A question that is inevitably asked when I’m speaking to photographers, whether they are inexperienced or long time professionals, is, “When do my photos need a model release?”  My answer is always the same, “It’s not the photo that determines whether or not a release is required but how the image is used.”  One of the topics I cover in Chapter 12-”Legalese” in my book, Microstock Money Shots, concerns model releases.

Here are the key facts:

Even though the model's face isn't recognizable, some agencies might want a release since the dress, necklace and ring taken together are--at least by the person wearing them. © Shevelev Vladimir | Dreamstime.com

• Each distributor has rules about accepting images  with people. These include whether a person is recognizable. The standard for recognizable goes from rejecting photos where no one but the individual themselves could know who it was to some companies that won’t accept an image of a hand holding a glass without a release. I had an image of a pair of feet in non-descript black shoes rejected by a rights managed stock agency’s legal department because the ankle attached to the foot was wearing an ankle bracelet. OK, so the jewelry may have been recognizable.  We photoshopped the ankle. Still a no-go as the policy of that company was that even isolated body parts had to have releases.

• A photo that can seems that it can be used with impunity within the context of an editorial piece can turn around and bite the photographer. Example: you take a photo of a recognizable person sitting on a bench as they watch their child at a public playground. The photo is downloaded online for editorial use with either a micro or a macro license. The end user is a parenting magazine. All sounds on the up and up until the article comes out and is about predators that hang out around playgrounds. Even if the photographer had obtained a model release, it is possible that the model could sue if the photo didn’t carry a notice such as ‘posed by professional model”.  I leave it to the lawyers and the courts to come down with definitive opinions about whether such a suit has validity and that will have something to do with the wording in the model release. But I would think htat the outcome will generally be in the photographer/agency’s favor because of the EULA (end user licensing agreement) that prohibits using photos that imply that the subject is engaged in something illegal.

The model in this image appears to be unrecognizable but Tracy from the3dstudio.com noticed that lightening the image renders the model more recognizable. See the comments sections for more on this. The3dStudio.com. © Petesaloutos | Dreamstime.com

• Editorial vs Promotional. Both Dreamstime and Shutterstock accept images of non-released people for editorial use only. (Dreamstime carries it a bit far into property release land by requiring that all city skylines that show business signage go  into the editorial only slot. Most companies agree that a skyline with bank logos and other business ID’s on many buildings are not problematic and they accept them for use in popular travel ads and brochures.)

• What is the best release? That would be the one that you can get signed but, again, I say that the lawyers can best weight in. I recommend the Getty release as they have the most to lose. Thus I’m betting that they have all the bases covered. They have made all their releases in multiple languages freely available for download to all.

• Do you have to compensate the model? I recommend you do. Read the ASMP Strictly Business tutorial on the subject for the low-down on this and all things dealing with both model and property releases. Also read a current ASMP blog post: Q & A about releases. And another entitled: “I don’t need a release because I would win in court” (Consistently ASMP’s Strictly Business Blog posts comprise one of the best blogs for photographers, if not THE best).

It's important that you explain what stock photos are to your models, especially to friends and family that pose for you © Galina Barskaya | Dreamstime.com

• What are your other responsibilities to the model? You need to make it clear that you will have little control over the end use of the photo. If an amateur model sees their photo on a big billboard, they might come dialing for dollars on your line even though you don’t owe them anything. You can give them a copy of a site’s EULA to help with fears.

As promised: Here are the photo credits for Chapter 12 of Microstock Money Shots:

Aleskey Oleynikov/Shutterstock-Young couple on stone wall at sunset. Chapter Opener

Vling/Shutterstock-Woman in hammock on tropical beach.

Pete Saloutos-Rowing at sunset.

Wojciech Gajda/Dreamstime-Girl in yellow bathing cap at side of pool

Responses to rude behavior pop up everyday this summer: escaping flight attendant, rude boss outed for playing Farmville and an intern feeling mistreated by a photographer.

Recently a very frustrated photographer, let’s call her Susie, bcc’d me on an explosive email she sent to a prominent assignment client who she felt had caused her money and time needlessly.  Her reaction? She didn’t simply burn a bridge, she nuked it. A law in physics states that for every reaction there is an opposite and equal reaction. Does that rule apply to business? Not usually but sometimes.

