Author: Mike Boatman
Since Brandon has been kind enough to allow me to address the PFRE community, please let me introduce myself:
My name is Mike Boatman. I have worked full-time as a commercial advertising photographer for over four decades. In the early days, the bulk of my work was product, food, and architectural photography. Later, a good portion of my business was in industrial locations for new facility construction and architecture. In the past 15 years, most of my assignments have been architectural photography.
One of my side ventures has been photographing for magazines and soliciting editorial space for my residential architectural clients. Over the past few years, my work has been represented in over 120 magazine cover articles.
I’ve enjoyed speaking and teaching engagements and seminars about photography and the business of photography. Venues include the Chicago chapter of APA, and various photography organizations and clubs. I’ve also been part of professional forums discussing photography as a business. Humorously, some of my exploits have been the subject matter of other professional presenters giving lectures at ASMP, APA, and other professional forums.
The reason I’m sharing here is to pass on the wisdom I’ve gained over four decades in hopes that you will take the time to read and reflect on it.
1. I’m a photographer. Although I do consult about photography as a secondary business and about setting up studios for corporations, my opinions are those of a photographer. Where photography business and legal matters intertwine, I am not offering legal advice. I do not claim the advice I give to be legal advice. Any and all legal comments by me are only and exclusively my opinion as a photographer.
2. I’m certain that there are a couple of corporations and attorneys that will be reviewing every word that I write here. Therefore, I will only be speaking in broad, general terms and concepts, not naming any specific corporation. Everything that I am speaking about is my personal opinion.
Given these disclaimers, I hope I’ve sparked your curiosity. Shall we begin?
It’s a business! If you’re being paid, photography is a business, and it should be treated as such. Having done my fair share of real estate photography, I understand that you’re in it for the money. I don’t know of any photographer, including myself, who would jump for joy when asked to photograph a vacant home in a run-down neighborhood that’s listed for less than $100K simply for the purposes of posting on an MLS.
It’s a business! Don’t get me wrong, I absolutely love photography. Even after four decades. I still go into a state of Zen happiness when I look through my camera. However, I don’t do assignments for the sheer love of the art. The one requirement for having a photography business is that you must make a profit. All of your living expenses are paid out of your profit. In the early days, I was notorious for using the eraser on invoices. I didn’t recognize the value of what I brought to the table or the value of assets. For me, the cure was putting a picture of my three daughters on my desk so that I could look at it when I was negotiating with clients.
In order to make a profit, you must be conscious of, and have in place two things:
1. Asset management
2. A business plan
Keep in mind; you’re running a business that happens to be photography. I'm really not sure which one to talk about first so I’ll start with asset management.
“In financial accounting, an asset is any resource owned by the business. Anything tangible or intangible that can be owned or controlled to produce value and that is held by a company to produce positive economic value is an asset. Simply stated, assets represent value of ownership that can be converted into cash.” (Wikipedia)
“A useful or valuable thing, person, or quality… property owned by a person or company, regarded as having value and available to meet debts, commitments, or legacies.” (Google)
“Anything that can be used to make money, value, or establish value. For example: Your camera, your computer, software; both imagery and business, marketing and advertising materials including website, blogs, and social media accounts; continuing education--and most importantly, your largest asset… your images.” (Mike Boatman)
There seems to be two leading contenders of established business plans in the real estate photography industry:
The first is day-rate based like that of an hourly employee where you consider the work that you create to be a work for hire. The common explanation is, “They bought the photo, they can do what they want with it.”
If you’re in the camp of “they own it so they can do what they want,” I hope you will read further. If you are adamant in this position you may not want to read any further because you definitely won’t like what I have to say. I’ll be pointing out how you’re losing money, not providing for your family, short-changing the value of yourself and your work. You are acting like an employee without having any of the benefits of actually being an employee. You have no employer paying into your Social Security, contributing to a 401(k) retirement plan, offering health insurance, and providing you with vacation/sick time, plus a living salary.
