Photographers, Masterfile, Getty should be ashamed of themselves

[photographer]

Also, let's not confuse what a stock image company would pay a photographer for exclusive rights to a unique photo with what it would cost a customer to purchase a license to use it.
A photographer might get thousands on a good photo, but it can be licensed for use for much, much less.

Thats a basic misunderstanding of how licensing works right there. Should you really be giving any advice if you have so many basic misunderstandings of the workings of the industry?

A stock image company doesnt pay a photographer for exclusive rights, there is no payment up front for images. They act as our agent. Why do you have such difficulty with understanding what an agent is?

A client will pay the agent for exclusivity then the agent takes their cut and passes the rest on for the license. Thats the way it works. They dont pay us per image then license on, they can do in some circumstances but its very rare.

As for high end being reserved for one of a kind news images. Well those days are well gone, the high end prices are associated with advertising usage and exclusive usage regardless of genre. News images do have a short tail whereas advertising/creative images can have a long tail, particularly for exclusivity and the prospect of relicensing when the original term is up.

As for prices coming down for photographic work, it depends. It also depends on the photographer and the photographs. My prices have gone up in the last couple of years.

I have mentioned a few times on this forum the range of prices I have sold for. Thats a range of prices. I have sold images for 50 dollars I have sold images in excess of 10k. So I have a fair idea of the market value of an image so add on the 2.5k min for wilful infringment (in the US and if it applies) and you have a good idea of what a court case will bring. Its usual to settle for less than that.

As you point out a $500 dollar license is a $500 dollar license regardless and any background research will find this out. Depending on the jurisdiction damages are usually assigned in the 3x-10x the original license depending on the type of infringment and how the dialogue has been conducted, but nowhere near 20k. Again quoting 20k is just picking numbers out of the air and perhaps quoting some of the more unique (or just plain ridiculous) demands.

It also depends a lot on the photographer and their experience and the evidence they show. I am a full time professional photographer and I regularly license my images myself as well as through agents so I can show a range of prices for a range of usages. If someone else only sells photos for 50 dollars max or microstock prices then it will be improbable for them to claim more than this. As Ive mentioned numerous times, its on a case by case basis and research is required but any decent lawyer/solicitor will tell you that. Get an independent valuation and go from there.
Saying Ive negotiated a 3 year buyout for 45k is meaningless as is someone saying they can buy a photo from istock for a dollar. Without context the prices and figures are meaningless.

mcfilms, I dont know the images you are talking about and the figures demanded so I cant comment. Prices are based entirely on usage, not content. You might think that the images I have licensed through Getty that gross 10k per year might be mediocre, others might be willing to pay 10k as it fits their needs exactly. It all depends on context and usage and if the images have an exclusive license in effect at time of infringment. 2 months ago I quoted a company 1k GBP for 3 years web usage for an image that met their needs exactly. They said that price was ridiculous and that they were told they could get an image for 50 quid. I said they should go ahead. Guess what 2 months later the money is in my bank account. That means that image was worth the 1k to them in the end after 6 weeks of unsuccessfully searching for the image. The image is fairly repeatable and there are a lot of similar images out there but there are none that match their needs exactly. Thats the difference.

[SoylentGreen]

I understand what an 'agent' is.

The "agent", and "exclusive agreement" thing has come up many, many times on this forum.  On its own, it could be a good basis to litigate an infringer.
However, there's a big problem.  MF and GI may have "exclusive agreements" in some cases with their artists, but then they bulk copyrighted the same content under their own names.
In addition, the artist has frequently copyrighted the same content on his/her own.
So, it's quite possible for the court to issue a summary dismissal of a case if "copyright standing" is so botched from the beginning.
One might say that the "exclusive agreement" takes precedence, but the law doesn't state that.
It would then be a simple matter to take the artist/agency to court for damages arising from a frivolous suit.
So, the artist/agency would owe their own legal fees (5k-10k), the defendant's legal fees (5k -10k) and whatever other fees arise from efforts to collect from the plaintiff.
You can then be sent to collections, have your credit thrashed, your assets seized, your wages garnished, etc. if you don't pay.
That's the risk of being in "maximum lawsuit mode".

However, to receive a big lump-sum payout for a photograph (which is a large part of what we're discussing here) the artist would likely have to sell the photo to a client outright.
That's pretty much what people are speaking of when they say, "I got $20,000" for my photo.  The other way is to auction limited or rare prints, but that' off topic, I guess.
We can surely all agree that people can make whatever contract they want with the client.

