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RANDOM THOUGHTS 35
July 19, 2001
Sensitive Issues
A recent court case points up how imporatant it is for photographers and stock agents to make
all customers solely responsible for how they use the images we license, and to also
carefully monitor any use that involves any type of sensitive issue.
No matter how big the customer, and how knowledgeable you believe they are, their employees
can make mistakes. You don't want an employee mistake to affect your livelihood.
In order to promote the sale of its new HIV drug, Crixivan, Merck pharmaceutical created a
brochure titled "Sharing Stories," and a flip chart called "Getting the Facts." In this
brochure they used a picture of a woman they called "Maria" and said she was a 19-year-old
mother of two children aged 18 months and 3 years. It said she had been treated for AIDS for
at least two years and was diagnosed with recurring herpes.
The woman had been recruited by a modeling agency hired by Merck, but she was told her image
would be used for "educational purposes" only. The copy Merck choose to use beside the
picture was largely fictional.
The mother was not named "Maria". She was a suburban housewife, and mother who had contracted
the HIV virus from her husband. She never had herpes, and was never sexually promiscuous. She
claimed that the ad, in its entire context, made her seem promiscuous -- a tramp -- and the
New York court agreed. New York libel law requires that an offending statement be viewed in
its full context.
The court determined that a release limited for educational purposes cannot be used for
advertising, even if the advertisement contains educational information.
At this writing the damage portion of the trial has not started so we don't know what "Maria"
is likely to get, but Merck grossed $562 million from the sale of this drug.
There are a couple ways of looking at this situation. One is that Merck should have gotten a
release from the model allowing them to portray her as something other than what she was. The
other is that models, photographers and everyone in the potential liability chain needs to be
fully informed about how an image is being used, particularly if it involves any type of
"sensitive issue". Any release for sensitive issues needs to be very specific.
The standard recommendation many agencies make to photographers is that they get a "bullet
proof" release on every subject that will cover everything. Certainly we would recommend that
you get the best release possible, but in sensitive issue situations we also believe it is
important to question the client about the use, and bring the model(s) into the negotiation,
if there is any doubt.
Everyone should be fully informed before the use, rather that litigating the disagreement
afterwards.
Augus - New Portal
Aurora and Quanta Productions has announced a new way for photographers to have their own
custom web site, and be part of a growing portal.
They have built an internt browser they call Argus that provides a complete set of tools for
online searching, photo-business management, marketing and sales. AQs own site;
http://www.auroraphotos.com, is powered by Argus.
Qualified photographers and stock collections can use Argus to build their own site that
shows only their images. At the photographer's option these images can also be included on
the Aurora Quanta which is separately promoted and has the work of many photographers.
There are several participation model enabling the photographer to market at whatever level
he or she chooses. In the Partnership Model the photographer pays an initial set up fee of
$295 and a monthly fee of $195 for up to 500 images. If sales are made as a result of the
customer entering through the photographer's portal the photographer gets 85% of the fee and
15% goes to AQ. If the customer enters through AQ's portal the photographer gets 70% of the
gross fee and AQ keeps 30%.
The photographer can also choose to only make sales through his or her custom portal and
retain 100% of any fees generated. In this case the photographer pays a higher monthly fee to
AQ for operating the site. In every case the photographer is solely responsible for promoting
his or her own portal address, but AQ offers various promotion tools including e-mail list
management, a search engine campaign and digital postcards that the photographer may use.
Separate fees are paid to use each of these tools.
Two of the early photographers to use Argus are Cary Wolinsky (www.carywolinsky.com) and
Norbert Wu (www.norbertwustock.com).
"Market changes impacting photographers and agencies demand new ways of working," said Jose
Azel, AQ founder and president. "Business models used today by photographers to handle their
businesses are inefficient and result in less control of production and distribution and
often less revenue. Argus is the alternative to this loss."
