I find it very interesting that someone wants to be �damned certain� something is �legally sound� yet they don�t consult an attorney! One wonders where they get their medical advice.  

Lisa
@The3dStudio.com

Lisa,
I think that we are not communicating here at the same level, it could be that I am reading your posts as being dismissive of our views when they are not really meant to be, while reading it is hard to understand the tone that a reply was written in, which can lead to something written looking defensive or dismissive.

David, I�m sure are probably correct in your observation that big agencies have legal departments to protect them. I personally can�t make a conclusion from that observation that agencies� legal departments therefore �protect everyone�.

Where did I say protect everyone?, I was talking about good business practices and I wrote "protect everyone as much as they can making the artist and buyer experience as safe as they can".

I find it hard understanding where your reply is coming from as you already run a business, and a lot of your business would be done on trust without a lawyer, as a customer you will need to trust a supplier that you deal with to protect you to a degree, by making sure that to the best of the suppliers knowledge that a purchase is legal and the goods are fit for use, so you can purchase a product or service with some confidence.

What I am saying is that other stocksites carry out a form of 'Due diligence' with each artist and asset that the artist uploads, when I joined the big agencies and before I could upload, I had to upload a copy of my passport for verification, each commercial image with any person or body part I upload must have a copy of the model release uploaded by me and assigned to the image before it is on sale, if not then I can only set a licence of Editorial Only and RM, this to me is reasonable due diligence.

I.M.O. this is not about placing blame if things go wrong, but any businesses greatest duty of care is to their customers, to ensure they have the knowledge and information to make a balanced and informed choice when making a purchase.

If I was a perspective buyer for a large company and I called or emailed your website and asked about your policy statements for due diligence with your asset suppliers and duty of care to your customers, and you came back with 'we offer a high level of contributor and client support' you would not be getting a contract for my business.

Due diligence in civil litigation is the effort made by an ordinarily prudent or reasonable party to avoid harm to another party, failure to make this effort may be considered negligence, this is conceptually distinct from investigative due diligence, involving a general obligation to meet a standard of behaviour, quite often a contract will specify that a party is required to provide due diligence.

From a customers perspective even with a small $1 purchase, I would expect that the stocksite has carried out a form of due diligence with this asset supplier and expect them to have a duty of care towards me as a customer, it would not protect the website or me from a stolen image or a fraudulent model release, but it would then be fruad and a miss-representation by the artist, and could be subject to a legal proceeding against the artist in question.    

Any product I purchase from a candy bar to a car, I would expect that the company had exercised due diligence with the supplier of the product, and a duty of care to me as the customer in any dispute about the fitness of the product for the required use, that is how I choose where to shop not just on a price point.

We are not trying to be negative, but trying to give another perspective and raise points we are concerned about, maybe a way forward is for you to talk to your legal advisors and discuss a few of the concerns and points we have raised, and see what comes back if they have never been asked before then they have not given you any advice.

David  

...He told me that was not his problem, which is when I swore them off and posted my message.

Typical customer services scenario, just take a deep breath and stay calm, always keep thing in perspective, the guy on the phone is just a regular guy doing a thankless job for not much reward, and if you do not get the required response ask to talk to the customer services manager, if that fails take advice from a free service.

Remember to take ownership of the problem as you want something from them, If you swear, blame or bad mouth customer service representatives, it will not resolve anything and will make them less likely to help you out!

What I mean about taking ownership:
It is your mistake and you want it resolved, so you need to take perspective and be assertive but not agressive, if you cannot resolve it by talking to the customer services guy or his line manager then thank them for thier time, and take advice and another approach, use the when and I  words, "When I purchased the product, I did not realise it would not suit my requirements, I understand that you have policies on returning goods, I am willing to pay any restocking charges and I would really like your help in this matter', I have found that being polite often works and the seller will often bend the rules slightly to help out.


David 

If someone has had your drill they borrowed for a couple months rather than saying, "you borrowed my drill and I want you to bring it back", try "when I lent you my drill, I did not think that you would need it for to long, I have a job to do myself today and would like to pop round and collect it"   

I think the problem has arisen because most microstock sites  provide an add-on service to customers as a matter of course, and customers might not realize that it is an add-on, thereby expecting it from any stock site. The service I'm referring to is doing the legal legwork with respect to images sold. While the onus is on the end user, most sites screen the images so that customers don't have to go to the trouble of determing legal usage themselves. This encourages buyers to engage in 'one-stop shopping' - buy image and get legal screening thrown in. The result is that most customers probably assume that every site is doing the same.

