Fact – Myth-busting requires facts

There has been much a-do about the Enterprise Regulation Reform Act (ERRA) and I’ve written about it before and shall no doubt have to write about it again. Much to my irritation.

In response to the many millions of words written about it and an e-petition on the Number 10 website, which currently stands at almost 27,000 signatures, the Intellectual Property Office has issued a statement which it hopes will calm the fears of photographers.

The problem with the document is that writing the word “Fact” in bold lettering at the start of a sentence doesn’t make that sentence irrefutable. There are still too many variables, too many vague answers to specific points and the act has as yet no regulations applied to it, which is why so much that has been written can only guess at what the real purpose of the act will be.

Reading the statement, what kept jumping out for me was the idea that orphaned works could be licensed and licensed “at the going rate.” I’d very much like to know how a government-appointed agent will decide the “going rate” for any particular photo. How will they know whether or not consent for the proposed use would have been granted without the author having been contacted? How will they know what the rights holder would have charged for the use of that image if they were given the choice?

How will anyone not connected to the image or its author know if any people in the photo would be happy for their likeness to be used in any given context? Who will even know which country the image originated in? Or whether the original client for that photo is happy for others to use it? Many images (most of the ones I take for my living) are supplied on an exclusive basis.

I quote here a typical paragraph from the IPO’s response:

“Myth – anyone can use my photos without my permission

Fact – Anyone wishing to use a work as an orphan must first undertake a diligent 

search for the rights-holder which is then verified with permission to use the work 

granted by the Government appointed independent authorising body. If the work is 

not genuinely orphan then the rights-holder should be found, if the search is not 

properly diligent, no licence will be issued.”

Presumably though, if it is decided the search was diligent, but the rights-holder was still not found, the image can be paid for at an un-specified “going rate” and used with permission of the governing body. Therefore, without the rights-holder’s permission. That paragraph, like so many others in this document should read simply:

“Fact – anyone can use my photos without my permission

Fact – Maybe. There will be some kind of procedure as yet unspecified and you might lose control of your image, but don’t worry your silly little head about that.”

It will be interesting to know how on the flip-side of this, the rights-holder is supposed to discover their work has been used and then claim whatever money (or Green Shield stamps or bellybutton fluff) has been held in safe-keeping for them. Are creators expected to constantly check an ever-expanding register of works for use of their images? If the granting of licences is an exception rather than a rule, this might even be possible, but it’s still not ideal and still rides roughshod over the basic tenets of copyright.

IF the IPO had come straight out and said “this act will ONLY apply to works held in recognised historical archives” a lot of fears might have been assuaged, but they didn’t.

The IPO also makes no mention of any plans to strengthen moral rights – the right to be identified as the author of a work, the right not to have one’s work mis-attributed and in particular, the right not to have identifying data stripped from one’s images. Simply by re-enforcing the the creator’s right to have their identity kept with the work would be a start.

The problem with the IPO’s statement is it’s lack of clarity, either through insufficient understanding of their own subject, or because there is unseen industry pressure to keep things vague until the great reveal of the guidelines by which time it will be too late for photographers to properly and comprehensively defend their rights.

Given tight enough regulation, the ERRA could be a good thing for photographers by making it clear our works, even where their identifying data has been removed, are not orphans, but until the guidelines are published we have no idea of the intention of the legislation. By the time we do know, it’ll be too late to do anything about it. I have a terrible feeling we’re being inched towards a goal that was decided upon long before Hargreaves set up his review.

Plane Portrait (ouch!)

One of the things I love about my work is meeting interesting people and finding myself in interesting places. A fine example of this was an unexpected assignment for Centreline Air Charter, based at Bristol Airport, where I was asked to take a portrait of Centreline’s CEO Phil Brockwell for European Business Air News, who were to run a front page story on the company. Centreline didn’t have a suitable image and called me up to help them.

EBAN might very well not be a publication you’re familiar with unless you happen to own an aircraft operation in Europe, Russia, the Middle East or Africa. You don’t? Fair enough. To be fair, I’d not heard of it until the call came, but I strongly believe that all publications, even trade ones, deserve decent photography.

