And so I pause on a very grey and icy Christmas Eve morn to say two words. I've been busy with work and family matters and even when I'm not "busy" with them, it's hard to concentrate on other things that seem a bit frivolous, such as photography. I got a "lateral" promotion at my day job - same title, but additional responsibilities, a new office, and a minion. Never had a minion before. It's actually kind of worrisome. I know *I* can look busy, but now I have to either make sure another person also looks busy or I look bad. We'll see how that goes.
Anyway, as soon as this family thing is resolved - which, sadly, probably won't be much longer - I really do want to try to get back into photography. It's just that scheduling things in advance is a bit of a fool's game at the moment.
Anyway anyway, I gave my father and my grandmothers digital photo frames for Christmas and preloaded them with several hundred family photos. They were a huge hit.
You can give these to even non-techie types if you a) preload them and b) make sure that they are such that if they get turned off or unplugged, all you have to do is turn them back on and they go into slideshow mode. I don't know what kind of industrial design school dropouts they've got designing the interfaces for these things - half of them don't even have a shuffle feature - but you can find acceptable ones if you shop around a little. They've gotten quite reasonably priced, too. I got 15" ones for not much more than a hundred dollars! That's big enough even for older people whose eyesight isn't the best and/or larger rooms.
M
More after the jump - click here!
Thursday, December 24, 2009
Thursday, November 5, 2009
I Don't Get It, I Never Will Get It, And Apparently I'll Never Be An Artist
I am following with moderate interest www.aphotostudent.com, the blog of one James Pomerantz, a student in the MFA (Photography) program at the School of Visual Arts in New York. My interest is moderated not by any failing of Mr. Pomerantz - who writes well and obviously cares very much about photography - but rather because it is mainly about being a student in a modern fine arts program and, well, "modern," "fine," and "art" to me largely comprise a tripartite oxymoron.
Here's his latest entry:
Roger Ballen in Conversation with Darius Himes Monday November 9th, 7pm
As might be apparent it is about an event where in a modern fine art photographer will be discussing his work with someone. In this case Roger Ballen, the photographer, will be publicly discussing his work with Darius Himes, an editor at an art press. It should be noted that both are quite successful in their respective fields, with Ballen having had a book recently accepted for publication by Phaidon Press and Himes being labeled as one of the 15 most influential people in photography publishing by PDN, the industry trade journal.
So why do I care?
Because if you read the post linked above, you will come across such gems as:
"His most recent work (to be published by Phaidon Press in the Spring of 2009) has pushed this further still, often eradicating the human figure altogether to create intense and loaded subjective spaces that produce intense arenas of disease."
What does that even mean? "Intense arenas of disease?" Used to describe black and white pictures of plates of apples and somebody's feet? (Said apples not being particularly unwholesome-looking, nor said feet particularly ravaged by pathology, just a bit grimy.) How much Kool-Aid do you have to drink to come up with that kind of stuff? Also, five demerits for multiple uses of the word "intense" in a single sentence. Somebody has Grammar Check turned off.
I hasten to add that Mr. Pomerantz did not write that - it was a quote from Robert Cook, Associate Curator of Contemporary Art, at the Art Gallery of Western Australia. And if I may wax stereotypical for a moment, how does somebody who can write things like that even survive to adulthood in Australia? Perhaps he's an immigrant. But I digress.
The point being, Mr. Ballen, who is certainly a fine technical photographer and beyond question more experienced and able than I, chooses to use his skills to produce things like photographs of people who look a little genetically questionable wearing scrap wire helmets and holding cats. And for this, he is celebrated, nay, lionized, in much the same way that Michelangelo or Bach might have been in an earlier, less sophisticated time. (Or, to tip the con, much the same way that Picasso or Pollack were not so very long ago.)
Now, here's the thing. I am well aware that a metaphor can be framed in almost any fashion. But if you do not use contextual elements to anchor the metaphor, you are not framing a metaphor, you are throwing things at the wall and hoping something sticks. To impose my own unsophisticated metaphor on the situation, any intelligent preschool child can tell you that if you have to explain a joke, it's not funny. Granted there are many things I might find funny (or insightful) that a preschool child would not. It's entirely possible that I am but a Preschooler of Art. But if so, that is a mighty high bar to set: I have two college degrees, a postgraduate degree, am ridiculously well read and altogether too clever by half, and I still look at most of these things and say, "Yes? And?"
I can go from dirty feet with apples to "arenas of disease," with a little prodding. But I can just as easily go from dirty feet with apples to "the dignity of poverty in epicurean repose." It's the Emperor's New Art: "Only a foolish person cannot see the idea inherent in the work!" Well, human beings are really smart and really good at rationalizing, so there's no pile of dreck that can't have some meaning tormented out of it ex post facto. However, at that point "art" becomes deliberate obfuscation: if you want to tell me something, use symbols we both associate with the basic concept you are trying to discuss. Making up new words when there is already a perfectly good word that means exactly what you are trying to say is pretentious at best and dictatorial at worst.
Now, that doesn't meant that abstraction or surrealism can't be perfectly valid artistic metaphors. One could create an "arena of disease" with a photograph showing nothing but smiley, happy people sitting round, say, a dinner table on which a young child has been laid out as the main course. (*eyes up and to the left*) But the key to such communication is the discontinuity. A picture of a feeble-minded person wearing a scrap-wire helmet and holding a cat is nothing but discontinuity. Other than, "The world is a strange place, innit?" it does not consistently communicate anything in a common symbology. (Not that that's not a valid observation, but it never stops there.)
I have Mr. Pomerantz's blog on my bloglist, but I tend to save up and read it every week or two rather than daily (he doesn't post daily, but I don't read as often as he posts.) This is because I have to be in the right headspace to deal with the topics that he discusses. Again, this is no disrespect to Mr. Pomerantz, who appears at times to have a bit of fish-out-of-water feeling about the process himself and who chronicles it with integrity and merit. In my normal mindset, as soon as such is put in front of me, I merely dismiss it with boredom. I need to be a little introspective - at least willing to grant the benefit of the doubt. So far the benefits are unclaimed, but from time to time it is good to stretch one's mind even on topics one finds intrinsically suspect.
M More after the jump - click here!
Here's his latest entry:
Roger Ballen in Conversation with Darius Himes Monday November 9th, 7pm
As might be apparent it is about an event where in a modern fine art photographer will be discussing his work with someone. In this case Roger Ballen, the photographer, will be publicly discussing his work with Darius Himes, an editor at an art press. It should be noted that both are quite successful in their respective fields, with Ballen having had a book recently accepted for publication by Phaidon Press and Himes being labeled as one of the 15 most influential people in photography publishing by PDN, the industry trade journal.
So why do I care?
Because if you read the post linked above, you will come across such gems as:
"His most recent work (to be published by Phaidon Press in the Spring of 2009) has pushed this further still, often eradicating the human figure altogether to create intense and loaded subjective spaces that produce intense arenas of disease."
What does that even mean? "Intense arenas of disease?" Used to describe black and white pictures of plates of apples and somebody's feet? (Said apples not being particularly unwholesome-looking, nor said feet particularly ravaged by pathology, just a bit grimy.) How much Kool-Aid do you have to drink to come up with that kind of stuff? Also, five demerits for multiple uses of the word "intense" in a single sentence. Somebody has Grammar Check turned off.
I hasten to add that Mr. Pomerantz did not write that - it was a quote from Robert Cook, Associate Curator of Contemporary Art, at the Art Gallery of Western Australia. And if I may wax stereotypical for a moment, how does somebody who can write things like that even survive to adulthood in Australia? Perhaps he's an immigrant. But I digress.
The point being, Mr. Ballen, who is certainly a fine technical photographer and beyond question more experienced and able than I, chooses to use his skills to produce things like photographs of people who look a little genetically questionable wearing scrap wire helmets and holding cats. And for this, he is celebrated, nay, lionized, in much the same way that Michelangelo or Bach might have been in an earlier, less sophisticated time. (Or, to tip the con, much the same way that Picasso or Pollack were not so very long ago.)
Now, here's the thing. I am well aware that a metaphor can be framed in almost any fashion. But if you do not use contextual elements to anchor the metaphor, you are not framing a metaphor, you are throwing things at the wall and hoping something sticks. To impose my own unsophisticated metaphor on the situation, any intelligent preschool child can tell you that if you have to explain a joke, it's not funny. Granted there are many things I might find funny (or insightful) that a preschool child would not. It's entirely possible that I am but a Preschooler of Art. But if so, that is a mighty high bar to set: I have two college degrees, a postgraduate degree, am ridiculously well read and altogether too clever by half, and I still look at most of these things and say, "Yes? And?"
I can go from dirty feet with apples to "arenas of disease," with a little prodding. But I can just as easily go from dirty feet with apples to "the dignity of poverty in epicurean repose." It's the Emperor's New Art: "Only a foolish person cannot see the idea inherent in the work!" Well, human beings are really smart and really good at rationalizing, so there's no pile of dreck that can't have some meaning tormented out of it ex post facto. However, at that point "art" becomes deliberate obfuscation: if you want to tell me something, use symbols we both associate with the basic concept you are trying to discuss. Making up new words when there is already a perfectly good word that means exactly what you are trying to say is pretentious at best and dictatorial at worst.
Now, that doesn't meant that abstraction or surrealism can't be perfectly valid artistic metaphors. One could create an "arena of disease" with a photograph showing nothing but smiley, happy people sitting round, say, a dinner table on which a young child has been laid out as the main course. (*eyes up and to the left*) But the key to such communication is the discontinuity. A picture of a feeble-minded person wearing a scrap-wire helmet and holding a cat is nothing but discontinuity. Other than, "The world is a strange place, innit?" it does not consistently communicate anything in a common symbology. (Not that that's not a valid observation, but it never stops there.)
I have Mr. Pomerantz's blog on my bloglist, but I tend to save up and read it every week or two rather than daily (he doesn't post daily, but I don't read as often as he posts.) This is because I have to be in the right headspace to deal with the topics that he discusses. Again, this is no disrespect to Mr. Pomerantz, who appears at times to have a bit of fish-out-of-water feeling about the process himself and who chronicles it with integrity and merit. In my normal mindset, as soon as such is put in front of me, I merely dismiss it with boredom. I need to be a little introspective - at least willing to grant the benefit of the doubt. So far the benefits are unclaimed, but from time to time it is good to stretch one's mind even on topics one finds intrinsically suspect.
M More after the jump - click here!
Friday, October 16, 2009
It Really Is A Shame
Here is a link to a post on the Copyright Action forum called, "The Real Cost of Being Sued By Getty [Images]."
http://copyrightaction.com/forum/the-real-cost-of-being-sued-by-getty
A small company used one unlicensed image "about the size of a postage stamp" on its website. Getty sent them a bill for unlicensed usage for £1,700 (the image could probably have been licensed for a tenth of that, or a similar image licensed royalty-free for a hundredth of it.)
They relied on advice from "experienced business people," Internet lawyerin', and all the old tired arguments we hear when such issues are discussed 'mongst the crowd.
Net result?
They paid the license fee, they paid lawyers, and they paid Getty's legal bills. They won't disclose the final amount but it is surely north of £25,000, or roughly Forty Thousand US dollars.
It was a small company, the error was inadvertent (and made by a third party web developer) and... it cost them a significant portion of their operating revenue. It could very well end up bankrupting them. Not to mention the enormous stress it placed on multiple employees of the firm as well as diverting time and resources from operation of the business.
Bottom line?
If it isn't yours, don't take it.
If you do, and somebody calls you on it, 'fess up, pay up, and move on. If you admit fault (when you're clearly caught) and offer to negotiate, they'll probably work with you. Start relying on Internet Lawyerin', and, well, you end up where these poor folks did. And that doesn't really help anybody.
M More after the jump - click here!
http://copyrightaction.com/forum/the-real-cost-of-being-sued-by-getty
A small company used one unlicensed image "about the size of a postage stamp" on its website. Getty sent them a bill for unlicensed usage for £1,700 (the image could probably have been licensed for a tenth of that, or a similar image licensed royalty-free for a hundredth of it.)
They relied on advice from "experienced business people," Internet lawyerin', and all the old tired arguments we hear when such issues are discussed 'mongst the crowd.
Net result?
