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In the Field
of Editorial Photography...
Is Thievery a Problem?
Advance Notes: When we hear of photo thievery on the Internet,
in almost all cases it concerns the area of commercial stock photography.
Very rarely does it happen in the realm of editorial photography. As you
know, the Copyright Act is a Federal statute which preempts state law claims
that fall under its provisions. In other words, one cannot sue for a claim
under a different theory if it in fact constitutes simply a claim for copyright
infringement.
A photobuyer calls a photographer and says, "We like the photos you sent
us and have scanned two dozen of them into our database."
"You what...?" is the photographer's response.
The photobuyer responds, "You have a lot of pictures that we feel we could
use in the future. We're building an in-house reference file. Any problems
with that?"
The photographer should push apprehensions aside and consider the scanning
a compliment. Scanning of photos by a photobuyer needn't be a threatening
experience. Twenty-five years ago, when photocopy machines were new, a
buyer copying a photo "for the files" seemed tantamount to copyright infringement
to stock photographers. Gradually, however, stock photographers saw they
were getting sales from the photocopied reference photos on file with
photobuyers.
The same is happening today with scanning. The photobuyer scans photos
to obtain low resolution (i.e. not reproduction-quality) "thumbnail-size"
images to put into their reference "view-only" database. A software keywording
program cross-references them.
In the near future, scanning photographer's selections will be commonplace.
No need for a fear of thievery to limit the sending of photos to editorial
markets. This is a photobuying community where photographers know their
buyers and they know the photographers. It's important to remember that
to work with the editorial photobuying community makes all the difference
in the world when it comes to the issue of thievery. In this arena it's
rare to hear of larceny.
In the editorial stock photo field, I've never heard of a photobuyer intentionally
"stealing" a photo. There'd be no sense to it. The photo editor has a
budget to work with; there's no material profit to him or her to "borrow"
a photo on the sly. Besides, the photo will be seen by hundreds, thousands
of viewers. Most gangsters say this is not a profitable way to get away
with something illegal.
BEWARE THE AD AGENCIES
In commercial stock photography, however, there can be a different attitude
and circumstances. The commercial field can brew more reasons and opportunity
to "borrow" someone's photo, especially for a local or regional brochure
or promotion.
If you're involved strictly in editorial stock photography, the above
kind of information might be news to you. If you're familiar with the
inner workings of commercial stock photography, it's not a surprise.
Scanned images come in a variety of forms. The 72 dpi-scanned image is
an excellent reference image. However, the image can be "decompressed"
and in some cases be used as a 300-dpi image.
A graver problem regard digital images is that it's possible to easily
pass them on to others (swapping). If an ad agency goes out of business
(check consecutive years of the Yellow Pages and you'll see how often
this happens from year to year), or photobuyers begin trading images -
photographers might find their images, or parts of them, involved in the
action.
Buyers/Photographers Know Each Other
Again, however, working as a specialist a photographer will usually be
dealing with repeat buyers in the editorial field, and know their buyers.
Some photographers are encouraging potential repeat buyers to scan their
photos for the buyers' reference files.
I should say that I am in the minority in advocating that photographers
allow photobuyers to scan theirr photos. But most of those with the opposite
view are in the commercial field, or are editorial stock photographers
who spend a portion of their time on commercial work.
My own thirty-five years of involvement in and observing stock photography,
tell me that for the editorial stock photographer, thievery has never
been a problem. But if a photographer wants to deal in both the editorial
and commercial divisions of the stock industry, it is an important issue
to consider. With this in mind, here's one photographer's negative experience.
Ann Purcell is an author and nationally-known travel photographer. She
relates this adventure with a commercial client who scanned some of her
images:
"Here's one of my experiences with scanned in-house reference photos.
One of my photo agencies sent a selection of photos to a printing company
for an ad. None of the photos were selected to be used, but they were
all scanned. Lo and behold, about six months later, one of the photos
came out as a full-page ad for the printing company. The company ended
up paying me $15,000 for the copyright infringement.
"They also paid me $10,000 for use of the picture. Then they must have
changed photo researchers, because....... Lo and Behold.....Six months
later, another follow-up ad used the SAME photo, again without permission!
This time they paid $10,000 for the use/copyright infringement of the
picture. That's $35,000, all due to having had in-house reference scans
and photo researchers who knew nothing about USA copyright laws!"
Yes, this does happen in commercial stock photography. But does it happen
with editorial publishers such as textbook companies, book publishers
and magazines? Rarely, and then it's usually an honest mistake. We're
all entitled to a few of those. -RE
Rohn Engh is director of PhotoSource
International and publisher of PhotoStockNotes. Pine Lake Farm, 1910 35th
Road, Osceola, WI 54020 USA. Telephone: 1 800 624 0266 Fax: 1 715 248
7394.
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