Phil is one of the friendliest CEOs I’ve ever met and it’s not every day I’m asked “where would you like the jet?” I suggested the South of France, but Phil meant where on the runway apron. Maybe next time, eh?

One of the difficulties I had with this particular portrait was that the sun was especially harsh, in the wrong spot (it almost always is, ask any photographer), and we needed one of Centreline’s shiny white aircraft in the background too.

My choice was either to have Phil squinting into the sun, or silhouetted against the bright backdrop. I had one other trick up my sleeve; bright backdrop but with tricksy fill-in flash on Phil (or Phil-in flash if you will… ouch) so that both background and subject would look good.

Having had the jet moved to where the shot would work best, I set up Phil where he needed to be and set my flash and camera to mitigate the sun, took a few test shots, made adjustments, took some more test shots until I could see we were getting close, made further slight adjustments, then got on with the real deal.

I knew I couldn’t spend a ton of Phil’s time getting things right, but it was nice to be given enough time to set things up properly and also get a variety of shots so that Centreline’s public relations handler would have a choice of images to put over to the magazine.

Apart from having to come off the runway for a coffee break while another jet came into land, the whole shoot was done in under an hour. More than 10 minutes is a real luxury when shooting CEO portraits and I was grateful for the time, but I also think the results were worth it.

The same day I delivered the images to Centreline’s PR, captioned and ready for publication. Their (and my) preferred shot made it to the cover of EBAN as planned and you can see the result below and read more of Centreline’s story here. A good result I’d say and a very satisfying assignment. I certainly didn’t wing it (ouch, again).

European Business Air News front page featuring Phil Brockwell, CEO of Centreline Air Charter

The sky hasn’t fallen in, but it’s looking decidedly dodgy

On February 26th I wrote about the Economic Regulatory Reform Bill and its likely effects on the ability of photographers to control where and how their work is used and whether or not any payment is exchanged for that use.

Sadly I must tell you the ERRB, including the clauses on orphan works and extended collective licensing, is now law. I say sadly because this has happened even though the moral rights of the photographer to be identified as the creator of their work has not been reinforced ahead of this change in law.

In case you’re not aware, an orphan work is any creative work of which the author cannot be found. Extended collective licensing is the selling of the use of orphan works without the creator’s knowledge or consent.

In relation to photographs, the problem with orphan works is they’re being created every second of every day on the internet. The problem with ECL is that it takes away the photographer’s right to set or negotiate their own fees based on the value of the work, or to limit use of the work, especially where exclusivity has already been sold to a client. It also ignores the rights of people within photographs not to be associated with businesses or causes with which they do not agree.

Now, before we all hit the panic button, the ERRB is primary legislation and will be subject to regulations which are yet to be drafted. In an ideal world, the orphan works and ECL clauses of the ERRB will be regulated to only encompass works held in historic archives, of which there are many and whose archivists would like the ability to digitize and ultimately make money from works held in storage whose authors have long since passed on or vanished.

Even within that framework there will be grey areas, but to gather in ALL orphan works wherever they reside would be a grave mistake, and would almost certainly result in legal actions, especially from photographers in the USA who are allowed to claim exemplary damages for breaches of their copyright. In short, it could get very messy and very expensive very quickly.

Photographers both professional, amateur and occasional all need to be very wary of what follows. It would be a good idea to write to your MP in the first instance asking what the intention of the regulations will be and whether it means any photo you take can ultimately be used by all and sundry, without your say-so and with no opportunity for you to say no or negotiate a fee.

Another area of the law which needs attention is the moral right to be identified as the author of your work. This is currently part of the Copyright Designs and Patents Act (1988), but it is weak and with too many exceptions. To be fit for the digital era it is imperative that identifying data, either in a watermark or as data embedded within the image file is protected by law.

Of itself the ERRB could be benign, but that we don’t know what the regulations and restrictions will be and the fact it can be amended without recourse to Parliament are dangerous factors and should worry everyone concerned with protecting their own creative property.

I’ve merely outlined the issues here. Far more detail needs to be worked out to ensure the ERRB doesn’t cut off the ability of creators to make a living, nor to exploit the works of amateurs in ways they could never have imagined or wanted. The creative industries in the UK are too important to our economy, and too easily harmed by badly-framed legislation.

