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Sports Illustrated Layoffs – Smith, 2 others, OUT

News out of New York is not good today. While the Time, Inc (NYSE: TIME) photo editors are scrambling with today's extended deadline for photographic contributors to sign, this morning SI Director of Photography Brad Smith (LinkedIn: Brad Smith), along with Photo Editor Claire Bourgeois (LinkedIn: Claire Bourgeois) and John Blackmar (LinkedIn: John Blackmar) are among those that have been laid off, according to sources familiar with personnel changes at this Time Inc property.

 Their actual date of departure is not currently known, but with the Superbowl coming up fast, their departure before that would no doubt adversely affect the quality of coverage by Sports Illustrated.

 In related news, Time, Inc apparently only has about half of their photographic contributors having signed the egregious contract, even with their “clarification” document. Because of these low figures, which do not include many big names who are still refusing to sign, a revised contract is expected in the coming week.

 One of the tactics employed by Time Inc photo editors has been to identify non-signing principal photographers, and then contacting similarly styled photographers in that same geographic region who may have had a sporadic assignment schedule for Time Inc, and offering them the assignments of that geographic regions' principal photographer, if they sign while the principal photographer is not.

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Why You Should Not Be A Freelance Photographer

As a professional photographer, one of the worst things you can do is be a freelancer.  That is, just as you should banish the phrase “day rate” from your lexicon, so too should you banish the word “freelance” from the word set you use to describe yourself.

Words not only have meanings, they insinuate something about whomever they describe. An entire chapter on language was included in the book MORE Best Business Practices for Photographers, titled “A Linguistically Accurate Lexicon”, for that very reason.

Consider the characterization of a person of the female gender. The word “girl”, “woman”, “lady”, “chick, “madam”, and “doll”, all carry similar sentiments to “boy”, “man”, “gentleman”, “dude”, “sir”, and “guy” for a person of the male gender. The disparity between saying “that boy over there” versus “that young man over there” is not lost on the recipient of that characterization, nor is “please help the chick with her luggage” versus “please help the lady with her luggage” in a hotel lobby.

Fast Company recently wrote an article about the value in stopping calling yourself a “freelancer” (12/3/15, “Why I stopped calling myself a freelancer“), and I commend it to you.

What can you do?

Avoid introducing yourself using that word. Don't say “Hi, I'm a freelance photographer”, or even, “I'm a freelancer.” Instead try:

  • I'm a professional photographer
  • I produce photography on assignment for a range of clients
  •  I'm a photographer
  •  I'm a photojournalist
  • I'm an independent photographer

When asked “oh, who do you work for”, I would avoid “I work for myself”, and instead try:

I work for a variety of clients in the…

  •  News business
  • Industrial sector
  • Public relations area
  • Magazine industry
       …etc.

When someone tries to then re-characterize you as “oh, so you're a freelance photographer?” The answer is “no, not really. I work independently for a variety of clients, and the word “freelance” just doesn't speak to the broad spectrum of services I offer, not just for covering a story or making images, but all the production and organization involved in making the final results possible.”

Avoid using it in your LinkedIn profile, your resume, CV, or biography. Describe what you do instead. Don't use derogatory shorthand. Saying “I'm a freelancer” is derogatory compared to “I'm a professional photographer”, almost like calling saying “get the guy a coffee” when what you should have said was “get the gentleman a coffee” instead.

Another point from the Fast Company article was that “freelance” connoted cheap or low-cost,  something I don't think any professional photographer would want themselves characterized as. You want to be considered a “premium” – as in:

  •   “he's an amazing football photographer…”
                               or 
  • “she's an incredible portrait photographer…”
                               or 
  • “he's a wonderful wedding photographer…”
                               or 
  • “she's a stunning storyteller with her images from around the world…” 

For anyone whom you hear described as above, you are immediately going to have a perspective in your mind that they are not “cheap” nor “low cost.”  in the chapter I reference previously, I talk about Jenika, a baltimore luxury portrait photographer, who uses the word “luxury” in all her language about what she does. So, who would you rather hire, a “luxury portrait photographer”, or a “portrait photographer'? Whom do you think will produce a better result? Or, better yet, who would you rather your clients perceive you as?

