January 2004 Selling Stock

Still photographers should keep in mind that their revenue is very tied to print uses.
Anything that causes overall printing to decline will eventually affect the average
still photographer's bottom line.

Dr. Webb says surveys show that there is now a clear disconnect between the growth in
Gross Domestic Product (GDP) and growth in the printing industry. Previously it was
assumed that printing was tied to GDP and as GDP demand grew demand for printing would
also grow.

Why the disconnect? It used to be that there were two basic ways for consumers to get
information about products and services -- printed materials and television. When there
were only a few TV network outlet the cost of an advertising buy used to make it almost
impossible for anything but big national brands to use TV for promotion.

Now with the explosion of cable, and more special interest programming, more and more
advertisers are finding it cost effective to spend a larger portion of their ad budgets
on TV. That leaves less for them to spend on print.

There are other indicators that the use of printed materials may be on the decline.

The big spenders in online advertising are no longer fly-by-night Internet companies,
but hotels, airlines, car companies, insurance companies, retailers and companies in
all the largest sectors of the economy. Consider any of the products that are sold
through Amazon.com, and the explosion of EBay not just for consumer to sell items they
no longer need or want, but as a retail outlet for many small businesses. More and more
companies are finding ways to promote their products that don't involved print. They no
longer need print as much as they used to.

A recently released Patrick Marketing Group report finds that 48% of marketers plan to
spend more on electronic advertising next year and 40% will spend more on online
marketing. If they are spending more on electronic, and their budgets don't rise
dramatically, there will be

Internet Use

When advertisers use photos on the Internet to promote their products or services
there are four reasons why they tend not to pay as much for such usages as they might
have paid for comparable print usages.

1 - If the photo is being delivered on the Internet the file size necessary is often
much smaller than that needed online. This means the buyer can often get by with the
cheapest RF resolution rather than paying more for a larger file size.



2 - Many uses have print and Internet components. The tendency is to price the total
usage based on the print component and do a small add-on for the Internet usage.
However, as print components become smaller and Internet components become more
dominant this will tend to reduce the overall amount that is being paid for
photography.



3 - There is a tendency among sellers to think that all Internet uses of images are
the same. Sellers are struggling to find a way to determine the likely buyer impact
that any particular Internet use might have and to develop a circulation based system
of pricing similar to what the industry has had in the print environment.



RF marketers would argue that circulation based systems of pricing are not important
and that the price should be fixed regardless of the circulation. But, there is no
denying that a huge percentage of the industry's revenue comes from prices based on
usage (I estimate it at about 75%). If we eliminate usage pricing and price everything
at the current fixed RF rates the Stock Photo Industry's annual revenue would drop to
about half of its current level.



There may be no good way to ever price Internet uses based on estimated eyeballs as is
the case with circulation pricing. This may mean that the overall revenue from stock
photography is destined to go down, down, down.



4 - The hotel use example we discussed in "Hidden Internet Uses" (Story
600 )
clearly illustrates the problem. Through linking a single promotion or advertisement
can get much more extensive exposure than is likely from any printed piece, and the
degree of that future linking is impossible to determine at the time the image is
licensed.



In one example an exterior view of a hotel was placed on the hotel's web site. It was
later discovered that this images was on 155 separate Internet portals in the U.S.,
Canada and the UK that were marketing rooms for this hotel. In the print environment
multiple insertion fees would be established for such uses, but this kind of pricing is
certainly not common when discussing Internet uses.



It is also likely that when the commitment was made to use the image the buyer
probably had no idea as to the number of portals where it would eventually appear. The
buyer is not buying space on these portals, but giving up a percentage of revenue on
any sales made by the portals. The image seller is caught in an impossible bind, if he
wants to price based on eyeballs.



As this type of advertising becomes more widespread, and effective, it is likely to
mean less revenue for the stock photo industry.

How Usages Are Changing

Even when we look at print advertising usages, there may be changes in the industry
that will cause a reduction in the number of images licensed.

How Do Customers Get Their Images?

