having to pay for the podcasts now. I’m sorry for that and for those of you who choose not to purchase, I’m sorry to lose you as listeners.

The reality is, much like other service providers, I must charge for this information and effort. There is value in this information. I have always put in a lot of effort to produce Creative Lube and, now that they are costing you money, I will not only keep up that commitment, but plan on increasing the quality of effort and materials.

In the future, I plan on touching on issues of social media, email promotions, new media options, legal issues, and buyer survey results, just to name a few. I am always looking for ideas for topics, so please don’t hesitate to suggest some.

For now, the old Creative Lubes are where they were, and are still available via iTunes as well. At some point they will have to migrate. I suggest getting all of them now. They are still free.

Thanks to all of you who have sent me notes saying how you would be fine paying for CL and telling me how much you get from them. I deeply appreciate your support and hope to exceed your expectations with the new Creative Lube.

From an Art Producer (aka Art Buyer), here is what she wants photographers to do and how things work for her. It’s pretty straight forward and interesting. Lots of great info.

I still think she is rare in the dumping of the print promo file, however. I know of many who love print promos.

I bet if someone sent her a mini-book or something fun/cool/different in print, she’d keep it.

In case you missed my post on the BAP Facebook page, make sure to check out this augmented reality biz card. Portfolio in a biz card, plus more.

I want to see a photographer do this, smartly. Way cool.

I’ve been trying to teach photographers that there are essentially two teams left in the photo world: Team Cheapo or Team HighEnd (the middle is gone). Of those two, only one has a chance at long-term survival for the individual photographer. I’m sure you can guess which that is– HighEnd.

Now, HighEnd means different things to different people, and that is fine, but what it doesn’t mean is trying to skate by on the cheap. To be in the HighEnd world will require effort and investment in your business. You can’t do it for a buck and a quarter and good intentions.

Most importantly, it means making great work, of course. That always always comes first.

But, it also means promoting your work as a high value offering. You must value it highly yourself, and you have to put it out to the world that way too. This post from Fresh Produce (Art Producer) shows this concept well in the stock world. Read the interview and look at how Trunk Archive has positioned itself, and how well it is doing in that rarefied atmosphere.

Cheapo can kiss my Polish dupa. You want to make money in this business, join the HighEnd team.

I hope this is the last post on this…. but I wanted to share part of what I emailed to a friend yesterday:

I’ve now read all the appellate briefs and, as much as it sucks, I agree with the court in its decision.

A quote from Corbis’ brief, citing the transcript of the original trial proceedings:
Usher testified that he sent this material to Corbis without making any image count, without separating blank frames from those with images, and without making any listing or inventory of what he was sending. (A-406-408 & A-1177-1178) As Usher put it: “So I jammed everything that I had as it was into a couple of big boxes and sent off a number of a lot of [film] sheets to them.” (A-287)

D’oh! This is the crucial point of the whole damages part of the case. If Usher had made a better record of what was sent, it is very likely the number of lost images, the uniqueness issue and, therefore, the valuation would have been quite different. There are several cases cited by both sides that have images being valued at MUCH higher numbers, but in all of those cases, the exact images were known. Here, they weren’t. That was key.

Damn…people are going off half-coked and, unfortunately, APA is leading the sky-is-falling brigade. I hate that. APA is a great group, really, but they are mistaking being unreasonable for being advocates for photographers. I think the email they sent today was incredibly irresponsible. I don’t think anyone there looked objectively at the reality of the Usher v. Corbis ruling before they released that email.

As I mentioned in my previous post, it sucks for the photographer. However, and note these two things: 1) the court found it impossible to value the images otherwise because of the lousy record keeping by the photographer IN THIS CASE; and, 2) the ruling clearly states that it is a summary order and is NOT precedential, so other cases do NOT have to follow the ruling and so not all images will be valued at this low level.

Sotomayor has made rulings creators like and a couple they don’t, but overall she has a strong understanding of intellectual property law. She has a background in vehemently fighting copyright pirates before she became a judge. In fact, she has been called a supporter of creators’ rights. It has even be noted that while she ruled against the creators in Tasini, she did so with sympathy for the creators (see previous link–she had to follow the law as best as she understood it–not rule as she wanted).