Keep an eye on sites like EPUK.org and BJP online to keep up to date with developments, but remember also to contact your MP to make sure they’re aware of what’s at stake here.

Coke, girls and cameras!

Twice a year, Frome Wessex Camera Club hold a camera and photographic fair at The Cheese and Grain in Frome. Twice a year I miss it. In fact I must have missed it about 14 times by now, but I was determined to take a look this time.

Classics from Nikon and Leica to tempt the collector

I’ll confess I expected to find The Cheese and Grain stuffed to the gunwales with old guys in multi-pocketed photographers’ vests nerding over Leica MIIIs and Summicron lenses, or Nikkorflexollamas or whatever. Let’s just say, the gunwales were stuffed, the men were numerous and old and there was the buzz of nerding in the air. I even spotted one or two men wearing multi-pocketed vests, but they may have been anglers who’d wandered in by mistake.

To be fair, my age, gender and nerding tendencies mean I was in excellent company. I took the precaution of bringing my son who was going to have “none of that”. He stayed close and pulled me back from the abyss whenever my eyes glazed at the sight of a classic rangefinder camera. A tough task for any 12-year-old boy, but he did a super job and a coke in the cafe soon revived his superpowers.

Dive in, geek out and have fun

Bill Collett of Priston (right) tries his new lens on a camera Brian Sawyer of Melksham considers buying.

The fair itself is a broad mixture of ancient oddities (by which I mean the cameras, not the visitors… mostly) and present-day technology, but the emphasis is geared more to collectibles than modern equipment. I did speak to one chap who’d just acquired a very current and expensive lens at an excellent price. I was a little jealous, I must admit, but my son detected an evil glint in my eye and tugged my arm as he saw me starting to follow the man with the lens. It could have turned nasty.

There were one or two actual women there too and they didn’t appear to be there under duress. They were enjoying the fair too, and I spoke to a young woman from New Zealand who was there to enquire about adapting older lenses to fit her modern digital camera. She was impressed with the level of knowledge available from stallholders and seemed to be having a great time. She hadn’t come all the way from New Zealand just for the fair, but it would be nice to pretend she had.

For me the fair was an opportunity to find something fun to write about this week and to test a (nerd alert) Canon 16-35mm f/2.8L USM MKII lens which I’m reviewing for Wex Photographic. I know you’ll all be dying to read that review when it’s published, so I’ll be sure to let you know when it’s up.

Vicky Long came all the way from New Zealand just for the fair! (I’d like to think)

The next fair is in November and I’ll probably pop along if my son will be my nerdguard. It might require two cokes next time.

Portraits with Personality

One thing I’ve managed not to bang on about for a while is the importance of good quality portrait photos in business, by which I mean genuine photos, well-executed of the people within an organisation, at the very least the key people who need to be the face of the business.

I’m happy to say that fewer businesses and organisations are now using stock imagery as a way to project themselves. Of course it’s still a popular source of images for websites and brochures, but people understand more than ever the importance of including their own personalities in their marketing, but having taken the decision to commission some “real” photography, what other decisions follow from that?

The key decision is what style to go for. A portrait can be formal, informal, serious, light, it can be taken indoors, outdoors, subject looking to camera, subject looking off-camera. There are infinite angles and permutations and most clients want a selection of styles and moods so they have a library of images to call upon for different requirements.

The limiting factor to all this might be how many people need to be photographed within the time available, and how much time each sitter has before they must get back to their desk or their next meeting.

I often find myself allocated a room in which to set up my lights and perhaps a backdrop, but even this basic setup can allow for quite a variety. Outdoors shoots often take longer because the environment is less easily controlled and the location is usually some distance from the office.

It’s important to have a think about the mood and the style of the shots required and the context into which they’ll be published. I’m happy to discuss all this with clients looking for guidance, and of course I’ll talk to their designers too.

Perhaps the most important thing about having portraits done is to remember that these aren’t for the mantlepiece or the family album, they’re for communicating personality and values to clients, which is something stock images cannot do.

