Founded in 1990, the Selling Stock Newsletter, published and mostly written by Jim Pickerell, has been a drive-by documenter of the pathetic demise of the stock photo industry. Often times, Pickerell seemed to revel in the corporate takeover of the small stock photo businesses, becoming not-so-helpful to the photographer. Pickerell is old-guard, but not good at guarding. And now there is nothing left.
But copyright protection is not dead! Photographers have had some good momentum going on lately in regard to big tech and copyrights. I wonder why Selling Stock is not reporting the good news?
The Selling Stock Weekly Digest of June 6 failed to report the best news photographers have had for a very long time – the McGucken v. Newsweek June 1 decision that there is no apparent license from Instagram to endusers of the embedding tool that confer rights to use copyrighted photos. Instead, the Selling Stock Digest contained two articles that were written by Nancy Wolff, who is Newsweek’s lawyer in the lawsuit!
And then the next week, in the June 13 Selling Stock Weekly Digest, after Instagram came out and announced to the world, in a June 4 article by Ars Technica, that Instagram definitely does NOT hand out sublicenses for copyrighted photos via their embedding tool, Jim Pickerell questioned whether or not that is a correct legal opinion, referring to the “sad case of Stephanie Sinclair,” (so sexist) not even mentioning that Sinclair v. Mashable was under reconsideration for the April 13 “dismissal” decision. Hmm….
And then just this week, Sinclair v. Mashable decision was overturned, as the judge wrote that “in light of the persuasive authority of McGucken, and in order to correct clear error,” the Court overturned the dismissal because there is no evidence of a sublicense.But does Selling Stock report that? NO! It would rather paint the industry dead! Thank goodness for the rejuvenation of justice by a younger generation of artists and lawyers.
And by the way, on May 20, through writing an article on PetaPixel.com, I myself achieved a major victory for photographers.I managed to persuade SquareSpace, a huge website provider, to change their practice of stripping copyright management information metadata from users’ photographs. Therefore, because SquareSpace changed their policy and from now on, will retain CMI metadata contained in uploaded photos, these photos will be able to appear on Google Images with the upcoming Google Licensable Badge. This is a very good thing for photographers.
It’s been a great year for photography with the recent court decisions, the upcoming Google Licensable badge, and the retention of metadata for SquareSpace users. Copyright protection for photos is far from being dead, unlike the Selling Stock newsletter.
What a historic sight it was to see the Black Lives Matter demonstrators, wearing masks and carrying signs, marching up Flatbush Avenue by 452 Dean Street in Brooklyn, on June 6, 2020, in this photo that Anna shot and sent me.
In 1860 at the age of 18, our ancestor Pierre Gentieu immigrated from Orthez, France to Brooklyn, staying with his aunt and uncle above their Darrigrand French bakery, at 452 Dean Street.
It took a while to realize that 452 Dean Street was right there on the corner of Flatbush, and, as we lived in Park Slope, Brooklyn and had a photo studio in Soho, we had been passing it every day on the way to work.
France had abolished slavery in 1792, long before Pierre was born. When he was growing up in France, his father read him installments of Uncle Tom’s Cabin.
“The story was published as a serial in the daily papers; and I remember how intent we were in the evening to hear our father read each installment, and all the remarks we were making about it—how it was possible that the country boasting of being ‘the land of the free and the home of the brave’ could legalize such an institution, when in France, which was not then a republic, would not tolerate such a thing; for to us children, all the people before God were equal, and the color of the skin had nothing to do with it; but it was only the degree of instruction and civilization that made the difference in people.”
from Pierre Gentieu's 1915 letter to his nephew explaining why he fought for the North in the Civil War
Here we are in 2020, at this historic moment, protesting police brutality and the killing of George Floyd by the Minneapolis police. This is a meaningful photo for our family history. It’s an even more meaningful photo for our country’s history. This may be the first time there has ever been a demonstration near the corner of Flatbush and Dean St. This same protest is happening concurrently and in solidarity with hundreds of thousands of like-minded protesters in streets all over the country.
I know that Pierre would be so disheartened about what has gone on that has led to this, 155 years after the end of the Civil War. The hatred, the violence, the prejudice directed at black people in our nation is unacceptable. Pierre and our collective ancestors fought in the Civil War and sacrificed everything, so that all men women and children would be free.
Our social media photos – free to take? fair use? Who is fooling who?
"Then there are bloggers who have a disdain for paying for anything, and think that anything they use is fair use. They don't understand that just because a photo is of the news or illustrates something newsworthy, that doesn't mean it's fair use. Otherwise Time would never pay for pictures."
PACA (Picture Archive Council of America) attorney Nancy Wolff commenting on “fair use” in PDN August 2007.
