In his biography,
The Age of Turbulence, Alan Greenspan, former Federal Reserve Board Chairman said, “My experience leads me to consider state-enforced property rights as the key growth-enhancing institution. If those rights were not enforced, open trade and the huge benefits of competition and comparative advantage would be seriously and dramatically impeded. People generally do not exert the effort to accumulate the capital necessary for economic growth unless they can own it.”
He went on to point out that while ownership is quite conditional, “The presumption of individual property ownership and the legality of its transfer must be
deeply embedded in the culture of a society (emphasis mine) for free market economies to function effectively. In the West, the moral validity of property rights is accepted, or at least acquiesced in, by virtually the whole of the population.”
I was struck by how this relates to the photography business today. What we are seeing in the photography business –and for that matter all creative endeavors – is that the concept of individual property ownership is no longer deeply embedded in the culture of our society. A large segment of the population believes that certain property should be free to all and that the creators have no rights once the property is shown to anyone. Using the creative works of others without permission or compensation is becoming the morally accepted standard.
Current societal mores says that in the Internet age everything should be free. This not only includes anything that an individual places on the Internet himself, but if it is possible for someone else takes an individual’s creative work and posts it on the Internet without the creators permission, knowledge or any compensation that should be permissible also.
It strikes me as unreasonable and unfair that John Lund’s excellent interviews of various stock photo industry leaders keep turning up on other web sites without even a mention of John’s name or his web site. People talk to John because of his reputation. John posts these interviews on his blog to promote himself and his business. But, when others use the interviews without crediting John he not only receives no benefit, but those who appropriate the work make it appear that they are the ones who conducted the interview. On top of that the appropriators have ads by Google on their sites so they, and Google, earn money from John’s work. This kind of thing has become a very common and accepted practice by many bloggers.
Independent Film Makers
Also, consider the problems faced by independent filmmakers. The
Los Angeles Times reports that Greg Carter spent three years scraping together $250,000 to write, direct and produce "A Gangland Love Story." This gritty, urban retelling of "Romeo and Juliet" tells the story of forbidden love between Julia, the little sister of a feared African American crime lord, and Romano, the nephew of a leader in a rival Latino gang.
Since the movie’s DVD release in July, more than 60,000 viewers have watched it free of charge on pirate movie sites on the Internet. Carter estimates that he has lost 30% of potential revenues or in excess of $100,000 as a result of this piracy. Now he expects to never see profit from his investment. He even found full downloads of his movie available free on sites in Australia, the Netherlands, Britain, Germany, Italy and France.
He told the Times, "It feels like someone is walking into your house and stealing your furniture. The big studios can absorb it, but guys like me, we're not millionaires. We're fighting like crazy for every dollar, every nickel, every penny just to survive in this marketplace."
Carter isn’t the only independent filmmaker suffering. The makers of "
The Hurt Locker," which won six Oscars, including best-picture, only earned an unusually low $16.4 million at the box office in the U.S. and Canada. Online piracy would seem to explain the low figures since the movie was available on the Web months before its arrival in theaters. The film’s producers have a list of over 5,000 IP addresses they claim have shared the film illegally. Thomas Dunlap, a copyright lawyer representing the producers believes “more people downloaded the movie for free than actually paid for it."
Or consider the case of Ellen Seidler, who teaches journalism at UC Berkeley. She used her retirement savings and a second mortgage on her home to co-produce and co-direct her first film, "
And Then Came Lola," a lesbian romantic comedy that has played on the film festival circuit.
Since its DVD release in May, Seidler has discovered at least 2,000 different copies of the movie, some with subtitles in Chinese, Russian, Arabic and Turkish, and more than 25,000 illegal download links and streams to her film on various websites. Most of these sites profit from online advertising.
With risks and loses like this many producers and filmmakers will be forced to give up their hopes of making new films.