© Dmitriy Shironosov | Dreamstime.com

During the first visit to an art buyer who didn’t see enough fashion work in the book (Susie is a lifestyle photographer with terrific ad work using models), the prospective client asked her to do a test shoot…on her dollar.

She was jazzed. Hired a stylist, make-up, scouted for the perfect location, spent a few days in prep and a day shooting. Susie sent the work to me and I picked my favorites. She sent the best of the lot to the client and then waited. And waited. And waited. After 2 weeks, she called. Left a message. Did that a few times. Tried email. Nothing. Maybe the art buyer was fired? Maybe she died?

Finally she left a message, “I understand if you are avoiding me for personal reasons or something else. But if you don’t want to work with me, please email or call so that I will stop wasting both of our time.”

Art buyer responded, “Sorry but there simply isn’t enough fashion work in your book.” Remember she asked Susie to do a fashion test, as there wasn’t enough fashion in the book. When I looked at what the client uses, Susie’s work was spot on. The match that burned the bridge was lit.

How to handle an impossible client for your photographic services?

Should you try to work it out with a client? Sometimes it works and the fact that you are willing to bend a little…(not completely over) can sometimes help even the coldest heart and rudest jerk. Suggestions:

©Yuri Arcurs/Dreamstime.com

• Eat crow. “So sorry the shoot didn’t work for you. I’ll redo it at cost. (Only if you truly did screw up in a major way or if the client is a regular)
• Talk over the situation with someone that can give the issue perspective. Maybe YOU are the jerk. (Exclude significant others: you have a right to exaggerate the a-hole’s behavior to them for maximum sympathy.)
• Offer to discuss the issue with the client…in a non-defensive manner. “Could you spare a few minutes to help me to understand what went wrong, so I can avoid this situation in the future?”
• Ask yourself what could I have done differently? Then DON’T do it again
• All else fails, dump the client. Don’t nuke them. You never know where they’ll show up again.
• Nuke the worst of them anyway as you don’t want to work for them ever again even from the poor house and no matter where they show up or what they say about you, people will soon come to consider the source of the negative remarks and discredit them.

Big names can get by with being prima donnas…but you better be better than damn good if you intend to act like one.

This is our summer of discontent. The never ending recession combined with falling day rates, cheap stock, overwhelming heat, high water and the lack of funds to escape to a cooler spot has many photographers in the doldrums. Work is slow and a hoped for turnaround in the fall is still too far away to hang a camera strap on. So have a cool drink…forget lemons to lemonade…how about a bloody-hell Mary? Or a Hail, Mary for that matter and a chuckle.

A colleague (I can’t reveal his name in order to protect his lack of innocence) who speaks to photographers day and night has heard enough photographers’ complaints lately to write a book. Instead he kicked his funny bone and came up with the following as proposed issue themes for PhotoDistrict News beginning in Jan 2011.

January: Happy New Year Editorial Day-Rate issue
February: In the Black–that WAS Photo-History Month issue
March: Beware the Idle of March-The undercut issue
April: Ding Dong. Oh, #$%@&, is that the Tax Man at the door?
May: “Captain! May Day! May Day! issue
June: Graduation Special: Brooks Institute Owes me $100,000 issue
July: Happy Google Images Day!
August: Back to Trade-School Issue
Sept: Rights Managed Memorial Day issue
October: PPE Conference: Please Please Earn (something, anything) issue
November: Happy Thanks-For-Nothing: Disgruntled Photographers’ Issue
December: “Here Comes hidden Contract-Claus, Here Comes hidden Contract-Claus…”

Now that we’ve gotten you laughing…mosey over to Amazon and buy my book due out August 24 for a read about how we got here -that’s in the first chapter and some tips on all things photographic except the stuff that you already know about lenses, lights and tripods (the rest of the book).

I’ll recap each chapter as the month goes on and list the names of the photographers that appear in that chapter. Stay tuned!

The  panels at CEPIC, especially at the day long New Media Day organized by Microstock Diaries’ Lee Torrens, were thought provoking and for the most part, interesting.  I especially enjoyed the dialog between Sarah Fix from Blend Images and Taylor Davidson on my panel on the future: Taylor posed the question, “What core value does an agency create and deliver?” Sarah came back with some smart answers. I’ll interview her soon for a run down of her remarks. Unfortunately time ran out but we hope to continue the dialog  around the subject of disruption in the stock photo business at PhotoPlus Expo in the fall.

