USA Today ≠ US Presswire at US Olympic Media Summit (And Beyond)

When you think "olympic" the concept of "top of their game", or "monumental" comes to mind. While "Olympic" refers generally (and usually) to the Olympic Games, it is often used as a verb (no doubt much to the chagrin of Olympic Officials) to characterize the best. This year, when the Olympics arrives in London, it seems that USA Today is sending in the farm team rather than the best, when it comes to their photography staff, for the most part.

USA Today staff photographers with decades of experience covering sports were told last week that, well, their services wouldnt be needed in London. USA Today Sports Media Group Company, which now owns the US Presswire photo wire service, known to some as the "lets all work for photo credit, press-file hot dogs, and a few stock sales" photography operation, decided that they would choose the team going to cover the olympics this year, save for just one well regarded USA Today photographer. If there was any doubt that the staff will be wet behind the ears, you need look no further than the list of those credentialed - Richard Macksons teenage kid seems to be credentialed as a part of the team of pros going over and she either just (or will soon) graduate from...wait for it... high school.

If youre looking to talk to the USA Today photo booth out at the Olympic Media Summit at the Hilton Anatole, going on today and tomorrow, they wont be there. Well, the booth is there - in Stemmons Ballroom C (on the right as you walk in), but its not actually staffed by USA Today staffers - instead, its staffed by US Presswire staff and contractors. So if you see someone wearing a USA Today credential, shirt, or beneath one of their banners, its really a US Presswire person cloaked in the storied name of USA Today.

For decades, the USA Today photo staff has put forth the best of the best to cover the Olympics. So too has Sports Illustrated, and other storied organizations that see covering the Olympics as the pinnacle of sports photography. I am sure that Getty Images will be quite interested to know that US Presswire is parading around under the cloak of USA Today, seeing as the US Olympic Committee encourages people (here) to contact Getty for rights-manged images, noting "In addition, Getty Images has a vast archive of U.S. Olympic-related images." In fact, according to the Getty website here, they say "...As the official photographic agency of the International Olympic Committee since 1988, we have the imagery you need to set your Olympics coverage apart." While I am sure that USA Today has shared content with their sister organization (Gannett) newspapers in the past, it doesnt take much to consider that Gettys revenues will be affected by US Presswire syndicating their content from the Olympics outside of USA Today and Gannett. Then again, maybe not. Maybe Getty is right - their coverage may well be "...set...apart.." and not even in the same league as USPWs. In this case, Getty is the big leagues, and, yes, coming full circle, the USA Today team, filled with USPW photographers, seems to be the farm team.

Im guessing that the new President and Publisher of USA Today, who will be reporting to Gannett (NYSE: GCI), Larry Kramer, (announced just today, here) will be wondering why a teenager is on the credentials list along with so many other US Presswire photographers when his thoroughbred sports photographers didnt make the cut. According to the USA Today article, hes in charge of the USA Today Sports Media Group, so this issue falls right under his responsibilities list.

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Copyright Small Claims Court - The Discourse of Benefits & Challenges

The US Copyright Office held a roundtable discussion today in Washington DC, at the George Washington University Law School on the subject of how (and if) to propose implementing a form of a Small Claims Court for copyright infringement claims. The roundtable was filled with rights-holders from around the country who came to share their views on the benefits and challenges that a Small Claims Court venue would have on rights-holders. In his opening remarks, David Kappos, the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, said that the issue of an Intellectual Property "Small Claims" system is a "burning platform," that must be addressed.

The Registrar of Copyrights, Maria Pallante (below right) listened intently throughout the discussions, as did David Carson (below left), counsel to the Copyright Office. Pallante is looking to increase the number of deposits, and to evolve the online registration system in a way that works for copyright owners, as well as make protecting copyrights easier for copyright holders.