They paid the license fee, they paid lawyers, and they paid Getty's legal bills. They won't disclose the final amount but it is surely north of £25,000, or roughly Forty Thousand US dollars.
It was a small company, the error was inadvertent (and made by a third party web developer) and... it cost them a significant portion of their operating revenue. It could very well end up bankrupting them. Not to mention the enormous stress it placed on multiple employees of the firm as well as diverting time and resources from operation of the business.
Bottom line?
If it isn't yours, don't take it.
If you do, and somebody calls you on it, 'fess up, pay up, and move on. If you admit fault (when you're clearly caught) and offer to negotiate, they'll probably work with you. Start relying on Internet Lawyerin', and, well, you end up where these poor folks did. And that doesn't really help anybody.
M More after the jump - click here!
Monday, October 12, 2009
Little Ways to Change the World
Today I read the obituary of one Marty Forscher, a repairman.
Of course, I read it in the New York Times.
Why was a repairman memoralized in the Gray Lady?
Here's why...
Mr. Forscher opened a professional camera repair shop in New York City right after the Second World War. He had been working on cameras to make money before the war, and during it worked in the Navy photography shop (run by the famed Edward Steichen!)
Mr. Forscher was a native genius and inventor - see the obituary for a small sampling of examples - but in the 1960's, he started collecting discarded cameras from magazines, fixing them, and sending them to aspiring photojournalists in the South for use in documenting the Civil Rights movement. When they were soaked by fire hoses, or smashed by police, he would fix them right up and send them right back. The images produced by the cameras were published all over the world.
The pen is mightier than the sword, but the camera is also a fearsome weapon for truth: by arming these men and women, Mr. Forscher played a small but vital role in their dangerous work. As the evil and the furtive have been learning since Leopold's day, the evil that flourishes in darkness and ignorance will not survive the light. Well done, Mr. Forscher, well done.
See: http://www.nytimes.com/2009/10/11/nyregion/11forscher.html?_r=1&ref=obituaries
Link courtesy of James Pomerantz at http://www.aphotostudent.com/.
M More after the jump - click here!
Of course, I read it in the New York Times.
Why was a repairman memoralized in the Gray Lady?
Here's why...
Mr. Forscher opened a professional camera repair shop in New York City right after the Second World War. He had been working on cameras to make money before the war, and during it worked in the Navy photography shop (run by the famed Edward Steichen!)
Mr. Forscher was a native genius and inventor - see the obituary for a small sampling of examples - but in the 1960's, he started collecting discarded cameras from magazines, fixing them, and sending them to aspiring photojournalists in the South for use in documenting the Civil Rights movement. When they were soaked by fire hoses, or smashed by police, he would fix them right up and send them right back. The images produced by the cameras were published all over the world.
The pen is mightier than the sword, but the camera is also a fearsome weapon for truth: by arming these men and women, Mr. Forscher played a small but vital role in their dangerous work. As the evil and the furtive have been learning since Leopold's day, the evil that flourishes in darkness and ignorance will not survive the light. Well done, Mr. Forscher, well done.
See: http://www.nytimes.com/2009/10/11/nyregion/11forscher.html?_r=1&ref=obituaries
Link courtesy of James Pomerantz at http://www.aphotostudent.com/.
M More after the jump - click here!
Thursday, October 8, 2009
Licenses, Releases, Copyrights and Contracts: Let's Review
I get a lot of emails about model releases and various confusions about what they are. Herein, a brief refresher on the four Intellectual Property issues that are of the most importance to photographers, models, and other people in the industry.
Please be advised that while I am a licensed and experienced intellectual property attorney (I have been admitted to the bar of the state of Illinois, the Northern District of the Illinois Federal Circuit Court, and to practice before the United States Patent and Trademark Office, as well as appearances before the United States Copyright Office) I may or may not be licensed to practice in any jurisdiction where the reader may reside or have business, and nothing herein is meant to constitute specific legal advice. Always consult a lawyer licensed in your jurisdiction and familiar with the relevant law before making legal decisions.
There are two sets of rights which may attach to any photograph showing a recognizable human being. The first we will collectively refer to as the right of publicity, although in some jurisdictions it is also referred to as the right of privacy, even though technically they are two different things. For purposes of our discussion, the right of publicity (or, for brevity, the RoP) is the right to control the use of your own likeness. This right belongs to the recognizable human being depicted, to whom we shall refer as the model. It is governed by state law.
The other right which may attach to the photograph is copyright. Copyright attaches to the photograph the moment is fixed in tangible form (including either a film negative or an electronic image file in a digital camera's memory.) It is granted by the Copyright Act in the United States, and by similar laws in other countries. In the US, the copyright belongs to the creator of the work. For a photograph, that's the person who pushed the shutter release, whom we shall call the photographer. It is governed by Federal law.
Copyright is the first of the four IP issues when dealing with the question of who may and may not use a photograph. Copyright trumps all other rights: if the holder of the copyright has not granted permission to make any particular use of the photograph, it is almost certainly unlawful to make such use. The oft-misunderstood doctrine of "Fair Use" will almost never apply to any matter relevant to our discussion. If a professional photographer took a picture of a professional model, almost no use the model could want to make of it is a Fair Use. Put it from your minds.
It is interesting to note that in Canada, if a model hires and pays a photographer to take pictures of them, the model owns the copyright. This is a very unusual rule. In the US, the photographer owns the copyright, even if the model is paying the photographer. The only exception would be if the photograph was a "work for hire," a very misleading term which requires far more than that the photographer is being paid. Again, in almost no situation you are likely to run across will the photograph be a work for hire. Put it from your minds.
So. The photographer has a copyright. The model has a right of publicity. They wish to allow each other to make various uses of photographs subject to these mutual rights. What to do?
If the photographer wants to use the model's likeness, he needs a release. A release is just permission to use someone's likeness in a way which otherwise they might be able to prevent as a breach of their right of publicity. Here is the text of the release that Norma Jeane Mortenson, later known as Marilyn Monroe, signed at her first session with the incomparable Bruno Bernard, greatest of the Hollywood glamour photographers:
"Release 7/24/46
I hereby permit Bernard of Hollywood to use the pictures he has taken of me for exhibition and commercial use.
Signature: /Norma Jeane Mortenson/"
With one minor exception, that release would stand up in court in any jurisdiction of which I am aware. You will note, however, that it does not say anything about payment, nor does Bernard's signature or any obligation or promise by Bernard appear. Why? Because a release is not a contract. A release is a release. A release can be consideration ("Consideration" is the legal word for "payment," but it does not mean the same thing as "money.") for a contract. A release can be included in a contract. But a release is not a contract, nor must a model receive any payment whatsoever for a release in the vast majority of cases. You give the permission, the permission is given. It should also be noted that unless the release contains limiting terms, such as a time limit, it is generally held as unlimited in time and space. Releases need to be written in many jurisdictions, but not all. When in doubt, releases should always be written.
Similarly, the photographer may give the model the right to use the copyrighted image for any particular purpose by granting the model a license. Here is the text I use to grant models a license to use photographs for their portfolios:
"I, Marc Whipple, by my signature below grant [MODEL] a license to use the copyrighted photographs I have provided for them on [DISC, EMAIL, ETC] for the purpose of self-promotion. The photographs may not be used for any commercial purpose other than promoting [MODEL]. This license shall be perpetual and throughout the world, but is not transferrable.
Signature: /Marc Whipple/"
You will notice again that this does not talk about money, nor does it require any promise from the model. Why? Because a license is not a contract. A license is a license. A license may be consideration for a contract. A license may be included in the text of a contract. But a license is not a contract, nor must a photographer receive any payment whatsoever for a license in the vast majority of cases. You give the permission, the permission is given. (Note, however, that while whether a release has to be written, and what format it requires, varies widely by jurisdiction, the requirements for a copyright license are standard throughout the US.) Like releases, licenses must contain any limiting terms at the moment they are granted: limits cannot be imposed later. You will note that my license does not allow the model to commercially exploit the images or to allow others to do so.
So again. The photographer can grant a copyright license. The model can grant a release of RoP. Excellent well, excellent well... but what if the parties are not quite this straightforward for some reason? Suppose the model is concerned they will not get the photographs they were promised by the photographer in consideration for posing? What if the photographer is worried the model will not pay for the photographs after they review them?
The parties, wishing to bind each other, must now enter into a contract.
A contract is a mutual exchange of promises, nothing more, nothing less. The promises may be executed immediately upon entering into the contract (such as when you pay cash at the store for goods) or may be delayed until future events occur or do not occur (such as when your insurance company promises to pay you if your car is stolen.) But for a contract to exist, both parties must make a promise, either to do something they are not otherwise obliged to do, or not to do something they would otherwise be entitled to do. Contracts generally do not have to be written (in some cases the copyright law does require written documents,) although of course it can be difficult to prove the terms of a contract that was never written down. An oral contract which contains a promise to later execute a written document (such as a license or release) is perfectly enforceable, if the party seeking to enforce it can prove it existed at all.
Interestingly, it's that latter formulation (the parties promise not to do something that they would otherwise be entitled to do) that governs contractual use of both releases and licenses. The model could use a promise not to sue a photographer for infringement of the model's RoP as consideration for something they want from the photographer (like prints or digital image files.) The photographer could likewise promise not to sue a model for infringement of copyright in exchange for something they want from the model (such as posing time, or a RoP release.)
So, let's take our oft-repeated situation where a model is trading posing time for images they can use to promote their modeling career. The parties should, of course, discuss what they expect (how many images, when they will be delivered, limits on usage by both parties) before the shooting even begins. When the session is over, the model usually signs a release. When the photographer delivers the images, they usually include a license. But if they have concerns that problems may ensue, they should enter into a contract. For instance, here is a short example of a contract which would govern the above sort of exchange:
"Marc Whipple (hereafter, "Photographer") and Jane Doe (hereafter, "Model,") by their signatures below, hereby enter into this Agreement for Photographic Services:
1) Photographer agrees to provide Model with six good-quality digital image files within thirty days of the signing of this Agreement. These files shall be suitable for use on Model's Internet portfolio site and comparable to the other images located there. Photographer also agrees to provide Model a reasonable copyright license allowing her to use the image files for reasonable self-promotional purposes.
2) Model agrees to provide Photographer with a reasonable likeness release which will allow him to make commercial usage of any and all photographs of Model which Photographer has produced.
Signatures: /Marc Whipple/, /Jane Doe/"
Now, this is a highly simplified contract. But it ties back in to our earlier examples. The photographer has to give the model her images as he's agreed, and a license to use them. If he does neither of these things, he's in breach of contract, and the model is not obliged to sign a release. In fact, she can sue him for her photographs, or for damages!
Similarly, the model has to sign the release, if the photographer lives up to his end of the bargain. If she doesn't, she's in breach (she's broken a legally enforceable promise,) and the photographer can sue her to get damages (money) or even specific performance. In other words, the court could order her to sign the release, and find her in contempt - possibly even jailing her! - if she refuses. If she were to try to sue him for breach of her RoP, he could use the unfulfilled contract as a defense, and her suit would likely fail.
A "real world" contract of this sort might have both the release and the license "built in," so that the terms are specified in advance, and just make them conditional upon everybody doing what they're supposed to do. In fact, that's usually how it's done in commercial photography. But this example shows the process as a series of discrete parts.
I hope those interested in the subject find this a useful and hopefully not too-intense introduction to these topics. Interested parties are invited to comment (I will respond here) or email me with questions or comments.
M More after the jump - click here!
Please be advised that while I am a licensed and experienced intellectual property attorney (I have been admitted to the bar of the state of Illinois, the Northern District of the Illinois Federal Circuit Court, and to practice before the United States Patent and Trademark Office, as well as appearances before the United States Copyright Office) I may or may not be licensed to practice in any jurisdiction where the reader may reside or have business, and nothing herein is meant to constitute specific legal advice. Always consult a lawyer licensed in your jurisdiction and familiar with the relevant law before making legal decisions.
There are two sets of rights which may attach to any photograph showing a recognizable human being. The first we will collectively refer to as the right of publicity, although in some jurisdictions it is also referred to as the right of privacy, even though technically they are two different things. For purposes of our discussion, the right of publicity (or, for brevity, the RoP) is the right to control the use of your own likeness. This right belongs to the recognizable human being depicted, to whom we shall refer as the model. It is governed by state law.
