Protecting Copyright – The Independent Photographers Guide

Though application technology has revolutionised professional photography, existing copyright and labour laws haven’t caught up with the pace of globalisation and the independent photographer has the most to lose. 

“Earn more money. Be your own boss. Get paid fast. Shoot when you want.”  A few years ago this was the alluring tagline photography franchisors used to con aspiring independent photographers out of tens of thousands of dollars.

In today’s global services market, an Instagram ad promising to, “remove the pains of having your own photography business, download this app and let us do the rest” follows the same model of making money from the labour of aspiring photographers but with a twist; claiming copyright of your photos and ownership of the end client deep within their T&Cs.

The majority of larger service groups, either application based or ones with local representatives simply don’t care about your career or your photographic rights, they’re concerned solely about the paying customer and minimizing your interaction with them. In the commoditized Uber model, the photographer is a replaceable means to an end.

For photographers to better understand the stresses that globalization and technology are placing on our industry, Imagecloud reached out to Nathan Hoerschelmann an attorney and artist advocate based out of Seattle, Washington. Though Nathan has the great fortune of working with and for photographers and artists from all over the world, Nathan is also the reference attorney for the American Society of Media Photographers (“ASMP”)  which has long been recognized as a premier organization supporting exceptional photographers.

Imagecloud a photography software platform whose sole focus is empowering the growth of independent photographers is working with Nathan Hoerschelmann to re-publish his ASMP review of the now-shuttered KodakIT’s user terms on behalf of the ASMP.  For the health of the independent photographic community, we’ll explore Nathan’s findings so independent photographers can make informed decisions when choosing to shoot on behalf of an international services businesses or mobile application.

KODAKIT – WHAT WAS IN IT FOR ME? 

One of my responsibilities for ASMP is to investigate the practices of entities or companies to ensure their terms and conditions or practices best align with the needs of ASMP members and the greater photography community.

Tom Kennedy, ASMP’s Executive Director, asked me to look over the KodakIt program and to share my thoughts. KodakIt advertises itself as a platform connecting photographers to businesses globally with the phrases “Earn more money. Be your own boss. Get paid fast. Shoot when you want.”

MASS ACCESS IS ALLURING

There are a few ways in which this program seemingly addresses most freelancers’ concerns: 1) access to new clients, 2) clients fed to them without having to do any business development, 3) limited amount of haggling/negotiating, and 4) the majority of details are handled by a third party.

I can appreciate that for some photographers having this kind of client stream, where little effort is required, would seem like a godsend. A lot of photographers I have encountered enjoy the photography work but little of the required marketing and administrative tasks. This program appears as an attractive replacement for a lot of that work.

Modern Changing Landscape

I recognize my dinosaur-ish tone but things are rapidly changing. Darwin’s famous line that the survival of a species depends on adaptability more than anything else rings true here. When looking at Kodak, it is trying to find ways to regain its relevance in the world. Here they are attempting to create a value position by inserting themselves as a point of authority. Through their brand recognition, potential clients trust them and photographers like the idea of being affiliated with such a household name so also turn to them.

I guess the point of this comment is just to recognize what Kodak is trying to accomplish. The feeling is they see entities like Uber and are trying to find ways to adopt a similar model. It is an attempt to take advantage of their old legacy and regain relevance.

I try to envision what is the value add of this program for either the client or the photographer – it’s really a glorified middleman through name recognition. There is no actual vetting of the photographers. Therefore, from what I see, the client is not getting recommendations for photographers thus little value other than access to a list of names. And likewise, for photographers, there is no value of thoughtful representation or connecting to an ideal client.

KODAKIT DOES NOT HAVE THE PHOTOGRAPHER IN MIND

KodakIt’s clear priority is the end user client (follow the money). ASMP photographers need to recognize that going in. All of the terms are heavily weighted towards the potential client and away from the photographer.

Photographers are asked to 1) respond within tight communication windows, 2) give up all ownership of work/copyrights, including the ability to use any of the work even for self-promotion, 3) allow themselves to be considered work for hire – which is in direct conflict with US copyright laws, and 4) essentially have no other communication with the client.

All of the original attractions to this platform thus begin to get chipped away. There is no real development of a relationship with these clients. There is no retention of the actual work. There is no ability for secondary use – either for self-promotion or resales or relicensing. Once again, with a simple wave of the wand, the artist gives away everything and gains no reward other than the singular paycheck (which is a constant negotiation to the bottom without any advocacy or recommendations from a real representative). The photographer cannot even preserve or use any of their work for their own marketing purposes or portfolio. There is thus no proof of the photographer’s work. All of this begs the question – what was the point?

KodakIt uses Singapore copyright laws. As a general principle, you want a contract’s binding laws to come from the jurisdiction in which you work or reside (i.e. if you work in Washington, you want the binding law to be Washington). There is an inherent issue with agreeing that another jurisdiction’s laws as binding – here it is even more problematic as the laws are from another country. I am still working through the differences between Singapore and US copyright laws but little is really needed as the terms require the photographer to give away the farm as is.

The Negatives Outweigh the Positives for Photographers

Again, I understand that being a freelance photographer is hard. Getting business and keeping the lights on is a challenge for a lot of people so who am I to judge someone trying to make a dollar. With that being said, I do not recommend this program as beneficial for photographers nor for the photography industry as a whole.

The terms and objectives of KodakIt are not for the benefit and promotion of the photographer, nor are they beneficial to the greater photography community. The allure of the Kodak name and the ability to draw clients from around the world, even to the photographer’s backyard, without having to do much self-promotion (work) is attractive. But underneath that sheen, the reality of the terms, what the photographer has to give up and how very little comes in return leaves me very pessimistic about the possibility of this being of actual value to a photographer.

Nathan Hoerschelmann is an artist’s advocacy attorney based out of Seattle, WA. He provides counsel to photographers and other creatives regarding legal, small business, risk management, and contract issues. He can be reached at nathan@hoerschelmannlaw.com Follow him on Twitter @nhmannlaw or Instagram at @hoerschelmannlaw.

As globally accessible technology for independent photographers moves at a quicker pace than copyright or labour laws, Imagecloud will continue to bring to light informative blog pieces that can help you make informed decisions within your business. Contact us at info@imageloud.tv today to find out about adding Imagecloud to your workflow and make your independent photography business the best it can be!