Customers, almost exclusively, want to receive their images digitally. In many cases
the only thing they are willing to look at is digital images. This is partly because
they need a fast way to determine what is available. Digital gives then this option. In
addition suppliers are finding that because they receive so few requests it is no
longer cost effective to maintain and search analog files. This limits the choices for
many buyers.

Isn't that good news? Maybe. But in the last few years a huge percentage of the images
that were formerly available to customers have been removed from the marketplace.
Consider that Getty and Corbis alone acquired over 140 million images. Only a small
fraction of these are now available through the web. The rest have either been returned
to photographers or for various reasons are inaccessible.

When it came to choosing the images to scan and put on the web these companies tried
to pick the ones they believed would be in greatest demand. But, many images that were
rejected are ones that some customers would like to buy, and these images are not now,
nor are they likely to ever be, available on the major portals.

One of the issues is will customers be satisfied with an available second choice
rather than trying to find the image they really wanted? And what options are available
to them if they are not satisfied with second choice?

The fact that some art directors are "googling" to find images (See story
598 , page
10) is an indication that they are not accepting what is offered on the major portals.
What they tend to find by googling is not images from stock agents or professionals in
the business of selling stock images. The images that tend to come up in a google
search are ones that have been posted for other purposes by people who are not
necessarily focused on making money by licensing rights to their images.

The Internet offers a way of finding resources for very specific subject matter that
simply was not available a few years ago. As a resource it is also likely to get better
and better. It will be very hard for archives that focus on offering general interest
images that would be useful to a larger segment of the buying public to ever compete
effectively with the specific knowledge and resources of the people with imagery in
special niches.

The main question will be whether this loss of customers will be significant, or not.

The number of professional buyers who actually find something they can use in this way
may be very small. And there will undoubtedly be a lot more hassle for the customer in
obtaining imagery from these unsophisticated sellers. However, on the plus side for
buyers is the fact that they will be dealing with people who really know their subject
matter. If the buyer needs detailed caption information she is more likely to get what
she needs from a google source than from a general interest stock archive. In addition
the buyer will often be able to get the images for a lower fee from the
non-professional sellers by saying, "Our standard honorarium is ___."

I think this resource is likely to be of particular interest and use to book
publishers and low budget special interest magazines. Only time will tell how much
impact it will have, but professional image sellers should be careful not to discount
this as unimportant.

If image users are having trouble finding an image that works then it may be simpler
to shoot the image themselves and let their graphic designer manipulate it in
Photoshop. Many graphic designers may find that often it makes more sense for them to
create the images they need themselves, rather than getting a professional photographer
involved.

Summary

So lets sum up. The threats to increased still image use are:

This isn't bad news for everyone. Some individuals and companies will prosper as they
capture market share from the less efficient. But the total market for still images may
get smaller. The number of photographers who can develop, and maintain, successful
stock photo businesses is likely to decline.

It seems clear that the long term the trend is toward greater Internet use for
communication and less use of print. Young people should also keep in mind that as the
Internet matures it is likely to make more use of video and less use of still images.
How long it will take for such trends to develop is anyone's guess, but it seems clear
that's where everything is headed.

In 1926, George Eastman told his employees, "The world is moving, and a company that
contents itself with present accomplishments soon falls behind." If Eastman thought the
world was changing rapidly in 1926, consider the speed of those changes today.
Individuals and companies in the photographic industry should heed his words.

Have a Happy New Year!

December 22, 2003 (Story 602) - If you think that owning copyright to your images
guarantees you the right to stipulate how those images will be used, and to receive
compensation for each use; THINK AGAIN -- particularly if you are dealing with the U.S. legal
system.

Back to the Spring of 1997 National Geographic Society (NGS) first announced that they were
going to publish a CD-ROM set that contained all the pictures and words that had appeared in
its flagship magazine for the previous 108 years. Most photographers believed they should
receive some additional compensation for this re-use of their imagery in an entirely new
product. National Geographic initially claimed that they had a right to use all of the images
without any additional compensation whatsoever. Then they made an offer to a few people of
$20 per image for unlimited rights to use the images on CD-ROM products forever.