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ASMP Issues An Alert regarding Their Position on Time Inc. Contract

ASMP issued the following alert to exercise “extreme caution”, which we are posting here, in it's entirety on the Time Inc (NYSE: TWX) contract:

Open letter to Time Inc. regarding one-sided independent photographer contract

ASMP has joined with the National Press Photographers Association (NPPA), the Digital Media Licensing Association (DMLA)American Photographic Artists (APA), and the Professional Photographers of America (PPA) in a letter to Time Inc. regarding our collective objections to the terms and conditions under which professional photographers are being required to operate come January 1st, 2016. Under the terms of the new contract, first detailed by Photo Business News ( here ), many of the fees and rights demands are unfair to professional photographers and will severely limit the ability of ASMP members to earn a sustainable living. The letter which ASMP co-authored with theNPPA and others can be viewed here.
ASMP continues to work both publicly and behind-the-scenes tirelessly on behalf of professional photographers. Just as it has in the past with Conde NastGetty Images, and Knight Ridder.

Founded in 1944, the Society amended it’s charter in 1949 to begin “the fight to represent magazine photographers in matters of wages and working conditions.” In 1967, ASMP issued a “Declaration of Conscience” stating that “reproduction rights and ownership belong to the photographer; that each use of a photograph must be compensated for; that limitations on a photographer’s freedom to reuse his own creations must be related to the purpose and protection of the publication and must be limited in time; and that no ASMP member or unaffiliated photographer should agree to terms inconsistent with the resolution.” A two-year battle with Time Inc. was waged, and many ASMP members jeopardized their livelihoods before this basic right was recognized by the publishing industry. The stock photography business, and the benefits photographers realize from it, is a direct result of ASMP’s stand.

Just as in 1967, when ASMP engaged directly with Time Magazine, and served the interests of not just ASMP members, but all photographers, ASMP continues to work hard to foster good and fair working conditions for photographers in all of Time Inc.’s publications. You can read more about the founding of ASMP and the efforts on behalf of photographers here.
ASMP Executive Director Tom Kennedy states:

“I believe photographers are willing to work with Time Inc. to enable a new management system that would enable better tracking of assignments and to foster a consistent assignment approach across its properties. But it is essential that such an agreement not be done on the basis of an effort to unilaterally impose draconian contract terms that do not take into account the needs of photographers in their employment. I think it is far better to enter into discussions with photographers to produce a fair and mutually beneficial contract solution that also addresses Time Inc. business needs.”

ASMP urges any photographer considering signing this contract to proceed with extreme caution.
Follow updates on Time Inc. independent photographer contract on the current ASMP News page.
If you have any questions, please feel free to ask.

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EyeEm – The Joke Is On Us

The sad joke amongst photographers is how many clients seem to think “will work for photo credit” is fair and reasonable; and the varied responses include “my landlord won't take photo credit for my rent” and “I can't eat a photo credit”. Unfortunately, EyeEm is capitalizing and compounding on the joke “there's a sucker born every minute” because many of those suckers are talking themselves into shooting for credit.

That's right.

There are several over-arching concerns any professional photographer should have with the EyeEm business model. David Robin, photographer and advocacy lead for the American Photographic Artists (APA) trade association , has outlined several problems. Among them –

  1. EyeEm's pricing model undercuts the established market and extremely undervalues and commodifies professional photography. EyeEm's compensation rate to photographers for stock imagery with unlimited rights in perpetuity is as low as $10 ($5 if split with a third party). Even more egregious, EyeEm has dredged the bottom and doubled down on their exploitation model by only offering a credit line as compensation for photographer-funded spec work with unlimited rights in perpetuity for use by Fortune 500 corporations. Clearly their pricing sets a dangerous precedent that, if it supplants established pricing models, will in the end deprive pros from making a viable living. 
  2. The fact that EyeEm is based in Germany with no established legal entity in the U.S. should be a concern for any U.S.-based photographer. The cost and logistics of a U.S. citizen pursuing any legal recourse against a German based company for any breach or cause would be extremely prohibitive. There are many examples of companies based overseas that have been guilty of a breach of contract and/or illegal activity that went un-pursued leaving victims with limited to no recourse. 
  3. EyeEm has inappropriately portrayed their business model as a benign social media site rather than the for-profit stock photo and spec-assignment agency they are. 
  4. EyeEm has inappropriately lifted many of their contractual stipulations from social media TOS agreements. This deception is financially convenient for EyeEm, their investors and image buyers, but devastating for photographers and image creators. 