Ellen Boughn from Stock Photography Strategies, USA at the Rotunda in Dublin City Hall for a VIP Reception ©ctk photobank

Here are the best places to learn about what went on at CEPIC:

Tweek’s Daily newspaper

Videos posted to Vimeo: (Excellent selection of well made videos from the panels)

Selected (curated to use a popular word at CEPIC) vids on YouTube:

VIP Reception

Pavel’s interview with me

Beatte interview with CEPIC’s Klaus Plauman

FastMediaMagazine interview with Maria Kessler at Image Rights

StockPhotoPress Interview mit Norbert Weber von Polylooks auf der CEPIC 2010 in German

Flavors of CEPIC by Pavel

Interview with Pond5 video by Pavel

Flickr photo stream by Taylor Davidson

Complete photo coverage by ctkphotobank and previous years too

I have attended CEPIC almost every year since I held the position of Executive Editor at Corbis in 1997. (At least I believe an event in London was an early precursor to CEPIC as I recall being on a boat on the Thames with some Germans and Roger Ressmeyer taking a photo of me that he magically sent to my husband by the miracle of digital photography and email. AMAZING it was then.)

Once the delegates to the Congress are home , the content of the panels and discussions meld into the over all business view of those attending but the connections grow into good business.  We are daily connected in ways that dwarf our previous means of communication with business colleagues via the post, fax or even email. Even so there is nothing that compares to the many business relationships forged with international colleagues over a drink, serendipitously at a lunch table or during an impromptu or scheduled meeting. These can only happen in person and for stock businesses and archives, only at CEPIC.

Ellen Boughn in the stands at the new Aviva Stadium in Dublin for CEPIC interview with Pavel Losevsky

I have thought that CEPIC might be losing its relevance. But what was demonstrated by this year’s invigorated CEPIC is an industry strengthened and changed by outside forces that is smarter, quicker and, though smaller, stronger. Plan on coming to CEPIC in 2011 to keep up with the changes.

*Thanks to Russian photographer/videographer Pavel Losevsky who tirelessly documented CEPIC and the offical photographers from ctk photobank

©Szefei/dreamstime.com

My birthday is this week, making it a good time to look both backward and forward. I thought I’d share some of the mistakes that I’ve seen photographers make over the years in the hope that my readers won’t make them.

A big mistake that a photographer made that almost cost me my reputation in photography before I had hardly started.

Before I started a photo agency, I decided to become a  rep for assignment work. My first photographer was recommend by several of my photographer friends. He had been in Europe for a while and had experienced a lot of success in advertising jobs according to him and to the tearsheets that he showed in his portfolio. I worked with him for a couple of days, getting ready to take the book out when I happened by the international newsstand on Las Palmas in Hollywood. As I browsed the European magazines, the guy’s work popped up everywhere. But in Europe, in those days anyway, ads carried photo credits AND my guy’s portfolio had been shot by at least five other people.

Instead of investing years of work overseas to build up an international portfolio, he had stopped by the magazine stand at Heathrow on his way back to L.A. and bought the magazines with the ads that he most would have liked to have shot. That was the end of my repping career, thankfully before I had called on any art directors/art buyers.

Here are some mistakes not to make, in no particular order:

1. Spending money as soon as you earn it but before you have it, even if you know you’ll get it soon.

2. Waiting until after the shoot to hand out model releases.

3. Not putting a value on your own time when figuring ROI (return on investment) per shoot.

4. Staying with the same vendors (insurance, bank, credit card, phone, etc) year after year without annually doing comparison shopping

5. Buying the most expensive equipment unless you absolutely need it. And buying is cheaper than regular renting.

6. Never registering copyright

7. Bad mouthing your competition

Cheaters almost always get caught! If not at the newsstand, online! ©Ariturk/dreamstime.com

8. Spending more than an hour a day on social media

9. Writing a blog that only other photographers read (unless you are Chase Jarvis.)

10. Not keeping excellent records in regard to deductible expenses.

11. Not having an annual budget

12. Not understanding a financial statement coupled with not having one.

13. Not reading distributor contracts, purchase orders and other legal docs or not getting help when you don’t understand them.

14. Cheating, lying and stealing (just for good measure). And that includes faking model releases, exaggerating expenses on productions, directly copying other’s work and violating the items listed in item 13.

