A COPYRIGHT MANIFESTO #2: NO COPYRIGHT = THE BORG

The photography universe is facing a number of threats on a scale I’ve not seen in my lifetime. When I began, there were relatively few photographers. Now with digital, everyone is a shooter, and schools are graduating thousands yearly, all hoping for a life in photography. Competition is beyond fierce.

Statistically 1 in every 500 graduating photography majors will make it.

The biggest threat remains the gradual demise of copyright and our ability to license our images. Since the US Constitution gave creators the power of copyright, culture has flourished as artists have been able to feed their families while creating, books, paintings, photography, etc. A creative life was sustainable. The system worked beautifully for two centuries and everyone in society benefited.

With the advent of digital technology, and the past two decade-long corporate push to crush photographer’s copyright trade practices, the model is broken and will surely die soon, unless photographers unify and fight back. That’s as likely as herding the proverbial cats…. still it’s a shocking thing to see photographers slitting their own throats. That’s partly due to ignorance and fear—young shooters are not taught the value of copyright and existing trade practices and say yes to whatever terms they are offered just to break in—and older shooters say yes to bad terms out of very real need not to starve to death. I get it. And clearly the music industry was first, while film and photography is getting hit now.

SO WHAT IS THE NEW MODEL? HOW DO PHOTOGRAPHER’S MAKE A LIVING?

I ask everyone I meet this question and have yet to get an answer that makes any sense in the last year or so. Creating apps is cool, and being a consultant is cool, and those things might even get you some money. But they are not photography. These activities are not rewarding you directly for a photograph you created.

Commercial photography is broken and will not sustain the number of people trying to get in. The days of getting paid 15K per ad for even a new shooter are over. Everyone is working for less and agreeing to give up their rights without being paid for them just to keep working. Clients care nothing for quality, only the lowest price of a triple bid.

Editorial photography is broken and also is overwhelmed with young shooters and the already jam packed older mob of experienced shooters. There are just not enough outlets for all the work with the massive decline of newspapers and magazines, and they are paying less and less and rights are also a big issue with online and overseas.

Fine Art is actually doing pretty well. Here, the model holds. Artists get paid for their photographs as they always have. This area is also inundated with young hopefuls so the competition for this area is a fierce as the others but the model is holding. No gallery is giving away pictures yet as far as I know. So here’s some good news at least

CHAOS: So we have a perfect storm now with the confluence of these factors: gazillions of hungry, young shooters lacking basic business skills or awareness of how copyright could help them; the economic downturn and necessity of corporations to cut costs, along with their two decade push to crush copyright; and the advocacy of many leading digerati pushing a line about the brave new world that demands artists give up their rights and share their work freely.

First, the young and innocent: a generation has grown up downloading music and images and content for free. They feel entitled to this free content, it’s how they were raised. Many who now want to be photographers probably had one or both parents involved in the arts. Some of them probably grew up in houses paid for by the copyrighted content their parents created. Now that these kids want to make a living in photography they don’t realize the connection between say, not accepting a buy out, or accepting a fee well below accepted trade practice, and their long term ability to earn a living. I had the benefit of my elders, Jay Maisel, Greg Heisler, Elliott Erwitt and many others, strongly impressing on me the incredible power of owning my work and licensing it over and over could have. I paid for houses, put my kid through private school and sustained my personal projects through this simple privilege granted by the founding fathers. Why would I give it up?

The economic reality of running a photography studio is such that the fees you earn typically end up just barely covering your overhead. The nature of cash flow is such that by the time you get paid for a given job you need to pay old bills so that income disappears quickly. Hard to pull out profit. But when  check comes in for re-use and additional licensing, hey, it’s easy to sock that away. The real profit comes from whatever mark-ups can be found, but mostly from re-use. It has been extraordinary. And now almost every job comes with a request to hand over all rights with 0 compensation. They usually say they are sorry but they have some kid in Ohio willing to give up all rights without payment. You can’t compete with that. But at the same time that kid is getting a job that pays once, gets him through the month, but ultimately that model is unsustainable over the long term. Trust me.

As for the economic downturn, it is very understandable that this has impacted corporations and they need to cut costs. But it’s hard to accept knowing that most company profits are actually up right now and they are sitting on piles of cash. Something is rotten in the system for sure. But going back to the early 90’s, it was suggested by Bill Gates at the TED Conference to 500 CE0’s and execs of the leading technology, entertainment, and design companies (hence the name TED), that in the future no one should ever pay more than 50 bucks for a photo. Well that dream sure is coming true. I don’t underestimate the power of Bill’s words to influence corporate America. And until very recently, most corporations resisted that statement because they understood that the value of the quality of the images was intrinsic to the success of their marketing. They needed quality and were willing to pay for it. Thus they respected the existing trade practices. That has faded fast and most corporations now are pushing their ad agencies and design firms to request buyouts, without compensation, as a requirement for their work. Of course this makes no sense because the average life span today of a marketing director is around 18 months or less. So that person will be gone soon and the new person will probably want new creative. So they don’t need a buyout, except perhaps to prevent others from using the images. That is a valid concern in some cases and usually can be alleviated with proper compensation or protecting certain images. But a blanket buyout edict is unfair and will eventually destroy their own options for talent. The ultimate endgame of their strategy will result in thousands of photographers leaving the field, giving clients less creative choice. Then the pendulum of supply and demand may swing back giving photogs some new leverage. One can hope.