Thirteen years later, guess who is representing Newsweek and claiming fair use for displaying without permission a copyrighted photo on their website? That is, if the Instagram sublicense defense doesn’t work? Already in this case, which just this week made it past the dismissal phase, the judge ruled that it is not fair use nor is it transformative. The judge ruled that with no valid sublicense from Instagram, it is a willful copyright infringement. For these reasons, and since there is no evidence of a sublicense from Instagram, the case moves forward.
[update: June 5:] Instagram told Ars Technica in an email on June 4: “Instagram does not provide users of its embedding API a copyright license to display embedded images on other websites.”
The photos we put on social media are not free!
Daniel Morel v. Agence France-Presse & Getty Images, 2013, is a landmark case for photographers.
The jury awarded Daniel Morel the highest possible statutory damages available for each photograph infringed by Agence France-Presse & Getty Images, who stole Morel’s 2010 Haiti earthquake photos that he put on Twitter, removing his name and sold 996 downloads of his photos for publication. Morel was awarded $150,000 for each one of the eight photos they infringed on his Twitter account – 1.2 million dollars! Plus he was awarded $400,000 for DMCA violations – the removal of his copyright management information from the eight photos (his name) and (doubling it) for the dissemination of false copyright management information.
“I am proud that my five years of effort on this case have helped to eliminate some of that ‘havoc’ and to give my fellow photojournalists an important tool to protect their rights and fight against those who would try to trample on those rights…. May the next generation fight on and persevere.”
Daniel Morel to PDNonline, June 3, 2015.
I love Anna’s photos of sneakers. I especially like the last one, served up on lettuce. And someone else did too, enough to steal it from Instagram. These photos are copyrighted and all rights are reserved.
It is a copyright infringement to blatantly copy an artist’s work. I can’t believe they would actually do that. But they did, and recorded the act of copying Anna’s 24×36″ fine art print, pinned up in plain view as an exacting reference, and posted the video as an Instagram story.
“Take it down!” So they took down the infringing photo, but also removed her photo credit copyright management information on all of the work that is hers on this Instagram page – 16 photographs. – That is a blatant DMCA violation.
Ripe for stealing from Instagram, this lobster sneaker on lettuce photo appeared on 127 pages as a Depop shoe store’s logo for a few months, no permission granted.
Our family motto and web statement of rights — for anyone who fails to obtain permission to use our photos is “Touch It If You Dare” (Toques si gaouses, motto of our ancestral town, Orthez, Lower Pyrenees, France.)
Jeep officials said the building was too expensive to keep, that they needed the parking spaces. It was 64 years old, built in 1914, and had been vacant for five years. The demolition was announced less than 60 days before the implosion date.
We were all so disappointed. To think what a beautiful, distinctive, classic and uniquely famous building was being torn down for a parking lot.
As the Jeep Administration Building in Toledo, Ohio was being made ready to blow up, the classic, 63 year old Waldorf Hotel on Summit Street and Madison Avenue was being torn down, to make way for a bank.
Tommy was a punk rock drummer in a Detroit band. And quite a great drummer, at that. He seemed like the perfect metaphor of the pending doom – he was like the dynamite that was going to blow up the building. Out with the old, in with the new, rock and roll style. I thought punk was the perfect answer to disco.
I asked him to pose for me as the dark force in the building during the weeks leading up to the implosion. We managed to somehow get on the roof of the building, where Tommy stood on a ladder over West Toledo.
One day nearly two years after this shoot, Tom said to me, I’m moving to New York, do you want to come? Of course I said yes. We’ve been together ever since. Tommy (his drummer name, his real name is Tom), the proverbial dynamite of the Jeep Administration Building implosion, turned out to be the spark that changed my life.
We actually moved to New York on April 13, staying at a New Jersey hotel that night before we drove over the George Washington Bridge into Manhattan and down Broadway on the morning of April 14, 1981, exactly two years after the implosion Jeep Administration Building. It didn’t even cross our minds at the time. We were, after all, two nonchalant punk brats. In fact, not until right now have I ever realized what a fortuitous day that was for us.
Is life the car or the road?
There’s a car involved (a Jeep) there’s a road involved (40 years so far), and there’s some dynamite, in the form of a couple of beating hearts (or is it music?) …. today is much more than just the 40th anniversary of the Jeep Administration Building implosion.
The World Trade Center in the 1980's. We lived on Thompson Street, about a mile or so north, and the tall architecture loomed over us. We also had many freelance photo shoots in and around the World Trade Center, and made some beautiful photos of the New York Harbor from Windows on the World, which was on the top floor of North Tower.