Averil really good point,
I use Alamy as a reference point when talking about 'Editorial Images', many photographers and buyers think that the term editorial means that 'anything goes' and you can just upload any subject, but recently Alamy have taken down more images for The National Trust, Museums and Heritage properties, and images of London Transport assets as the organisations have contacted Alamy and asked for the images to be taken down for different copyright reasons, as no commercial rights had been given.

No stocksite, photographer or buyer knows all the image subjects that are protected, the big stock site will not just seek advice when there is a question, but they have active legal departments to protect them, what they do well is protect everyone as much as they can making the artist and buyer experience as safe as they can, all we can do with new businesses is suggest that they look at what the big stocksites are rejecting for copyright issues.

New business owners can choose to ignore the artists comments and forum 'Chinese Whispers', it is true artist can not offer legal advice, only the artists own experiences or information gained from the other businesses models in the same market, and the asset library is the new businesses responsibility not the artists, however they should look at any advice with an 'open mind' and take some points onboard, as any changes are better now rather than later, once they are seen on the copyright radar there will be a very big cost in searching through millions of assets to remove the offending items, there will be no point in asking the artist to do it, as many with low or no sales will just not bother.

None of these comments should stop anyone from uploading to 3DStudio, all I would say is to upload images the artist knows are safe until 3DStudio have everything in place, the safe assets would be the ones already accepted by any of the big stocksites.

David  

I would interested to see how many sales some of those images have that they used as examples, in particular the little girl and the guy fishing. Not that they are bad shots, I just dont see them pulling a lot of sales on SS.

Phil,
I would agree there is limited use for the samples, would you upload them to earn $0.25 - $0.38 or would you target Direct Sales, Alamy, Midstock or some of the new more Arty style websites and collections that will pay a much higher revenue.

Through multiple venues of customer interaction, including at tradeshows, in emails, phone calls and more, Shutterstock clients continuously request �more natural feeling� images -- photos that convey an idea or concept without the stiff and overly-posed characteristics held by much of today�s stock.

While handshakes and studio-lit business shots are fine for certain situations, we would like to see photographers supplement their galleries with more shots conveying the idea of spontaneity. We want to be less aware of the presence of the photographer in your images and more focused on the photograph itself.
<...
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Read design and photography magazines. Industry magazines such as Communication Arts, Creative Review and Photo District News (PDN) publish �photo annuals� that showcase some of the best photography over a wide range of categories, including stock, editorial, commercial, and personal to name a few.

If the buyers are requesting this style of image they would already be purchasing from other traditional or niche agencies and going forward from microstock collections like Istock Vetta, and paying quite a bit more than a few credits, so yes it would be good for Shutterstock and the Buyers but what about the artists?

I.M.H.O. it looks like Shutterstock want to add some diversity to thier library at the artists expense, this would be the production, preperation and upload time to capture a small number of downloads, as the style of images they are requesting are more suited to macrostock, midstock and RM collections rather than microstock libraries, as these will not be multi-downloaded big sellers, as an artist you would be looking for more than $0.25 - $0.38, even more than for an EL licence, if an image has a narrow market appeal and limited use you need to maximise the revenue, possibly with a RM license to capture any recurring use, regardless of the production cost, the value of an asset is weakened by similars where the image is harder to find a premium is in order.

David    

Shutterstock have published a new article on what buyers want, it has many of the same views that were in the PhotoShelter article with the same name.

More natural images seems to be the theame, when PhotoShelter had this idea it did not filter down to the inspectors and many of the images the submitters shot with the article in mind were rejected.

just interested in a general discussion if you have a diverse portfolio and have seen a changed in what is being accepted?

David

I think this is a really interesting topic. The difference is that by selling a photo of a Pepsi can as editorial you are not actually making a drink and selling it as "Pepsi".

In the case of the comic book characters it is the character itself that is the asset. I would not be allowed to produce an image with Superman and sell it as wallpaper without express permission from DC. Is a stock agency therefore allowed to sell models or renders of trademark characters?

Both the DC characters and the Pepsi brand and logos are all 'brand assets' and protected by IP and copyright.

With the rendering of the DC Characters then that would be an IP violation as well as copyright, as you are just copying the original artists IP work.

Intellectual Property
Copyright legislation is part of the wider body of law known as intellectual property. The term intellectual property refers broadly to the creations of the human mind. Intellectual property rights protect the interests of creators by giving them property rights over their creations.

As a photographer you do not necessarily have an unlimited right to take photos of commercial products like a Pepsi Can with the product being the primary subject, and then upload them as commercial stock images or even post them on your own website.  
Pepsi have certain rights to control the use of images of their products, it's highly unlikely that due to the cost of an action that a major company would take action regarding a blog or web photo that wasn't deflamatory!