The other right which may attach to the photograph is copyright. Copyright attaches to the photograph the moment is fixed in tangible form (including either a film negative or an electronic image file in a digital camera's memory.) It is granted by the Copyright Act in the United States, and by similar laws in other countries. In the US, the copyright belongs to the creator of the work. For a photograph, that's the person who pushed the shutter release, whom we shall call the photographer. It is governed by Federal law.
Copyright is the first of the four IP issues when dealing with the question of who may and may not use a photograph. Copyright trumps all other rights: if the holder of the copyright has not granted permission to make any particular use of the photograph, it is almost certainly unlawful to make such use. The oft-misunderstood doctrine of "Fair Use" will almost never apply to any matter relevant to our discussion. If a professional photographer took a picture of a professional model, almost no use the model could want to make of it is a Fair Use. Put it from your minds.
It is interesting to note that in Canada, if a model hires and pays a photographer to take pictures of them, the model owns the copyright. This is a very unusual rule. In the US, the photographer owns the copyright, even if the model is paying the photographer. The only exception would be if the photograph was a "work for hire," a very misleading term which requires far more than that the photographer is being paid. Again, in almost no situation you are likely to run across will the photograph be a work for hire. Put it from your minds.
So. The photographer has a copyright. The model has a right of publicity. They wish to allow each other to make various uses of photographs subject to these mutual rights. What to do?
If the photographer wants to use the model's likeness, he needs a release. A release is just permission to use someone's likeness in a way which otherwise they might be able to prevent as a breach of their right of publicity. Here is the text of the release that Norma Jeane Mortenson, later known as Marilyn Monroe, signed at her first session with the incomparable Bruno Bernard, greatest of the Hollywood glamour photographers:
"Release 7/24/46
I hereby permit Bernard of Hollywood to use the pictures he has taken of me for exhibition and commercial use.
Signature: /Norma Jeane Mortenson/"
With one minor exception, that release would stand up in court in any jurisdiction of which I am aware. You will note, however, that it does not say anything about payment, nor does Bernard's signature or any obligation or promise by Bernard appear. Why? Because a release is not a contract. A release is a release. A release can be consideration ("Consideration" is the legal word for "payment," but it does not mean the same thing as "money.") for a contract. A release can be included in a contract. But a release is not a contract, nor must a model receive any payment whatsoever for a release in the vast majority of cases. You give the permission, the permission is given. It should also be noted that unless the release contains limiting terms, such as a time limit, it is generally held as unlimited in time and space. Releases need to be written in many jurisdictions, but not all. When in doubt, releases should always be written.
Similarly, the photographer may give the model the right to use the copyrighted image for any particular purpose by granting the model a license. Here is the text I use to grant models a license to use photographs for their portfolios:
"I, Marc Whipple, by my signature below grant [MODEL] a license to use the copyrighted photographs I have provided for them on [DISC, EMAIL, ETC] for the purpose of self-promotion. The photographs may not be used for any commercial purpose other than promoting [MODEL]. This license shall be perpetual and throughout the world, but is not transferrable.
Signature: /Marc Whipple/"
You will notice again that this does not talk about money, nor does it require any promise from the model. Why? Because a license is not a contract. A license is a license. A license may be consideration for a contract. A license may be included in the text of a contract. But a license is not a contract, nor must a photographer receive any payment whatsoever for a license in the vast majority of cases. You give the permission, the permission is given. (Note, however, that while whether a release has to be written, and what format it requires, varies widely by jurisdiction, the requirements for a copyright license are standard throughout the US.) Like releases, licenses must contain any limiting terms at the moment they are granted: limits cannot be imposed later. You will note that my license does not allow the model to commercially exploit the images or to allow others to do so.
So again. The photographer can grant a copyright license. The model can grant a release of RoP. Excellent well, excellent well... but what if the parties are not quite this straightforward for some reason? Suppose the model is concerned they will not get the photographs they were promised by the photographer in consideration for posing? What if the photographer is worried the model will not pay for the photographs after they review them?
The parties, wishing to bind each other, must now enter into a contract.
A contract is a mutual exchange of promises, nothing more, nothing less. The promises may be executed immediately upon entering into the contract (such as when you pay cash at the store for goods) or may be delayed until future events occur or do not occur (such as when your insurance company promises to pay you if your car is stolen.) But for a contract to exist, both parties must make a promise, either to do something they are not otherwise obliged to do, or not to do something they would otherwise be entitled to do. Contracts generally do not have to be written (in some cases the copyright law does require written documents,) although of course it can be difficult to prove the terms of a contract that was never written down. An oral contract which contains a promise to later execute a written document (such as a license or release) is perfectly enforceable, if the party seeking to enforce it can prove it existed at all.
Interestingly, it's that latter formulation (the parties promise not to do something that they would otherwise be entitled to do) that governs contractual use of both releases and licenses. The model could use a promise not to sue a photographer for infringement of the model's RoP as consideration for something they want from the photographer (like prints or digital image files.) The photographer could likewise promise not to sue a model for infringement of copyright in exchange for something they want from the model (such as posing time, or a RoP release.)
So, let's take our oft-repeated situation where a model is trading posing time for images they can use to promote their modeling career. The parties should, of course, discuss what they expect (how many images, when they will be delivered, limits on usage by both parties) before the shooting even begins. When the session is over, the model usually signs a release. When the photographer delivers the images, they usually include a license. But if they have concerns that problems may ensue, they should enter into a contract. For instance, here is a short example of a contract which would govern the above sort of exchange:
"Marc Whipple (hereafter, "Photographer") and Jane Doe (hereafter, "Model,") by their signatures below, hereby enter into this Agreement for Photographic Services:
1) Photographer agrees to provide Model with six good-quality digital image files within thirty days of the signing of this Agreement. These files shall be suitable for use on Model's Internet portfolio site and comparable to the other images located there. Photographer also agrees to provide Model a reasonable copyright license allowing her to use the image files for reasonable self-promotional purposes.
2) Model agrees to provide Photographer with a reasonable likeness release which will allow him to make commercial usage of any and all photographs of Model which Photographer has produced.
Signatures: /Marc Whipple/, /Jane Doe/"
Now, this is a highly simplified contract. But it ties back in to our earlier examples. The photographer has to give the model her images as he's agreed, and a license to use them. If he does neither of these things, he's in breach of contract, and the model is not obliged to sign a release. In fact, she can sue him for her photographs, or for damages!
Similarly, the model has to sign the release, if the photographer lives up to his end of the bargain. If she doesn't, she's in breach (she's broken a legally enforceable promise,) and the photographer can sue her to get damages (money) or even specific performance. In other words, the court could order her to sign the release, and find her in contempt - possibly even jailing her! - if she refuses. If she were to try to sue him for breach of her RoP, he could use the unfulfilled contract as a defense, and her suit would likely fail.
A "real world" contract of this sort might have both the release and the license "built in," so that the terms are specified in advance, and just make them conditional upon everybody doing what they're supposed to do. In fact, that's usually how it's done in commercial photography. But this example shows the process as a series of discrete parts.
I hope those interested in the subject find this a useful and hopefully not too-intense introduction to these topics. Interested parties are invited to comment (I will respond here) or email me with questions or comments.
M More after the jump - click here!
Thursday, October 1, 2009
Gasp!
Two posts in one day!
Just a quick update. We did go to Calumet, but they were out of pretty much everything. The woman behind the counter (who aside from being just adorable is, more importantly, also a highly-skilled photographer and a most expert salesperson) exclaimed, twice, "Oh, I'm waiting for one of those too!" when asked for something. The only thing we ended up buying was a packet of Brilliant Museum photo paper for my wife to play with. I just looked in my stash and I had a packet, but I already used some of it and I think she wants to do some comparison prints.
So I went on their website and ordered the stuff I wanted. They're switching filter manufacturers (their old manufacturer is Hoya, which produces material in Japan, and their new one is B+W, which produces material in Germany.) So their store-brand filters are largely on clearance - I got a circular polarizer for my wife for less than half price, and a 2-stop ND filter for both of us ditto. The only thing back-ordered was a .6 graduated ND filter I want mainly so my wife can do landscape work with it. They're back-ordered EVERYWHERE, for some reason. Not that I mind waiting, it's just odd. I guess that the recession hasn't hurt demand for 2-stop graduated ND filters. Go figure.
In case you wonder why I need all these ND filters, the regular 2-stop ones are essentially a way to restrict the amount of light that gets into the camera so you can slow down your exposure, or open up your aperture, even in bright light. There comes a point where, if you're outdoors in full sun, even at ISO 100 equivalent sensitivity, you just can't use a long shutter speed and/or a large aperture because the camera just can't handle all the light. This filter is essentially sunglasses for your camera, reducing light intake without affecting color. The back-ordered one is graduated - at one end, it's clear, and at the other, it's 2 stops darker, and from one end to the other it gradually gets darker or lighter depending on which way it's turned. This allows you to shoot things of extremely different brightness without blowing one side out, or making the other side too dark. The classical application for this is shooting landscapes - you hold the filter so that the light end is toward the ground and the dark end is toward the sky. Then you can still have a rich blue sky and a well-exposed ground.
We also went to the Blick store down the road from Calumet (interestingly, both Calumet stores in Illinois have a Blick store down the road) and she got a sheet of silver foil matboard. She looked pretty funny holding it in her lap all the way home, but we were in my truck and I was afraid it would get wet and/or beaten up if we put it in the back. (It has been raining here all day.) She plans to experiment with this for black and white pictures.
M More after the jump - click here!
Just a quick update. We did go to Calumet, but they were out of pretty much everything. The woman behind the counter (who aside from being just adorable is, more importantly, also a highly-skilled photographer and a most expert salesperson) exclaimed, twice, "Oh, I'm waiting for one of those too!" when asked for something. The only thing we ended up buying was a packet of Brilliant Museum photo paper for my wife to play with. I just looked in my stash and I had a packet, but I already used some of it and I think she wants to do some comparison prints.
So I went on their website and ordered the stuff I wanted. They're switching filter manufacturers (their old manufacturer is Hoya, which produces material in Japan, and their new one is B+W, which produces material in Germany.) So their store-brand filters are largely on clearance - I got a circular polarizer for my wife for less than half price, and a 2-stop ND filter for both of us ditto. The only thing back-ordered was a .6 graduated ND filter I want mainly so my wife can do landscape work with it. They're back-ordered EVERYWHERE, for some reason. Not that I mind waiting, it's just odd. I guess that the recession hasn't hurt demand for 2-stop graduated ND filters. Go figure.
In case you wonder why I need all these ND filters, the regular 2-stop ones are essentially a way to restrict the amount of light that gets into the camera so you can slow down your exposure, or open up your aperture, even in bright light. There comes a point where, if you're outdoors in full sun, even at ISO 100 equivalent sensitivity, you just can't use a long shutter speed and/or a large aperture because the camera just can't handle all the light. This filter is essentially sunglasses for your camera, reducing light intake without affecting color. The back-ordered one is graduated - at one end, it's clear, and at the other, it's 2 stops darker, and from one end to the other it gradually gets darker or lighter depending on which way it's turned. This allows you to shoot things of extremely different brightness without blowing one side out, or making the other side too dark. The classical application for this is shooting landscapes - you hold the filter so that the light end is toward the ground and the dark end is toward the sky. Then you can still have a rich blue sky and a well-exposed ground.
We also went to the Blick store down the road from Calumet (interestingly, both Calumet stores in Illinois have a Blick store down the road) and she got a sheet of silver foil matboard. She looked pretty funny holding it in her lap all the way home, but we were in my truck and I was afraid it would get wet and/or beaten up if we put it in the back. (It has been raining here all day.) She plans to experiment with this for black and white pictures.
M More after the jump - click here!
Stirrings of Life
Well, obviously I haven't been very photographic - or very much of anything - here lately. Mostly I mess around with MMORPG (which shall remain nameless - I don't do endorsements unless I'm paid) and other useless ways to pass the time.
However, I decided that if I have all these pictures around, I might as well try to capitalize them, so I applied to another Internet stock agency. (Which shall also remain nameless until they accept me.) You have to submit a batch that passes human-monitored QC before you're accepted for full upload, and they failed my first batch because one of the images was too soft. I think they're nuts (I won a contest with that photo) but whatever.