The second business plan is referred to as rights-managed. Rights-managed has been the established business model for photography dating back to early portraiture photography. Photographers would sell photographs but not the negative. The negative was a very valuable asset.
Whoever owned the negative could produce and sell hundreds or thousands of photographs from that one negative. The point I’m making here is rights-managed is not new. It’s the established bedrock of photography business plans and rights-managed is embedded in the Constitution of the United States since May, 1790. The first works were registered within two weeks.
An example of rights-managed as it applies in real estate photography:
The images may be used for the purposes of selling a particular property by an individual real estate agent for the duration of the listing contract. Usage expires when the listing contract ends. Usage rights may not be transferred, gifted, or sold to any third party for any reason without prior written consent of the photographer. All copyrights remain the sole and exclusive property of the photographer.
This example is general in nature and it employs the most dangerous word in copyright: use (also used, usage, and any other form of the word use). “Use” as a stand-alone word without defining how the images can be used relevant to copyrights means you can use them for anything and everything.
The word use should be defined as to what can be used as it applies to copyrights. In the example above, the only thing defined was the duration of time and who could use it. (In a future blog post I’ll elaborate on the word use.)
The four constitutional elements of US copyrights that give the creator absolute authority to control are:
As I have already stated, managing assets is critical to the success of your business. Photographers’ most valuable assets are the images they create. The images that we create have tremendous value, even when the property we are photographing does not. I was reminded of this when the image of a Plain Jane house I photographed was used without permission as a backdrop for a Rocket Mortgage ad.
Google is critically aware of the value that images bring to their online presence. In Europe, Google’s use of imagery to enhance their searches has been criticized and the governments in Europe have taken action to protect their photographers. I’m certain that photographers reading this blog in Europe can add even more content on this subject matter than I can.
What Google has done to exploit imagery for their own benefit, in my opinion, is being duplicated in the real estate photography marketplace by aggregators. Aggregator is a technical term used by the MLS to designate web portals that distribute images and allow people open access to search for both active and inactive listings.
In my opinion, the most abused and copyright infringed sector of photography is real estate photography. Regardless of the terms granted to an agent by the photographer, every single photograph is being re-displayed, even if the house sold and years later was put on the market and sold again. Both new and old listing images are re-displayed after six months of the property being off market. In fact, every photograph of that house in the aggregator’s database is being re-displayed once that house has been off the market for six months.
To see an example, try this: Do a Google search by address for a house that you photographed that has been sold, and has been off the market for six months. You will almost certainly see old listing photographs still displayed. I’m not saying the aggregator is the infringer. I am saying that in my opinion, there is an infringement. If a person grants usage rights and they do not have the legal authority to do so, then they’ve committed copyright infringement.
As it pertains to rights-managed images, the only person with authority to grant usage rights is usually the creator of the image. In my opinion, this ongoing usage is beyond the scope of what the original agent usually intended and constitutes a new usage that benefits only the aggregators.
To put it in a nutshell, real estate agents lease usage rights from the photographer to sell a house. Assuming those usage rights were limited in the original license, once the house sells, those usage rights should be terminated. But for some reason, once the house is off the market for six months, every image ever taken of that house reappears. This is beyond the scope of the intent of selling the house because the house is already sold. Again, it’s beyond the terms of usage if the photographer rights-manages. If the agent didn’t sell the house and the homeowner hired a different agent who did sell the house, the evidence is clearly displayed once the house is off the market for six months. I’m not sure if any agent wants their failures to be displayed.
As I said earlier, images are the largest and most valuable asset the photographer owns. Whether the photographer recognizes their value or not, corporations do; and some corporations may be using your images regardless of your rights.
The Truth about Copyrights
I have been protecting my copyrights since 1983.
The use of copyrights and how photographers protect themselves has changed a couple of times since 1983. From 1983 to 2008 I've had approximately five copyright cases. In 2010, I stopped counting at 52 incidents of copyright infringements involving multiple images per incident.