Happy Birthday to me.

Who is the first brave soul to add to the above list based on a mistake they made?

Is video going to save stock photographers’ income from collapse? (Not that I think collapse is eminent, keeping in mind that millions and millions of dollars are still being made in stock photography…it’s that so many more fingers are in the pie).

Last week I saw video presentations made using the Canon 5D MK II by Vicent LaForet and ASC Directory of Photography, Shane Hurlbut at the Blend Images creative meeting. LaForet, coming from still photography and Hurlbut from the most complex of cinematographic productions arrived at similar destinations in the use of the Canon. Both have easily and successfully translated their skills sets into making wonderful videos for advertising and even for a feature film.

Pulitzer Prize winning photographer, Vicent LaForet, is creating terrific videos with the Canon 5D MK II

The videos were stunning and exciting. Anyone who has ever been on the set of a motion picture will be amazed at the simplicity of the gear involved. Hurlbut has posted his camera configurations. He explained that a $160 million dollar budget for a feature film was reduced by 2/3s using the Canon instead of traditional equipment. LaForet is a natural film maker and produced his first short vid in two days of shooting the day after he first had a pre-production Canon MK II put into his hands at Canon Headquarters.

ASC Director of Photography Shane Hurlbut spoke at the Blend Images creative meeting 3/26/10

Many photographers in the Blend meeting, although deeply impressed by the presentations, later expressed doubt that they would go the route of these complex productions. One said to me, “I’m not about to go out and make a feature film just because my camera can!”  The question is then what do you want to do with your camera with video capabilities and why?

Some stock still libraries have offered motion for many years but the business was never more than 3 to 5 % of  total licensing fees. Today a stock photo buyer is able to purchase coordinated images from the same shoot to meet the needs for both print and web, still and motion. A good example of a company filling this need with an  innovative product is the Image Source Cross Media Pack .  Image Source Founder and CEO, Christina Vaughn, says, “Customers often aren’t satisfied with static images – they want flash, or video, or linear photography. We’ve done a lot of research into how our customers buy images, and we found increasingly that their campaigns needed to work across media – web, TV, and handheld devices as well as print.”

What vids to shoot? Generally the same subjects, concepts and themes  that work well in still stock photography with the exception of the very simple shot of a model isolated against white. All a single person in a video can do is talk…well ok they could jump up and down, dance, or other activities…and without sound talking heads don’t have anything to say. Keep it simple though…the video show above has short segments that would work as stock clips but a full blown story becomes too specific for stock motion.

My advice: unless you have a burning desire to make videos, don’t. But play around with the camera and you may discover that you like what you see.

Think about this too as you decide whether to jump into motion or not: Clay Shirky writes: “The most watched minute of video made in the last five years shows baby Charlie biting his brother’s finger. (Twice!) That minute has been watched by more people than the viewership of American Idol, Dancing With The Stars, and the Superbowl combined. (174 million views and counting.)” Read the entire post about how complexity harms business. The last few paragraphs are especially pertinent to the business of photography.

Finally congratulations to the founding photographer members of Blend with Sarah Fix and Rick Becker-Leckrone for treating photographers with respect and offering them the opportunity to gather together in a community of friends, supporters and colleagues.

Some advice bears repeating: The following was written as part of the ‘Inspiration” section of the Agency Access site and posted 3/16/2010. Slightly changed here.

The vote is in. Based on the many comments on Shannon Fagan’s guest post made by stock  industry leaders and photographers, the majority do not believe that the stock business is dead, perhaps sleeping but far from a vegetative state.  Millions of dollars are still being generated by the photography licensing business in all models even though to the individuals whose income has decreased by up to 50% it doesn’t seem so. The best time to review the tried and true is when you are searching for the new. Here’s a quick recap of some best practices in stock photography.

©billyphoto/Dreamstime.com

• Become known for a specialized style or subject.  Gain access to a unique location or group that is unattainable for others.  Work and work until your images are at the top of the list for your niche in technical quality, originality and marketability.