Photogs with brand names still can exert some leverage, but that’s diminishing as agencies and creatives have less control and power over their corporate masters who demand cheap. Agencies have lost most of their best revenue streams, so they have to cut costs since most are now public companies and the pressure is immense. This has diminished the role of creative directors also. They are our natural allies in this fight, yet we are a long way from recognizing that.

But there is another group pushing against copyright. The digerati elite. Why do so many people in the tech industry, and the young people who embrace their products, feel that copyright is an anachronism, an irritation, and worse? I guess everyone likes a good deal. These mindbenders, some are good friends of mine, seem to believe the world would be a better place if creators stopped trying to control their work. They think it’s futile to do so anyway since in the digital age it can be taken, so why not join the party and give all your work away? They are pushing for free everything, including software. Notice that many of these people made millions through sale of software in the first place. Notice that they and companies like Microsoft are not advocating giving away their own intellectual property while it’s still a cash cow. All the major software companies have investigators out trying to stop software pirating, just like the music industry. Oh, the hypocrisy.

Many digerati often propose that something like Creative Commons is a good solution and that copyright law goes too far. Libraries are up in arms and want pass the Orphan Works bill. Well, I donate pictures to libraries, students and non-profits and I think most photographers do as well, so that’s not really legitimate. Again, show me a compelling substitution for my ability to license my work, which allows me to feed my family, and I’ll consider it. I work very hard to donate my work and time to give back to my community so that’s not the issue. The basic ability of photographer’s to earn a living is at stake and giving the work away free just means no income.

But the scariest talk to come out of my friends in the digital world is the idea that someday computers will gain consciousness and when they do we’ll just jack in, upload our brains and leave our bodies behind. We’ll all be part of the hive mind. Sharing everything. No need at all for copyright or individual rights. Did these people not see Star Trek? Wasn’t the Borg the enemy? The bad guys? Hello! I was raised by radical left wing parents, but jeez, this is wierd. My hippie/libertarian/free thinking genius friends have anticipated a world that can only be described as a totalitarian fascist nightmare. As Jared Lanier points out in his amazing book “You Are Not A Gadget” in this world, we will all be slaves to the borg, writing free wikipedia entries in our minds all day. There will be no creativity, thus no culture.

In other words, take away copyright and you destroy the individual. The rights of the individual are paramount in an open and free society. Without the individual artist’s right to sell what he or she creates, there will be no artists. So yeah, resistance may be futile, but no copyright=totalitarianism! That’s my new t-shirt.

My message to young photographers: the digital providers and corporate clients do not care about you or your future. Only you can save yourself.

IF no one can think of a new model – aside from say selling iPhone apps and basically NOT doing photography – then why don’t we start a movement to bring back copyright? Why don’t photographers band together to fight for our rights?

This is what the Magnum shooters fought for in the 50’s and the ASMP shooters did in the 70’s and so it’s not a new idea. It’s just that it seems that aside from ASMP and a few aging and vocal veterans, the new generation is oblivious to the dangers. I guess they think they will be the lucky ones, that they are so talented they can rise through the dross to get the few jobs available. After all, this is the generation that got an award just for showing up to soccer practice… The most coddled generation in human history. What can go wrong when they got everything handed to them? Maybe in a few years they will wake up, look in the mirror and say “you want fries with that?”

Ok, sorry! Am I attacking my own son’s generation unfairly? Am I partly responsible? Of course, but I’m also trying to get their attention.

The reaction to my criticism from my young friends, as far as I can tell, is not very practical. They continue low bidding jobs, or thinking that if they upload to Flickr enough someday they’ll be famous and that will somehow bring money. That blogging about whatever and giving their pictures away will make them some kind of expert and they can somehow convert that notoriety into… what… a consulting gig? Advertising on their blog? I’m just not sure what they believe is a sustainable model.

Maybe that’s the point of the new digital reality. There is no one new model. There may be dozens of potential models, and what works for one person won’t necessarily fit another. But I ask again, what is an example of a new model, any new model, that is a viable substitute for licensing? That can generate the kind of income we had before?

This is not only about tradition, principles or money, it’s about saving a culture and a beautiful way of life through photography. It has truly been a gift to have had the ability to do the work I loved and feed my family. I fear for those coming up.