“Photo Credits” – The New World Currency?

©2013 Mike Augustin | Game Changer Photography, LLC

I believe I may have discovered a brand-new world currency that may be used for all debts public and private. First, let me give you some background on how I first learned about this new internationally accepted legal tender.

Those of you who know me, or those of you who have seen my name on images that proliferate many websites, Facebook, posters, flyers and other marketing material and products, already identify my work as a sports photographer, as well as other subjects of photography including landscapes, buildings and historical sites. What you may not know is that the majority of my images are used without my express permission and as such, without any compensation to me. This is not a rant about copyright law or permissible use. I will save these topics for another discussion.

This is not to say that there are no good people that play by the rules and have not abused using my images to promote their commercial endeavors. There are several commercial websites, corporations, marketing firms and others who have been kind enough to legally purchase my images to promote their products and events and to those people I say “Thank You”.

Back to the usage of “photo credits” as a new world currency. Recently I discovered a commercial website using several of my sports action photographs to promote and sell their products. This is not unusual in itself as I mentioned earlier, but this site was different in that it was an internationally recognized major corporation that, to be quite frank, should have known better. To find a solution to this flagrant violation of copyright law I made a good-faith effort to work out a mutually amicable usage agreement where the corporation could continue using my images and I would receive fair compensation. This was my first mistake. Playing “nice guy” just does not work when dealing with corporate attorneys and such.

The response from the corporate lawyers was shocking to say the least. First they blamed me for not notifying them sooner of the alleged copyright violation (like I have a copyright violation search strike team at my beck and call) and second they offered to compensate me by updating their future advertising with a “photo credit”. They never addressed removing my identifying copyright watermarks from the images in the first place nor did they address illegally editing and cropping my images for display on their website and other commercial marketing and packaging projects. They also had the audacity to excuse their illegal behavior by claiming  to be an “innocent infringer“. This lame excuse was offered because apparently one of the persons in an image allegedly told the corporation marketing muckety-mucks that I would not mind if they used his image for free. To put this into context, that would be like bumping into Roger Federer outside of a Dick’s Sporting Goods and Roger telling you to feel free to go inside and take any racquet with his image on the faceplate and walk out the door without paying. I don’t think you would get very far with that excuse.

This is just one example of being offered “photo credits” for use of my images. In a conservative estimate I would say that I am offered these so-called “photo credits” at least five times a month. There obviously must be some value to these “photo credits” since they are commonly  proffered as legal tender in negotiations for usage of my images. I must admit that I do not keep up to date on the current trends in the world currency  markets and the financial world. Heck, I think I must have four or five 401(k)s from different companies I have worked for throughout the years lost in 401K land someplace.

This month I tried to do something with my new found legal tender of photo credits. I contacted my mortgage lender and asked if they would be willing to accept the tender of photo credits in lieu of US dollars for my monthly mortgage payment. I was shocked to hear that this major financial institution with a global footprint had no knowledge of using photo credits as legal tender. I even requested that they elevate the issue up to senior management because obviously senior executives for a major financial institution would stay current on all world currencies. I was again shocked when I learned that the decision from executive management was to deny accepting photo credits in lieu of US dollars for my monthly mortgage payment.

I also stopped by a local market to buy milk for my family and I asked the clerk if he accepted photo credits for payment. I knew something was wrong when he gave me that “deer in the headlights” look. Again, I guess my local market was not aware of this new currency called “photo credits”. I am sad to say that it didn’t stop there. I tried using photo credits in lieu of US dollars to pay my electric bill, my DirecTV bill, my water bill, my Internet bill, and even at the Taco Bell drive through window.  To my shock and utter dismay I could not get anyone to accept photo credits for payment for goods and services.

Not willing to give up, I tried one more retail company that I was absolutely sure would be familiar with photo credits… I called the same company that I described earlier and asked if I could use one of THEIR OWN photo credits to buy something.  I was absolutely STUNNED when they refused to accept payment using their own photo credits!