The National Press Photographers Association Advocacy Chair, Alicia Wagner Calzada, a highly regarded photographer, and also an attorney for the NPPA, make a number of points - among them the challenge that if the issue of fair use could eject a claim from the Small Claims Court, that, for many photojournalists (and members of the NPPA) whose work is of a highly newsworthy nature, this is a common defense of infringements that NPPA members face, and would be problematic.

Calzada (above) said of the meeting "One thing appears clear--this is not a simple fix. The event was very productive in terms of shining a light on the challenges to crafting a small claims solution for copyright infringement. It is clear that there are genuine obstacles, including some constitutional issues. What I took away from the discussion is that the challenges are not insurmountable. It is, however, important to create a system that will uphold constitutional scrutiny or it will be a wasted effort."

Also on hand was counsel for the American Society of Media Photographers (below right rear), Victor Perlman, and Executive Director Eugene Mopsik (below center). The ASMP has maintained an ongoing relationship with the Copyright Office and Congress in many issues facing photographers today, and has done much to further photographers interests and protect their rights. Mopsik said of the meeting "The GW Roundtable brought together some of the best IP experts from industry and education along with representatives from a broad spectrum of trade associations and interest groups. The day was spent in a combination of informational presentations followed by discussion of specific proposals for "Small Claims" solutions. It think that it was very valuable for Maria Pallante and the other Copyright Office and PTO representatives. It gave all of the attendees much to think about and was very useful in unveiling issues previously not considered."



On hand for the American Photographic Artists, Michael Grecco (below left), and the author of APAs proposal and highly respected copyright attorney David Nimmer (below right) spoke about the challenges of implementing a Small Claims Court and offered a solution to make it work. Grecco commented "The session was a think tank with some of the greatest minds in Copyright sussing out the possibilities of a Fast Track, or Small Claims system for Copyright issue." Interestingly, one of APAs comments that were a part of their proposal offerred that "The best protection for low-economic-value claims would arise from making automatic the recovery of attorney’s fees and statutory damages by prevailing plaintiffs. By contrast, current law affords those remedies only for the benefit of copyright proprietors who, prior to the commencement of infringement, have registered their work in the records of the United States Copyright Office. Accordingly, under existing law, infringement of then-unregistered works remains beyond practical redress." The proposal calls for a Small Claims Court to be "applicable to simple copyright infringement cases that seek to recover no more than $80,000. Consenting parties can have their positions quickly evaluated by a Magistrate Judge sitting in the appropriate United States District Court in which the case is pending."



ASMPs Mopsik said of the idea of Small Claims "ASMP supports an ADR solution to small claims and believes that it should be as easy and simple for a photographer to navigate as possible." and the NPPAs Calzada said "virtually any solution is years away, though I know that for photographers who deal in daily deadlines and constant infringements, it cannot happen soon enough. Hopefully, it will be worth the wait." APAs Grecco said "I was very proud that APAs proposal, written by attorney David Nimmer, with Special Counsel Edward C. Greenberg, it played a major role in todays discussions. It was the one proposal that could be enacted relatively quickly and easily in the existing Federal Court system and had a good chance of sustaining a Constitutional challenge."

Related - Comments & Proposals Submitted:

• APA Proposal
• ASMP Comments
• NPPA Comments
• Other Comments

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Getty Images: (Not) Looking for Cash in All The Wrong (Right) Places

Getty Images seems to be talking out of both sides of their mouth when it comes to intellectual property. And the person doing the talking is their CEO, Jonathan Klein, who ventured down to to SXSW recently and was interviewed by TechCrunch TV.

There are two videos of Klein, For Pinterest, Revenue Will Turn Copyright Questions Into Real Problems, as well as Getty Images CEO On Building A Company That Lasts:




Klein, in the first video, has essentially given a free pass to students, educators, and any other use that can be defined as "non-commercial" for all of Gettys images to be used, because, as he said, they wont come after them. Lets take a look at what he said, and offer commentary on it:

On Pinterest and Facebook Klein said:

"Ok lets take a step back because youve raised a very big issue lets talk about intellectual property more generally."