I will not be active in their online community, as that never seems to go well for me. I am going to upload pictures and if somebody wants to license them, I'll get money. Well and good. Hopefully I won't kill this one by joining.
I bought a macro lens and fooled around with it some, but otherwise, I get my camera out for family stuff and that's about it. I think the PhotoShelter Collection shutting down hit me harder than I realized at first. (PhotoShelter's other services for photographers are still available and continue to receive good press. If you are a more commercially-oriented photographer, I think they are a good value and work well.) I am largely motivation-free when it comes to photography. Add to that some personal drama (not directly involving me) with the studio space I use and it's just not appealing at the moment.
However, I need to get out and I need to do stuff and this is getting a little sad. (Okay, sadder.) I think I'll go roust out my shopping partner and run to Calumet Photo just for fun.
I resubmitted a new batch this morning, too... I replaced my award-winning photograph with one which Richard Freaking Leakey licensed for a presentation for Science Week in NYC. If they don't take that, I will simply submit pictures of kitties and cute children until they let me in. Then I will upload a massive batch of subversion.
M More after the jump - click here!
However, I decided that if I have all these pictures around, I might as well try to capitalize them, so I applied to another Internet stock agency. (Which shall also remain nameless until they accept me.) You have to submit a batch that passes human-monitored QC before you're accepted for full upload, and they failed my first batch because one of the images was too soft. I think they're nuts (I won a contest with that photo) but whatever.
I will not be active in their online community, as that never seems to go well for me. I am going to upload pictures and if somebody wants to license them, I'll get money. Well and good. Hopefully I won't kill this one by joining.
I bought a macro lens and fooled around with it some, but otherwise, I get my camera out for family stuff and that's about it. I think the PhotoShelter Collection shutting down hit me harder than I realized at first. (PhotoShelter's other services for photographers are still available and continue to receive good press. If you are a more commercially-oriented photographer, I think they are a good value and work well.) I am largely motivation-free when it comes to photography. Add to that some personal drama (not directly involving me) with the studio space I use and it's just not appealing at the moment.
However, I need to get out and I need to do stuff and this is getting a little sad. (Okay, sadder.) I think I'll go roust out my shopping partner and run to Calumet Photo just for fun.
I resubmitted a new batch this morning, too... I replaced my award-winning photograph with one which Richard Freaking Leakey licensed for a presentation for Science Week in NYC. If they don't take that, I will simply submit pictures of kitties and cute children until they let me in. Then I will upload a massive batch of subversion.
M More after the jump - click here!
Tuesday, August 4, 2009
Good Advice Then...
... good advice now.
This was taken at the Kankakee County Fairgrounds, in one of the livestock display barns. I wouldn't be surprised this sign was many decades old. Then, of course, the major risk was fire in the hay/straw/wood bedding of the animals, ignited by a flame lighting source or a cigarette.
While there's still a lot of hay, straw, and wood chips, neither flame lighting nor cigarettes were much in evidence. There were, however, much newer signs warning that food and drink were not allowed and that you should not touch your face while in the barn and that you should wash after you left. Bird flu and the Oink, you know. Ah, progress.
M More after the jump - click here!
Sunday, August 2, 2009
For Your Consideration.
We took my daughter to the county fair today. Since we got there just as the Midway opened, we had to wait in line to buy tickets. There, apparently sent by the God of Metaphorical Photo Ops, I saw these two.
I call this, "Jackie Spratt and, Um, Jill Spratt."
I don't know (nor would I care to wager) that they are anything other than friends and/or relations. They might have even been total strangers waiting for their kids. The title is not meant to imply a spousal relationship. I just thought it was funny.
Incidentally I don't recall that Jack Spratt's wife had a name. In the nursery rhyme tradition I have called her Jill. I also considered Jane. Incidentally incidentally, you can't read it at this resolution, but the sign reads, under the "Notice" section:
Due to the design of the seating safety device on this ride, exceptionally large people may not be able to ride.
I think Jill is dead out of luck. Sorry, Jill.
Comments invited.
M More after the jump - click here!
I call this, "Jackie Spratt and, Um, Jill Spratt."
I don't know (nor would I care to wager) that they are anything other than friends and/or relations. They might have even been total strangers waiting for their kids. The title is not meant to imply a spousal relationship. I just thought it was funny.
Incidentally I don't recall that Jack Spratt's wife had a name. In the nursery rhyme tradition I have called her Jill. I also considered Jane. Incidentally incidentally, you can't read it at this resolution, but the sign reads, under the "Notice" section:
Due to the design of the seating safety device on this ride, exceptionally large people may not be able to ride.
I think Jill is dead out of luck. Sorry, Jill.
Comments invited.
M More after the jump - click here!
Tuesday, July 7, 2009
No, I Did Not Get Hit By a Bus
Although the dog keeps trying to kill me. He likes to lay in the hall in the dark and see if he can break my legs. So far, he's only managed to hyperextend one of my toes on the laundry hamper, but it's only a matter of time.
I have not had any creative impulse whatsoever for quite some time, I'm sad to say. I mostly just sit around and do geek stuff. I did send a model who's traveling here (or maybe she already did) an email just to see if she'd work with me and she didn't answer, so that didn't help. I can handle most criticism but the kind which implies it's not even worth it to criticize me is kind of rough.
Anyway, here is a letter I got from a nice young lady in Greece and my comments on her questions. You may find it useful. Or interesting. Or at least mildly Amusing.
Hello!!I read your article http://www.marcwphoto.com/starting.html and I thought that you could maybe help me out and answer some qustions.
First of all I'd like to work on swimwear modelling and I'm thinking of building my portfolio soon.
Questions:1)Is it possible to start modelling and still be a good student?
That depends on your bandwidth. If you have the mental energy to try to do both, then yes. I know several models who have finished college degrees, including postgraduate degrees, while supporting themselves partially or wholly through modeling.
2)My portfolio should only include bikini pictures?
If all you ever ever ever want to do is swimwear, then I guess you could have all swimwear pictures and one good headshot, but you might as well at least put a few casual/lifestyle shots in there. It will look awfully strange if it's all bikinis, all the time.
3)Only one photographer helps with the portfolio or can I cooperate with more than one?
If you want your portfolio to have any depth, you're pretty much going to have to get images from more than one photographer.
4)How many pictures can you take in 1 hour?
Me? Thousands, especially if I put my camera on motor drive and hold the button down.
But if you want *good* pictures, the answer is complicated. I've gone the first hour of a shoot and not taken a single frame. I've taken thirty pictures in a two-hour shoot. (And to an old-school film photographer that could STILL be machine-gunning it.) I've taken three hundred pictures in a one-hour shoot. It depends on what you're doing. I would say that unless you're doing seriously complicated concept work, a one-hour shoot ought to get the model at least five pictures she can use, if you're doing trade or paying the photographer. See question three: you don't want or need dozens of pictures from any given photographer anyway. I'll never understand models who want all the images from a shoot. If you get one great image from a session, you're ahead of the game. More than that is a bonus. Unless, of course, you're paying for different looks - then you should expect at least one usable image for each look.
5)Who does the make up,the styling,the wardrobe?
That depends on who's willing to pay for what. I've had the model do it all herself, I've had models pay for stylists and artists, I've paid for stylists and artists, I've had stylists and artists work for trade, I've had clients pay for stylists and artists. (That last is how it works in the "real world" of commercial photography - they're just a line item on the invoice or included in the daily.) If you want pics for your port, either you ask the photographer to arrange makeup and styling and pay for it as part of the shoot, or you arrange for it yourself. If you're doing trade you can often find artists and stylists who also want trade, although they do tend to be less experienced.
6)Do photographers retouch the pictures taken?
Usually, especially if you're paying. However the level of retouching varies wildly, as does the quality. I retouch my pictures very little, but that's because (if I do say so) I know how to take pictures that don't need much retouching. Some photographers are mediocre photographers but have Photoshop skills far exceeding my own. This is great, unless their pictures end up more as photo-illustrations that don't *look* like you. If you show up at a shoot looking radically different than your heavily-retouched pictures, the photographer/client is going to be very upset.
7)I checked model mayhem out for photographers and found some really good ones(and expensive)for bikini shoots but I didn't find someone whose pictues I like here in greece.Should I take some pictures with a not-so-good photographer at first or what else can I do?
If you want pictures to use to market yourself, not-so-good images are worthless. Better to have digital snapshots your friend takes with a point-and-shoot camera than crappy-looking pro pics. Digital snapshots say, "Hey, I'm just starting," and crappy-looking pro pics say, "Hey, I have no idea what good pictures look like and I paid this shmuck to make some bad ones for me." :)
If you listen to nothing else I say, listen to this: It is better to have one good headshot and one good body profile than fifty crappy pictures. Quality is EVERYTHING. Photographers have a saying that you are only as good as your worst picture. It also applies to models.
M More after the jump - click here!
I have not had any creative impulse whatsoever for quite some time, I'm sad to say. I mostly just sit around and do geek stuff. I did send a model who's traveling here (or maybe she already did) an email just to see if she'd work with me and she didn't answer, so that didn't help. I can handle most criticism but the kind which implies it's not even worth it to criticize me is kind of rough.
Anyway, here is a letter I got from a nice young lady in Greece and my comments on her questions. You may find it useful. Or interesting. Or at least mildly Amusing.
Hello!!I read your article http://www.marcwphoto.com/starting.html and I thought that you could maybe help me out and answer some qustions.
First of all I'd like to work on swimwear modelling and I'm thinking of building my portfolio soon.
Questions:1)Is it possible to start modelling and still be a good student?
That depends on your bandwidth. If you have the mental energy to try to do both, then yes. I know several models who have finished college degrees, including postgraduate degrees, while supporting themselves partially or wholly through modeling.
2)My portfolio should only include bikini pictures?
If all you ever ever ever want to do is swimwear, then I guess you could have all swimwear pictures and one good headshot, but you might as well at least put a few casual/lifestyle shots in there. It will look awfully strange if it's all bikinis, all the time.
3)Only one photographer helps with the portfolio or can I cooperate with more than one?
If you want your portfolio to have any depth, you're pretty much going to have to get images from more than one photographer.
4)How many pictures can you take in 1 hour?
Me? Thousands, especially if I put my camera on motor drive and hold the button down.
But if you want *good* pictures, the answer is complicated. I've gone the first hour of a shoot and not taken a single frame. I've taken thirty pictures in a two-hour shoot. (And to an old-school film photographer that could STILL be machine-gunning it.) I've taken three hundred pictures in a one-hour shoot. It depends on what you're doing. I would say that unless you're doing seriously complicated concept work, a one-hour shoot ought to get the model at least five pictures she can use, if you're doing trade or paying the photographer. See question three: you don't want or need dozens of pictures from any given photographer anyway. I'll never understand models who want all the images from a shoot. If you get one great image from a session, you're ahead of the game. More than that is a bonus. Unless, of course, you're paying for different looks - then you should expect at least one usable image for each look.
5)Who does the make up,the styling,the wardrobe?
That depends on who's willing to pay for what. I've had the model do it all herself, I've had models pay for stylists and artists, I've paid for stylists and artists, I've had stylists and artists work for trade, I've had clients pay for stylists and artists. (That last is how it works in the "real world" of commercial photography - they're just a line item on the invoice or included in the daily.) If you want pics for your port, either you ask the photographer to arrange makeup and styling and pay for it as part of the shoot, or you arrange for it yourself. If you're doing trade you can often find artists and stylists who also want trade, although they do tend to be less experienced.
6)Do photographers retouch the pictures taken?
Usually, especially if you're paying. However the level of retouching varies wildly, as does the quality. I retouch my pictures very little, but that's because (if I do say so) I know how to take pictures that don't need much retouching. Some photographers are mediocre photographers but have Photoshop skills far exceeding my own. This is great, unless their pictures end up more as photo-illustrations that don't *look* like you. If you show up at a shoot looking radically different than your heavily-retouched pictures, the photographer/client is going to be very upset.
7)I checked model mayhem out for photographers and found some really good ones(and expensive)for bikini shoots but I didn't find someone whose pictues I like here in greece.Should I take some pictures with a not-so-good photographer at first or what else can I do?