If a downloaded image was used in a deflamatory way by a competitor then it could be a problem, there are lots of product that you should not use for stock.

I had serveral images rejected on Istock, a girl model with playing cards, on research about the violation I found out that the pattern on the back of the playing cards and the Aces are protected, but the numerals, Jack, King and Queen are not, look at Adidas they have a copyright on not just their name but 'three stripes' on sports goods, Nike on a specific style of a tick symbol.  

Many RF websites have different lists of some copyright content images they will not accept, there is not one resource where a photographer can get all the information, so it is up to everyone to do thier own research, maybe we can have a section on MicroStockGroup for copyright isues, here is one sites example

Superman and DC Comics
All characters, character names, logos, slogans, books, titles, and related indicia are protected by trademark and copyright by DC Comics and/or WildStorm Productions.

The stocksite do not sell the product but a license to use it, It will comes down to the customer who uses the image, but the bad publicity for the site that supplied it would not be good.

Many websites are small and have operated under the radar, with new tools that search webpages for content violations and can match the content of an image to thier copyrighted material, even if it is a derrivative work will bring this issue to the table again I am sure.  

A recent case saw a music file sharer who was asked to settle out of court which most offenders do, she refused and was fined 1 million at 50k a file, so it may become a market that other law companies will now take up.

We do not read about copyright violations much as the matter is often resolved without the courts, and we do not have the bigger picture only the spot size.  


David  

As I said, the easiest way to explain is to think of it like editorial use only. I can sell a photo of a pepsi can as long as it is used for ed use only. If the customer buying wanted to use that photo for anything beyond that then they would need to contact pepsi for additional licensing.

Seriously now, I am unsubscribing from the alerts on this post so if anyone has any other questions just email us or use the contact form on our site.

-Matt

Hi Matt,
Just to clear things up do a bit of research, pop over to Alamy who sell mainly 78% editorial images, and search their 17 million images with the keywords Pepsi Can, you will get 97 results many not direct Alamy images but from EU partner collections, about 4-6 images of these are what you might call product shots, now refine the search to RF and you get only 4 results from 17 million and the only Pepsi Can you will see is in a pile of rubbish.

The key here is primary and secondary focus of a copyrighted item, is the image of a can of pepsi, or is the can secondary in the composition.

Now as you know the Customers on Alamy are professional and will know about image use, they are not 'Joe public' paying $1 a pop with no idea about usage rights, so the risk of miss-use on Alamy is minimal compared to a microsite as the Alamy customers will have to state the sector and use for rights managed 'L', any images that are flagged as 'Property Release Required' and 'Do not Have Release', the system will stop the buyer from licensing the image for commercial use, as the options will just not be there.

You cannot have this level of control as microstock RF, which leaves all parties open to a letter from a legal eagle of behalf of a compensation culture vulture, looking to settle out of court.

There is a wealth of information out there, the guys in these forums are normally glad to help anyone that values thier knowledge, and the business models of both Micro and Macro sites are a good starting point in understanding this market, it is wise to follow the leaders as they would have top draw legal advice and would have discussed and maybe tested all these options, done a full risk assesment and if they have decided that this is not worth the risk, just like on twitter follow them for their knowledge.

David  

Another advantage we will have is that many photogs won�t sell on micro-stock sites now because of the low payouts and forced price systems. With our system they have more freedom on pricing and thus we will end up with a lot of unique content that customers won�t be able to get anywhere else.

Check our site again, we do show release information. Each author can upload a model or property release as required. If no release is added we show that as well so the customer knows that know release is on file and thus it may be restricted in use.

Hi Lisa,
I am finding it hard to see where you are going to fit in, as a buyer of microstock I have never had the need to use customer services on a well run website, so I do not think that this is a big selling point for me, maybe I have it wrong and you are a more traditional service like Photographers Direct, and will search and create lightboxes for requests on behalf of the customers, which is a good but sometimes costly service to provide for a valued customer.
  
This is the MicroStockGroup so most of the artists you pick up from your mailshot to the forum users will already be selling on credit based or subscription stocksites and will not fit into the 'wont sell on micro-stock sites' box, so it looks like you and your 'valued community customers' are comfortable with the same image for �12 being on sale as a subscription image.

I did revisit and maybe registered users get an advanced search for released or not, I found a photograph with a person zoomed the image and I did see the text 'Release Information N/A' under the prices but it is not that in your face as I would expect, to me N/A means 'Not Applicable' and not required which I would expect on an image of say a wild bird, but I know it is applicable to an image with a real person holding a camera, the image either has or does not have a model release and or a property release and 'for me as a buyer' the details should clearly state all relevent information so I can make a judgement.