Seventeen years ago
It was Tuesday, September 11, 2001, and we were living in Park Slope, Brooklyn, with a photo studio in the Village. I was working from home that morning, making arrangements for a big shoot scheduled for the next week. Clients would be flying in from San Francisco for the shoot. Tom came in from outside and said that he saw the super, who said that a plane had just flown into the World Trade Center. We lived about five miles east of downtown Manhattan. We ran up to the roof to see it. It was unbelievable to see a tower up in smoke. Later on, we witnessed the actual collapse of one of the towers.
Anna, who was 11 at the time, was safely at school in our neighborhood, so before noon that fateful morning, being in a bit of shock, we walked up to 7th Avenue, to the Rite Aid store. The air on our street was permeated with dust and smelled like burnt metal. At the store, the shelves that had medicine and first aid supplies were completely empty. The clerk said that people had been buying things up to donate to first aid centers.
We then walked to the nearby hospital to see if we could donate blood. They already had more people donate than they could handle, but we could check again later.
It was the worst moment in history that we have ever witnessed. The city was in mourning that week and the week after, and all work stopped.
My photo shoot had been postponed to the week after that. The clients told me that under the circumstances, they would not be flying to the shoot after all. The first day back in the studio, which was about a mile from Ground Zero, we had the casting for the shoot, and it was a record turn-out. We were all overwhelmed with grief and sadness, but we were all ready to get back to work.
I came across this book, Do I Really Need a Lawyer? co-authored by my long-time lawyer, Robert Cavallo. It was published in 1979, just two years before I moved to New York.
He was my business advisor and looked over my important contracts. A second-generation Italian from the Bronx, he had an elegant, two-lawyer office on Park Avenue catering to the photo industry. You know, the so-called “cottage industry” that was later taken over by the soon-to-be goliath Getty Images, consisting of photographers, studios, and stock photo agencies.
The receipt was tucked in page 130. This paragraph caught my eye —
A “high gloss of friendship” in business relationships explained. Now I understand why it was always so hard to say, when I was offered contracts, that my lawyer will kill me if I don’t have him look at it, or that my lawyer said this or that, feeling like I might offend my new business friend. And why so many photographers just signed on the bottom line without bothering. With Robert Cavallo’s help, I always managed to have fair contracts, and my relationships were friendly.
Robert was a colorful lawyer. He’d say things like, “When I read that, it made the hair on the back of my neck stand up!” and “We got ’em by the short-hairs!” and “They’re blowing sunshine up your skirt!” Robert was like a father figure. In fact, when he was using his power of persuasion on me, he would say that I was like a daughter to him. (Later on, it became, “you’re like a sister to me!”) I lost my father when I was 30, so I didn’t mind the patronizing at all.
Robert Cavallo, ASMP, and the Copyright Act of 1976
I wasn’t aware of this history, but the book’s co-author, Stuart Kahan, was the Executive Director of the trade association, American Society of Magazine Photographers (ASMP) and Robert Cavallo was their General Counsel in the 1970’s. They ushered in the new era of the Copyright Act of 1976. The new law was greatly advantageous to photographers and was a game-changer for how business would be conducted. I was of the new generation that really benefited. When I moved to New York, I joined the ASMP assistants group to network. I was well-educated about standard business practices and my rights. Because of all of this, when I found my niche and could actually make a living as a photographer, I was able to have a successful studio in New York for many years.
Among other things, the Copyright Act of 1976 clarified the ownership of residual rights to our photographs. This led to the rise of stock photo agencies – agents that sold commercial and editorial uses to our existing photos for a share of the sale, usually 50%.
“Intellectual property is the oil of the 21st Century” – Mark Getty
Then came J. Paul Getty’s grandson, Mark Getty. He was filthy rich and wanted something to do, so he decided he’d consolidate the photography industry, claiming rights to discovering copyright as if he struck oil.
The “industry” of photographers and stock photographs was just so fragmented, that taking it over was a no-brainer, Mark Getty bragged to the financial press. What a revelation. Photographers are independent, small businesses. The copyrights they own to their photographs are a gold mine! Why should these peons own such valuable intellectual property? Besides, photographers themselves are such pushovers. It will be like taking candy from a baby!
He started with Tony Stone Images in 1995, a stock photo agency I had joined two year prior. I had become one of their “popular” photographers, having a lot of best-selling photos.
Believe it or not, photographers used to have some power. We created the images that the big media world wanted, and we owned the copyrights. Tony Stone, along with Getty as the new owner, was our agent. We entrusted them with exclusive photographs in exchange for their promise to use their best efforts to license them. They had a fiduciary duty to us, which is much greater than a straight-up business relationship. It is similar to entrusting your money to a bank.
Tony Stone called me personally the day the sale to Getty was announced, to say that he sold to Getty in order to have the funds to bring us all into the digital future, and that he would still be involved, nothing would change except we’d all be making more money.
Yet in the game of opposites, we were totally helpless to the dangerous storm that was upon us. We should have had a union, but it was against the law, supposedly, for individual photographers to unionize.