Begin a glutton for rejection and still not willing to accept defeat, I called a major photo equipment supplier in New York City and placed an order for a brand new telephoto lens that was just over $8000. When the customer service rep asked me what method of payment I wanted to use I told him “photo credits”. I knew there was going to be trouble when there was silence on the line followed by his response of “excuse me sir“. I asked the rep if they were up to speed with the new world currency internationally known as “photo credits”.  At first he thought I wanted to use store credits to apply to the order but once we cleared that up I realized that this photo supplier located in the heart of the world financial district in New York City had not been brought up to speed on the usage of photo credits as the new legal tender for all debts public and private.

I was as shocked as you are.

You are probably wondering why I would need a lens that costs over $8000 in the first place. (I am often times told how to do my job).  Most of you reading this probably take most of your “pics” by using an iPhone, a point-and-shoot camera, etc. (No, the “P” setting does not mean “Professional”).  I have to admit that I have seen some really great shots coming from these devices. But to get those up close shots with ultra-sharpness, focus, white balance (eliminating that awful orange & green tint you see in pics on Facebook) and also great composition and clean backgrounds, using a high-end telephoto lens is mandatory equipment for any professional sports photographer. I mention this because I know some of you reading this may ask why I would want to charge for my images in the first place since it doesn’t cost anything to take photos with a digital camera and we are “buds“. This could be a topic for another rant, but you’ll just have to take my word for it that my cost of doing business is very high when it comes to purchasing the equipment I need to produce the images that people and corporations want to use and then offer to give me “photo credits” for payment.

So going forward please do not be shocked when you contact me asking for permission to use my images and I respectfully decline your offer of photo credits for payment. This is not to say that I will not consider acceptance of photo credits once the world financial markets get up to speed accepting photo credits for all debts public and private.

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5 Responses to “Photo Credits” – The New World Currency?

  1. mike boatman says:

    DAMN!
    I have well over 30,000 photo credits on printed pages over the last 34 years and 10,000 plus of them on covers. I was saving all those photo credits for my 401K.

    I just checked with the IRS and they said no to using photo credits to pay for my self-employment tax (also know as social security tax). If I can’t use photo credits in my retirement what will I use to buy food?

    Maybe someone at Goldman Sachs can advice how to invest photo credits. Maybe they have offered that currency in the past? Maybe not, but I know where they would tell me to put them.

    Funny it’s not the photo credit that has the value ITS THE PHOTO. That is why people steal the PHOTO.

    Mike

  2. Todd Boss says:

    I wanted to chime in and get your opinions on this. I run a baseball blog (www.nationalsarmrace.com) and I like to use images (generally of baseball players, Washington Nationals specifically most of the time) at the top of each blog entry. I generally find these pictures on images.google.com, save them locally, then post them to the blog. I give credit where I can find it (sometimes I find a picture with a full photographer and organization credit), other times I find a picture that’s been pulled and posted elsewhere without credit.

    I had a blog commenter at one point post something general like “Its illegal to use pictures” in the fashion that I use them. And I went through and investigated the Trademark Law concept of “Fair Use” (as documented decently well on wikipedia: http://en.wikipedia.org/wiki/Fair_use) and determined that the nature of the photo usage on my blog constituted Fair Use. I made a longer argument on the blog at the time, going through the four statutes of the fair use law to prove my point. But I feel confident that the fact that I’m using pictures in a not-for-profit blog and giving proper credit is sufficient to avoid any trademark issues.

    I know this issue isn’t exactly the same as what you face (which is clearly prohibited by Fair Use because its a commercial/for-profit enterprise “borrowing” your photos). But I wonder what you think of my interpretation of this clause and/or my using photos easily found on google for this purpose? Say you found out that I copied one of your images that I found on images.google.com and used it in my blog as such, but gave you a photo credit. Would you be ok with it, or would you be upset/demand it be removed?