If you want pictures to use to market yourself, not-so-good images are worthless. Better to have digital snapshots your friend takes with a point-and-shoot camera than crappy-looking pro pics. Digital snapshots say, "Hey, I'm just starting," and crappy-looking pro pics say, "Hey, I have no idea what good pictures look like and I paid this shmuck to make some bad ones for me." :)
If you listen to nothing else I say, listen to this: It is better to have one good headshot and one good body profile than fifty crappy pictures. Quality is EVERYTHING. Photographers have a saying that you are only as good as your worst picture. It also applies to models.
M More after the jump - click here!
Tuesday, May 19, 2009
Right of Publicity Produces Win-Win-Tie Result
Woody Allen settles with American Apparel for $5M for using his likeness in an ad without permission:
Woody Allen wins $5 million in lawsuit over his image
Despite the headline's text he did not win the money, it was a settlement on the eve of trial.
Win 1: They blatantly took a still from one of his films and used it in an ad. They claimed Fair Use, in that they added a caption in Hebrew, and that obviously, it was "never meant to sell clothes." However, their logo was quite visible on the billboard they made. A court would have made short work of this argument, I think. Commercial misappropriation is a lot harder to defend than noncommercial, and putting your logo on something, especially when you are known for offbeat ads, kind of gives the lie to the idea that it wasn't commercial usage. Right of Publicity comes out on top.
Win 2: I despise American Apparel, at least I do whenever they are brought to my attention. Their ads are the worst FOTM Terry Richardson/Ryan Mcwhatshisface dreck and their products, at least what I've seen in said ads, are ugly and faux-retro in a lazy mass-market way. What discomfits them refreshes me. Also, they tried to intimidate Allen by putting his ex-wife and his current wife, the victim and subject of a rather scandalous affair, on the proposed witness list. That was pure sleaze, as neither of them could possibly have anything to do with the case.
Tie: I have never liked Woody Allen's movies or much cared for the tiny bit I know about him through unpurposed media input. OTOH, he doesn't seem inclined to put up with people doing him wrong, which I have to admire. So I guess it's okay that he won, although ideally somebody would have hit him with a pie on his way out of the courthouse or something.
M More after the jump - click here!
Woody Allen wins $5 million in lawsuit over his image
Despite the headline's text he did not win the money, it was a settlement on the eve of trial.
Win 1: They blatantly took a still from one of his films and used it in an ad. They claimed Fair Use, in that they added a caption in Hebrew, and that obviously, it was "never meant to sell clothes." However, their logo was quite visible on the billboard they made. A court would have made short work of this argument, I think. Commercial misappropriation is a lot harder to defend than noncommercial, and putting your logo on something, especially when you are known for offbeat ads, kind of gives the lie to the idea that it wasn't commercial usage. Right of Publicity comes out on top.
Win 2: I despise American Apparel, at least I do whenever they are brought to my attention. Their ads are the worst FOTM Terry Richardson/Ryan Mcwhatshisface dreck and their products, at least what I've seen in said ads, are ugly and faux-retro in a lazy mass-market way. What discomfits them refreshes me. Also, they tried to intimidate Allen by putting his ex-wife and his current wife, the victim and subject of a rather scandalous affair, on the proposed witness list. That was pure sleaze, as neither of them could possibly have anything to do with the case.
Tie: I have never liked Woody Allen's movies or much cared for the tiny bit I know about him through unpurposed media input. OTOH, he doesn't seem inclined to put up with people doing him wrong, which I have to admire. So I guess it's okay that he won, although ideally somebody would have hit him with a pie on his way out of the courthouse or something.
M More after the jump - click here!
Thursday, April 30, 2009
Sorry I'm So Lame
Lame blogger is lame.
Gumption supplies are at record lows. Pretty much everything feels kinda pointless. Mostly I sit and play computer games and make snarky comments on web sites.
When (if) the weather ever improves I am going to try to get the garage ready to paint. However, it's been pouring down rain for a week and doesn't look to improve soon. That's okay: I am not looking forward to painting anyway, but at least it's a plan.
Photographywise, zip. I have ideas, I write 'em down, and then I think of all the reasons that if I try to do any photography it won't work. I miss my shooting space and my very own studio. No money for that, though. I am getting the credit cards paid down, which is why there's no money - with any luck just a few more months will do it. We had a quarterly company status meeting yesterday and while of course business is down, we are financially secure and moving product, so that's an upper. We also had our first sale of our new product line - which took four years to develop and two years to get regulatory approval for - so that's a very good sign. The potential revenue from this product line beggars the imagination, IF we can get it into the market and the whole world economy doesn't collapse and/or this new flu doesn't turn out to be Captain Trips.
I work for a closely-held company: lately my big daydream involves our main potential competitor (which has 50 times the employees we do) buying out my bosses with so much money that they give every employee $200K as a going-away present. That, and winning the lottery. :)
M More after the jump - click here!
Gumption supplies are at record lows. Pretty much everything feels kinda pointless. Mostly I sit and play computer games and make snarky comments on web sites.
When (if) the weather ever improves I am going to try to get the garage ready to paint. However, it's been pouring down rain for a week and doesn't look to improve soon. That's okay: I am not looking forward to painting anyway, but at least it's a plan.
Photographywise, zip. I have ideas, I write 'em down, and then I think of all the reasons that if I try to do any photography it won't work. I miss my shooting space and my very own studio. No money for that, though. I am getting the credit cards paid down, which is why there's no money - with any luck just a few more months will do it. We had a quarterly company status meeting yesterday and while of course business is down, we are financially secure and moving product, so that's an upper. We also had our first sale of our new product line - which took four years to develop and two years to get regulatory approval for - so that's a very good sign. The potential revenue from this product line beggars the imagination, IF we can get it into the market and the whole world economy doesn't collapse and/or this new flu doesn't turn out to be Captain Trips.
I work for a closely-held company: lately my big daydream involves our main potential competitor (which has 50 times the employees we do) buying out my bosses with so much money that they give every employee $200K as a going-away present. That, and winning the lottery. :)
M More after the jump - click here!
Tuesday, April 14, 2009
All Quiet on The Midwestern Front
I got a new keyboard and mouse. That's about the extent of it.
It's very disconcerting to replace the keyboard and the mouse when you use the computer as much as I do. Especially since they hardly make "traditional" mice anymore and they're all ergonomic modern sculptures - designed for people with smaller hands than mine. I have very long fingers and I can never get comfortable on a curved mouse. Oh, well.
They were a set, and they're wireless, so that's nice - one less cable snaking around on my desk and causing my water glass to tip perilously off-center. Plus, my new keyboard has a display. That's probably the real reason I picked it. I'm hopeless.
M More after the jump - click here!
It's very disconcerting to replace the keyboard and the mouse when you use the computer as much as I do. Especially since they hardly make "traditional" mice anymore and they're all ergonomic modern sculptures - designed for people with smaller hands than mine. I have very long fingers and I can never get comfortable on a curved mouse. Oh, well.
They were a set, and they're wireless, so that's nice - one less cable snaking around on my desk and causing my water glass to tip perilously off-center. Plus, my new keyboard has a display. That's probably the real reason I picked it. I'm hopeless.
M More after the jump - click here!
Monday, March 30, 2009
Saturday, March 28, 2009
Why Not?
Apple came out with an upgrade to the Mac Mini recently. Of particular interest to me was the vastly improved video card, which in my mind was the weakest link in the one I had. It would have been nice to have more than 2GB of RAM, but that video card was a dog.
Well, I had a brilliant idea.
My daughter has a hand-me-down eMac, the last one they made with a CRT. It's noisy, it uses a lot of power, and it takes up half her small desk. To do homework it has to be shoved around to make room. I thought, "Hey, I'll get me a new Mini, and she can have mine, along with an LCD screen, and it'll be quiet, efficient, and take up a lot less room."
As those of you who know me personally are aware, thought and deed are one with me, so I did some pretty elaborate shenanigans to get the maximum Frequent Flyer miles possible and the thing arrived yesterday.
Both "base" models have the same processor, but the more expensive one has more RAM, and Apple advertises it as having more Video RAM, too. However, the way it actually works is that if the machine has more RAM, it allocates more of it to the video card. A little deceptive, you ask me. I bought the absolute cheapest one: the hard drives were the same speed, the other one was just bigger, and I don't care about that. I have 2.5TB of storage in my office. I didn't get RAM from Apple, either, their prices are rapacious. I installed it myself, which is no errand for the inexperienced. If you want to see how it works, look here:
http://www.macminicolo.net/macmini2009.html
Amusingly, that site is run by a co-location company (they maintain computer equipment for people that can assist or replace their on-site equipment in case of demand or disaster) which specializes in co-locating Mac Minis. Look at the picture at the bottom, which is of literally DOZENS of Mac Minis on a big server rack. :)
Hooking the antenna back up was a bit dicey, but otherwise, no sweat. I did the Migration Assistant thing that Macs come with: it had to crank all night, but this morning I was ready to rock. Only two glitches, but both of them required some geek-fu: one of them required the use of "sudo." If you don't know what sudo is and you have this glitch, basically your Mac is going to be set to London time forever. :)
It works great: the video card rocks. Between the new video card and the 4GB of RAM (my old one was maxed out at 2GB) I can comfortably multi-task, Lightroom is much more responsive, and the water in World of Warcraft is SPARKLY.
Tonight I backed up my daughter's computer and set up her new one, which seems to be working although I have to make sure her bookmarks are moved and the Parental Controls are working. Since it's in the living room, I got a nice big monitor and we can watch Internet movies and stuff on it, too.
I'll take the old comp to work, safe-erase it, and donate it to anybody who wants it. Or maybe I'll see if my daughter's school wants it.
As always, I was Amused and a little disturbed by all the open WiFi networks I could see when I set up the computer in the living room. (We didn't want to run a cable so her computer had a WiFi card installed: the Mini has one built-in.) I could see three networks, including one which was still at factory defaults (which means I OWN your network if I want to) and one named "Aretha," which was fun. I didn't link into any of them: our network is SSID-silent and requires a 128-bit encryption key. The FBI could break it in short order but wardrivers won't even see it, especially since this is a target-rich environment for them anyway.
M More after the jump - click here!
Well, I had a brilliant idea.
My daughter has a hand-me-down eMac, the last one they made with a CRT. It's noisy, it uses a lot of power, and it takes up half her small desk. To do homework it has to be shoved around to make room. I thought, "Hey, I'll get me a new Mini, and she can have mine, along with an LCD screen, and it'll be quiet, efficient, and take up a lot less room."
As those of you who know me personally are aware, thought and deed are one with me, so I did some pretty elaborate shenanigans to get the maximum Frequent Flyer miles possible and the thing arrived yesterday.
Both "base" models have the same processor, but the more expensive one has more RAM, and Apple advertises it as having more Video RAM, too. However, the way it actually works is that if the machine has more RAM, it allocates more of it to the video card. A little deceptive, you ask me. I bought the absolute cheapest one: the hard drives were the same speed, the other one was just bigger, and I don't care about that. I have 2.5TB of storage in my office. I didn't get RAM from Apple, either, their prices are rapacious. I installed it myself, which is no errand for the inexperienced. If you want to see how it works, look here:
http://www.macminicolo.net/macmini2009.html
Amusingly, that site is run by a co-location company (they maintain computer equipment for people that can assist or replace their on-site equipment in case of demand or disaster) which specializes in co-locating Mac Minis. Look at the picture at the bottom, which is of literally DOZENS of Mac Minis on a big server rack. :)
Hooking the antenna back up was a bit dicey, but otherwise, no sweat. I did the Migration Assistant thing that Macs come with: it had to crank all night, but this morning I was ready to rock. Only two glitches, but both of them required some geek-fu: one of them required the use of "sudo." If you don't know what sudo is and you have this glitch, basically your Mac is going to be set to London time forever. :)
It works great: the video card rocks. Between the new video card and the 4GB of RAM (my old one was maxed out at 2GB) I can comfortably multi-task, Lightroom is much more responsive, and the water in World of Warcraft is SPARKLY.
Tonight I backed up my daughter's computer and set up her new one, which seems to be working although I have to make sure her bookmarks are moved and the Parental Controls are working. Since it's in the living room, I got a nice big monitor and we can watch Internet movies and stuff on it, too.
I'll take the old comp to work, safe-erase it, and donate it to anybody who wants it. Or maybe I'll see if my daughter's school wants it.