• Photography may seem to some to be a passive activity; photographers survive by being observers from behind the lens.  To succeed in today’s marketplace you must get out from behind the camera to build a following:

• Explore all the social networking opportunities available. Follow people outside of photography. Professional photography is about filling a need. Follow the Facebook and Tweets of those who might need you in addition to those photographers who are generous with their knowledge such as Chase Jarvis or Yuri Arcurs. (See more about the social web below)

• Get physically in front of your clients and potential clients. Step up your go-sees. As more and more people depend on electronic connections, those who take the time to visit their clients have a better chance of getting in to see the decision makers. This applies to those with specialty stock collections not only assignment photographers.
  

  Going it alone deprives you of connections, information and the opportunity to teach. ©Billyfoto@dreamstime.com

• Don’t depend exclusively upon a stock agency to distribute your work especially if you have a strong niche. Consider licensing your niche stock photography direct to buyers.

Fortunately now there are tools to enable photographers to build a unique stock photo collection and to license it directly.

• Explore services like PhotoShelter and License Stream to ease the responsibilities of building an independent stock site.

• Expand your marketing to cover every possible user of the photos within your niche.  Agency Access slices and dices stock buyers into lists of those with every imaginable subject/business need. Join the trade associations of your major client base not just photographer industry groups.

• Some say that direct mail for photographers is dead. Not according to art buyers that I’ve heard from.  Remember you are there to provide an answer to a visual question. Those who need your specialization want to hear from you if you can help them look better in their job.  Use the most creative designer you can afford to ensure that your DM pieces stand out.

Classic OPTE Project Map of the Internet 2005/©©(some rights reserved)attribution:www.opte.org/maps/

• Connect electronically.  Make your email blasts informative…. provide data, antidotes, statistics that will help your users in their work. Don’t simply sell yourself. That’s spam.

• Accept that twitter isn’t simply silly, that Facebook doesn’t just work for grandparents and that a blog is gossip or a place to vent. All these are communication tools. You are a communicator. Use them. And if you still haven’t. START NOW. You’ll be surprised how much you’ll learn and who you will connect with…(and how much time you’ll waste unless you set limits.)

• Know your audience. Who are the people most likely to license your work? What are their job challenges? You can’t provide answers unless you know the questions. Follow the activities online of the companies that are likely to use your type of photos. Pick up on what they are using and where.

Be wary of following the urge to SHOOT only what sells.  Part of what has harmed the stock photo business over the last few years is in an overabundance of photos all of the same subjects/styles. Originality has diminished and frustration has grown.  As one photographer recently asked me, “How many pictures does the world need of happy people jumping on a trampoline?”

Most photographers began their career with a love both of photography and a certain subject. As their careers develop, many chase the market and lose sight of what gave them creative kicks in the first place. This is especially true for those that put their hat into the stock photography ring and followed the demands of stock companies requests to the exclusion of the vision that brought them to photography. Regain it.

Be a Story

Conversations with Taylor Davidson resulted in the earlier post ‘be a hub‘. I promised that the conversation would continue. Now close to the eve of Taylor’s two appearances at SXSW-Photoshelter’s Austin Photo Seminar about “Creating Context for your Content”  and the  SXSW Core Conversation “Everyone is a professional photographer”, another powerful message from Davidson about the stories we tell and the ones that we live-as writers, photographers and communicators.

How can photographers move their story-telling skills into a broader context?  And why is this important?  Taylor responds, “Telling good stories is a necessity for photographers. But creating a story creates much richer interactions.  It’s these broader interactions that are the biggest artistic and business opportunities today because the economics of creating context have changed (i.e. cheaper to connect, create communities, empower niches), making rich experiences and interactions more available, possible, and powerful than ever before.”  As Taylor’s friend, Michael Bonifer, co-Founder of GameChangers posted, “Story is more powerful as a verb than as a noun”.

Taylor uses Jeremy Cowart’s Help-Portrait project  as an example of a photographer creating and being part of a story.  Cowart’s project, altruistic in concept, has nevertheless put him in contact with many, many people. Each connection creates the possibility of a secondary story by connecting with others who want to be part of the story. This creates a shared experience that spreads organically, touching many people. Connections create interest and trust…two essentials to success.

Photo used with permission of the photographer©Gregory Holm

Here is my favorite story about a story that a photographer and an architect created. Photographer Gregory Holm and architect Mathew Radune envisioned Ice House Detroit to illustrate the frozen Detroit housing market.  After securing funding from kickstarter.com, they  encased one of the thousands of Detroit’s abandoned houses in ice. The resulting story was told in outlets as diverse as Dwell , Village Voice, BBC, NPR, New York Times, German Public Televison, Time and the Huffington Post. People all over the world connected to the story. Taylor points out that this type of collaboration not only helps solve a problem, build trust and gain name recognition, but it helps create business opportunities.

Taylor helped me sum up his overall message: Being a story is alive and three dimensional… it brings a story teller into a story rather than the common voyeuristic position of recording and seeing it, one step removed from the story by the lens of a camera. The work connects interactions between people and ideas that in turn connect the work to the story (my words).

The Ice House Detroit project was funded via Kickstarter.

I received several emails from discouraged photographers after they read Shannon Fagan’s guest post about the re-positioning of the stock photography business. One asked, “So why is it exactly that you (Ellen) are still telling me to spend time and money to upload stock photos?”  My reply was a recommendation that this photographer remain in all of the possible revenue streams.  A photographer should seek diversity in pursuit of multiple areas of income as, after all, stock photography is still a big business in terms of global distribution.

Plus photography continues to offer many of us a lifestyle rich with experiences.  It’s about travel and the people we meet along the way. It has given myself and my colleagues, editors and photographers, one of the best rewards that money can’t often buy: an interesting life.

Portrait of Peggy's granddaughter. ©ShannonFagan/Getty Images

Shannon’s experience described in an email to me last week underlines how photography connects us.  It highlights the value of those connections to our lives and the lives of others.

Shannon wrote: “Here is a story that is a  reminder of why I love shooting stock photography.  It has given me experiences like these, though bittersweet, that I doubt I would have had the time to develop had I focused on a career of strictly assignment work”.

“In the spring of 2005, I traveled to New Mexico to shoot an advertisement for Nikon cameras.  A few months later, I returned to photograph in and around Santa Fe as a self initiated shoot follow-up to that trip.  The resulting personal project photographs were accepted into Getty Images’ Rights Managed collections and one of them appeared on the walls of Getty’s Beijing sales office this past November.  The photograph was of a child with a magic wand situated upon the wallpaper background of a kitchen breakfast nook.  This was the granddaughter of Peggy, a wonderfully lively New Mexico actress and travel agent who had found her way into my casting folder by way of the New Mexico Film Board website.”

“Peggy had been taking acting classes in the Santa Fe area and it was natural that she might respond to my posting for lifestyle stock photography models.  Peggy called herself “grand-meow” and certainly there was a purrrr of harmony between her and her family, and amongst herself and her neighbors.  She was the perfect real life model; inviting, and resourceful.  When I approached her to participate in a series of images about senior lifestyles, she aptly recommended her friends next door.”

Shannon Fagan's photo of Peggy's granddaughter hanging in the Getty Images Beijing office

“Peggy had told me in Santa Fe that she’d be headed to New York in two months with her girlfriends.  And thus she did.  In early October 2005, I got an email.  Riding atop a Manhattan sightseeing bus down Broadway near the Brooklyn Bridge, Peggy saw a photographer gathered with his crew on the sidewalk.  She knew him from his knee pads.  They were the same knee pads that he wore at her house just a couple months prior.  She told me that she shouted my name and waved until the tour bus operator told her to sit down.”

“I sent her an email this week telling her about her granddaughter’s  photo hanging in the office in Beijing.  I was a little surprised when her email bounced back just a couple minutes later.  I  Googled her name and Albuquerque (where she moved in 2006).  I was shocked at what appeared at the top of the search field. (link below).”

“I have been lucky in this profession to touch people’s lives, and they in turn, have touched mine.  It is these connections that explain why I have enjoyed the profession of photography.  Had I not seen her granddaughter’s photo in China, I likely would not have thought to contact her, though Peggy certainly was a standout from my trip there to New Mexico.”

“These random things are not so random when you simply pay attention to all of the connectedness around us.  It is a reminder to live each day to the fullest and never give up.  Keep searching. Even when the truth hurts. I leave you with the news from Albuquerque, New Mexico on Aug 31, 2009. There is video coverage in the link.”

Peggy and her granddaughter©ShannonFagan/Getty Images

-Shannon Fagan

writing from New York City, February 22, 2010

(Portions of this article first appeared in the July, 2009 issue of The Picture Professional – the Quarterly Magazine of  the American Society of Picture Professionals) Fair warning: The following is rather technical and long!