    Coincidentally; the proactive trademark issue is a tough one; when we trademarked my wife’s small business name, it explicitly states that the burden is on us as the trademark holders to protect our own rights, implying as that corporation told you that you should have been on this sooner. Its frustrating for us as well; its not as if we’re out there trolling the entire world looking for people who are using our name…. anyway.

  3. fifekj says:

    Hi Mike A. I’m not exactly sure if you are trying to make a point about getting credit without compensation or just entertaining us with the idea of trading credit for something tangible. Maybe a little of both me thinks.

    I’m a bit hung up on copyright after reading what Todd Boss wrote. Good on you Todd for asking about this.

    As a photographer, having a third party use my photographs without asking for permission or offering compensation for use is disturbing, but putting anything on the Internet makes it available to anyone for almost any use. Furthermore, registering with copyright.gov is a pain and litigating is costly. In the end the culprit may simply stop and get away with an apology unless you can prove they actually made money. Your assessment on fair use is probably correct, and I suspect the complainer was not the photographer. I would not want to be in your shoes explaining to the commenter however. If the commenter happened to be the photographer I would pull his photograph, and apologize, no questions or arguments even if the law is on your side. No reason to make enemies, and many photographers are fierce defenders of their copyrights.

    One idea that comes to mind is to go directly to the Washington Nationals, tell them what you are doing, and ask for access to photographs they may have on file for the press or web. That way you can avoid having an illegal copy from Getty Images or some other stock agency.

    In my small Australian studio, photographs are not available to the customer till payment is received unless I’m working for an established company and have a legal contract. I generally assume the average customer will take what they can for free. When I post on Facebook or G+, my expectation is that I will not receive any compensation, maybe a like if I’m lucky. Getting credit is probably a similar case, but not part of my current business.

    I know of one landscape photographer who never puts his best work on the Internet. Doing so would depreciate the value.

    When I shot racquetball for the CVRA 1994-1997 there was no expectation for any compensation. Anything that came my way, like a T-Shirt and tournament dinner, made me a happy camper. I love the sport and learned lots about shooting in the worst conditions (like light flicker) with the equipment I had at the time. All decent shots were freely donated for the promotion of the sport. Doing this was only possible because I had a good day job by the way.

    Mike, I’m sorry Todd and I are a bit off topic and hope you don’t mind. Please do chime in if you think I’m off the mark on anything. I have been admiring your work from Australia where they think playing racquetball is done in a squash court.

    Cheers from down under,

    Ken

  4. mike boatman says:

    Hi Todd and Ken,
    Just wanted to chime in. I am one of those fierce defenders of copyright and I have been since the early 80s. For the most part I only defend my copyright when the infringer knew better or simply didn’t care that it was my property and continues to infringe my work.

    Having said that Todd, the fact of the matter is, only, and I repeat only, a judge can rule whether or not a work is fair use. The risk you run Todd is that someday you just might run into a photographer like myself who vehemently defends his copyright.

    Todd, in the scenario you described my protocol would be to have a conversation with you first. If you didn’t remove my photograph immediately and offer up apologies out the wazoo on the spot, I would most likely have turned it over to my attorney. (There is the option to actually PAY ME for my images…). Because all my work is registered with the US Copyright Office, my attorney would take it on consignment. Because you are the defendant, even if it’s fair use which can only be determined by a judge, your attorney would probable charge you by the hour with a rather large retainer upfront. The average cost of defending a copyright infringement claim starts at $40,000.

    In another situation, a blogger used one of Jay Maisel’s images just recently. (Mr. Maisel is a very respected professional photographer). The blogger ended up paying Mr. Maisel $25,000 plus some attorney fees.

    Getty Images also defends their copyright and I’ve heard from some photographers that it’s almost become a second form of income for Getty.

    In my opinion Todd you are playing Russian roulette with copyright, and if it’s just a hobby for you why in the world are you risking your house and your income to display images to use in a hobby? Your risk-to-reward ratio here is totally out of whack. Don’t get me wrong. I would never advocate using somebody else’s property regardless of the risk-to-reward ratio.