As always, I was Amused and a little disturbed by all the open WiFi networks I could see when I set up the computer in the living room. (We didn't want to run a cable so her computer had a WiFi card installed: the Mini has one built-in.) I could see three networks, including one which was still at factory defaults (which means I OWN your network if I want to) and one named "Aretha," which was fun. I didn't link into any of them: our network is SSID-silent and requires a 128-bit encryption key. The FBI could break it in short order but wardrivers won't even see it, especially since this is a target-rich environment for them anyway.
M More after the jump - click here!
Monday, March 16, 2009
XKCD: Either You Get It, Or You Don't.
XKCD can be a little uneven, although it always delivers the geek. However, today's episode is made of pure iridium-plated WIN.
http://xkcd.com/556/
Friday's comic (http://xkcd.com/555/) is also mostly composed of structural-grade awesome. If that worked I would so totally do that five times a DAY. Soon we would have a serious mirror-haunting demon shortage.
(Small spoiler ahead.)
I don't know why, but the alt text - if you read XKCD, always read the alt text, it's often the best part of the strip - is almost irresistibly hilarious to me. Here it is, if your browser doesn't support alt text:
"The moment their arms spun freely in our air, they were doomed -- for Man has earned his right to hold this planet against all comers, by virtue of occasionally producing someone totally batshit insane."
BWAHAHAHAHAHAHAHAHAHA! I added the italics because that's the really funny part. He'd have put them in if you could put italics in alt text. I know this, if I know nothing else in this world. And that's the beauty of XKCD: where else are you going to get H.G. Wells, triffids, tripods, Al Gore and Cervantes, along with a reference to the totally batshit insane, in one freaking place? I ask you.
Up until now, this has probably been my favorite XKCD comic:
http://xkcd.com/442/
... because I love the "Boom De Yada" song. Many of the panels are sort of in-jokes about XKCD characters, but it's still funny.
M
More after the jump - click here!
http://xkcd.com/556/
Friday's comic (http://xkcd.com/555/) is also mostly composed of structural-grade awesome. If that worked I would so totally do that five times a DAY. Soon we would have a serious mirror-haunting demon shortage.
(Small spoiler ahead.)
I don't know why, but the alt text - if you read XKCD, always read the alt text, it's often the best part of the strip - is almost irresistibly hilarious to me. Here it is, if your browser doesn't support alt text:
"The moment their arms spun freely in our air, they were doomed -- for Man has earned his right to hold this planet against all comers, by virtue of occasionally producing someone totally batshit insane."
BWAHAHAHAHAHAHAHAHAHA! I added the italics because that's the really funny part. He'd have put them in if you could put italics in alt text. I know this, if I know nothing else in this world. And that's the beauty of XKCD: where else are you going to get H.G. Wells, triffids, tripods, Al Gore and Cervantes, along with a reference to the totally batshit insane, in one freaking place? I ask you.
Up until now, this has probably been my favorite XKCD comic:
http://xkcd.com/442/
... because I love the "Boom De Yada" song. Many of the panels are sort of in-jokes about XKCD characters, but it's still funny.
M
More after the jump - click here!
Thursday, March 5, 2009
New Gear is Fun. Yes, Indeedy.
I've actually been pretty good, compared to the way I used to be, about buying new photography gear. Other than the new printer I bought myself for Christmas (which I needed, as the old one was getting very old and the ink was getting hard to find and expensive) I haven't bought anything for quite some time.
Well, the tax refunds came, and I felt it was my patriotic duty to stimulate the economy a little.
I bought one of these:
EF 135mm f/2.8 with Softfocus
I read about this lens in a book Canon gave me for being one of the first purchasers of the original Digital Rebel (the EOS 300D.) I've been lusting after it for years. It's a 135mm prime lens with a max aperture of f2.8, which is faster than most zoom lenses, but not all that fast for a prime. However, it is unique, so far as I know, amongst currently available lenses in that it has a selectable soft-focus mechanism. It uses controlled spherical aberration to soften the image to two selectable degrees (you can also turn it off.)
In English, that means it can make the subject of the image softer without affecting depth of field or plane of focus. That's what that switch labeled "SOFT" is for - 0 for no softening, 1 for first degree softening, 2 for max softening. Example:
This is a totally unretouched self-portrait. Note how it looks like a Gaussian Blur has been applied or something... but the details are still reasonably clear, which would require either high expertise with the Blur filter, or a lot of fiddling with the parameters to get the optimum blur for this particular image, and maybe partially masking out the beard, which would have been very hard to not over-soften while getting the rest of the face right. Alternatively, I could have used a fast prime and opened it way up, but then I'd have had a very narrow depth of field, which also requires a lot of fiddling to get right, or a very high level of expertise, and even if you get it right, produces radical falloff on a dimensional subject if you want a fairly high level of softening.
This lens just did it all for me, with no work on my part whatsoever. (That's a Level 2 softening, exposure f2.8 at 1/200.) It produces soft, dreamy images which don't look overprocessed or out-of-focus. It'll be very, very handy for things like portraits of "ordinary people," who often benefit from a little softening, and should produce great results even in light which is a little harsh. I'm excited about it.
Interestingly, you hardly ever meet a photographer who's ever even heard of this thing. It was one of the very first Canon EF lenses, introduced way back in the day - first year of manufacture was 1987! It has no IS, and no USM. It's almost as loud as the infamous "Angry Hornet" 35mm f2. Its autofocus, for a lens this fast, is kinda slow in lower light, and it's a bit temperamental. However, as is so often the case with fiddly equipment, it seems to call one to rise to its challenge. You just want to play with it.
The autofocus does work in all softness modes, but the plane of focus shifts when softness is altered, which means you can't focus in 0 and then switch to 1 or 2. At large apertures or high softness settings, you have to pretty much trust the autofocus, especially in lower light, which means you have to be familiar with your camera and know when to be confident that the AF is locked on to what you think it is. On a side note, my cameras are always set to "Center AF only," and I lock-and-pan with separate Focus and Exposure locks, unless I am shooting something that moves around a lot, when I might activate more AF points. This helps me be consistent in my focusing technique.
So, like I said, it's a little touchy. But when it hits, it hits. Example:
ISO1600, f2.8@1/100. Softness level 1. The only light was a 40W tungsten bulb above and to camera right, probably at least six feet away. A little noisy, but dreamy and romantic as all-get-out, with very little post (crop, slight color adjustment.)
Also, I got a Kindle2. I'm still not sure why, but somebody gave me one. It's actually kind of cool. Free wireless internet is a Good Thing.
M More after the jump - click here!
Well, the tax refunds came, and I felt it was my patriotic duty to stimulate the economy a little.
I bought one of these:
EF 135mm f/2.8 with SoftfocusI read about this lens in a book Canon gave me for being one of the first purchasers of the original Digital Rebel (the EOS 300D.) I've been lusting after it for years. It's a 135mm prime lens with a max aperture of f2.8, which is faster than most zoom lenses, but not all that fast for a prime. However, it is unique, so far as I know, amongst currently available lenses in that it has a selectable soft-focus mechanism. It uses controlled spherical aberration to soften the image to two selectable degrees (you can also turn it off.)
In English, that means it can make the subject of the image softer without affecting depth of field or plane of focus. That's what that switch labeled "SOFT" is for - 0 for no softening, 1 for first degree softening, 2 for max softening. Example:
This is a totally unretouched self-portrait. Note how it looks like a Gaussian Blur has been applied or something... but the details are still reasonably clear, which would require either high expertise with the Blur filter, or a lot of fiddling with the parameters to get the optimum blur for this particular image, and maybe partially masking out the beard, which would have been very hard to not over-soften while getting the rest of the face right. Alternatively, I could have used a fast prime and opened it way up, but then I'd have had a very narrow depth of field, which also requires a lot of fiddling to get right, or a very high level of expertise, and even if you get it right, produces radical falloff on a dimensional subject if you want a fairly high level of softening.
This lens just did it all for me, with no work on my part whatsoever. (That's a Level 2 softening, exposure f2.8 at 1/200.) It produces soft, dreamy images which don't look overprocessed or out-of-focus. It'll be very, very handy for things like portraits of "ordinary people," who often benefit from a little softening, and should produce great results even in light which is a little harsh. I'm excited about it.
Interestingly, you hardly ever meet a photographer who's ever even heard of this thing. It was one of the very first Canon EF lenses, introduced way back in the day - first year of manufacture was 1987! It has no IS, and no USM. It's almost as loud as the infamous "Angry Hornet" 35mm f2. Its autofocus, for a lens this fast, is kinda slow in lower light, and it's a bit temperamental. However, as is so often the case with fiddly equipment, it seems to call one to rise to its challenge. You just want to play with it.
The autofocus does work in all softness modes, but the plane of focus shifts when softness is altered, which means you can't focus in 0 and then switch to 1 or 2. At large apertures or high softness settings, you have to pretty much trust the autofocus, especially in lower light, which means you have to be familiar with your camera and know when to be confident that the AF is locked on to what you think it is. On a side note, my cameras are always set to "Center AF only," and I lock-and-pan with separate Focus and Exposure locks, unless I am shooting something that moves around a lot, when I might activate more AF points. This helps me be consistent in my focusing technique.
So, like I said, it's a little touchy. But when it hits, it hits. Example:
ISO1600, f2.8@1/100. Softness level 1. The only light was a 40W tungsten bulb above and to camera right, probably at least six feet away. A little noisy, but dreamy and romantic as all-get-out, with very little post (crop, slight color adjustment.)
Also, I got a Kindle2. I'm still not sure why, but somebody gave me one. It's actually kind of cool. Free wireless internet is a Good Thing.
M More after the jump - click here!
Wednesday, March 4, 2009
On Model Psychology
Well-known model Elyse Sewell (her blog is linked on the right) mentioned that she'd had a bit of a skin breakout recently and that she was subconsciously convinced that everyone was repulsed by her monstrous visage. (I'm paraphrasing here.)
Here are a few responses I made, one of which has a funny little story about my photo shoot yesterday.
Response One, to Elyse's original post:
As I'm sure you know, it matters not how lovely the lady, as soon as she gets in her head that she has a problem, it immediately equates to her being actively repulsive. You are one of the most beautiful women in the freaking world, not to mention crazy smart and funny as Hell, and some rough zits convince you you're unfit to mingle with normal, decent folk. I see this with models a lot and it never fails to confusticate me.
The really funny part is, a man can be balding, scraggly-faced, and have a pot-belly peeking out under his "Def Leppard '89" t-shirt and honestly believe he is a good haircut and a nice jacket away from being Brad Pitt. God is an iron.
Response Two, to another poster's comment:
The model I shot yesterday had, for reasons known only to God, eaten an entire bag of carrots the day before. Although she had never had an issue before, she had a food reaction and broke out in blotchy red hives. (Her trachea also started to spasm, but she took some Benadryl and it went away pretty fast.) I suspect the carrots may have slightly contaminated with a mold or something, as I've never heard of anybody almost dying from eating carrots before. On the upside, we discovered that she can now see in total darkness.
In any event, it all appeared to be gone by the time I saw her but she was still semi-convinced that her face would scare small children and dogs and insisted on putting up makeup to run to the freaking store for a last-minute wardrobe addition. (The stylist didn't have anything plain enough, so we went to Target.)
This woman is beautiful, charming, and intelligent (she speaks several languages - some of which are non-Romance languages) as well as being an accomplished model, but for a solid half-hour I swear I saw her looking around to see if people were masking their horror at her appearance. The mind boggles.
M More after the jump - click here!
Here are a few responses I made, one of which has a funny little story about my photo shoot yesterday.
Response One, to Elyse's original post:
As I'm sure you know, it matters not how lovely the lady, as soon as she gets in her head that she has a problem, it immediately equates to her being actively repulsive. You are one of the most beautiful women in the freaking world, not to mention crazy smart and funny as Hell, and some rough zits convince you you're unfit to mingle with normal, decent folk. I see this with models a lot and it never fails to confusticate me.
The really funny part is, a man can be balding, scraggly-faced, and have a pot-belly peeking out under his "Def Leppard '89" t-shirt and honestly believe he is a good haircut and a nice jacket away from being Brad Pitt. God is an iron.
