SportsShooter.com - Event shooters...what if? More about IL reprint battle

	Oden \| MI \| USA \| Posted: 4:48 PM on 11.26.07
	->> Clark, I knew there was some ruling in the MSHAA's favor on this matter and it was related to their desire not to have to respond to a FOIA request. Their status was determined based on where they received their funding from. http://www.rcfp.org/news/2003/0411mhsaa.html http://www.laryholland.com/micaselaw/Digest/newHTML/24361821.htm

Dave Amorde, Photographer

Lake Forest | CA | USA | Posted: 4:50 PM on 11.26.07

->> Arguments for allowing news media to sell nontraditional reprints:

1) "We have a 1st Amendment right to do so."

Rebuttal: No, you do not. In most cases, you don't even have a 1A right to be there; your access is at the sole discretion of the event organizer. If access is granted, the event organizer may restrict your movements or actions in any manner they see fit, for safety or other logistics reasons, as long as they don't violate your PERSONAL rights. The Bill of Rights in general, and Article 1 in particular, regulates the actions of the Federal goverment, not state or local governments, not public or private institutions, etc. While judges have over the years interpreted many of these rights rather liberally, it has not done so universally. Whether you want to yell "fire!" in a theatre, or buy an automatic weapon, etc., it should be clear that there exceptions to every "rule", especially rules written as broadly and vaguely as the Bill of Rights.

2) "We have done so in the past."

Rebuttal One: That was then, this is now. Time has a way of inviting changes of all kinds; some welcome, others not so much.

Rebuttal Two: No, you haven't. What you did in the past was sell direct reprints of photos and/or whole pages of articles as they appeared in print. Please don't insult my intelligence by arguing that an online gallery of hundreds of images, complete with cropping options and "shopping cart", is the same as selling "reprints".

3) "Why are you afraid of competition?"

Rebuttal One: Competition is irrelevant. I have an exclusive contract; one which the event organizers had every right to offer, and which I had every right to sign. I am holding up my end of the bargain, and PAYING DEARLY as a part of that bargain, so I expect the organizers to uphold their end.

Rebuttal Two: Apparently we have a different meaning of the word "competition". You see, I have plenty of competition. My competition is other event companies, who are free to offer the organizer their services in my place. If the organizers feel their terms or their product is better than mine, then I will lose. In that case, I will be forced to become a better businessman, or close up shop.
If your paper is so interested in competing with me, why don't they negotiate for the event rights just like I do? If a news organization chooses to turn their press photogs into event photogs, more power to them. Just don't give me this crap that what you're doing now is true "competition", because it isn't - it's an end-run around a legal contract based on access granted under (what turns out to be) false pretense.

4) "What if we give them away?"

Rebuttal: KNOCK YOURSELF OUT. We all know that giving away photos for free is an excellent business model. But in all seriousness, ff it turns out that giving away photos can be ruled a community service and rolled into the cost of doing business, so be it. I guess that's the price I have to pay in the name of progress and advancing technology.
Just please, please, PLEASE, don't waste my time or intelligence on the other arguments; they just don't fly.

Clark Brooks, Photo Editor, Photographer

Urbana | IL | USA | Posted: 4:59 PM on 11.26.07

->> "TV doesn't seem to have the same issue understanding licenses and use."

TV compared to photography is a relatively new medium and had until the internet a limited point of delivery. Until the tivo, internet and file compression formats, a TV broadcast was limited to a certain time of day.

While print and broadcast perform the same function in gathering content the difference comes in the delivery of that content. The broadcast medium is only available to an audience at a given time whereas anything in the print medium is available nearly 24-7 to view initially and at the reader's leisure. And let's not forget you need a TV to see the broadcast.

My theory is I think the industry developed much differently because of its limitations in reaching an audience.

Like print advertising dollars pay for each minute of air time and covers the stations expenses as well generates a profit. As Jeff pointed out, TV don't need to rebroadcast a game or program because that airtime or licensing for that show filling the space has been paid for.

At some point as people migrate to the internet to watch their favorite TV shows this status quo will likely change as broadcast companies will see more competition from web-based broadcasters. We don't subscribe to cable or dish. I can watch all my favorite TV shows or view newscast in a little screen on my workstation or full screen on a laptop with fewer commercials, multiple times and when my schedule permits at any point through out the day. In the pre-internet paradigm I would have to be home or record the show with a VCR that I liked.