    And please make no mistake about it; just because a photographer puts his image on a website doesn’t mean that he’s offered it up free for the world to use without permission. Whether they’re making income are not has no bearing on the copyright protection.

    Here are the cold hard facts:
    The photographer owns the copyright the second he pushes the shutter button. Just because you’re a blogger doesn’t mean your opinion is news. Only a judge has the authority to give the final determination if a work is a “fair use” or not, even if it’s intended use in a fair use manner. To get to that final decision is going to be costly.

    Here’s a much simpler approach: contact the photographer and ask! If it’s for fair use most photographers, or at least many including myself, will more than likely give you free access to the image, but would likely require a photo credit. The purpose of the photo credit is not currency, it is to maintain the copyright integrity and to keep the work from being classified as an orphaned work.

    I’m sorry Todd but when you grab an image, regardless of your intent or intentions, you are using another person’s property without their permission. Only the owner of the copyright, in most cases the photographer, has the authority to allow you to use their property. I’m sure you would never walk into somebody’s home and take their personal property or take their car because you needed it. Copyright is classified as property, no difference to a persons personal property or their car.

    Food for thought: When you use an image without permission or compensation to the photographer, you’re also depriving the depicted athletes who in most likelihood receive compensation for use of their images and likeness as an endorsement.

    So to answer your question, I respectfully submit to you that your interpretation is flawed. Your blog (your opinion) does not give you the right to use images without permissible use agreements. Does your blog have more value and importance than all the years of hard work, dedication, sweat and pain that the athlete has endured over the years to increase the value of their skill and professional image? Does your blog have more value and importance than all my many years of practice and training, plus my gear investment of over $100,000, all of which allows me to create images?

    All photographers are asking of legitimate bloggers is that you give us the respect and courtesy of asking for permissible use (licensing) our images and if we say no to please respect our decision. Another option is to pay us to use our images, but let’s not get carried away here…

    Mike Boatman
    Professional Photographer
    http://www.mikeboatman.com/

  5. Sideout says:

    Reasons Why Professional Photographers Cannot Work for Free

    Dear potential photo buyer,

    If you have been directed to this page, it is likely that you have requested the use of an image or images for free or minimal compensation.

    As professional photographers, we receive requests for free images on a regular basis. In a perfect world, each of us would love to be able to respond in a positive manner and assist, especially with projects or efforts related to areas such as education, social issues, and conservation of natural resources. It is fair to say that in many cases, we wish we had the time and resources to do more to assist than just send photographs.

    Unfortunately, such are the practicalities of life that we are often unable to respond, or that when we do, our replies are brief and do not convey an adequate sense of the reasons underlying our response.

    Circumstances vary for each situation, but we have found that there are a number of recurring themes, which we have set out below with the objective of communicating more clearly with you, and hopefully avoiding misunderstandings or unintentionally engendering ill will.

    Please take the following points in the constructive manner in which they are intended. We certainly hope that after you have had a chance to read this, we will be able to talk again and establish a mutually beneficial working relationship.

    Photographs Are Our Livelihood
    Creating compelling images is the way we make our living. If we give away our images for free, or spend too much time responding to requests for free images, we cannot make a living.

    We Do Support Worthy Causes With Images
    Most of us do contribute photographs, sometimes more, to support certain causes. In many cases, we may have participated directly in projects that we support with images, or we may have a pre-existing personal relationship with key people involved with the efforts concerned. In other words, each of us can and does provide images without compensation on a selective basis.

    We Have Time Constraints
    Making a leap from such selective support to responding positively to every request we get for free photographs, however, is impractical, if for no other reason than the substantial amount of time required to respond to requests, exchange correspondence, prepare and send files, and then follow-up to find out how our images were used and what objectives, if any, were achieved. It takes a lot of time to respond to requests, and time is always in short supply.

    Pleas of “We Have No Money” Are Often Difficult to Fathom
    The primary rationale provided in nearly all requests for free photographs is budgetary constraint, meaning that the requestor pleads a lack of funds.