Here is an outline of the concerns with EyeEm's Terms of Service and Third Party Distribution Agreement. Here is the delineation of the most troubling stipulations in these documents:

  • Clause 5.2 Undermines the creators copyright (and future value of their work) by allowing EyeEm to have the unlimited royalty free ability to sub-license the User's work worldwide in perpetuity to any and all unnamed third parties without express approval nor compensation to the creator. 
  • Clause 5.2.3 Undermines the creators' copyright (and future value of their work) by allowing EyeEm to use the work for any and all advertising for EyeEm and any unknown affiliates in perpetuity without express approval nor compensation to the creator. This clause goes on to allow EyeEm to modify or change in any way they see fit the creators' images without express approval. Even if that modification might expose the creator to undue legal and financial ramifications caused by infringement, privacy violations, defamation etc. not of the creators' making. 
  • Clause 5.3 This inequitable clause allows EyeEm to post or use a creators' images without proper copyright notice or identifying the creator in any way. In this way EyeEm potentially undermines the creators' ability to prove ownership if infringement should occur. This is especially troublesome as it sets up a claim of Fair Use by an infringer under the Orphan Works carve out. 
  • Clause 7.2 EyeEm forces creators to take full legal and financial responsibly for their content even if that content might have been altered and / or modified without their approval by EyeEm (see 5.2.3) and in so doing exposed the creator to potential infringement, privacy violations, defamation etc. without their knowledge nor approval. 
  • Clause 8.1 This extreme indemnification clause places an undo financial and legal burden on creators to protect EyeEm, a wealthy global corporation and any and all third parties they associate with, against any and all damages or lawsuits arising from events that the creator may have no control over including defamation, infringement, privacy violations etc. In addition this section fails to provide any reciprocal indemnification for the photographer by EyeEm and it's affiliates. 
  • Clause 9.2 This places the undue burden to ensure the “legality of any Content” on the creator even if EyeEm or it's affiliates should alter that Content without the creators' knowledge nor consent and by so doing expose the creator to legal ramifications not of their making. 
  • Clauses 9.5 – 9.6 These clauses expressly release EyeEm and its affiliates from having to pay for any and all legal or financial damages if EyeEm or it's affiliates should alter content without the creators' knowledge nor consent and by so doing expose the creator to legal ramifications not of their making. 
  • Clause 10 Allows EyeEm to change this signed and executed agreement at any time and for any reason at their sole discretion without being obligated to directly notify creators via email in advance. A legal and binding agreement such as a TOS is not changeable under the law unless all parties proactively agree to the changes. Short of that, the accepted and ethical way for EyeEm to go about changing the terms of the TOS is to send an email to each and every member with an appropriate amount of lead-time to either accept or reject the changes, as banks have done for decades. 

There are also several critical omissions from their TOS that are standard and required to ensure all parties are protected:

  1. EyeEm has purposely omitted any stipulations that outline their responsibility to collect and hold funds in a fiduciary capacity and further fails to stipulate that these funds are being collected on behalf of the creator and are not the property of EyeEm. This clause is standard in any agreement between an entity or person collecting funds on another's behalf. 
  2. EyeEm has failed to delineate the method and timeline for the distribution of monies being collected and held on the creators' behalf and have failed to provide remedies should EyeEm default on their required duties in this regard. 
  3. EyeEm seems to purposely fail to delineate the prevailing law, venue and method for resolving disputes with creators. While deceptive and non-standard for American based companies, this glaring omission seems to be a common tactic used by overseas corporations doing business with U.S.-based photographers by unnecessarily withholding this critical information from the creator, EyeEm anticipates that U.S.-based creators won't realize the extreme cost and prohibitive logistics of bringing a case against EyeEm for breach, in German courts. If EyeEm wanted to be truly transparent and supportive of U.S.-based photographers, they would create a legal entity in the US to facilitate the fair resolution of disputes. At the very least EyeEm should state the venue, prevailing law and method for reparations in their TOS. 

In terms of their third party Distribution Agreement, there are several areas in the Agreement that appear purposely opaque (and/ or omitted) which hold a potential for the photographer to be unwittingly exploited. The key areas of concern are:

  1. EyeEm fails to list the third parties the creator is agreeing to have their images sold through. 
  2. EyeEm fails to provide the unnamed third party's terms and conditions the creator is expected to adhere to. 
  3. EyeEm fails to acknowledge that they have partnered with Getty Images as a third party and does not delineate the onerous terms of the Getty Images in the Agreement though they require the creator to adhere to them. 
  4. EyeEm fails to outline how the funds will be split between the third parties and the creator. 
  5. EyeEm fails to delineate the method and timeline for the distribution of monies being collected and held on the creators' behalf and have failed to provide remedies should EyeEm and / or the third party defaults on their required duties in this regard. 