Ok, so were talking about not just Pinterest and Facebook, but ALSO, all other IP on these types of websites.

Klein goes on:

"We are entrusted by our partners, photographers and filmmakers and contributors of whom we have 125,000 to make sure that when their imagery is being used for commercial purposes they are paid."

No, actually, they entrust you to ensure they are paid for *any* use.

And then:

"...as the largest imagery business in the world by a significant margin its in our interests for people to be visually literate. So we dont stop consumers playing with our images, we dont stop kids downloading our images to use in school projects or for educational purposes, we dont stop the proliferation of imagery still or moving."

You may be teaching them to be "visually literate", however, youre also teaching them that its okay to use intellectual property for free. Further, you said you dont stop uses for "educational purposes", so that would seem to also include uses in textbooks for schools?

Then he says:

" Where we do draw the line, is where somebody is generating revenue, commercial revenue, on the back of our image."

Ok, so, as long as an organization is losing money, they have a free pass? How do you define "commercial revenue"? What about non-profits? Are they commercial, or not? Just so were clear - the attraction to, say, Facebook, by the sharing of Getty images, which creates a snow-ball effect and more and more users and people come to it, so much so that the critical mass of people there on the site causes it to be valued in the billions of dollars, neither Getty, nor the content creators, have any share in the valuation of that company.

He then says:

"... we sort of, um, differentiate between the use of the image and to what extent we want to be paid or were fine with it to be just out there for the public."

Ok, so theft is okay, but at some point, you draw the line? How do you think the photographers whose work is on your website will feel about this?

Klein goes on - regarding their plans when a Getty image is found on Facebook or Pinterest:

"Well, its actually, were comfortable with people using our images to build traffic and at the point in time where they have a business model..."

Anyone who has investors has a business model, you just may not be aware of the details. But, again, youre pretty clear here that youve given a free pass to individuals and non-commercial uses.

Klein then says:

"I think the difference between us and a lot of other intellectual property businesses or talent based businesses is that the cost of working with us is relatively modest. "

Modest for whom? Investing in the production of images isnt cheap. Serving as the conduit by buying some hard drives and paying commissions to sales reps is cheap. Taking a 70% commission on all sales - not cheap. You seem to be suggesting that the production of images that appear on the Getty website is done by people who dont use talent to produce their images? Really?!? Are you actually saying that? Because, frankly, I know a number of Getty contributors and photographers, and they are among the most talented photographers I know, so, for you to seemingly differentiate your business from those that are talent-based is just off the mark by a mile.

Klein said, on right-clicking:

"Weve kept that open [right-clicking] for one simple reason, we want everybody to be extremely visually literate."

Again - yes, become visually literate at the expense of legally literate. There was a huge tide of problems with legal illiteracy when it came to the sharing of music that Apple was successful at pushing back. Getty wont be able to stem that tide with this concept.

Klein then says:

"...So everybodys become more visually literate and the success of sites which are very picture heavy like Facebook or Pinterest and the amount of traffic that theyre sites have proves that theres a huge attraction in imagery."

Yes, and again, where are those people whos IP that appears on these sites getting a piece of the Facebook IPO, or shares in Pinterest? What about the T&C on these sites that say that worldwide exclusive rights to the images uploaded/pinned is given to the company, and how about images appearing in ads out of users accounts on Facebook?

TechCrunch, in this article - here - said Kleins attitude was "surprising", and TechCrunch accurately surmises "The second that Pinterest starts making money of its own, intellectual property owners such as Getty Images will have the right to ask that Pinterest pay up — or start deleting pinboards." They will continue to face DMCAs while the notion that they are exempt from prosecution fades. As TechCrunch accurately notes " It took YouTube years to even come close to making self-sustaining revenue — and that is in the arms of a ridiculously profitable parent company, Google."

According to one commenter on the first video. John Bedford, Pinterest "strip[s] metadata from images that are uploaded to the site... and perhaps most importantly, Pinterest makes a huge rights grab for any content uploaded to their site, including rights to sell or do whatever they want with the images forever - even after you delete them from the site."