So I see the broadcast field evolving and going through big growing pains mirroring this one likely changing at some point in the next 5 to 10 years.

If it wasn't for the internet and being able to reach a mass audience 24/7 the reprint and secondary usage issue wouldn't be on the table. This thread and others like wouldn't exist if people still had to make a trip to the newspaper or magazine's office to view or order images to have prints made for personal use.

An interesting thought...

If a photographer or newspaper is selling photos from the state finals or embargoed contest by offering the images for sale on the internet, it is a great way to reach a mass of potential buyers. However, the chances of being discovered is relatively easy for an organization like the IHSA.

In selling prints offline the chances are pretty low, unless someone complained to the state organization and they investigated the situation, getting caught in the act.

However, the internet is also a boon for a state organization trying to regulate prints sales because with a few mouse clicks and google searches it makes it easier to police, contact and force compliance with their policy on photographers and newspapers engaging in photo sales. I would think that in forcing a greater number of rule-breakers into compliance, thanks to the web, would help their partner, VIP, and their sales.

Clark Brooks, Photo Editor, Photographer

	Urbana \| IL \| USA \| Posted: 5:05 PM on 11.26.07
	->> Dave - Thank you for your input. As always glad to see your thoughts on this issue.

Rob Ostermaier, Photographer

Newport News | VA | USA | Posted: 5:49 PM on 11.26.07

->> The examples of what a couple of the Illinois papers are doing does smack of event photography. Our paper wanted to do the dump all of our take online and put it up for sale a couple of years back. That goes way beyond editorial useage so and the idea was killed. We do put 5 to 10 photos in an online gallery but they are not in a sales style gallery.

http://www.dailypress.com/sports/

We do have to be careful though. Lets not head down the road that leads to papers having to buy photos from event photographers. This feels like a step down that road.

John Plassenthal, Photographer

Vandalia | OH | USA | Posted: 10:11 PM on 11.26.07

->> There have been a lot of great posts in the 3+ threads regarding this issue. For me the main fundamental issue keeps getting lost. The courts have ruled for years that an art print is editorial. It is your right and legal to sell a print to anyone and that is not commercial use. The law defines commercial use as having the image associated with advertising a product.

In my opinion these rules to sign a form whether by pros, colleges, or high schools are by definition a rights grab for you to give up your legal rights. The issue is power and control more than anything else. The schools, teams, governing bodies are doing everything they can to take over control of all information. They are using the guys with cameras to shut out professional freelancers and reducing their payouts on contracts to reduce costs.

This has very little to do with the money a paper may get from selling a few prints. An avid parent will buy every print of their kid they can get and it won't impact anyone's revenue stream to have them available. An event photographer who makes images available immediately suffers little impact from a newspaper making an image available days or weeks later.

One thought I've not heard expressed is whether anyone has consulted an attorney to determine if the agreement you are forced to sign to be able to do your job in covering these events is legally enforcable. Since you are signing under duress (sign and give up your rights or go home) I don't think many courts would consider it a valid contract.

This whole issue is likely to get worse until either a major legal battle clears things up, or a major boycott brings the issue to the public consciousness. The writers strike in Hollywood is an example of the same rights-grabbing mentality that we are all faced with. When people start watching re-runs then public opinion will start to swing their way. If the newspapers printed a few blank pages courtesy of the organizations who want to grab rights perhaps it would get better at all levels.

The issue isn't whether a newspaper should be selling prints, or whether the event photographer is losing revenue. The issue is whether we should enjoy the rights and protections the law affords us or whether it is necessary to give them away for the privledge of covering a money making enterprise. If we continue to give away rights to pro, college and high school sports as professionals, then we have no room to complain about the guy with a camera who is doing exactly the same thing: giving away rights for access.

Sam Santilli, Photographer, Photo Editor

	Philippi \| WV \| USA \| Posted: 10:41 PM on 11.26.07
	->> If the newspapers are so worried about loosing rights, why not offer some percentage up to the state sanctioning body? If yiou care so much about the kids and their parents, throw some money into the mix and see what happens. Then again, this is all about the cash, and not rights, public service, etc.