Copyright Protection
So what about copyright protection? The U.S. Chamber of Commerce estimates that copyright theft costs our nation's economy roughly $58 billion in total output every year; more than 370,000 domestic jobs; $16.3 billion in earnings; and $2.6 billion in tax revenue for state, local, and federal governments.
A growing number of artists and artists organizations like
The Copyright Alliance have banded together to support new legislation in the U.S. Senate called "Combating Online Infringement and Counterfeits Act" or
S-3804. A petition to the elected representatives notes, "The theft of copyrighted works like photography, music, movies, books, software and games is a devastating problem... This rampant theft inhibits the ability of American businesses to invest and innovate -- and stifles the capacity of American artists and creators to earn a living, support their families, and invest in their own creative development."
Organizations like the The Copyright Alliance, a network of individual Copyright Advocates including ASMP and APA, are doing yeoman work in trying to educate copyright holder to register their work and in lobbying Congress to strengthen copyright laws. Unfortunately, the mores of our society have changed to the point that it may be impossible to enforce the old rules of copyright.
While I applaud these organizations for their work, and encourage all photographers to support their activities, in the final analysis all their successes seem to be having little effect on the ethics and moral conduct of the majority of consumers. What is being accomplished seems to be having about as much overall effect as using your finger to plug a small hole in a dam while huge cracks are breaking open all around you insuring that the dam will soon collapse.
Even If We Get Better Laws Are They Enforcable?
Copyright claims must be tried in federal court and the process of getting a case heard in federal court is extremely difficult, costly and time consuming. But in an editorial in the Washington Post this past week Attorney General Eric H. Holder, Jr. pointed out that it is likely to become even more difficult to get legal redress. He said that while “justice depends on effective courts” currently our courts system is overloaded and over worked. Judicial nominees often wait months and sometimes more than a year for confirmation despite having received unanimous ratings by the American Bar Association and support from both Democratic and Republican home state Senators.
Nearly 1 in 8 seats on the bench are vacant and today there are 103 judicial vacancies. There were 259,000 civil cases and 75,000 criminal cases filed in federal court last year. Given the projected retirements in the next few years Holder estimates that, “if we stay on the pace that the Senate has set in the past two years – the slowest pace of confirmation in history – fully half the federal judiciary will be vacant by 2020.”
If Courts Won’t Work What About Contracts And Negotiations?
The Internet, and the pirating that goes on there, isn’t the only problem. All the misappropriation of creative works isn’t be fly by night operators who have no understanding of copyright. Today, one of the biggest issues for still photographers is the unauthorized use of photos by
textbook publishers. These are big corporations and it is a big share of the still photography business.
It turns out that for a decade, or more, many of these publishers have been paying on invoices (contracts) that clearly put limits on print runs. Then, with total disregard for the creator’s rights, they have printed and distributed many more copies than the agreements authorized. It took a while for photographers to catch them at this, but now virtually every photographer who has sold pictures for use in a textbook knows of an instance where the publisher has printed more copies of the photographer’s work than the license allowed. This was not accidental. In some cases, we know that picture researchers were told specifically to license rights for a maximum print run of 40,000 even though the publisher knew at the time that it intended to print many more copies than the number licensed.
But, now they are caught. They have infringed copyright, and infringed contract. Do they feel any moral obligation to make things right with their suppliers? No. They do everything they can to hide what they did from as many suppliers as possible. When confronted with the facts they use every conceivable legal strategy to delay and wear down individual creators and avoid making reasonable settlements. This appears to be standard operating procedure for big business today.
If the price charged is based on use more and more customers seem perfectly willing to obfuscate or lie.
So What’s A Still Photographer To Do?
Our business is both blessed and cursed by the fact the finished product we create can be easily delivered on the Internet. If you purchase a pair of jeans on the Internet, you can view them and pay for them but you don’t have anything you can use until the product is physically delivered. With photography, if you show the customer what you are offering for sale the customer immediately has something he can use whether he chooses to pay for it or not.
If the version of the image you show the customer is a very small file, and the customer needs access to something larger for a large reproduction of the work, then the customer may be forced to do business with you. But, if the customer’s planned need is on the Internet, and you display the image on the Internet for the customer to consider, it won’t be long until many of those paid uses disappear because so many customers think they are entitled to use anything they find on the Internet. We also need to keep in mind that there are fewer and fewer print uses, while the number of online uses continue to grow.
Moreover, if a potential user finds your image that has been used by one of your customers, he may take and use that image without any thought as to whether he has a right to do so. In addition once an image is printed in any form society now believes it is available for appropriation. And, in the same way that pirates are posting commercial movies online, they may begin scanning and posting pictures they find in print and selling ads around them as a way of earning revenue.
Fine art photographers whose customers want a print they can hang on their wall may be able to get by with displaying their work on the Internet because their customers will need access to a large file to make a good print. But they may not be able to guarantee that they are offering a limited edition any or their customers. The Internet version may be appropriated by lots of other people.
Some will point to microstock as proving that despite general moral attitudes many people are still willing to pay for the photos they use, although maybe not very much. That’s true, but I believe an important factor driving such purchases is the customer’s willingness to pay small amounts for convenience and service. If someone saves them time by making it easier and quicker for them to find the right image, they will pay for that service. But I question whether customers stop to think that a portion of the fee they are paying should be going to the creator for his or her abilities and effort expended in the creation? Or whether they even think creators are entitled to compensation? Or if they do accept that the creator should receive some compensation whether they judge the compensation the creator receives as being adequate?
In most cases I believe, and this is particularly true of younger generations, they think that all creative work should be immediately placed in the public domain for the benefit of all the public. Often content creators are not judged as having any right to compensation.
So given the changes in society’s mores, in the future what kind of jobs will there be for professional photographers? Those interested in taking pictures as a career may need to start thinking about focusing entirely on doing commissioned work. Some companies will need someone who is always on call to produce certain images the company needs. Such staff jobs, though limited in number, will continue to be available. For the self-employed freelancer there will be weddings, family or business portraits, event coverage, contractors who need progress photographs of new buildings, some news coverage (although in the future a lot of that is likely to be supplied by amateurs), fashion etc. There will continue to be some cases where a picture is required and there is no way to get it other than hiring someone to take it. But in more and more cases amateurs with an interest in photography will be asked to do these jobs.
The idea of taking pictures on speculation and showing them to potential customers or trying to resell second rights to images originally created on a commissioned job may become a thing of the past for anyone who hopes to earn a living from photography. Producing pictures in expectation that the costs of production will be covered by many users, each paying a small share of the cost, will become an unworkable strategy for most. Appropriation of the work of others will become increasingly common.
Once an image, or any creative work, is available to be seen by customers it is subject to being freely appropriated by anyone for any purpose. And there seems no way to stop or reverse this trend. Amateurs for whom profit is not a consideration will continue to make their images available either for free or for very low prices. Since photos will have no residual value customers will discover that in those rare cases where no amateur photo is available that fulfills their needs, and thus they must absorb the full cost of producing the photo they want, that the overall cost will be very high. Few will be able to afford such fees, but their only other option will be to do without the photo they want.
Photographers may need to focus on only doing work where a price for the project is agreed upfront, with maybe a partial payment being made in advance of doing the work. When the work is delivered the customer receives all rights to do whatever he wants with it – except control its use – because the customer won’t be able to control the use any more than the creator can. The customer pays for the work even if the end result isn’t exactly what the customer hoped for or expected because the photographer put in the time and produced the best work he knew how to produce. If things didn’t turn out as well as the photographer hoped he may decide to put in extra time or redo part of the work, but that is the photographer’s option.
In the 16th century Michelangelo worked on commission. Without his many patrons there would be no Sistine Chapel ceiling, Pietà, David or his other many works. Maybe it is time to return the renaissance way of thinking.