I’ve plucked a few random portraits from my archive to give some ideas of what’s possible. There are many more possibilities than I can ever show you.

Using available light and a white wall

Outdoors, looking off-camera, using the available architecture

Standard business portrait in colour taken using lights and a backdrop

Black and white, looking off-camera. This was staged to look un-staged

Fan Control

It’s an exercise in stating the bleedin’ obvious to say that a computer is an integral part of most photographers’ equipment, unless perhaps you’re Bill Eggleston, though it’s possible even he uses one now, I don’t know. Bill? Billy? If you happen to be reading this, why not drop me a comment at the end of this article to let me know. That’s if you have a computer with which to read this post of course.

Back to the plot, I certainly do have a computer. In fact I have a relatively prehistoric Apple MacBook Pro which must be getting on for four years old (that’s 50,000 computer years, 1.3 trillion if it’s a PC) and I was starting to worry it wasn’t up to the task any more.

Over the time I’ve had this computer I’ve asked ever more of it. The files from my cameras have doubled in size, I’ve upgraded to Lightroom 4 and PhotoMechanic 5 on top of all the regular software anyone uses when they have a computer and I’d become increasingly aware of the fan noise that would start up whenever I worked on images. Lightroom in particular seemed to get the fans working hard.

Sometimes it was as if there was a DC10 on my desk getting ready for takeoff, and I had been wondering if some harm was coming to the processor, which is what the fans are there to cool. I say fans, there are two in my machine, and a nifty piece of software called Fan Control tells me what the temperature of my processor is in ºC, what speed each fan is doing in RPM and I can adjust various settings to dictate when the fans kick in and what temperature they’re trying to maintain.

Hours of geeky fun controlling and monitoring processor temperature

I was alarmed to see my processor running at around 80 ºC or more on a regular basis, the fans straining to reach their top speed of 6,000 RPM presumably to stop the laptop catching ACTUAL fire. And then I had a brainwave…

When you open an older MacBook Pro, the hinging movement of the screen reveals a long slot along the back (see photo) and this slot is the air intake which the fans use to draw in cold air and expel the heat. So I got my vacuum cleaner with a brush attachment and gave the slot a good clean out. What a revelation! Where my laptop would routinely be running hot on even basic tasks like writing a blog, it is now silent. Running Lightroom still causes the fans to kick in, but instead of around 85 ºC, the processor runs at anything up to 20 ºC cooler.

Cleaning out the vents lets the fans work more efficiently

The laptop doesn’t run any faster, but it’s quieter, cooler and will be using less power. Plus the processor and other gubbins are less likely to fry and I’m less likely to be hit in the head with the shrapnel of an exploding fan. That really would be a disappointing way to die.

Goodwill Hunting

I’m thinking it would be too easy to write yet another tale of woe about a small business getting caught with unauthorised images on their website, and if you read my blog regularly you won’t need me banging on about copyright yet again so I won’t. Of course if you want to know more about this, read The Guardian consumer column which will enlighten you further.

Instead I’m going to tell you a new and surprising fact; Photography is more crucial to the promotion of business than it has ever been.

That I’m saying this isn’t perhaps all that surprising. What IS surprising is that it’s been said by John Owens in PR Week. If you’re a photographer, you might be peeling your eyebrows off the ceiling after reading that. Yes, an organ of the public relations industry is extolling the virtues of photography in brand awareness. I utterly commend the article as essential reading to all PRs who either don’t know, or who might need a reminder of the importance of good quality, engaging imagery for their campaigns.

Behind the scenes, un-staged photos (such as this one of Richard Noble of the Bloodhound SSC project) are championed by the PR Week article.

The piece even concludes with an immensely useful check list written by Matthew fearn, picture editor of The Daily Telegraph, for PRs wishing to get exposure in national newspapers, but which is also a perfect outline of good practice for PRs sending images to trade and local press too.

There are one or two points in the article where I would advise caution, as you would expect me to (knowing what a cynic I can be), but I think they’re worth a little extra consideration.

The author sites a couple of examples where big name brands have engaged the goodwill of their customers to help with social media campaigns on Facebook and Twitter. In one case Lego asked customers to send in creative images of their models for use in what was a highly successful Facebook campaign. Lego’s head of social media Lars Silberbauer says, “At Lego, we are at a stage where we would rather build a stage around our customers’ content than a campaign using fixed assets.”