Response Two, to another poster's comment:
The model I shot yesterday had, for reasons known only to God, eaten an entire bag of carrots the day before. Although she had never had an issue before, she had a food reaction and broke out in blotchy red hives. (Her trachea also started to spasm, but she took some Benadryl and it went away pretty fast.) I suspect the carrots may have slightly contaminated with a mold or something, as I've never heard of anybody almost dying from eating carrots before. On the upside, we discovered that she can now see in total darkness.
In any event, it all appeared to be gone by the time I saw her but she was still semi-convinced that her face would scare small children and dogs and insisted on putting up makeup to run to the freaking store for a last-minute wardrobe addition. (The stylist didn't have anything plain enough, so we went to Target.)
This woman is beautiful, charming, and intelligent (she speaks several languages - some of which are non-Romance languages) as well as being an accomplished model, but for a solid half-hour I swear I saw her looking around to see if people were masking their horror at her appearance. The mind boggles.
M More after the jump - click here!
Saturday, February 28, 2009
The Right of Publicity, Again.
I happened to attend an IP law seminar yesterday, where the Copyright update speaker mentioned that this case:
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3269
JOHN FACENDA, JR., Executor
of The Estate of John Facenda
v.
N.F.L. FILMS, INC.; THE NATIONAL FOOTBALL
LEAGUE;
N.F.L. PROPERTIES, LLC,
was in his opinion one of the ten most important copyright cases of the year. I agree, and although the case was related to a new use for voice recordings, it is squarely on point with the ongoing silliness related to the Right of Publicity that so many photographers and other visual artists do not understand (or do not care to understand.)
Facenda, the legendary "Voice of God" NFL announcer, had recorded many promos for the NFL, which undisputedly owned the copyrights in the promos, both mechanical and performance. (In other words, they owned the words as written, and they owned the recordings as made, under the Copyright Act.) The NFL, however, used the recordings in a video game - which Facenda had never agreed to in any release or license. Facenda's estate sued for royalties, partially on the basis of Pennsylvania's Right of Publicity Act. (42 Pa. Cons. Stat. Ann. § 8316, see also 765 ILCS 1075.) The NFL claimed pre-emption - that because the PA law would infringe on their use of the copyrighted performances, it was pre-empted by the Copyright Act. (The Copyright Act, which is a Constitutionally-mandated Federal law, always trumps state law unless there is an exception.)
The Federal District Court agreed, but the Third Circuit, in a precedential appeal, reversed. They explicitly held that because the Right of Publicity protects a different right, and a different asset, there was no pre-emption. They based this on two factors:
1) If a state right has additional requirements which the Copyright Act does not require to grant protection, there is no pre-emption. PA's law requires commercial value of the likeness to be proven before the right attaches. There was no dispute about the value of Facenda's voice, which was significant. Therefore the pre-emption test failed on that grounds.
2) More importantly for photographers and other visual artists, the Appeals Court found that likeness is not copyrightable, and therefore the right of publicity is not within the scope of copyright. In other words, while I can create innumerable photographs of a face, all of which are potentially copyrighted, I can not copyright a face, no matter how exhaustively I document it. That means that if a state grants me some kind of protection in the appearance of my face, that protection does not conflict with the Copyright Act because the two rights are completely disjoint.
The appeal did not touch on First Amendment grounds, and the court did duly note that under Campbell v. Acuff-Rose Music, (510 U.S. 569, 571–72, 579–80 (1994)) where there is a First Amendment issue, the Copyright act's Fair Use doctrine usually controls, and there is a presumption against the right of publicity. However, there is lots of wiggle room there: IL's law, for instance, specifically exempts works of the fine arts but defines such works very narrowly. Excessive commercial exploitation of likeness, even in an artistic context, is very possibly not pre-empted and IL's law would quite likely withstand Federal judicial review.
This opinion only binds the Third Circuit courts, but it was exhaustively researched and very well-written and I would not hesitate to cite it as persuasive authority before the other Districts. The Right of Publicity is getting stronger every day: bottom line, get a good release, get it vetted by a lawyer who knows what they are doing, and get it signed.
M More after the jump - click here!
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3269
JOHN FACENDA, JR., Executor
of The Estate of John Facenda
v.
N.F.L. FILMS, INC.; THE NATIONAL FOOTBALL
LEAGUE;
N.F.L. PROPERTIES, LLC,
was in his opinion one of the ten most important copyright cases of the year. I agree, and although the case was related to a new use for voice recordings, it is squarely on point with the ongoing silliness related to the Right of Publicity that so many photographers and other visual artists do not understand (or do not care to understand.)
Facenda, the legendary "Voice of God" NFL announcer, had recorded many promos for the NFL, which undisputedly owned the copyrights in the promos, both mechanical and performance. (In other words, they owned the words as written, and they owned the recordings as made, under the Copyright Act.) The NFL, however, used the recordings in a video game - which Facenda had never agreed to in any release or license. Facenda's estate sued for royalties, partially on the basis of Pennsylvania's Right of Publicity Act. (42 Pa. Cons. Stat. Ann. § 8316, see also 765 ILCS 1075.) The NFL claimed pre-emption - that because the PA law would infringe on their use of the copyrighted performances, it was pre-empted by the Copyright Act. (The Copyright Act, which is a Constitutionally-mandated Federal law, always trumps state law unless there is an exception.)
The Federal District Court agreed, but the Third Circuit, in a precedential appeal, reversed. They explicitly held that because the Right of Publicity protects a different right, and a different asset, there was no pre-emption. They based this on two factors:
1) If a state right has additional requirements which the Copyright Act does not require to grant protection, there is no pre-emption. PA's law requires commercial value of the likeness to be proven before the right attaches. There was no dispute about the value of Facenda's voice, which was significant. Therefore the pre-emption test failed on that grounds.
2) More importantly for photographers and other visual artists, the Appeals Court found that likeness is not copyrightable, and therefore the right of publicity is not within the scope of copyright. In other words, while I can create innumerable photographs of a face, all of which are potentially copyrighted, I can not copyright a face, no matter how exhaustively I document it. That means that if a state grants me some kind of protection in the appearance of my face, that protection does not conflict with the Copyright Act because the two rights are completely disjoint.
The appeal did not touch on First Amendment grounds, and the court did duly note that under Campbell v. Acuff-Rose Music, (510 U.S. 569, 571–72, 579–80 (1994)) where there is a First Amendment issue, the Copyright act's Fair Use doctrine usually controls, and there is a presumption against the right of publicity. However, there is lots of wiggle room there: IL's law, for instance, specifically exempts works of the fine arts but defines such works very narrowly. Excessive commercial exploitation of likeness, even in an artistic context, is very possibly not pre-empted and IL's law would quite likely withstand Federal judicial review.
This opinion only binds the Third Circuit courts, but it was exhaustively researched and very well-written and I would not hesitate to cite it as persuasive authority before the other Districts. The Right of Publicity is getting stronger every day: bottom line, get a good release, get it vetted by a lawyer who knows what they are doing, and get it signed.
M More after the jump - click here!
Tuesday, January 27, 2009
Under Reconstruction
I'm making a few changes to the blog.
I'm deleting the fine art stuff for various reasons. I do plan to have a little of it in another location, which I will send to anyone who emails me or asks in a comment.
M More after the jump - click here!
I'm deleting the fine art stuff for various reasons. I do plan to have a little of it in another location, which I will send to anyone who emails me or asks in a comment.
M More after the jump - click here!
Wednesday, January 21, 2009
A Tiny Victory
The revamped Communications Decency Act, put in place after the CDA was ruled unconstitutional in 1998, has just been ruled unconstitutional.
See: Online Pornography Law Appeal Denied
If it is legal to do, it should be legal to photograph and legal to show. Period. It is my job as a parent to keep my child away from things I object to, not the government's.
M More after the jump - click here!
See: Online Pornography Law Appeal Denied
If it is legal to do, it should be legal to photograph and legal to show. Period. It is my job as a parent to keep my child away from things I object to, not the government's.
M More after the jump - click here!
Tuesday, January 20, 2009
They Might Be Giants
I've owned a Polaroid camera, and in a faintly nostalgic way I thought it was too bad that they stopped making Polaroid film. (Note: they have NOT stopped making self-developing film. Fuji still makes a few kinds, mostly for passport photo machines and things like that.)
Well, inspired by Edwin Land's famous quotation:
"Don't undertake a project unless it is manifestly important and nearly impossible."
these people have decided that they won't go down without a fight. Dr. Land, by the way, was the inventor of Polaroid film - the first Polaroid cameras were known as "Polaroid Land Cameras" or just "Land Cameras."
The Impossible Project
They've leased the building and bought all the equipment from the Dutch factory where integral Polaroid films were made, which means they're very serious - that took real capital. Their intention is not simply to revive integral Polaroid films - they can't do that, as many of the components are no longer available. They intend to invent entirely new kinds of integral self-developing film products, sold under a new brand identity - they didn't buy or license any trademarks from Polaroid, which is still a going concern - which use the same back technologies as existing cameras. They've given themselves a year. I kinda hope they make it.
M More after the jump - click here!
Well, inspired by Edwin Land's famous quotation:
"Don't undertake a project unless it is manifestly important and nearly impossible."
these people have decided that they won't go down without a fight. Dr. Land, by the way, was the inventor of Polaroid film - the first Polaroid cameras were known as "Polaroid Land Cameras" or just "Land Cameras."
The Impossible Project
They've leased the building and bought all the equipment from the Dutch factory where integral Polaroid films were made, which means they're very serious - that took real capital. Their intention is not simply to revive integral Polaroid films - they can't do that, as many of the components are no longer available. They intend to invent entirely new kinds of integral self-developing film products, sold under a new brand identity - they didn't buy or license any trademarks from Polaroid, which is still a going concern - which use the same back technologies as existing cameras. They've given themselves a year. I kinda hope they make it.
M More after the jump - click here!
Thursday, January 15, 2009
I Am Avenged
I have just reclaimed my manlitude by repairing the oven, which kept coming on by itself. Yes, by itself.
The control had come loose inside the control panel while the oven was turned on: if you turned the knob, you didn't actually turn the potentiometer that controls the oven temperature. It has a multi-part shaft, so while you thought you were putting the knob back on properly, you weren't actually engaging the control. The intermediate shaft wasn't seated on the final shaft and so turning it didn't do anything.
I had to figure out how to take it apart so I could get at it. Every other gas stove I've ever fiddled with had a cooktop that lifted like the hood of a car: this one wouldn't.
I couldn't find a manual online, so I went to Sears and looked at a similar range. The salesman didn't know how to open it either, so we looked in the manual:
"COOKTOP IS NOT REMOVABLE. DO NOT ATTEMPT TO LIFT OR OPEN."
Well, that was a fine how-do-you-do.
Anyway, I came home and eventually figured out how to get at it, what was wrong, and fixed it. With NO manual. So there.
M More after the jump - click here!
The control had come loose inside the control panel while the oven was turned on: if you turned the knob, you didn't actually turn the potentiometer that controls the oven temperature. It has a multi-part shaft, so while you thought you were putting the knob back on properly, you weren't actually engaging the control. The intermediate shaft wasn't seated on the final shaft and so turning it didn't do anything.
I had to figure out how to take it apart so I could get at it. Every other gas stove I've ever fiddled with had a cooktop that lifted like the hood of a car: this one wouldn't.
I couldn't find a manual online, so I went to Sears and looked at a similar range. The salesman didn't know how to open it either, so we looked in the manual:
"COOKTOP IS NOT REMOVABLE. DO NOT ATTEMPT TO LIFT OR OPEN."
Well, that was a fine how-do-you-do.
Anyway, I came home and eventually figured out how to get at it, what was wrong, and fixed it. With NO manual. So there.
M More after the jump - click here!
Well, That's the Last of Them.
It's very, very cold here in Chicagoland. Yesterday about 10AM, I noticed I was colder than I needed to be, since I was in my HOUSE. The thermostat's ambient temperature indicator read a distressing 58F. Since the thermostat was set to 70F, this was a cause of some concern.
(This is kind of a long story, and probably not that interesting, but I feel like writing it down...)
The first approach - fiddling with it - produced no appreciable result. A little research indicated that perhaps the breaker was blown. Nope, no blown breakers in breaker box. I reset the breaker anyway just to see what that would do. Nada.