Just a few days ago, Getty sent a threatening "final notice" bill for $780 to SportsShooter.com, a well-known website which is a forum and gathering place for photographers, after an image by a well-known photographer (who is a member of that website) was used to announce an upcoming speaking event featuring that photographer. The photographer was essentially using his own image for reasons of self promotion by showing an example of his work. So, now, it seems, Getty is billing for the images its photographers/contributors post online as portfolio examples and self promotion? I am not sure how this squares with Clause 1.12, in Gettys Getty Images Contributor Agreement v.4.2, as of October 1, 2011, which says:

Use of Accepted Content by you. On a non-exclusive basis, you may use Accepted Content and any Similars for promoting or documenting you and your work, provided that these uses do not compete with or limit the rights granted to Getty Images under the Agreement.

In Kleins second video appearance - Getty Images CEO On Building A Company That Lasts, he says a few choice things. Klein was on hand to give a keynote address, and celebrate Gettys 17th year in business. He talks about how they are now licensing music - does his mindset apply to music and video/multimedia as well when it comes to "free-as-long-as-its-non-commercial"?

He says:

"Were in the business of licensing content to folks wholl pay for it."

So, the folks who wont pay for it - because, say, they dont have the money, youre not interested in ensuring the integrity of your images? What if someone had an image and uses it for free and jeopardizes an exclusive deal you have with someone else?

And then, he seems to contradict himself when he (rightly) says:

"...we may be old fashioned around here, but we actually think that people have to pay for content. We think that content creators also need to make a living."

Indeed. So, which is it? Free to the startups with no revenue and/or non-profits, or, paying so the content creators can make a living?

Then he says:

"And the second thing is that the customer is not always right, but the customer is almost always ahead of you."

Correct. So, when the customer says "I shouldnt have to pay for using a photo, how hard is it to take a photo anyway..." theyre wrong.

And then he says:

"...So if you can provide something to the customer which is compelling, which is exciting, which is ease to use, hassle free, interesting, and affordable theyll pay for it."

So, then, whats the problem - why not offer a personal use license for a few dollars? Oh, wait, you already do. So, now youre not enforcing it?

And then, astonishingly he says:

"I think you have to be open to cannibalization of your business."

Now, thats just ridiculous and so far from reality.

And then contradictory to his previous comments:

"But really, the technology and the customer theyre kind of right all the time, but that doesnt mean that you give them stuff for free. Because thats what they really want. Yea. I absolutely draw the line at that."

So, its free, or its not? Not free, but with a wink-and-a-nod you wont come after them?

As Getty Images now owns PicScout, a well known "image fingerprinter", it would be very easy for Getty to identify their images on Pinterest, and bill according to known traffic to each page. So too on Facebook. Further, this mindset will come back to harm Getty when they head to court, as the courts look to past actions when it comes to dealing with a current situation. Another solution could well be that Getty, a founding member of the PLUS Coalition, which has an image registry, very well may be the key. By linking images to creators, copyright owners and rights information, the PLUS Registry will solve many of the issues facing image users and rights holders alike. For example, Pinterest could easily and automatically use the registry API to identify the rights holder for any image, check for permissions, and then separately compensate rights holders who opt in to pinning. PLUS is the only organization of its kind -- a worldwide collaboration between trade associations representing photographers, illustrators, ad agencies, graphic designers, publishers, museums, libraries and universities. Without any formal public announcement, the PLUS Registry already includes thousands of image rights holders in more than 80 countries. PLUS will soon be introducing image registration and image recognition search for rights info, which is powered by Gettys PicScout (that long-term deal was struck before Getty bought them). For now, you can register for a free PLUS membership and free PLUS Registry listing at www.PLUSregistry.org

I know that there is a lot of discourse on the internet about "getty extortion letters" , whereby Getty finds someone who they have no record of having obtained a Getty image legally, stealing an image, and, for a nominal fee of $750, Getty offers to give these infringers essentially a retroactive license.

