Warren Buffet once said: “We need a moderately-priced stock market… The market, like the Lord, helps those who help themselves. But, unlike the Lord, the market does not forgive those who know not what they do.” While he was referring to stock exchanges and markets where company stocks, bonds and commodities are traded, his quote perfectly applies to the stock photography industry. Especially when you actually read some of the several current court filings against Getty Images. Follow along.
There is new light being shed on the fact that photography stock agencies (not just Getty) have been licensing public domain images to their customers for years. We will reserve comment on those cases until they move forward and we can see what Getty’s responses to the allegations are. 98% of all cases settle without the need of a trial. If one or more of these cases settles only the parties and their lawyers will know “the truth”.
Many stock agency customers who use public domain images sourced from stock agents are not paying one penny for the privilege. If a client ie Time, Fox or XYZ Advertising has a bulk deal/monthly fee/pictures by the pound agreement/flat fee agreement with a stock agency (as many do) payment to the stock agency of X$ per month allows access to and the license to publish a lot, or even an unlimited amount, of imagery in a given month. So if the customer wants/needs some “public domain images” for its next edition, in reality there is no extra charge involved. This is the Las Vegas dinner buffet version of stock image licensing in the 21st Century. All you can eat for a single fee and you can eat as much as you want of whatever is on the buffet table.
There is no reason for an agency customer to spend its own time, personnel, money and effort to seek out and obtain copies of images in the public domain. The stock agency can simply provide them in an instant at no cost. This “all you can eat arrangement” makes the customer of the stock agency financially much more important to the bottom line of the stock agency than any contributing photographer.
That stock agencies are often disreputable, screw creators, rarely employ generally accepted accounting principals and often improperly appropriate the images and/or funds of their contributors. How have we arrived at such a scurrilous portrayal of these agencies? Easy, after 37 years of Ed suing them and dealing with them in front of judges and juries, it’s an easy conclusion. Not a day has gone by in decades (including today) that Ed’s office is not in the process of suing or collecting funds for photographers whose money and/or images are being wrongfully withheld by a stock agency somewhere in the world. Stock agencies licensing images over which they no longer have any rights is an hourly occurrence. Same movie, same script only the names of the casts change.
As Mr. Buffet alludes to in his quote, we suggest to most photographers that they “help themselves” by doing all of their stock licensing by themselves. Even if your gross licensing is 30% of what it could be with a major agency, you will actually net more money, have less aggravation, and can reap substantial recoveries in the event you are ripped off via an infringement(s). You will control your fees and the usage granted rather than some unknown, untrained, agency employees who may be working on a commission basis. Your business interests and theirs are seldom the same.
Doing it yourself might mean fewer deals, but a lot more money in your own pocket. Hence the meaning of our title that less is more.
There was a time when stock agencies for selfish economic reasons cared more about their contributors than their customers. Those days are long gone and they won’t ever return. The business model of stock licensing in 2016 is not remotely similar to that employed in decades past.
While their cost of business has decreased dramatically in the digital era, stock agencies have increased the percentage of the gross they “earn” and while decreasing the contributor’s share. Why? Because they can. Ed had one case where the photographer had a great infringement case, worth major dollars. But the image was licensed through a stock agency, who because of their onerous contract with the photographer, gave it all rights to pursue infringements. The photographer told Ed on a Friday that he’ll get his stock agency to release that right so he could pursue the case as he saw fit – that included offering the agency a piece of the recovery. Monday the photographer told Ed that the agency had already settled (with their infringing, image buying client) and he would be receiving a check in the amount of $15 as his share of the settlement. That sort of tells you who is more important to the stock agencies. No one at the agency so much as picked up a phone or sent an email to the contributor advising him of what was happening with his own claim nor were his thoughts or opinions solicited.
Photographers all too often became lemmings in a business model, which seeks to minimize the importance or value of any photographer. Virtually all imagery is valued and offered by stock agencies under the category of “dirt cheap”. It is similar to a major league baseball team whose roster lacks a single highly paid super star. No one player is all that important to the bottom line.
Here’s a quote from a set of court papers Ed submitted in a Federal Court case involving a large stock agency found liable for a host of legal transgressions:
“(Photographer) would have been far better off submitting his/her images for licensing purposes to a company operated by the Gambino or Luchese crime families. At least the mafia has rules by which those who work with them are fully aware, certainty of process is assured and thus both sides tend to comply. Businesses run with mob “participation” are forced to be efficient as they are admittedly under the threat of violence for non-performance”.
Stock agencies on the other hand, act with impunity, disregard the laws of accounting, copyright and agency knowing full well that they are far less likely to be caught and sued than a mafia captain in charge of “collections” for a loan shark. Employment at stock agencies typically requires little to no experience or expertise.
The judge in the case above had presided over more than a few mob cases going back decades and opined to opposing counsel off the record:
“You know (Greenberg’s) really not wrong about that – over the top for sure, but not wrong”.
In another court case simultaneously amusing and depressing, the following exchange took place. Ed was deposing the head of the editorial/news division of a major stock agency. It was clear that the witness had a very tenuous grasp of current events about which he/she was in charge and claimed superior expertise. Questions and answers for this person in charge of the photojournalism “division” concerning “breaking news photography” – the type seen in newspapers and (then) weekly news magazines like Time, Newsweek, US News, DerSpiegel, Paris Match, Stern etc. follow below:
Q: “What does SCOTUS stand for”?
A: “I don’t know”
Q: “What does POTUS stand for”?
A: “I don’t know”
Q: “What does the term ‘majority whip’ of the House of Representatives mean”?
A: “I have never heard the term”
Q: “(Showing the witness) Here are a collection of images submitted to you by (our client) where the photographer has used those terms in labeling the shots sent to you. Take another look at them. If you didn’t know what these words meant did you ask anyone at your company for assistance or call (the photographer)”?
Q: “What did you do with the images”?
A: “I put them in a (miscellaneous) file”
Q: “None ever made it to the agency website or were ever seen again because you had no idea what the images portrayed, correct?
Q: “Are the photos of good quality”?
A: “They are superior”
Q: “You kept your job right”
You history buffs out there might recall that in 2000 the Supreme Court of the United States had this minor case called Bush v. Gore. The head of “news” couldn’t pick out a Supreme Court justice, any of the lawyers or anyone save Bush & Gore out of a line up. This despite the fact that perhaps no story other than the OJ trial received more coverage.
Later on for pure entertainment value, Ed asked the witness the following:
Q: “How would you rate the work of (Famous Musician) in the field of photojournalism”?
A: “He is top notch”
Q: “I know. Did you know he has won (5) Grammies for his work on the electric guitar”?
Q: “(Showing) Here is his latest CD
Fill in the name of a famous guitarist of your choice in the blank with the same name recognition of say Carlos Santana or Eric Clapton. Think of those bits done by Jay Leno or Jessie Waters when they show a photo of someone like Joe Biden to clueless citizens or ask “Who did America fight in WWII?” No clue, same as the agency division head. Funny and sad at the same time.
But that’s who’s in charge of licensing your images at some (big shot and little shot) stock agencies. The good Lord and the marketplace helps those that help themselves. Bottom line, think about marketing your stock images yourself.