There was not much Robert Cavallo, photographers, or ASMP could do. There was nothing the Department of Justice would do, to protect us from the fierce and hostile corporate takeover that was taking place.
The ax comes down in August 1998
Although Getty promised us a digital future, and we were submitting digitized images with the coming Getty stock photo website in mind, just one month before the launch of the website in 1998, Getty hit us with a contract they said we had to sign in order to go forward on the web (in spite of all their promises and the self-renewing contracts we had already.) The new contract stripped away our rights and reduced the percentage of our royalties.
The contract, they said, was approved by the PAG – Photographers Advisory Group – a few Tony Stone photographers that had to sign non-disclosure agreements to serve as Getty’s henchmen, (and they were all men). Talk about “a high gloss of friendship” and the abuse of power.
We received extra-large checks that month. Mine had payments for many licenses from sales 18 months prior, that normally should have been paid to us within three months, like my February 3, 1997 Time Magazine cover, and 12 other sales from the New York sales office alone. Had they starved us of these past-due payments so that in August 1998 they could fatten us up for the kill?
The contract came with a letter promising us a lump sum payment of all payments owed to us. For me, it was a sizable sum, for about 1,000 licenses. Had they been withholding our payments to use against us as a very large contract-signing carrot?
The draconian terms of the contract had the entire Tony Stone community of photographers in the U.S. and England up in arms for weeks and months. In the end, though, I was one of the very few photographers who didn’t sign it. Robert Cavallo told me that if I signed it, I would never forgive myself. It was that bad.
Getty Images refused to pay me for all those outstanding payments for four bloody years, until just the right moment when it was to their best advantage. A triple whammy for Getty – they certainly made the most out of using my money against me.
Withholding royalty payments for a ransom of rights
Getty Images used our rightful, hard-earned money against us in the nastiest, most hostile, most unfair, most personal corporate takeover there could be – the corporate takeover of individual photographers who were the smallest of small businesses. Up until then, Getty Images owed us fiduciary duty. But with the new contract forced on us in order to go forward in the digital future that they had been promising us as they collected our very best photographs, they stripped us naked of our rights and income in one fell swoop. And if we didn’t sign, our photos would be locked in their jail until our three-year self-renewing contracts were up. Kept off of the web, not promoted, just held hostage to make us lie down and die.
Sounds hauntingly familiar — reminiscent of the kidnapping of Mark Getty’s older brother when Mark was a little boy, and grandfather J. Paul Getty’s refusal to pay, causing permanent physical and emotional damage to Mark’s brother over money. It is the subject of the current Academy Award-winning movie, All the Money in the World, and Trust, a new HBO miniseries starring Donald Sutherland.
I have had no further involvement with Getty Images after spending four years in bloody hell just to get my money, but what they have done and what they do still affects me as a copyright owner. It affects us all.
Getty photographs’ downward spiral
Since that 1998 contract, which lowered a photographer’s royalty rates from 50% to 40%, the last I heard, Getty photographers now receive only 20% of a sale.
In addition to the reduction in percentage paid to photographers, the value of photography licenses on Getty’s watch has literally plummeted to being worth next to nothing. Getty Images has managed to greatly squander our intellectual property in just 10 or 15 years, like stock in a stock market crash that will never come back.
The company itself, Getty Images, in those short years has been sold one or two times to other investors. What does Getty Images do now to make money, even if they now make 80%, sometimes 100% of license sales, but not really much since they have permanently cheapened photographs to being worth next to nothing?
Getty now offers photos for online use for free! How can they do that? Getty Images makes money by collecting the user’s website data, at photography’s expense. Having wasted our once-valuable photographs, our profession, and our legacy forever, Getty is now into the data-collecting business.
Corporate greed and money talks
So instead of our profession moving forward and flourishing since the Copyright Act of 1976, the individual artist has been squashed, duped, ripped off and enslaved. Money talks. No justice for the little person. Corporate greed has set us back. I can only be thankful that I had what I had when there was something for me to have.
I wrote a book about it. It’s called, Photography v Son of Getty, inspired by Godzilla movies. Then I shredded the book, arranged and photographed the shreddings, sequenced the photos and printed pages, folded and sewed it all up a coptic-bound book, photographed it, framed some photos, and put it in a show. There is nothing like the endorphins that come with the act of creating to wash away the disgust.
Mark Getty is the little brother of the grandson of J. Paul Getty who got kidnapped in 1973, described in the book, Painfully Rich, (above and right) on which the movie, All the Money in the World is based.
My first job in New York was photographing at the Copacabana, 1981. The film was quickly processed in the back and sloppy prints were made, full of fix, slapped wet in a folder, and then I’d have to try to sell them. I’d be off work at 2am, taking the subway and walking through Washington Square Park alone to get home!