I say, “Yuhuh I bet you would.” Fixed assets are expensive and customer-supplied content is free. I’m not actually saying brands shouldn’t do this, but it must be done in good faith and brands need to be aware that crowdsourcing can backfire.

In the case of Lego, where customers knew exactly how their images would be used, the campaign was a success. In the case where Instagram wanted to grab rights from its users for unspecified use, the exercise blew up in their face. I wonder how many times a brand loved even as much as Lego could use this exercise. People are increasingly aware of the commercialisation of their non-commercial photos, and while I don’t condemn crowd participation per se, I would urge brands to ensure their use of freely-offered images is circumscribed and boundaries are clear.

You might conclude I’m worried about the public taking PR work away from me, but that isn’t such a concern. As long as the public aren’t being taken for fools and brands play fair, I’m comfortable with this. Any business doing PR properly will have a range of different avenues for exposure, including social media and low-end imagery alongside higher-end imagery, press PR and advertising. It shouldn’t be treated as a one-or-the-other equation.

PR is vital to any business of any size. It’s bad PR to use other people’s images without permission, it can be good PR to ask for pictures if the deal is fair, and a good photographer with real newspaper training and experience can help you get exposure at a fraction of the cost of advertising. So go hunt goodwill, just don’t shoot Bambi’s mother in the process.

Reviewing a Gem

If you haven’t already seen my review of the Fuji X10 over on the Wex Photographic website I suggest you get there post-haste and read it without further delay. War and Peace it isn’t, but what you will get is a camera reviewed in working situations and which shows what the camera is capable of when you delve deeper than the auto settings. What I discover is that the X10 is a little gem.

Although I’ve only ever reviewed two cameras (the aforementioned X10 and the Canon G1 X) I can honestly say I enjoy the experience and of course Wex know I’d like to do more.

One of my first shots with the X10, testing macro and low light abilities in one shot.

It’s one of those tasks which is kind of scary but also exciting; I know I have to deliver a coherent critique of a camera and I need to get it done within a reasonable period of time, while of course I enjoy getting to try out new equipment.

Wex give me the freedom to decide what images I take, but I’m always looking for pictures which don’t just show that a camera can take pretty snaps in Auto mode, but that it can be pushed and stretched (figuratively of course) to show what it can and can’t do. There’s no point me just stepping outside the office and taking pictures of buildings and pretty scenes. Any camera that can be called a camera can pretty much do that standing on its head, albeit the pictures will be upside down.

With the G1 X and X10 I wanted to see if the camera could take sellable pictures. In the case of the G1 X I sold a flood picture which I took on my first outing with the camera. With the X10 I used it on an assignment and mixed the results in with photos taken on my main camera as it proved very useful working in a situation where shutter noise would have been distracting. The client was happy, and it gave me another chance to show people what the camera could do in less than ideal conditions.

In both cases I tried the cameras out with my portable studio lighting, and both worked incredibly well. And although I don’t class myself a Street photographer, again both allowed me to have a go at this tricky genre and I was pleased with the results.

Wex already know I’m champing at the bit to have a go with the X10’s successor, the imaginatively-named X20, as soon as I can and of course I’ll publicise the article widely if/when that happens and of course you’ll read it, won’t you?

I’d rather be writing about something else

Here we go YET AGAIN! I’m starting to get just the tiniest bit annoyed* at attempts by government to destroy copyright law while claiming it’s progress.

This time it’s the Intellectual Property Office (IPO) showing a distinct lack of intellect on the issue.

Last time this was tried, back in 2010, we were at the cusp of a new government and the Digital Economy Act was being hammered out in Parliament. The clause of contention for photographers was Clause 43 which would have allowed the use of orphan works (photos whose author could not be traced) without the copyright holder’s permission.

Luckily for us, after intense lobbying by photographers, the Stop43 campaign and others, the Conservatives (then in opposition to the Labour government) agreed to pass the act only if clause 43 was removed.