Clark Brooks, Photo Editor, Photographer

Urbana | IL | USA | Posted: 11:53 PM on 11.26.07

->> Only one of the post up until this point answered the question posed at the end of my initial post.

Since most of the posters to this thread are event photographers, if you were in VIP's position, how would you feel if the organizer told your competition they could give photos away from the same event you are trying to derive and income from?

Do you think you could/would earn the same, more or less income?

Since no one really directly answered this question, does this mean that no one thinks the event shooter would suffer?

Jeff Mills, Photographer, Photo Editor

Columbus | OH | USA | Posted: 12:48 AM on 11.27.07

->> I think its a given that it hurts anyone trying to sell images when someone else is giving them away.

Even when its some parent who shows up with a digicam at a baseball game and then who goes and gives a free CD of photos to all the kids on the team it affects sales.

The images certainly wouldn't be remotely close to what any decent photographer could offer but they are free.

Free has got to be one of the most powerful words in the English language. Something that would be totally unacceptable for even a few dollars suddenly isn't that bad when its free.

Thing is as well that we aren't talking about some soccer mom or football dad with a Kodak uberzoom digicam. We are talking about images from talented and well equiped working professionals.

While they may not be focused on the exact same type of images as an event shooter in all cases, theres going to be plenty of overlap with some actions shots and some really stellar images will be produced and there will be parents eager for a copy, especially if its free.

I don't know about anyone elses area but here in Columbus all of the local publications have outstanding photographers who week in and week out produce amazing images.

The old saying goes you can compete on quality or you can compete on price.

If the competition has every bit the quality and can blow you away on price, then you've got some serious problems I'd say.

Dave Amorde, Photographer

Lake Forest | CA | USA | Posted: 2:34 AM on 11.27.07

->> People who continue to bring up the editorial vs commercial usage issue are completely missing the point. The usage is IRRELEVANT to the issue at hand. And if you're still convinced that event photography or even printing newspaper outtakes is commercial usage after the past three threads - not to mention the ENTIRE BODY OF EVIDENCE ON THIS SITE, then there is nothing I can say here to convince you otherwise.

This isn't a "rights grab" either. No one wants your copyright. No one wants to restrict what has been the traditional definition of "reprints"; no one wants to prevent you from attempting to move one of these images over the wire (assuming someone else would be interested).

What the event organizers are trying to do is hold you to the bargain you made when you entered the field with a credential holder around your neck. You know, the one with the tacky copy of your driver's license and the word "PRESS" in big red letters stamped on it. Remember that? That identification gave you free and relatively unencumbered access based on the premise - on the PROMISE - that you were there as working press for whatever local rag you were employed by or were stringing for. Because of that promise, you didn't get charged admission. Because of that promise, you got to walk places that "normal" people didn't have access to. And, more importantly, because of that promise, there were no negotiations regarding "vendors' fees", "commissions", "kickbacks", "bribes", "highway robbery", or whatever you want to call the fee that the legitimate event photographer DID pay. THAT, my friends, is the issue at hand - the ONLY issue at hand.

As for Clark's question: obviously, if the newspapers actually decided to give away decent 4x6 prints for free to any and all takers, that would seriously impact sales. However, that nonsense wouldn't continue very long, because the papers can't really afford to do that. That is nothing more than an empty threat.

Now, after all of this bother over this issue, do I REALLY think that newspapers selling copies of photos that didn't appear "in print" would seriously impact my business? Absolutely, positively, NOT-NOT-NOT. Newspaper shooters are on a completely different mission than I am. They want nothing but peak action, they want no one but the stars of the key plays, and they couldn't give a tinker's damn if Little Johnny Third-String, who's lucky to get play for a single set of downs, gets his photo taken or not.

I, on the other hand, care a great deal about Little Johnny. LJ's Mom is one of my best customers. She beams with pride whenever he takes the field, and if I get just one decent frame of LJ - even if he's just sprinting up the field with not a soul around him - Momma is going to buy an 8x10, with custom borders and captions, and two addtional copies for the grandparents.
- Side note to event shooters: you DO know who your repeat customers are, right? You make sure their kids get covered, right? If not, unless you're covering a big-numbers event like a soccer tournament or chearleading competition, you won't survive in this business very long...