For more detailed information, I strongly suggest you go to my website and read my blog post on third-party infringements.
The nature of copyright infringement is changing. It’s not clients who are infringing on photographers anymore. It’s third parties totally unrelated to the client that are harvesting images and using them. This not only is stealing from the photographer but it’s also taking images that were leased by your client and using them as well. This brings up an interesting question: Does the photographer have a legal responsibility to safeguard and protect the integrity of their client’s lease? Can it be viewed as negligence on the part of the photographer not to do everything possible to safeguard the integrity of the leased usage rights for their client?
You will hear people say that their images are copyrighted the second they take the picture.
Yes, that is true… in name only! It’s a paper tiger! Copyright infringers know that there is no technical legal path for the owner of the copyright to collect monetary compensation for an infringement if the work is not copyright registered. Period!
In order to file a copyright litigation lawsuit, the images must be registered with the copyright office.
If you have an attorney send out a demand letter to an infringer and the images are not registered, the infringer will usually ignore the letter. The infringer knows that unless the work is registered with the copyright office prior to the infringement or within three months of date of first publication, you are not entitled to statutory damages and attorney fees.
Legally, as written in the copyright statutes, publication is defined as when you show the work to another individual with the intent of further distribution. Case law differs slightly. In case law, distribution has been defined as when you deliver the work to your client.
Personally, I err on the side of the way the statute is written. This way, no gifted attorney defending the infringer will be able to argue that I published the work when I showed it to my client on the back of the camera for approval, which constitutes intent of further distribution. Typically, because many of my images are reviewed at the time of creation, I use date of creation as my date of first publication in accordance with how the statute is written.
Let me summarize the truth about copyright.
I’ve heard the argument from many photographers that it’s too time-consuming to copyright register their work. I spend less than six hours over two months to register all of my images. I typically register 2100 images every 60 days. Keep in mind that a copyright registration is limited to 750 images. I’m completing three registrations in less than six hours, spread over two months. I probably should also point out that the cost per registration is $55 this is 7.3 cents per image.
Let me leave you with this final thought about the argument that photographers are too busy to copyright register:
Really? Really? REALLY?
Personally, most of my settlements have confidentiality clauses, but I've recently settled an infringement where the attorney representing the infringer insisted on writing a settlement paper and left out the confidentiality clause. So, I’m legally able to speak about that settlement. It was one image. My total time was less than one hour to confirm that the image was mine from my archive system. I sent a written statement with the original image and a screenshot of the usage to my attorney. Approximately 60 days later a settlement of $10,000 was reached. This image was created in 2008 and was infringed sometime in 2018. The image was copyright registered in 2009 after a first infringement by a different party. Unfortunately, because the image wasn’t registered at the time of the first infringement, I was not able to recover damages for the wide usage that they took. The best I could do with that first infringement was a DMCA claim to stop them from continuing to use it. After the image was registered, the second infringer that used it paid me a fair market value amount for how they used it. Please allow me to emphasize I was paid fair market value for the usage; not a windfall. The company used it for advertising and made hundreds of thousands of dollars. The first infringer made millions.
Just for the record, my goal is to change the behavior of infringers by altering the risk reward ratio. This change will not occur so long as I’m in the gross minority of photographers that register their work and enforces their rights.
Really? You don’t have time to recover additional damages on images you have already created, while simultaneously changing the behavior of copyright infringers which will result in increasing the numbers of assignments and increasing the value/respect of professional photography for the entire industry? Really?
What’s coming up next:
In the next couple of articles, I’ll go into detail about copyright registration as a system that’s tied to your archive system because you’re preserving an evidence chain for federal cases.
I’ll also go over the “nuts and bolts” or the anatomy of what it is to be in a copyright litigation, and its costs – both financial and emotional.
Then I’ll talk about methods and techniques for finding infringements and when and how to utilize services to help you to identify where your images are infringed.