Those who own or license the copyright associated with commercial images need qualified appraisals for legal, insurance and tax matters.  It is the job of an appraiser to determine the value of future licensing income or what an appropriate licensing fee should have been in the case of  litigation.

Commercial photography collections or individual images may have little or no value as fine art but the copyrights associated with the images can be worth a great deal indeed. Although copyright is classified as an  ‘intangible personal property’, the type of appraisal required is generally considered a business valuation, as it is the past or potential licensing revenue that is valued. If the work is collectible in addition to having licensing value, a personal property valuation is also required as part of an overall appraisal.

The value of reproduction rights can be important in litigation. A photographer may believe that a publisher reproduced an image in a manner that exceeded the original license. An appraiser could be hired to give an opinion of what the licensing fee should have been at the time of the alleged infringement. Original film or image files that are lost by an ad agency or design firm were valued at a ‘standard’ $1500/image in the past. Today the court has dismissed that standard in several cases and appraisers acting as expert witnesses are being asked to determine a more verifiable value. It is the business of a qualified appraiser to determine the future revenue of the images and thus the value of the loss. Generally income figures for similar work, especially by the photographer whose work is under review, can be used to estimate the value of lost future income over the remaining useful lifetime of the work and is called a revenue-based appraisal.  The best appraisals will state the revenue and also provide a detailed analysis of the income.

In other cases, the court may ask that an opinion be given as to the ‘fair market value’ for the licensing of an image or group of images. Fair market value is defined as the amount that a willing seller and a willing buyer would agree upon, neither one of who is under pressure to complete a transaction and when both are aware of all the circumstances around the transaction. When an opinion of fair market value has a specific licensing date, the value will be ascertained using historical price guides or from interviews with individuals involved in setting licensing prices for similar work.

Cost basis is seldom used in photographic matters, as exact replacement of a set of images is often not possible.

What are the factors that an appraiser looks at when valuing a collection? First the scope of the appraisal has to be determined. Will the appraisal involve a certain cut off date such as the date of separation of the parties in the matter of a divorce? Or perhaps the figure needed is the estimated useful lifetime value of the images for inheritance purposes. Once the scope and purpose of the appraisal has been determined, the appraiser ascertains the following among other facts:

1. Are there records showing the income produced by the work or by similar work from the same photographer on a similar subject?
2. Does the photographer or agency own the copyright or have the legal right to license the work?
3. Are there contracts or licensing agreements that involve the work?
4. What is the format? If film is involved, what will be the cost of scanning?
5. Are there model releases? Are they valid?
6. How accessible is the metadata.
7. If digital, have the images been previously keyworded or otherwise documented?
8. Will the material become dated quickly and thus have a rapidly diminishing revenue stream? Or is the work of an ‘evergreen’ sort such as images of botanical species?

Using the above information, the following can be assumed:

1. If the format is film and the images will have to be scanned in order to create revenue, the cost of scanning must be deducted from the final value.
2. If the images contain people and the best and highest use of the images is for advertising or promotion and there are no releases, the images have little or no value.
3. If the images are of an editorial nature and don’t require releases the value of the images are increased if the date such as genus/species of plants and animals or specific details about the images are associated with the image adds to the value or if the image(s) are rare and not easily replacable such as images of a riot or disaster.
4. If the useful life of the images isn’t impacted by time, the value of the revenue stream will diminish slower than for photographs that are of a trendy nature.
5. If the images or the photographer have no prior record of income from photography, the images cannot be appraised using the fair market value approach…they have no value in the strictest sense of the appraiser’s world. (of course there could be exceptions…say the only photo of an important event was uncovered that had been taken by an amateur that had no previous income from photography). Nevertheless the photo(s) could have a great deal of value in future licensing revenue. It is the job of the appraiser in such circumstances to use similar situations to determine fair market value.
6. Does the photographer’s reputation add value to any of the work under review?
7. If the photographer is seeking an appraisal of her own work for the purpose of donating the work to a museum and obtaining a tax deduction for the value of the work, the only figures that the appraiser can utilize is the actual cost of the work. Whether the photographer’s work is collected as fine art or licensed for large figures, the donation for tax purposes can only be for the cost of the work, excluding travel, cameras and other costs that have most likely been previously deducted as business expenses. And even if not, the only value is that of the cost.