National Geographic contributing photographers Jose Azel and Robert Caputo founded AQ in
1993. For the past eight years AQ has focused on developing a file of quality images and
providing great services to both photographers and photo buyers. Their experience in visual
story telling is the cornerstone of AQs evolution into a digital communication solution for
interactive story telling providers.
AQs office is located at 188 State Street, Suite 300, Portland, Maine 04101 and its NYC
Assignment Office is located at 307 W. 38th Street, Suite 1101, New York NY, 10018. For
additional information about Argus, interested parties can email AQ at:
argus@auroraquanta.com or call 207-828-8787, ext. 105.
SAA Photographers Undecided
The StockArtistsAlliance (SAA) photographers represented by various Getty Images brands
remain undecided about how Getty fits into their future.
When Getty first released their photographer contract in March they insisted that it was
non-negotiatable. However, as a result of major dissatisfaction with the contact,
photographers came together, formed the SAA, recruited over 500 member and hired a lawyer to
assist them in negotiations with Getty.
In late June Getty released a 13 page addendum to the contract that modifies many of the
terms. They also reiterated that the deadline for signing the contract with its addendum
remains August 1st. Further complicating the photographer's decision is the fact that
selection of images for a couple catalogs is closing and art directors for these catalogs
will not accept any new images unless the photographer has signed the contract.
Despite the many improvements to the basic contract that the addendum provides photographers
are still concerned:
About Getty commissioning work at much lower royalty percentages and then promoting
that work much more agressively than they promote the work provided by freelancers who are
paid higher percentages,
About the high rejection rate of image and the delay in the return of images with no
time limit set for their review,
About the delay in uploading accepted images,
About the unreasonable definition of "similars" that is open to considerable abuse and
misinterpretation.
That the wording of the liability clause may create an uninsurable risk for
photographers,
That in the event of bankruptcy or extraordinary losses by any of the "brand companies"
the photographers must agree to forfeit payments due them,
About Getty's unwillingness to accept reasonable responsibility for lost or damaged
original images.
That Getty can raise existing fees and add on news fees without restriction,
That the photographer must give Getty an absolute warranty that images submitted do not
infringe on any trademark or copyright,
That images can be licensed for any use, including sensitive subject, without any
checking on Getty's part,
That Getty has broad publishing rights to create products using the photographer's
images,
That despite Getty's move toward catalogs that do more to position the company in the
marketplace rather than sell individual images, Getty still insists on charging the
photographers catalog partiipation fees.
All these problems, and more, still remain. These issues don't even take into consideration
the photographers general dissatisfaction with the royalty percentages being paid for digital
delivery and overseas sales. Thus, it seems likely that a large percentage of the SAA
photographers will not sign the Getty Images contract by August 1, 2001.
Photo 20-20 Joins Lonely Planet
Photo 20-20 headquartered in Oakland, CA has joined forces with the Lonely Planet Images im
Melbourne, Australia.
Ted Streshinsky of Photo 20-20 is now in charge of The Lonely Planet's U.S. operations. LPI
also has offices in London and Paris. Their web site is www.lonelyplanet.com.
Lewis Blackwell Named Senior Vice President at Getty Images
Lewis Blackwell has been promoted to Senior Vice President, Creative Direction, and will
drive trend research, art direction and editing at Getty Images.
"Throughout his tenure at Getty Images, Lewis has provided outstanding creative direction for
our brands, which has resulted in artistic growth of our brands and increased revenue for the
company," said CEO Jonathan Klein. "We believe that the decisions our executive committee
makes will be smarter and more customer-focused by giving our creative director a seat at
that table and a direct reporting line to me."
Blackwell has played a pivotal role in establishing new standards for quality and
responsiveness to customer needs in Getty Images' products and services. He was instrumental
in transforming the Stone brand into what it is today -- and award-winning creative imagery
epicenter that produces trendsetting and revenue-generating imagery. Blackwell has also
served as group creative director at gettyone.com and has overseen the company's entire
creative product, including directing advertising and design.