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NFL TO CLOSE PHOTO LIBRARY
July 17, 2003
In a cost cutting measure the NFL has moved to "outsource" its publishing activities
and close its publishing office which includes its still photo library, NFL Photos.
Most of the publishing activities were outsourced by the end of May, but NFL Photos
has a temporary reprieve until the end of the 2003 football season as the NFL tries
finish current projects in the works and figure out how to handle the disposition of
this asset.
The photo library has approximately three million images that span the 83 year history
of the NFL. The library was established about 40 years ago along the lines of most
independent stock photo libraries at the time, although it was the first to be set up
by a major sports league. The library is operated in behalf of the 32 teams and the
league and was charged with maintaining coverage of every team since it was
established. This has provided the league, the teams, the players and the advertising
and editorial communities with an easily available resource that not only had
excellent coverage of the current week's news, but historical depth on individual
players and teams. This asset has been invaluable to the Teams and the League as well
as to image buyers who have used the service.
The images in this library are owned by hundreds of photographers, not the NFL, and
provided to the NFL on a consignment basis. The photographers receive a 50% royalty of
the license fees. With the scheduled closing of the library there are a number of
potential options for dealing with this resource - most of them with significant
downsides.
Getty and Corbis
Both Getty Images and Corbis have expressed interest in taking over operation of the
library. They would probably scan some of the high demand images, but their business
strategies, up to now, have not included storing and being able to retrieve analog
images. The analog files will be of invaluable to the Teams when they want to honor a
player from 30 or 40 years ago and they need photographs from the honoree's playing
career. Or when they want to do any kind of retrospective.
Based on this issue alone Corbis would seem to be the best option. With its Iron
Mountain storage facility it has at least shown that it is willing to maintain the
Bettmann Archives images (which it wholly owns) in a way that some access can be
provided to them. Some researchers have argued that it is difficult to get images out
of this archive, but in theory the images are still available.
On the other hand when Corbis took over the WestLight files where photographers owned
the images, and it was necessary to pay royalties to the photographers for any usage
of the images, massive number of those images were returned to the photographers. For
most of these photographers their sales dropped dramatically when former customers
could no longer find the images they wanted. The same kind of return policy is
scheduled for the Sharpshooter and The Stock Market images, although it is not clear
how far along they are in returning these images.
With Getty it has been clear from the beginning that the only images they intended to
keep are the ones they scan and make available online. Getty says they obtained rights
to approximately 70 million images as a result of the various companies they acquired.
Searches of the Creative section of Gettyimages.com reveal that they have about
347,091 Rights Managed images scanned out of the millions. This figure does not
include the Sports, Celebrity and Entertainment images but the ratio number of images
acquired to number of images kept is believed to be about the same. The Creative side
of their business - not including Sports, News, Entertainment and Footage - represents
about 80% of their revenue.
Getty has returned to photographers well in excess of 10 million images that they
acquired from agencies like Tony Stone, The Image Bank, FPG, etc. and is working
feverishly to return a lot of the others. Daily, photographers receive calls from
Getty customers looking for images Getty no longer represents. Since the images were
returned in an unorganized manner, or are in transition (removed from the active
files, but still not sorted so they can be returned to the photographer) they are not
where the photographer can find them. The end result is the customer doesn't get what
they need, and if the subject matter is very specific there may be no satisfactory
alternative for the customer.
Clearly, it is uneconomic from a profit and loss point of view to scan every image
that has been filed, or even a significant portion of everything. But at one point
every image taken into the NFL file was considered important - and it may be important
to someone again.
Risk To Teams
The risk to the 32 teams and the league is that in the future they will have a problem
accessing their visual history. The problem is not how to get access to imagery going
forward. Each team can make it own arrangements with photographers and the
photographers will understand that they now have to do different things to keep track
of their images and make them available for sale.
The problem comes when someone needs an image that was shot 10, 20 or 30 years ago of
someone who wasn't a marquee player. Those photos won't be scanned and put into the
digital database. The photographer who shot the image may no longer be shooting, or
easy to locate. The photographer's files may not be organized as efficiently as those
of the NFL. Control of the copyright may be handled by an estate trustee who has
little or no idea how to find requested images. All these factors mean the photos are
gone - disappeared.