When that offer was rejected by virtually everyone NGS reverted to their initial position
that based on section 201(c) of the U.S. Copyright Act they had the right to use these images
and they weren't going to pay anyone anything.

The Battle Was Joined

Some photographers thought at the time, "what's the big deal". Each image is one of almost
150,000 that are on each CD set and who will want to buy CD's anyway. What can a single image
be worth? Well, in the intervening years the initial CD-ROM project morphed into more that
100 different products, all re-using images that were first published in National Geographic
Magazine. These products have generated more than $70 million in total revenue. Someone's
making money off these products, but it's not the content producers.

The vast majority of photographers and photo agencies took the position that, "I can't fight
someone as big as NGS," and let them do whatever they wanted. There were loud grumblings, but
little else. However, a few photographers were prepared to join the legal battle.

Greenberg vs. NGS

The first was Jerry Greenberg. He had all his images that were contained in four major
stories registered prior to the infringement. He had clear letters of agreement with NGS
stating that what he had licensed NGS was one-time-rights to use these images and that the
right to make any additional uses needed to be negotiated.

At first his case was heard in the U.S. Federal District Court in Miami. The judge in that
case granted NGS' motion for summary judgment and held that the "allegedly infringing work
was a revision of a prior collective work and fell within the defendant's privilege under
201(c)" of the copyright law. The judge based her decision on the Tasini vs. New York Times
case that was tried in the Southern District of New York and favored the Times. That case was
at that time being appealed to the 2ND Circuit Court of Appeals and later to the U.S. Supreme
Court. The Supreme Court eventually ruled in a 7-2 decision in favor of Tasini.

Greenberg appealed his case to the 11th Circuit Court of Appeals in Atlanta which eventually
found in his favor and ordered U.S. District Judge Joan Lenard to enter a judgment on the
copyright claim in favor of Greenberg and to provide injunctive relief.

NGS, aided by a brief written by former Watergate prosecutor Kenneth Star, among others,
appealed the case to the U.S. Supreme Court asking it to review the 11th Circuit opinion but
the High Court without comments, refused to hear the case.

This meant that a new jury trial had to be held in Miami to determine what "injunctive
relief" (damages) should be. This trial was held in March of 2003 (it had been six years
since all this started) and the jury found that the infringements had been "willful" and
awarded Greenberg $100,000 per infringement for four infringement ($400,000). Willful usually
adds legal fees to the damages.

Has Greenberg seen any money yet? No. Because NGS has asked Judge Lenard to set aside the
jury's determination and 9 months later she has yet to rule on that request. NGS has
indicated that if they don't like her decision they will appeal the case back to the 11th
Circuit.

Meanwhile

Fred Ward filed a case in U.S. District Court for the Southern District of New York. Another
group of photographers including Douglas Faulkner, David Hiser and Louis Psihoyos also filed
a separate case in the same court. These cases were assigned to Judge Louis Kaplan, well
known for handling major publishing cases that appear in this jurisdiction.

Over the years Ward had more than 850 images and 12 articles published in National
Geographic Magazine. He also has excellent documentation substantiating that he licensed
specific one-time-rights to the material and that he was to be compensated for additional
uses. For more about his case see Story 475 .

In reviewing the case Judge Kaplan found that the new features contained in the first
Complete National Geographic set of CD-ROM's did not carry it over the line from being a
revision into a new work. He focused on the fact that NGS made no changes in the content,
format or appearance of the articles in the Magazine that were reproduced in the CD's and
rejected the finding of the 11 Circuit Court of Appeals.

On December 11, 2003, Judge Kaplan ruled that that NGS's section 201(c)(3) copyright
privilege allowed it to create the CD-ROM set. He argued that because the Supreme Court
ruling in New York Times v. Tasini was handed down several months after the 11th Circuit
decision in the Greenberg case it cast doubt on the validity of the Greenberg decision.

The implication of Judge Kaplan's decision are chilling. The court stated that so long as
the publisher digitally reproduces the contents of the original print work in the same
context in which they originally appeared, the publisher is free to add a number of
multimedia elements and software tools that enhance the marketability and salability of the
product.