I am sure that the lawyers behind this, trolling for their own clients to object to Getty, may also be trying to create some form of class action situation down the line. However, companies should be ecstatic that they can get out from under a Federal lawsuit for copyright infringement for that small of an amount. The retainer for a copyright lawyer to defend themselves will be $5k-$10k, if not more - to start. I would find it interesting if there were contributors who took Getty to court for failing to file suit, or, by photographers who had been precluded from filing their own lawsuit by Gettys contract, due to Gettys acceptance of the $750.

For example, pursuant to Clause 1.11, in Gettys Getty Images Contributor Agreement v.4.2, as of October 1, 2011, it says:

"Right to Control Claims. Getty Images shall have the right to determine, using its best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of Accepted Content. You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual property rights (“Claims”). You agree to provide reasonable cooperation to Getty Images and Distributors and not to unreasonably withhold or delay your cooperation in these Claims. Getty Images will not enter into any settlement that will compromise your ownership of the copyright in Accepted Content or that prohibits your future conduct with respect to Accepted Content without your prior written consent. Getty Images will pay you Royalties on any settlements it receives from Claims. If Getty Images elects not to pursue a Claim, you will have the right to pursue it."

Problematically, there is nothing within the contract that obligates Getty to pursue a claim. In fact, if you find and infringement you are contractually obligated to bring it to Gettys attention, and must await their decision, without any timeframe, before they release you from their right to pursue the claim first. In point-of-fact, Getty could exhaust the statute of limitations on the claim and then release you - something they would be well within their rights to do, and might strategically opt to do, if the infringement were against a big client of Gettys. Further, where the contract reads, in section 2.3:

"Getty Images shall not be liable for any punitive, indirect, consequential, special or incidental damages arising out of or in connection with the Agreement, even if it has been advised of the possibility of such. In addition, Getty Images shall not be liable to you under any circumstances arising out of the misuse of Content by any third party."

As such, even if you tell Getty you are losing money because they are not pursuing a claim, they will owe you nothing even after you have advised them that someone is using (or misusing) your images.

Then Klein goes on:

"Were not venture capitalists, were not angel or start-up investors, were just not good at that...And a lot, of these companies can benefit by partnering with us. Thats what were after, so were talking to all these folks about partnering. If theyre interested in driving, um, monetization to their user base they can use us as a distribution engine."

Well, you may not be investing actual dollars, however, the intellectual property you "invest" by not charging for it surely has value that these companies should be paying for. These are called "in-kind" investments. You have essentially given Pinterest/Facebook/et al a free pass by way of their user base.

Sometimes, his words speak for themselves, and leave those who create content that they license give away for free. speechless.

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Nikon D4 - 5 Years in the Making

As someone who has been a long time Nikon user, I have spent the last 5 years blissful in my use of the Nikon D3, and then, when I needed video, the D3s. I too have had (and still do) a line of Canon lenses and cameras for some time - which was my answer to the failings of the D2X until the D3 came out. I know that there have been some folks who felt a demand and desire for the larger D3x files, however, for my applications, the extra size wasnt critical for me.

I encourage you to take a read of Joe McNallys blog here, for his take on the amazement of the camera - I think he and I are on the same wavelength in that we both saw the D3 as the answer to our needs. The D4, seems to be the answer to our dreams. Rob Galbraith has an exhaustive review of the specs, and comparisons to the previous D3 line, which is well worth a read, here. And a head-to-head on the D3 v. EOS 1D X (interesting - the " " (space) otherwise defines the EOS 1D X against the old old Nikon 1DX. Youd have thought Canon would have thought about that) appears here. Nikon Rumors has a comparative spec sheet here.

Corey Rich put together a really exceptional video here:


Because of Vimeo compression has some purists asking questions, all of which are answered by the fact that Vimeo has compression limitations. Rich promises a behind-the-scenes video next month, and at some point the uncompressed version will be available that will put to rest the questions being asked.