New Independent Company
Another option that might be considered is for an outside investor to take over the
file and operate it as an independent company, much as it has been operated up to now.
This option is more likely to keep the file together as a long range resource for the
teams and the league. It also has great appeal to the photographers because basically
nothing would change. The problem is that there would be significant upfront costs and
it is not clear how long it would take for such a company to become profitable once
the file is out from under the umbrella of the NFL.
The new company would have to move the files to a new location, scan a lot of the
images that are only analog at this time, set up its own online site and hire lawyers
to negotiate some of the complex, but very lucrative deals for major advertising uses
of the imagery.
The vast majority of the images in the library are film based and have yet to be
scanned, although the number of photographers shooting digitally and providing digital
submissions is growing rapidly. One of the reasons photographers continue to shoot
film is that, even with good interpolation of the digital files, they can't achieve
the resolution required for some of the large uses occasionally made of these images.
Return Images To Photographers
In this time of uncertainty some photographers may start to demand the return of their
images fearing the images will be lost during the transition, or believing that they
can negotiate a better deal independently than sticking with the NFL.
If a significant portion of the newer images disappear, that may make the whole
acquisition less attractive to an outside investor, Getty or Corbis.
Currently the photographers have non-exclusive agreements and receive a 50% royalty.
The standard Getty and Corbis agreements do not provide for royalties at this level
and this may be an incentive for the photographers to look elsewhere.
A bigger concern for some photographers is that if their images are integrated into
the GettyImages collection where the AllSport, Reuters and AFP images are available,
the photographer may make fewer sales given the competition. In addition, most
AllSport images are produced as day rate assignments for Getty who then wholly owns
them. Many NFL photographers believe Getty would tend to push the AllSport imagery
rather than images from freelancers since they must pay a royalty on those sales.
I have been told by photographers familiar with the situation that when Getty started
representing the Time-Life file, Sports Illustrated held back their images because
they were concerned that they would make fewer sales. SI felt that they would be
better off retaining total control of their images rather than putting them on the
Getty site.
Three Aspects to Licensing for Advertising
The advertising community ought to be among those trying to keep NFL Photos intact.
Advertisers are going to hate it when they have to deal with someone other than the
NFL for usage of an image in a major campaign. In licensing rights for any type of
advertising or commercial use of a sports image there are three things that must be
considered.
Trademarks - Uniforms, colors, team names, nicknames and other trademarks
that are controlled by the League.
Likenesses - The NFL players association sets rules for using the image of
each player and they assign group licensing rights for certain uses. However, there
are exceptions for certain marquee players and those may change every time a player
signs a new contract.
Copyright - Rights to use the image.
At present, with one call to NFL Photos all these rights can be easily determined and
negotiated. When access to the photography is moved way from the NFL there will be a
lot of back and forth calls between the image holder -- be it photographer or stock
agent -- and the League.
There is also likely to be a lot more confusion about who has the rights to license
the NFL's Trademarks and Likenesses. It's also likely that there will be a lot more
photos licensed without covering all the bases, a lot more unhappy advertisers, and a
lot more legal actions when the league, the players, or customers feel they were
either not properly compensated for a use, or that they didn't get all the rights they
thought they purchased.
Some advertising users think that if they strip out the logos they are free and clear,
but in court case after court case the NFL has proven that the user was trying to
refer to professional football, and this is still judged to be an illegal use of
trademarks.
Photographers who sell direct will need to make sure that any time they license rights
to a NFL photo that the licensee agrees that there is no release for likeness or
trademark and that it is the buyers responsibility to clear these rights. The buyer
should also agree, in writing, to indemnify the photographer against any claims for
likeness or trademark infringement. This puts an additional burden on the buyer, but
the photographer is taking a huge risk if he doesn't protect himself in this manner.
Down the road there may be fewer still photographers on the sidelines of NFL games as
there will be fewer opportunities for them to effectively market their work.