Thus, unless Judge Kaplan's decision is overturned, we may find that publishers will be
allowed to display photographer's images in many new products without additional permission,
or compensation, so long as the context in which they first appeared remains substantially
the same. This could mean that an ad agency that wants to use an ad on the web or a
corporation that wants to offer their annual report, or brochure as a PDF may be allowed to
do so without having to pay creators for the additional use.

The Battle Escalates Dramatically

Not only have the current plaintiffs spent countless hours in bringing the cases this far,
but they have also incurred huge expenses - and this may only be the beginning. Now the case
must be taken to the 2nd Circuit Court of Appeals. In the Tasini decision the 2nd Circuit
overturned the District Court decision and found in favor of Tasini. Whatever happens at the
2nd Circuit the losing side is likely to appeal to the Supreme Court.

This is no longer a series of lawsuits brought by photographers and writers against National
Geographic for the CD sets. It's now a major conflict between creators of intellectual
property and those who would exploit their works.

The case hinges on what will become the legal definition of a "revision" as it pertains to
copyright law on the digital frontier. This legal hairsplitting could have huge ramifications
as to how clients will be able to use and distribute photographer's work, and whether
photographers will be entitled to compensation for what they produce.

The plaintiffs are asking organizations and individuals who care about protecting the
copyright of artists, writers, photographers, musicians, painters, television and movie
producers, to file amicus (friend of the court) briefs on their behalf. It is our
understanding that ASMP and EP have already initiated work on such briefs.

Whatever the eventual resolution it is likely to be many years and many tens of thousands of
dollars in expenses in the future. Photographers contemplating an action for copyright
infringement should contemplate what might be involved, and carefully consider whether their
pockets are deep enough to see the action through to the end. It is unfortunate that the U.S.
legal system isn't structured to better aid to the little guy, but that doesn't seem to be
the case when it comes to defending copyright.

December 15, 2003 (Story 600) - At their Analysts Day on December 12th Getty Images
announced that they expect revenue for the 4th Quarter of 2003 to be between $128 and $130
million. This is up from their estimate at the end of October of $124 to $128 million. For Q1
in 2004 they expect to report revenue in the range of $137 to $142 million and they expect
their annual revenue for 2004 to range between $560 and $580 million. Thus they expect to see
between 8% and 12% growth for 2004.

November 8, 2003 (Story 592) - Jose Azel has sold his Independent Photography Network
(IPN) to VNU Corporation, parent company of PDNOnline. The new portal, that will be at
www.IPNstock.com (still under development), will be headed by Jeffrey Roberts VP/Publisher of
PDN. PDN views this as an extension of their mission to "serve the photo community" and
intends to operate IPN as a service to photographers and stock agencies, and not to become an
agency itself.

VNU is a global information and media company and one of the largest providers of integrated
business-to-business information in the United States and Europe with a gross annual revenue
in the range of $4 billion. It is headquartered in The Netherlands, publishes 140 trade
magazines and organizes 150 trade shows and business events annually. They are also the
world's leading market research company and produce thousands of specific market data reports
each year. ACNielsen Media Research is one of their brands.

VNU's proprietary databases and industry-specific knowledge and expertise puts them in a
good position to grow sales for those image suppliers represented on the IPNstock.com portal.
VNU will market the site directly through regularly scheduled e-mail campaigns to photo
buyers and creatives around the world, print ads in trade publications, special events and
direct mail campaigns. In addition to PDN other VNU brands including PhotoServe and AdWeek
will help IPNstock.com reach the creative audiences they server.

VNU has 59 business-to-business titles in the U.S. in the fields of entertainment, media,
marketing, fast-moving consumer goods, retail, merchandising, performance, travel and the
design industries. Its publications include: AdWeek, MediaWeek, Billboard, The Hollywood
Reporter, National Jeweler, Progressive Grocer and Successful Meetings. For more information
about the company go to: www.VNUeMedia.com .