So let’s calm down people. She’s not the devil. She’s a judge and she is bound by the law when she rules. She doesn’t get to just do what she wants, she has to follow precedent, etc. So her past rulings are both ones creatives like and dislike. Not pro- or anti-.

I find it interesting that advocates of “free” are clamoring that she is totally going to crack down and ruin the internet for everyone who wants free.

Spin is out of control. Don’t buy into it… on either side.

On PDN there is a post about a ruling Judge (Justice nominee) Sotomayor was a part of (she was one of 3 on the panel). People are trying to use this ruling to show she is anti-photographer somehow.

I’d like to point out what I think is the important part of the ruling as quoted, rather than go on about how this ruling is anti-photographer–because I don’t think it does prove any bias against photographers. It looks like the panel was applying the facts and following the law.

The quote from the ruling:

Usher asserts that the district court erred by failing to incorporate the uniqueness of his images into the calculation of damages. But, under Grace, a district court is not required to specifically address uniqueness when, due to inadequate record-keeping, it is impractical or impossible to evaluate.

I added the bold to point out what I think is a crucial take-away from this: if there had been better records to prove the value of the images, the results would have been different. A court is required to take uniqueness into account, according to the above, except in situations where it is “impractical or impossible to evaluate” because there are not sufficient records to do so.

Now, before everyone gets their panties in a twist, let me say that I don’t like the ruling any more than any other supporter of photographers. It’s a kick in the teeth. I feel for the photographer–it’s a heartbreaking loss, I’m sure.

But, the members of the industry must accept responsibility for their own actions and not only lay blame. In an ideal world a photographer would not have to prove the value and/or uniqueness of his(her) work, at least not to the degree that is now required. But this isn’t a perfect world–it’s the real world and while we work for change, we are bound by the rules as they are now. The rules require good records to prove uniqueness and value.

Photographers, like many other creatives, have a tendency to be lousy at keeping good records. It’s a pain in the ass to do, sure, but it’s an important part of your business. You need to be able to track YOURSELF what image has earned what, to show that, for example, a particular stock image has brought in $100,000 in licensing over the years and now, after it being ripped off, is bringing in almost nothing. The courts just do not care if you think your image is worth $100,000 (or whatever), you have to be able to prove it. Otherwise, fair or not, they’re going to fall back on the default methodology for determining value and that’s minimal.

Relying on the stock house (note: NOT agency anymore…they aren’t looking out for your best interests!) to keep the records is essentially asking the wolf to tell you how many chicken are in the henhouse.

Getting back to this actual case, I have NOT read all the docs and I don’t know if there were a bunch of records or other proof that the courts ignored or discounted. It doesn’t seem likely, but anything is possible, of course. Regardless, to use a ruling like this to leap to the conclusion that Sotomayor is anti-photographer is too big of a leap. I’m not saying she’s fabulous, I’m just saying let’s not rush into a judgment about that yet.

(and whenever I talk about anything legal these days, I must remind everyone that I am NOT a lawyer and this is in no way legal advice–just personal opinion.)

I think a lot of photographers might not know Paul Arden, although they should. Er, they should have. Unfortunately, Arden died a year ago (I missed that news until today).

He was a brilliant creative mind, Creative Director, and he affected advertising globally. He thought. He thought a lot. And his thoughts have influenced so many creatives directly, and the world indirectly. Read this other post about him and read every link…especially the notes from his talk. Good stuff in every bit. Just look at the titles of his books. No, actually, go read his books, too.

Here’s just one bit from one of those links–part of an interview–that I particularly like. It’s about the need to specialize…and note how he connects that to quality and desire…
If you decide you are going to be the best of what you want to do, you will be the best of at you want to do. If you decide that you will be the best writer in the world, you will be the best writer in the world–at least pretty close to it. But you can’t be the best painter and the best director and the best writer at the same time. You can’t do all that. If you want to do that you are trying to be famous. You can’t do all these things. You can’t do all those things and be brilliant in all of them. You just want to successful, make money, be rich and famous. And being famous is very nice. I would like to be famous, but not at the expense of not doing something incredibly well. Too many people don’t give a damn about quality, all they want I glamour and riches.

Wise man. Will definitely be missed.

My friend Åsk has also posted this song/video tribute. Even if you don’t know who Arden was, it is moving…thanks Åsk: