Editors note: In a recent talk at the Kernochan Center for Law, Media and the Arts at Columbia University as part of a program titled Collective Management of Copyright: Solution or Sacrifice Eugene Mopsik, Executive Director of American Society of Media Photographers (ASMP) outlined the general state of the photo licensing business and offered some possible solutions.
Photographers and Collective Licensing
A short history with no ending
In the early 90’s ASMP explored a collective licensing solution to help manage the myriad of small uses that were being created by a new means of digital distribution, the Internet. The entity was called MPCA – Media Photographers Copyright Agency. Photographers were not ready for it, stock agencies were afraid of it, and funding was scarce. It failed.
Years of anecdotal experience had shown that we were in a unique and diminishing position in a rapidly evolving marketplace. We witnessed significant consolidation in the stock image distribution industry and the creation of new stock models – royalty free and subscription – that were eroding and have continued to erode the market for original photography. The demise of the “agent” relationship between stock distributors and their contributors triggered the end of the profitable era for many stock photographers. Digital clip-art was pervasive. Simultaneously, on the buyer side there was significant consolidation in publishing and advertising.
We witnessed the proliferation of easy to use digital cameras, the rise of the citizen journalist, and a client mentality of “good enough” encouraged by a stressed economy. The fractious nature of a photographic community comprised primarily of small independent businessmen/rights holders coupled with the traumatic transition to digital made it very difficult to reach consensus and build support for the collective licensing solution. Additionally, not all photographers and images are created equal. Some images have a distinctly higher value because of their unique nature or due to the reputation of the photographer. Stock agencies felt threatened by MPCA; and photographers could not even agree on whether this was a good solution, especially when it required the surrender of a certain amount of control over the licensing transactions.
Fast forward almost 20 years.
Recent changes in the industry, economy, and society have created a perfect storm; the transition to digital capture, digital distribution, the explosion of digital media outlets, the rise of the talented amateur, all coupled with a dilution of effective copyright protection have made it virtually impossible for a commercial photographer to sustain a career solely as an image creator. While the photography community is working diligently to navigate this new world and take advantage of the enormous new opportunities it presents, the print to pixel revolution has been as disruptive to professional photographers as it has been to publishing and electronic media. For many, survival is contingent upon the establishment of multiple income streams.
ASMP, has spent the last 65 years teaching photographers good business practices and emphasizing the importance of copyright all based on a print paradigm – images going from the camera to reproduction on paper. This has been turned upside down in the last few years as more images are reproduced in the digital form than in print. Meanwhile, the pricing formulas for this new digital paradigm have not been firmly established. For a number of years, digital use was simply lumped into many licenses for images used in print advertising or other reports without any request for additional compensation; now the digital use is primary for many images and print is secondary. Under the new paradigm, there are no regions; everyone is a worldwide publisher. Information has an unlimited lifespan because there is no shortage of space on the Web. The purposeful or incidental stripping of metadata means that most images have no licensing information or connected attribution. Without an efficient licensing option such as iTunes or some other collective licensing solution, it is far easier to right click and infringe than to right click and buy. How do you monetize use under these circumstances? Photographers want their images to be seen and used; we are simply seeking fair compensation for the use.
At the same time as the paradigm shift, clients seeking to maximize their return on investment are seeking greater and greater rights positions for the images they commission. For commercial work this means additional rights for Web use, 3rd. party use, and/or any use now or possibly envisioned in the future, all without any additional compensation. For editorial work, it means that the secondary licensing rights – the only thing that really ever made editorial work remotely profitable – are no longer left to the photographer. Through publication embargoes and contractual language the photographer is left with virtually no rights to his own intellectual property, again more often than not without any additional compensation. While some publishers charge separate subscription fees for their electronic editions, they do not pay their photographers anything additional for the use. It frequently seems as though everyone has figured out to make money off of photographs except for photographers. Finally, there is a rising tide of public sentiment for information to be free and a general reluctance to perceive the value of intellectual property that only exists in digital form and generally without attribution and/or secure metadata.
So where does collective licensing fit into the current state of the industry and marketplace? It would seem that the commoditization of images along with digital distribution and micro-transactions create a perfect fit for collective licensing; however there has been little or no movement. The stock distributors continue to provide the closest thing to collective licensing for photographers, however they are no longer obligated to act in the best interests of their contributors.
What stands in the way?
Setting aside legal issues related to anti-trust and collusion, I believe the biggest impediment to the establishment of an effective collective licensing entity has been the mindset of photographers. In order for collective licensing to work, photographers must be willing to give up control of the pricing and distribution of these small, primarily Web based, uses. No one will get rich, but the heretofore-unmonetized uses could become part of a secondary income stream. The best guess for an individual photographer would be a net of less than a few thousand dollars, with few exceptions. The financial return formula would be similar to ASCAP or BMI with a small percentage of superstars making well over 80% of the revenue. Photographers looking at this equation have been reluctant to sign on to any form of collective licensing and yet they have already effectively given up control over their images especially on the Web. At this point, what more is there to lose?
Another impediment has been finding or creating an entity to manage these collective rights for photographers. Add into the mix the fractious nature of and competition between the various photographer associations and you have a formula for failure. Additionally, the associations are not rights holders. They represent the best interests of their members, but do not hold rights to their member’s images. They have no legal standing to negotiate on their members’ behalf. Neither can they establish rates or even recommend pricing without running afoul of anti-trust legislation.
The current state of technology allows for images deposited in registries to be identified via Web search by entities such as PicScout and TinEye. Users, wanting to affect a quick and easy licensing transaction are generally frustrated. Metadata does not travel well with image files and is easily removed despite DMCA prohibition. The average corporate and consumer image user, going to the Web as an image resource, is not worried about the DMCA. The rights holder is not easily located and there is probably no E-commerce solution in place. PLUS – the Picture Licensing Universal System – has been working for years to create the PLUS standards allowing rights and attribution information to travel within image files in a machine-readable format that provides instant access and universal understanding. PLUS is about to release a Beta version of the PLUS Registry in response to the need created in recent versions of Orphan Works legislation. Images within the registry could be available for collective licensing for small uses.
How do we make this happen?
The Google Book Settlement – if ever resolved - may ultimately create a resource to manage digital book publication rights for authors and publishers. The suit brought by ASMP, GAG, PACA, NANPA and a group of named plaintiffs may ultimately create a resource to manage the image use rights in both books and periodicals. Still to be determined if this will be opt in or opt out along with the precise structure and management of the entity. The one thing that is known is that it will take substantial financial resources to create.
In my mind the most logical partner to advance collective licensing in the US for photographers would be CCC. CCC has the financial resources, the technical expertise and the client base. Meanwhile, CCC is a primarily publisher driven entity which has refused to distribute reprographic rights payments directly to rights holders and/or to the Authors Coalition of America because of long standing perpetual rights affirmations from publishers. As reprographic distribution diminishes and digital distribution expands, I look to CCC to make direct compensation to rights holders especially for business and educational use of images. I would also be interested in working with them to create a collective licensing entity, similar to MPCA, that would manage the rights for vast numbers of photographs that now reside in individual photographer Web collections. Images are now being routinely used without permission and without compensation. Make it easy, fast and cost effective to do the right thing. The big question is still whether professional photographers are ready. The bigger question is whether there will still be professional photographers if they aren’t.