I prepared an appraisal for an amateur photographer who was donating his photos to a university library as research materials. The work had been produced over a period of 35 years. After an exhaustive study to determine film/processing costs over those years, the work was valued at just around $50,000. So even though the man had made no money as a photographer, he was able to deduct cost from his taxes.

8. Occasionally a photographer or a publisher will use the future value of the licensing rights to a group of images as collateral for a loan. Again in those cases, a consistent and verifiable income must be presented in the appraisal for the bank.

Who is qualified to be an appraiser? Although it is certainly not necessary for a prospective appraiser to be a member of one of the professional appraisal organizations, membership will ensure that they have taken an ethics test and passed a qualifying course and examination called the USPAP (Universal Standards of Professional Appraisal Practice.) It covers conduct, management, confidentiality, and record keeping standards. The USPAP is governed by the Appraisal Foundation and partially funded by the U.S. Congress. The three major appraisal organizations that are most likely to have members qualified to assess the value of photo collections are the American Society of Appraisers, Appraisers Association of America and the International Society of Appraisers. They each have somewhat differing membership requirements and specialties. Each offers referrals on their websites and conduct classes and courses.  Business experience and education can contribute to the worthiness of an appraiser.

The IRS has specific rules and regulations that cover tax related appraisals. In 2006 the Pension Protection Act was passed that amended the IRS code to include penalties for those that aid taxpayers in under valuing for inheritance reasons or inflating the value of charitable deductions of personal property. They also strengthen the definitions of ‘qualified appraisal’ and ‘qualified appraiser’. An appraiser is obligated to sign a portion of the tax return when it involves appraisals for estate or inheritance issues above a certain amount and must include a statement in the appraisal that indicates that the appraiser is aware of the penalties imposed for false appraisals.

The most interesting appraisal that I have been asked to do was to determine the value of three rolls of film taken by a 16 year old at an event where a very important political figure was assassinated. The boy claimed that he was the only person taking photos in the moment that it happened. His film was confiscated at the time of the celebrity’s death and he was told that the court ordered that his film be held for twenty years after the case went to court.  (As an interesting aside: the film taken by the working press after they arrived at the scene was returned the next day but the boy’s photos were not.)

Twenty years to the day later, the boy now a man and a working photographer, went to the police to demand the return of his images. He was told that the film was stored in the state archives. He wrote to the state archivist and was told that they had no record of his film. Because the event had great political consequences and was extremely newsworthy, the photographer initiated a lawsuit against the police department. Eventually the police produced a document that stated that his film had been burned in the incinerator of the county hospital in weeks before the trial of the man accused of the crime.

The case dragged on for years. Just prior to the date for opening arguments in the jury trial,  the state archivist informed the photographer that they had located his film but that they had proof that he had only taken one roll of film and that it wasn’t in the room where the murder took place. A contact sheet was produced proving that the film had been developed while in the hands of the police but there appeared to be irregularities on the contact sheet. The attorney and I asked that the state provide us with the actual negatives so that we could see if the contact sheet had been made up of photos from more than one roll of film. A bonded messenger working for the police flew the images to the city where the case was being tried. Strangely, he stated that he had a flat tire on the way from the airport and his briefcase with the film was stolen from the car while he walked around to check all his tires or some version of that unlikely story.

Thus I was asked to testify to the value of the photographs with no proof that the key images ever existed beyond the photographer’s own testimony. I needed to ascertain that the kid had the talent to take images during a frantic and frightening event as it takes practice and skill to successfully photograph rapidly unfolding events.

Fortunately the young man had worked as the photographer for his high school newspaper and had kept a file of the photos of sporting and other newsworthy events that he had taken for the paper. Among those images were some very good ‘decisive moment’ captures of key plays in various games and most telling, photos of a fight that took place during a protest outside the school. In each case the boy had the presence of mind, eye and skill to get the image. I showed these images to the jury to justify my belief that the young man could stay calm and collected enough to take photos while chaos reigned around him.

I based my appraisal of the licensing value of the key photos on the assumed skill of the photographer and the licensing revenue of similar types of images based on historical data and research.  I felt that the story had value as a future book if the images could be found and researched the possible income from such a book. All together I was able to demonstrate a value to the court of well over a million dollars. The jury agreed and awarded the full amount to the photographer although the police department appealed and the photographer settled to avoid going to court again.