We look forward to getting our hands on a D4 once there are more than 10 of them in the world (an interesting insight gleaned from Richs comments on his video) and it can be used outside of a conference room (as indicated by the PDN blog post here).

Here are a collection of videos we like that give you more insights into the camera. And, if you want to pre-order one online, you can sign up to be notified of its availablity on Amazon here.

Nikon D4 Product Tour here:





Wireless shooting with iPad here:




Nikon Movie - I AM PUSHING THE LIMITS here:




Nikon D4 Menu Walk-Through here:




David Hobby, Mr. Strobist himself, has decided he is Bailing on the Nikon D4. Hes gone, instead, going for a used medium format camera. Hes spent $10k to make the leap, and for what it seems like from what hes described, it works for him.

One point that David made in his post was " If I were still shooting daily sports, Id probably be lining up to preorder this camera just like everyone else." Frankly, there isnt so much of a market for this now, to be honest. Ask any sports photographer and they will tell you that theres no money in sports photography, thanks to the likes of US Presswire, Cal Sport Media, Icon, and so on. Unless, of course, youre staff somewhere, or just so happen to have a sweet contract with a major sports magazine. A freelancer who shoots sports will have to be selling internal organs to be able to afford this camera - not because the cameras too expensive - its not - but because they just dont have the money. However, if youre staff, youll just put in for your next camera to be a D4, and hope you have a friendly editor who will let it through - or orders you a D3 now while you can still get them.

For anyone who is in Nikon, the notion of switching to Canon is really now a non-starter, if they were thinking that. If you own a D3, you will eventually own the D4 if for no other reason than youll need to upgrade your camera in a few years, and with a 5 year cycle for new bodies, the D5 wont be out when you need the D4. The multimedia, for so many reasons, does trump the Canon, and I am interested to try out all my Nikon primes on the D4.

Lastly, consider the cost-justification. If the life-cycle of the D4 is 5 years, thats 60 months. At $100 a month ($200 a month if you have a backup camera, which you should) if you cant justify a $100 a month expenditure for the primary tool you use to create your images, then are you really a professional? Its a tool, and if you need it, then buy it. If, however, you are considering it as just the latest and greatest toy, then dont. Thankfully, if youre a member of Nikon Professional Services, they were kind enough to send out an email to facilitate working professionals getting the camera before all the non-professionals.



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* Note - We have, in the past, been a sponsored speaker by Nikon through professional organizations.

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LicenseStream - Evaporating Into Thin Air?

For several days recently, the LicenseStream website has been down. ImageSpan (Which changed its name to LicenseStream in January of 2011), was the company behind LicenseStream, and billed the site as "the market-leading licensing and royalty payment automation platform for all media types and businesses." Yet, we have never really seen a functioning business model that we thought would work.

More than one LicenseStream employee was on-site at PhotoPlus Expo back in October in New York City looking for a new place of employment, stating that the company only had enough money to last through the end of December, as they spoke to prospective employers. Oddly, as Digital Railroad ( the formal online portal for image archiving, marketing, and sales, as well as a client delivery platform) went down in flames several years ago, they shopped their company around and then, with no buyers, shuttered operations with little warning to clients. LicenseStream has, according to sources, not been doing so - at least not amongst prospective buyers that would make sense to take over operations that we checked with. Whispers of friendly staff telling image owners they had relationships with to backup their images & data have not been substantiated, however, with enough chatter on the subject, and the risks if the data isnt redundant, we strongly encourage you to have all your LicenseStream content archived, either way.

LicenseStream secured Series A funding back in February 2007 (here) and another $11,000,000 in June of 2008 as a part of a second round of funding (here). In April of 2010, a new CEO was brought in, and another round of financing, billed as "growth financing", with an unreported amount of additional funds (here).

In preparing for this posting, we checked one last time and found that the website, at least as of this publishing, was back up. Perhaps it was just a multi-day site crash over the holidays, or perhaps it was a harbinger of things to come.

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