Now it’s back, but this time it’s even worse and it’s now part of a bill, the Enterprise and Regulatory Reform Bill, which is unrelated to copyright and therefore fewer people are aware of its existence. Even worse, if passed as primary legislation any future changes to the act will be permissible as secondary legislation without the need of a return to Parliament. Didn’t I previously say democracy was being undermined?

Clauses 67-69 effectively strip the automatic right of copyright from anyone who creates a work including photographs. Within those three clauses you lose the right to control your images if they are found on the internet but not easily traceable to you, you lose the right to say whether or not a photo can be used in any given context and you lose the ability to negotiate your own fees should you decide to sell rights in your photo. In addition, the bill extends exceptions to copyright so more people can use your work, including commercially, with no need to ask permission first.

Of course this is a dire situation for photographers whose livelihoods are built on copyright, but it will affect anyone who takes a photo they wish only to be used in limited ways. Amateurs and professionals alike will be affected.

The clauses also ride roughshod over the rights of the subjects within photographs to decide the limits of use of their likeness. It breaches international copyright laws, though apparently the IPO don’t know enough about copyright to understand this. In short, it is an ill-conceived mess reminiscent of reforms to the NHS, education, just about anything ministers decide to change before they’ve properly considered the issues involved.

What professionals and amateurs need to do is lobby their MPs, lobby the Lords and make it clear these clauses do not belong in this bill. Copyright may well need reform, but it’s too big an issue to shuffle past our noses disguised within another bill, and these clauses are not the answer. If the question is how do we stimulate growth in the UK economy, the answer has to be better planned than this.

Further reading and guidance on how you can get involved:

http://thebppa.wordpress.com/2013/02/19/the-copyright-fight/

http://www.stop43.org.uk/ 

*My entry for Understatement of the Year Awards 2013

Horse Meat Found in Cheap Photography

I was listening to Billy Bragg being interviewed on the radio the other day and while he was never one of my favourite artists, he has always made a fair amount of sense. On this occasion he was even good enough to admit his voice was never his strong point. Perhaps the closest we’ll ever get to an apology for his vocal on Between the Wars.

During this interview Billy was talking about the state of the record industry and the difficulty young working-class singers and songwriters face when trying to get a big break because of the way the industry has changed. The interviewer suggested that surely the market would seek out the best talent, regardless of background, to which Bill replied, “You know what happens if we leave it to the market, you get horse meat in your burgers.”

The wider point Mr Bragg was making was that the record industry no longer has a filter in the form of the likes of John Peel who would have plucked an artist from obscurity on the basis of a few good songs regardless of background. Billy believes it’s often the privileged kids from public schools who get the break and as he put it are “clogging up the charts.”

This “class” issue is an interesting one affecting photojournalism, and has lead to a situation where photographers have to self-fund coverage of events, then hope to sell the images to publishers who can force prices down because as they see it the pictures have already been shot and the photographer will be grateful to claw back some of their costs, never mind make a living. Success is now more to do with whether you can fund your shoots rather than pure talent.

I rarely shoot editorial in the purest sense now. Newspapers rarely call me up to shoot assignments for them (my previous post explains where they get pictures from since the collapse of their budgets), though I still shoot PR pictures in a style to suit newspapers. I won’t fund assignments in the hope of selling something later. I do shoot personal projects and if I sell something from those that’s fine, but it’ll be at my own prices and on my own terms.

Is your corporate image a winner, or a Findus dinner?

In the corporate photography sector there is also downward pressure on prices, but I decided a couple of years ago, even in the grip of a deep recession, to set my rates and stick to them. I have to say I’m glad I did because when I see some of the work being churned out by photographers charging significantly less than me, I’m happy to boast that their clients are not getting what I offer. I don’t think I’m some David Bailey of the corporate photography world, but I know what I do well, I stick to doing it and I charge what I believe is a fair rate for the quality and service I offer.

I genuinely believe if a corporate client is only interested in getting the cheapest photography they can find, they won’t get anything worth having. Newspapers have already proved this theory. Their imagery is more horse meat than beef right now. Businesses wanting to avoid the Findus fate will invest properly in their images because people aren’t stupid. They can spot bull in photos and they don’t need a DNA test for that.