Azel originally developed IPN for use by his editorial agency Aurora&Quanta. Once the
software was developed he expanded the service by making it possible for photographers to use
the interface to build their own custom sites and also have their images available on an
expanded network. If customers enter the site through a photographer's portal they see only
the photographer's images when they do a search. In the event the customer is searching for a
subject the photographer doesn't have the customer is then given the option to roll over to
the full IPN portal and see images on that subject from all IPN photographers.

In the old version there was no direct entry to the IPN portal (it was necessary to enter
through one of the photographer sites), but in VNU's version there will be direct entry via
www.IPNstock.com .

For photographers who want to be a part of the new PDN version of the site there is an
initial $595 set-up charge and a monthly licensing fee for use of the software of $195. In
addition IPN will take 20% of any image licensing fee. A two year contract is required. The
monthly fee includes storage of up to 500 high resolution images per year. An additional
1,000 images costs approximately $35 per month. For agencies there is the same initial set-up
charge and the licensing fee to use the software is $495 per month and this fee covers adding
5,000 images per year to the site.

Currently IPN encourages photographers to post at least 40MB, and preferably 60MB files.
They will accept smaller files when shot with digital cameras and of subject matter aimed at
the editorial market. The software indicates the deliverable file size that is available for
each image so the customer can make a decision while selecting images as to whether the file
size available will be sufficient.

Features

There are a number of features that make this portal very attractive for both photographers
and small stock agencies.

The image supplier gets a fully functional site that includes automatic pricing and
delivery. Suppliers have the option of using the IPN pricing, or providing their own schedule
for online prices.

Each supplier may post any images it wants on its own custom site. Image suppliers will be
responsible to supply high resolution deliverable files and the necessary keyword and caption
data. IPNstock may select some or the submitted images for inclusion on the larger IPNstock
portal. IPN will directly promote this larger portal and, given the larger cross section of
imagery available, it seems likely that many customers will choose to use the main portal
rather than individual sites of photographers or agencies. Customer may also access the main
IPN portal through the individual supplier portals.

If a customer enters the database through an individual supplier's URL and performs a search
the customer will initially see only the images of the individual supplier. However, if the
search is for a subject that the supplier does not have, then the customer will receive an
online message indicating that more images are available on the main database. By clicking
the customer can then see all the images from all IPN members on this subject. This referral
system is unmatched in the other online systems we've seen.

In those cases where negotiations are necessary the supplier has the choice of letting
IPNstock handle the negotiations or in dealing directly with the customer. If IPN does the
negotiating they take an additional 10% of sale. If the image supplier handles negotiations
they bill the customer directly and pay IPN its 20% share of the usage fee. Customer will
have the option of searching for either advertising or editorial oriented photos, or to
search all.

In addition to being able to offer automatic online delivery for IPN customers, the supplier
may deliver at no additional charge Hi-res files from the IPN database to customers who did
not locate the image through IPNstock. For example, if a foreign stock agency is representing
one of the IPN suppliers and showing low-res images on its site the IPN supplier may
authorize that foreign agency to download high-res images, as needed, from the IPN site. This
reduces the storage requirements for many foreign agencies and makes it easier to quickly set
up representation arrangements with other agencies around the world.

One time registration on any of the individual sites, or on the main IPNstock site, gives
the customer access to any of the preview images on the site. If the customer searches
various photographer or agency portals he doesn't have to re-register each time.

It is also possible for individual photographers to make arrangements with agencies within
the network to show and market their images.

IPN allows members to see real-time reporting of site traffic and know who their customers
are and what they are looking for. Suppliers have access to management information on
subjects customers are requesting and the preview images they are selecting. This information
can be useful as suppliers endeavor to fill holes in their offering and plan new shoots.

Images can be uploaded to the IPN server from Netscape or Microsoft browsers or by FTP. This
real-time ability to update the database means that timely images are fresh, and new images
can reach clients faster.

The business model appears to offer some very exciting opportunities for both photographers
and stock agencies. IPN is currently signing up image suppliers and expects to go live with
their site early in 2004. For more information contact lcurtis@ipnstock.com.