I did look at about 20 shot-for-stock style images with people where I would have expected a model release, but they all said 'Release Information N/A' so maybe it is a functional deficit (sounds better than bug)

If we take 'The London Eye' if it is part of a cityscape then a property release is not required, if it is the primary subject then a property release is required for commercial use, N/A leaves everyone open, for me 'N/A Not Applicable', 'Does have Release', 'Does not have Release' are clearer statements with little room for error.  

Man with Camera

These are just my observations not meant to be all negative, I do wish you well and I like the other elements of your website, while you are here maybe check out the menu item 'Support the Site' and get an image posted with a link so contributors and buyers can find your website    

Regards

David  

A lot of poor images and information on your RetroStock website, the images are just old snapshots with a limited editorial social history use, it would not appeal to buyers of mainstream stock maybe a few could be used in education.

Every person and or body part in a Commercial image must have a signed and noted model release, those that do not should be licensed as rights managed and clearly state editorial use only, which as far as I can see you do not have for most of your people images.

On your FAQ:

Are there any restrictions on my use of the Retrostock photos that I download?
Yes. While Retrostock offers great freedoms and a wide ranges of uses, we do not allow the redistribution of our photos, or allow the use of our photos within products that are mass distributed in any type of archive format.

Can imagery by Retrostockbe used for commercial purposes?
Images by Retrostock are model released and can be used for commercial purposes.

David  

This may be of general interest, if you know your work has been published in the UK, I have only had a quick look and registration does look to be free, so nothing to loose.

If you are an artist or visual creator you could be eligible for a share of over �3 million of Payback royalties if your work has featured in a UK book or magazine or been broadcast on certain UK television channels. You have until 30 September 2009 to make your claim � so don�t miss out!

Design and Artists Copyright Society: Payback Scheme 2009 http://bit.ly/Dxfxy

David 

I am somewhat concerned about the one-way aspect of the medium, just like the Twitter corporate idea leaks, it seems to be more questions or declarations than answers or dialogue.    

Most of the ones I follow are used for B2B (Business to Business) or B2C (Business to Customer) as soundbites they often have a pull to get you to click the link to a web page or blog post, where there is often a chance of dialogue.

Looking at the percentage of readers to those that comment on a blog post, many are observers and may have views but do not want to enter into dialogue, just like you see on forum posts read 1000 times with just 10 comments, from the same contributors.

The tweets, blogs and forum posts which have no value I just ignore.

On another forum they were discussing twitter and one user wrote, "I joined twitter and then I got an email saying someone was following me, it sounded so creepy I closed the account"

David  

Do you mean local taxes are on square meter and they account for a lot?

The Government look at the premises and the size and type of use for the area's inside and out to evaluate the rental value.

To use an industrial greenhouse as a studio you would have to apply for change of use, the unit would be revalued for rates, they would take into account the different areas, office, storage and the working studio area where the business operates which would be at a much higher rate than a greenhouse.  

Then they set a multiplier which is used to calculate and the rates In England, the standard multiplier for 2009-10 is 48.5, if you were renting a studio with a rateable value of 10,000, then the rates you would pay are 4,850, excluding any discounts or reductions that may be applicable.

As a guide in London an entry level 1000 sq ft studio space which is about 90 sq mtrs, the rental would be 10,000 - 25,000 based on condition and location, and the business rates 4,000 - 11,000 on top.

I can rent a studio with lights just for a part or full day, a full days studio rental would cost me about 500, but if a shoot cost and models could be spread by three photographers, then it might be workable.

David  

This is also a light hearted post, talking of diversity, we have a large number of single parent families in the UK 25% compared to AUS 14% and USA 9%, many of these are wage earners and some single by choice or relationship breakdown, so not all families are the happy 2 + 2 family.

I have done a research exercise, scenario: 'as a buyer for a lone parent magazine I am writing a lifestyle article on parents cooking with their children'.
Research: searching for suitable images over on IS, for:
Mum and Daughter Cooking: 221
Mum and Son Cooking: 85
Dad and Daughter Cooking: 51
Dad and Son Cooking: 44

Conclusion:
From the returned images about only 10 - 20% would really match for a lone parent article, but Family Cooking returned 863 images, so it looks like as artists we still do not diversify enough and put a lot of content into our own comfort boxes, maybe when shooting family 2 + 2 add all 1 + 1 variations as well.

David  'Food for thought'