So, how does EyeEm do this? They entice you with “missions” you don't get paid to complete. Here's one for Mercedes Benz:

Your Mission: The sheer beauty of nature, an incredibly stylish couple or perhaps some breath-taking architecture… this mission is all about finding the elegance all around us. If elegance is the quality of being graceful and stylish in appearance or manner, what images convey this? Show us to take part in this mission.

Your Reward: The winning five images will be featured across Mercedes Benz social media platforms, which have a cumulative reach of over 17.5 million people. The top images will also be featured on the EyeEm blog as part of an image collection.

Then there's one for Motorola, where they pitch it as:

What’s super cool about these missions is that your photo could end up as a featured wallpaper on one of Motorola’s phones. Motorola are putting together a range of images to be featured as wallpapers on their devices, and are looking for your colorful photos to be included!

In the end the EyeEm business model is representative of the pervasive devaluation of professional photography and a race to the bottom to see which entity can charge the least for photographs while covering their risk on the backs of the ones they rely on for their product. Without the proactive participation of pro photographers, however, this practice could not succeed.

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Equality for None, Time Inc Lowers the Hammer on Creatives

On November 6, Photo Business News reported and provided commentary on the new Time Inc (NYSE: TWXcontract which they unceremoniously presented to their contributors (Times' Failed Attempt At Fairness and Equity, 11/6/15). On November 10, Time Inc contacted Photo Business News and provided the following statement in response to the article:

We have equalized our photography rights and rates across our 23+ brands. This is an industry standard. Our new contract is fair and equitable. A huge number of photographers have already signed the new agreement.”

Let's break down the statement:

equalized our photography rights and rates across our 23+ brands”

  • so work done for the smallest circulation publication of the 23+ brands gets paid at the rate of the flagship publication.  Time no longer thinks that circulation should be a factor in usage, apparently. This does not square with the fact that their advertising rates are absolutely affected by circulation.
  • The demand for copyright to your work (in their requirement of a work-made-for-hire clause) on all video content is a massive rights grab that is completely unnecessary, and certainly not a factor in what they are paying.




“This is an industry standard. “

  • Simply saying it's a standard does not make it so. Time actually has a leadership role to play here in providing a living pay scale, and this is not it. 

“Our new contract is fair and equitable. “

  • Again, saying it's fair and equitable does not make it so. The rights demands are unreasonable, and as outlined in the previous article, the actual passage of time shows that equity is definitely not a part of the equation in determining fair rates and terms. 

A huge number of photographers have already signed the new agreement.”

  • Saying a variation of “everyone else is doing it so you should too” doesn't make it right, reasonable, or fair. In fact, I've heard from more than one photographer who has signed it and when asked further, said “I didn't even read it, I do like one shoot a year for them…” – not smart business, in that case. Growing up in the San Francisco Bay Area, the common refrain when I tried the “everyone else is doing it” excuse with my mother, was always responded to with “well, if everyone else was jumping off the Golden Gate Bridge, would you?” 
  • Not everyone is going to sign it. We are aware of a number of photographers who have stated they will not.
  • When you are a contract photographer and committed 100 days a year under that contract, you have a significant amount of sway over someone because they are essentially beholden to Time Inc for 50% of their income, and with 60 days, not likely to be replaced in that period of time. You can be sure though, that more of them will be disgruntled and otherwise feeling taken advantage of. This will reveal itself in their commitment, no doubt.  Many photographers use 100 days of work per year as basis for calculating all their costs, so for many, this represents their entire client base, which is reasonable when you factor in that there is prep time and travel time as well. 
  • Thus, this is akin to going to an employee and substantially and materially changing the terms of their employment. Except here, Time Inc can (and has) terminated all contracts effective 12/31/15 and is requiring this contract be the new terms under which they will work.

Sign this contract at your own peril. It will not work out well for you in the long run. You will be, effectively, jumping off a bridge without a safety net, and, rest-assured, the next contract they demand you sign will be even worse. History has not shown contracts to get better over time. This TIME is no different.

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