Now, what were we talking about? Oh yea...
That other player; the one who scores all the touchdowns? You know; Bobby Big-Stuff. BBS's Mom doesn't buy prints; she quit buying prints long ago, because she already has too many prints of her own, copies of VHS tapes and DVD's made by the school or a teammate's parents, as well as several copies of that local rag you work for, with BBS on the front page of the "Local Sports" section.

Which brings us full circle; to the real reason why you, the local PJ, came to the game in the first place. Yes, you are held in high esteem by BBS's parents, the staff, the PTA, and everyone else in the community. Your paper has built up good will over the years, by providing local prep sport coverage. You are welcomed onto the field without charge, and with open arms.

But that good will won't mean squat if you get into a pissing contest with league, school district, or state inter-scholastic federation personnel. They have their own axes to grind, and they know, just like the rest of us, that your paper doesn't write up prep sports as a "community service" out of the kindness of your corporation's collective heart. Your paper covers prep sports because it sells papers and generates page hits on the website. If it didn't, you wouldn't bother, and everyone knows it.

Mark Peters, Photographer

Highland | IL | USA | Posted: 8:03 AM on 11.27.07

->> Dave,

What is the incremental cost to a newspaper to simply allow free downloads of a medium resolution file? "Giving away prints" does not require them to actually print the image and mail it out. Since the cost to produce the image, process it and post it to the web gallery is already sunk, I would suggest their financials are in exactly the same position if they copy protect the gallery, or not - if they are not permitted to sell reprints.

Further, if the public is informed that these galleries are available for free download, it may actually drive traffic to the site, traffic which would permit the sale of additional advertising bordering those pages.

As such, i suggest that is far from an empty threat - and in fact could be a good business practice - again if sales of reprints is not permitted. .

Mike McGinnis, Photographer

Milwaukee | WI | US | Posted: 8:29 AM on 11.27.07

->> I think VIP got the Karma they were deserving with the comments that were stated by the IHSA. I think that is a bummer the IHSA said that, but maybe this was karma payback for taking the Illinois account from 20/20, the company that used to cover state events for that area. The only way VIP could have taken the account was buy the "no charge offer" or ISHA would have not changed event photographers in the first place. Hope this sticks to the question Clark.

Eric Canha, Photographer

Brockton | MA | United States | Posted: 9:16 AM on 11.27.07

->> Dave well said, Bravo.

Mark for 2 reasons;

1. If the papers were to do it ONLY at IHSA restricted events it would be easy to show that the motivation was purely to stifle commerce. I think that there are laws controlling such behavior.

2. The papers are run by grownups. (Usually)

This whole argument has a very short lifespan ahead of it. The continued advances in cameras coupled with the nosediving prices will move this off the event shooter in the relatively near (3-5 years) at to a much much more militant group. Soccer moms.

I'm willing to bet that in the very near future the booster clubs will start their own little cottage industry selling game photo DVDs. Lets face it a gripped D300 costs less today than my F5 did when I bought it a decade ago. A 300 2.8 keeps getting cheaper on the used market and consumer glass keeps getting better. Wait until a paper knocks heads with a group of soccer moms that think that the paper is cutting into THEIR sales. Wait until the booster club organizes and starts calling advertisers warning THEM that the real boycott isn't going to be the paper not shooting the Saturday game, it going to be all of the booster parents asking that the community support the team by not doing business at the advertisers stores until the paper becomes more supportive of the clubs efforts and dvd sales.

I'm not even talking about playoff or championships, just the regular everyday game. Think about it, in every group there is a wannabe. Their tools keep getting better. What you and I will see as a flaw in a photo like backgrounds won't even make it to their radar. They won't care. They will care more about THEIR sales AND they'll expect the paper to play nice.

Kevin Johnston, Photographer

	Oden \| MI \| USA \| Posted: 9:16 AM on 11.27.07
	->> Dave, Great posts and I don't mean to be arguementative or contradictory but some newspapers are now making event photography a part of their mission and it is effecting income levels from the events they cover. Please refer to my post in part 2 of this series.