My next hope was that the thermostat itself was broken. I hied me to Menards to see what I could see. Since we don't have central air, an inexpensive round thermostat seemed to be in order. I obtained one and installed it - only to find that it was broken. So I returned to Menards... only to find that both of the other ones in that model were also broken (or at least open.) So, somewhat irate, I got the next model up and installed that. Bupkiss. I read about how thermostats work and hotwired the signal wire (incidentally, the old thermostat had a mercury switch, which technically makes it hazardous waste. More about that later. Also, the wires were cloth-covered cable. Both original, and the house is seven years older than I am.) What that should have done is told the furnace, "I want heat and I want it until the floor starts to melt." No go.
We excavated the utility closet where the furnace lives and examined it as best we could. Pilot lit. Power on. No other visible signs of non-workingness, although a few of the wires likewise had their insulation dry-rotted completely off. Hoping that it was a bad connection, I did a little research and called a reputable furnace technician. By this time it was about 1 PM and the house was not very warm, although my wife had a good fire going and the temperature had stabilized around sixty degrees.
The technician arrived and examined the furnace. His diagnosis was a bad main gas valve, which is a $600 repair. He pointed out that even if he fixed that, though, the furnace was pretty much shot. It was also original, which means it was ~45 years old. Holes in the heat exchanger, flameouts, missing blast shield, you name it. I agreed that it was foolish to put $600 into something that was far, far past its design life, and we priced out a new furnace.
Some tense waiting later, the financing was approved (6 mos no interest no payments, although I plan to pay it off early. I just didn't have the cash on hand.) He left, promising that the installers would show up between 7 and 9 that night, for no extra charge, which is pretty amazing.
The installers arrived right at 8, and after some car jockeying in the driveway they got to work. It took them about two hours to remove the old furnace, including a lot of banging and Sawzalling. We had to take the back door off its hinges to get it out and the new one in, so the back door was in the kitchen for a while, which likewise distressed my daughter. (She does not like it when things are out of place.) Then after the new one was in place they had to measure for a new intake plenum - the new one is a foot and a half shorter than the old one! There was no room indoors to fabricate, so the poor man had to go outside and set up a table: by this time it was after 11 and about 10F outside. At least I had lots of light for him while he worked. Meanwhile the 'prentice hooked up the gas and electric connections. I installed the third new thermostat of the day - the furnace came with a nice digital programmable one. I knew that was going to happen (the tech told me) and in the meantime had returned the other two. We ran new signal wire as well.
After some rewiring necessitated by 'prentice mistakes (which I quietly pointed out to the installer while the 'prentice was in the other room - I held the light for him while he wired it, and I knew what the problem probably was) the furnace got running about 2:15AM. By that time the installer had been on shift for 18 hours, but while he wasn't bubbling he was still working hard. It was very impressive and I mean to write a nice letter to his employer commending him. The furnace ran pretty much the rest of the night and got the house back up to temperature. At its lowest point, the house was probably 56F at the center, the living room (where the big fireplace is) was probably 60F, and the far bedrooms were probably 50F or below.
While it seemed long and arduous at the time, in retrospect it's really kind of amazing that they could remove the old furnace, install and set up the new one in six hours. The installer said that between the close quarters and the cold slowing him down while he built the new plenum, it actually took longer than usual! They took the old furnace away and cleaned everything up, too. They also took the old thermostat, since they have a system for dealing with them. I was tempted to keep it and get up to mischief with the mercury somehow, but I decided not to fool with it.
That furnace was the last major thing that came with the house when we bought it: we've replaced the washer and dryer (we bought some used ones when we got the house - it didn't come with any,) the dishwasher (ditto,) the refrigerator (twice - the one that came with the house died a few months later,) the air conditioner (ditto that one,) the range hood, the range, and the water heater. It still needs lots of work but at least now we're on a new cycle.
M More after the jump - click here!
(This is kind of a long story, and probably not that interesting, but I feel like writing it down...)
The first approach - fiddling with it - produced no appreciable result. A little research indicated that perhaps the breaker was blown. Nope, no blown breakers in breaker box. I reset the breaker anyway just to see what that would do. Nada.
My next hope was that the thermostat itself was broken. I hied me to Menards to see what I could see. Since we don't have central air, an inexpensive round thermostat seemed to be in order. I obtained one and installed it - only to find that it was broken. So I returned to Menards... only to find that both of the other ones in that model were also broken (or at least open.) So, somewhat irate, I got the next model up and installed that. Bupkiss. I read about how thermostats work and hotwired the signal wire (incidentally, the old thermostat had a mercury switch, which technically makes it hazardous waste. More about that later. Also, the wires were cloth-covered cable. Both original, and the house is seven years older than I am.) What that should have done is told the furnace, "I want heat and I want it until the floor starts to melt." No go.
We excavated the utility closet where the furnace lives and examined it as best we could. Pilot lit. Power on. No other visible signs of non-workingness, although a few of the wires likewise had their insulation dry-rotted completely off. Hoping that it was a bad connection, I did a little research and called a reputable furnace technician. By this time it was about 1 PM and the house was not very warm, although my wife had a good fire going and the temperature had stabilized around sixty degrees.
The technician arrived and examined the furnace. His diagnosis was a bad main gas valve, which is a $600 repair. He pointed out that even if he fixed that, though, the furnace was pretty much shot. It was also original, which means it was ~45 years old. Holes in the heat exchanger, flameouts, missing blast shield, you name it. I agreed that it was foolish to put $600 into something that was far, far past its design life, and we priced out a new furnace.
Some tense waiting later, the financing was approved (6 mos no interest no payments, although I plan to pay it off early. I just didn't have the cash on hand.) He left, promising that the installers would show up between 7 and 9 that night, for no extra charge, which is pretty amazing.
The installers arrived right at 8, and after some car jockeying in the driveway they got to work. It took them about two hours to remove the old furnace, including a lot of banging and Sawzalling. We had to take the back door off its hinges to get it out and the new one in, so the back door was in the kitchen for a while, which likewise distressed my daughter. (She does not like it when things are out of place.) Then after the new one was in place they had to measure for a new intake plenum - the new one is a foot and a half shorter than the old one! There was no room indoors to fabricate, so the poor man had to go outside and set up a table: by this time it was after 11 and about 10F outside. At least I had lots of light for him while he worked. Meanwhile the 'prentice hooked up the gas and electric connections. I installed the third new thermostat of the day - the furnace came with a nice digital programmable one. I knew that was going to happen (the tech told me) and in the meantime had returned the other two. We ran new signal wire as well.
After some rewiring necessitated by 'prentice mistakes (which I quietly pointed out to the installer while the 'prentice was in the other room - I held the light for him while he wired it, and I knew what the problem probably was) the furnace got running about 2:15AM. By that time the installer had been on shift for 18 hours, but while he wasn't bubbling he was still working hard. It was very impressive and I mean to write a nice letter to his employer commending him. The furnace ran pretty much the rest of the night and got the house back up to temperature. At its lowest point, the house was probably 56F at the center, the living room (where the big fireplace is) was probably 60F, and the far bedrooms were probably 50F or below.
While it seemed long and arduous at the time, in retrospect it's really kind of amazing that they could remove the old furnace, install and set up the new one in six hours. The installer said that between the close quarters and the cold slowing him down while he built the new plenum, it actually took longer than usual! They took the old furnace away and cleaned everything up, too. They also took the old thermostat, since they have a system for dealing with them. I was tempted to keep it and get up to mischief with the mercury somehow, but I decided not to fool with it.
That furnace was the last major thing that came with the house when we bought it: we've replaced the washer and dryer (we bought some used ones when we got the house - it didn't come with any,) the dishwasher (ditto,) the refrigerator (twice - the one that came with the house died a few months later,) the air conditioner (ditto that one,) the range hood, the range, and the water heater. It still needs lots of work but at least now we're on a new cycle.
M More after the jump - click here!
Tuesday, January 13, 2009
While You're Waiting
While you await my pontification, here are a couple of interesting articles on recent developments in the professional photography world.
David Harrington over at Photo Business News and Forum has this on Lawrence Lessig's new book, "Remix," which is a screed endorsing the wholesale theft of intellectual property:
http://photobusinessforum.blogspot.com/2009/01/copyright-lawrence-lessig-v-stephen.html
There is a link to a very funny interview with Mr. Lessig on The Colbert Report which is worth watching.
And A Photo Editor has this to say about thecopymaker photographer Richard Prince being sued by Patrick Cariou, whose photographs were appropriated by Mr. Prince for his latest kindergarten art project photomanipulation work.
http://www.aphotoeditor.com/2009/01/12/richard-prince-sued-by-photographer-patrick-cariou/
Sadly, here's what I think about the situation:
I have come to one inescapable conclusion.
Copyright in the future will belong to those with the money to enforce it. It will be enforced against those with the money to make reparation.
I would not be at all surprised if, at the end of many days, we end up with a system like Canada has where there is a tax on blank recording media, which is redistributed to copyright holders under some regime I won't pretend to understand. This will be like that, but bigger - all ISP's, all broadcast/cable/satellite bandwidth providers, etc, will pay, and it will get divided up so Disney et al can limp along in perpetuity. Anybody who wants to will be able to steal my photographs and do whatever they want with them, end of story. In other words, it'll be just like now, but I won't have the forlorn hope that some intern at a company with actual money will steal something from me and I'll be able to get some kind of recovery.
M More after the jump - click here!
David Harrington over at Photo Business News and Forum has this on Lawrence Lessig's new book, "Remix," which is a screed endorsing the wholesale theft of intellectual property:
http://photobusinessforum.blogspot.com/2009/01/copyright-lawrence-lessig-v-stephen.html
There is a link to a very funny interview with Mr. Lessig on The Colbert Report which is worth watching.
And A Photo Editor has this to say about the
http://www.aphotoeditor.com/2009/01/12/richard-prince-sued-by-photographer-patrick-cariou/
Sadly, here's what I think about the situation:
I have come to one inescapable conclusion.
Copyright in the future will belong to those with the money to enforce it. It will be enforced against those with the money to make reparation.
I would not be at all surprised if, at the end of many days, we end up with a system like Canada has where there is a tax on blank recording media, which is redistributed to copyright holders under some regime I won't pretend to understand. This will be like that, but bigger - all ISP's, all broadcast/cable/satellite bandwidth providers, etc, will pay, and it will get divided up so Disney et al can limp along in perpetuity. Anybody who wants to will be able to steal my photographs and do whatever they want with them, end of story. In other words, it'll be just like now, but I won't have the forlorn hope that some intern at a company with actual money will steal something from me and I'll be able to get some kind of recovery.
M More after the jump - click here!
Still Here, Just Busy.
The weather's been bad, the day job's been busy, and I was in a car accident, so I haven't had much fun ranting or photography to do.
I'm fine, my truck needs body work but is mechanically sound, and things are calming down a little. More as events warrant.
M More after the jump - click here!
I'm fine, my truck needs body work but is mechanically sound, and things are calming down a little. More as events warrant.
M More after the jump - click here!
Friday, January 2, 2009
Not To Gloat, but Bye-Bye JPG Magazine
I'm not a big fan of this "user-provided content" model for commercial enterprises. If you want to use my work to make money, especially when you are demanding large chunks of licensing rights, pay me. And while I thought JPG Magazine was a nicely laid-out mag, it didn't take long for me to decide I wasn't going to submit pictures to it for token payments while they got all kinds of publication rights and all the money.
Well, it turned out there's not that much money in that particular game:
JPG Magazine Says Goodbye.
Now, several perfectly nice people have lost their jobs, and for that I'm genuinely sorry. But like people who invest in Ponzi schemes, it's hard to have sympathy for people whose business model involves what, to me, seems like a fundamental disconnect with reality. JPG was basically the print version of Flickr. Why, exactly, does Flickr need a print version? I don't know. And apparently it doesn't.
Sorry, guys. Use the lesson learned and try again.
M More after the jump - click here!
Well, it turned out there's not that much money in that particular game:
JPG Magazine Says Goodbye.
Now, several perfectly nice people have lost their jobs, and for that I'm genuinely sorry. But like people who invest in Ponzi schemes, it's hard to have sympathy for people whose business model involves what, to me, seems like a fundamental disconnect with reality. JPG was basically the print version of Flickr. Why, exactly, does Flickr need a print version? I don't know. And apparently it doesn't.
Sorry, guys. Use the lesson learned and try again.
M More after the jump - click here!
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