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Portions of this column were originally written for the April 2014 edition of News Photographer Magazine.

Mark Loundy is a media producer and consultant based in San Jose, California. Full bio.

The opinions in this article are those of the author alone and do not necessarily represent the official views of the National Press Photographers Association.

April 2014, Volume 127
By Mark Loundy

"He was gifted with the sly, sharp instinct for self-preservation that passes for wisdom among the rich."

— Evelyn Waugh

The strongest driving force for any entity is self-preservation. That goes for average people. It even drives parents who sacrifice themselves for their children to perpetuate their DNA. It absolutely goes for corporations.

Self-preservation When Getty Images offered the better part of its image library free to non-commercial users, it said that it was doing it to combat copyright infringement.

While Getty is well aware that zillions of bloggers and other online publishers use its images without licensing them, Getty's traditional response has been to send threatening "extortion" letters to small users, threatening them with costly litigation if they don't pay settlements that can range to more than $1,000. The practice has even spawned a website about the letters.

No, Getty isn't going the free route out of the goodness of its corporate heart. It's requiring free users to embed the images using special HTML code. The code surrounds the image with a frame that, currently, contains a link back to Getty and a credit for the photographer.

With this code on pages all over the Internet, Getty will obtain an enormous amount of information about each page's visitors. This so-called "Big Data" has enormous value. It can be sold to marketing companies, or any of scores of industries or agencies that want to know about online behavior. The company could also inject targeted advertising into the frame, the proceeds from which would not be shared with the site's owner. They already got their cut in the form of a free image license.

Good news for photographers, right? A new source of shared revenue. Finally, the tide is turning for photographers who have been seeing monthly royalties shrink from thousands of dollars down to, in some cases, single figures.

But no, Getty characterizes such use as "promotional" and therefore not subject to revenue sharing. The creators of the images would get nothing.

Getty knows what corporate survival is all about. Since reaching its peak stock price in 2006, it has struggled with wringing value from its library. In 2008, it put itself up for sale and was acquired by an investment firm. In 2012, the company cut the photographer's share of sales from 50% down to 35%. Later that year, it was again sold, this time to its present owner, the private equity firm, Carlyle Group.

Getty has greatly contributed to the commoditization of images that has proven to be its biggest business challenge. Now it finds itself "winning" the race to the bottom. Perhaps, like the old joke, it can make up for the losses in volume.

The Good
Bullet Greenpeace, for fair negotiations and rapid payment.

The Bad
Bullet Sunset Magazine's National Parks photo contest for its rights grab and indemnification clauses.

The Ugly
Bullet Twitter account @HistoryInPics, which makes money from unlicensed imagery.
Bullet Washington Life magazine for trolling for free images.

Please let me know of any particularly good, bad or ugly dealings that you have had with clients recently. I will use the client's name, but I won't use your name if you don't want me to. Anonymous submissions will not be considered. Please include contact information for yourself and for the client.

  • The folks at Photoshelter keep churning out the professional guides. Recently they added a business plan workbook and pricing guides for fine art and photojournalism.
  • Remember to treat non-profits like any other client. They don't qualify for a discount simply based on their 501(c) status. Only offer a discount if you have a personal sympathy for their cause. Remember, they pay all of their other vendors and their employees (sometimes handsomely.)
  • Watch out an indemnification clause dressed as an invasion of privacy and libel release. If you sign one of these you might be on the hook for actions over which you have no control. Make sure your lawyer sees it if you get one.
  • Beware of new picture agencies that claim to favor the interests of the photographers. If they tell you that you get a 50-50 split of net revenue, that does not mean that you get half of the end user's licensing fee. It means that you get half of whatever is left over after they take out expenses, and the cuts of sub-agents and sometimes sub-sub-agents. What remains can be very little.