    Such requests frequently originate from organisations with a lot of cash on hand, whether they be publicly listed companies, government or quasi-government agencies, or even NGOs. Often, it is a simple matter of taking a look at a public filing or other similar disclosure document to see that the entity concerned has access to significant funding, certainly more than enough to pay photographers a reasonable fee should they choose to do so.

    To make matters worse, it is apparent that all too often, of all the parties involved in a project or particular effort, photographers are the only ones being asked to work for free. Everyone else gets paid.

    Given considerations like this, you can perhaps understand why we frequently feel slighted when we are told that: “We have no money.” Such claims can come across as a cynical ploy intended to take advantage of gullible individuals.

    We Have Real Budget Constraints
    With some exceptions, photography is not a highly remunerative profession. We have chosen this path in large part due to the passion we have for visual communication, visual art, and the subject matters in which we specialise.

    The substantial increase in photographs available via the internet in recent years, coupled with reduced budgets of many photo buyers, means that our already meager incomes have come under additional strain.

    Moreover, being a professional photographer involves significant monetary investment.

    Our profession is by nature equipment-intensive. We need to buy cameras, lenses, computers, software, storage devices, and more on a regular basis. Things break and need to be repaired. We need back-ups of all our data, as one ill-placed cup of coffee could literally erase years of work. For all of us, investment in essential hardware and software entails thousands of dollars a year, as we need to stay current with new technology and best practices.

    In addition, travel is a big part of many of our businesses. We must spend a lot of money on transportation, lodging and other travel-related costs.

    And of course, perhaps most importantly, there is a substantial sum associated with the time and experience we have invested to become proficient at what we do, as well as the personal risks we often take. Taking snapshots may only involve pressing the camera shutter release, but creating images requires skill, experience and judgement.

    So the bottom line is that although we certainly understand and can sympathise with budget constraints, from a practical point of view, we simply cannot afford to subsidise everyone who asks.

    Getting “Credit” Doesn’t Mean Much
    Part and parcel with requests for free images premised on budgetary constraints is often the promise of providing “credit” and “exposure”, in the form or a watermark, link, or perhaps even a specific mention, as a form of compensation in lieu of commercial remuneration.

    There are two major problems with this.

    First, getting credit isn’t compensation. We did, after all, create the images concerned, so credit is automatic. It is not something that we hope a third party will be kind enough to grant us.

    Second, credit doesn’t pay bills. As we hopefully made clear above, we work hard to make the money required to reinvest in our photographic equipment and to cover related business expenses. On top of that, we need to make enough to pay for basic necessities like food, housing, transportation, etc.

    In short, receiving credit for an image we created is a given, not compensation, and credit is not a substitute for payment.

    “You Are The Only Photographer Being Unreasonable”
    When we do have time to engage in correspondence with people and entities who request free photos, the dialogue sometimes degenerates into an agitated statement directed toward us, asserting in essence that all other photographers the person or entity has contacted are more than delighted to provide photos for free, and that somehow, we are “the only photographer being unreasonable”.

    We know that is not true.

    We also know that no reasonable and competent photographer would agree to unreasonable conditions. We do allow for the fact that some inexperienced photographers or people who happen to own cameras may indeed agree to work for free, but as the folk wisdom goes: “You get what you pay for.”

    Please Follow-Up
    One other experience we have in common is that when we do provide photographs for free, we often do not receive updates, feedback or any other form of follow-up letting us know how the event or project unfolded, what goals (if any) were achieved, and what good (if any) our photos did.

    All too often, we don’t even get responses to emails we send to follow-up, until, of course, the next time that someone wants free photographs.

    In instances where we do agree to work for free, please have the courtesy to follow-up and let us know how things went. A little consideration will go a long way in making us feel more inclined to take time to provide additional images in the future.

    Wrap Up
    We hope that the above points help elucidate why the relevant photographer listed below has sent you to this link. All of us are dedicated professionals, and we would be happy to work with you to move forward in a mutually beneficial manner.

    http://photoprofessionals.wordpress.com/#comment-14231

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