Mcfilms is right of course when he stated that, "You do realize that you are talking about images that are NOTHING like the images Getty is claiming to represent, don't you?".
I think that we've sort of mixed up outright "sales" with "agent/licensing".

Yes, it's probably pointless to just pick numbers out of the air; however, there was some discussion of how much photographs can fetch.
The two photographers posting on the forum here put the numbers out there, so that's where the figures are coming from.

One of the problems with seeking high punitive damages in court for a photo that has "exclusive rights" is as follows.
The photographer might say, "my client paid $20,000 for exclusive rights for the photo, and I'm therefore seeking $20,000 in punitive damages from the infringer".
The problem is that the court probably wouldn't award anywhere near that much, because the photographer couldn't have sold exclusive rights to anyone else, including the infringer.
Since the photo was already used by the client, the infringer didn't enjoy exclusive rights to the photo, and the photographer isn't entitled to that level of damages.
The court would be more likely to award a price that would be more in line with a simple rights-managed license of $1000 or $2000, such as what GI or MF pursues.
In addition, some photographers transfer so many of their rights in their exclusive license that the photographer has lost standing to litigate.

All this brought to mind the work of the late Kevin Carter, who took that Pulitzer Prize winning photo of the Sudanese girl and the vulture in 1993.
http://iconicimages.blogspot.com/2007/12/wanting-meal.html

He sold the photo to the New York Times in 1993.

"On 27 July 1994 Carter drove to the Braamfontein Spruit river, near the Field and Study Centre, an area where he used to play as a child, and took his own life by taping one end of a hose to his pickup truck’s exhaust pipe and running the other end to the passenger-side window. He died of carbon monoxide poisoning, aged 33. Portions of Carter's suicide note read:
 "I am depressed ... without phone ... money for rent ... money for child support ... money for debts ... money!!! ... I am haunted by the vivid memories of killings and corpses and anger and pain ... of starving or wounded children, of trigger-happy madmen, often police, of killer executioners ... I have gone to join Ken [recently deceased colleague Ken Oosterbroek] if I am that lucky."  "

http://en.wikipedia.org/wiki/Kevin_Carter

Here's a guy with a lot of demons; he saw many things that most of us never see.
But, this example pretty much destroys the myth that having a prize winning photo always equates to riches.

You can buy editorial rights to the photo from Corbis, whom now owns the image.

S.G.

[photographer]

However, to receive a big lump-sum payout for a photograph (which is a large part of what we're discussing here) the artist would likely have to sell the photo to a client outright.

And I am saying its not. In editorial perhaps, in creative no. Both my 10k sales werent even exclusive.
For one years exclusive I quoted a client 25k for 3 years exclusive 45k.
If someone sold their image for 20k outright, you can be damn sure whoever they sold it to would get at least 5 to 10 times that. As I said earlier Ive a couple of photos that have exceeded that or are approaching that and thats only in license fees, I still own the photos and will be sold continually.

One of the problems with seeking high punitive damages in court for a photo that has "exclusive rights" is as follows.

No. The main problem is exactly that the photo isnt available for sale. No amount of money could license it as it breaks an agreement.
The court wont and cant issue damages for what would be a 'normal' price because that photo isnt available for sale. You cant put a price on anything that isnt for sale.
This is where punitive damages can be crippling. As reputations and professionalism, track record of the image, damage to reputation with the client and future sales impact and all that come into the equation.
A straightforward copyright infringment is relatively easy to quantify and the manner in which it is infringed is also easy to quantify. You cant quantify something that has no price and is unavailable.
Always remember this is not a proof beyond reasonable doubt exercise but a balance of probabilities.
Infringing an exclusive image brings a whole different world of hurt including reputation etc etc.

In addition, some photographers transfer so many of their rights in their exclusive license that the photographer has lost standing to litigate.

Really? Thats a huge misunderstanding. Exclusive licenses do not transfer any rights at all. I can license an image to be used exclusively in the US only, or exclusively to one particular media or one particular industry. No rights are transferred. I can of course license an image worldwide, all media, for any particular period but that sort of license is telephone number proportions.
Dont confuse licensing issues with copyright and with rights issues, they are hugely separate things and largely mutually exclusive.

But, this example pretty much destroys the myth that having a prize winning photo always equates to riches.

Indeed. There are a lot of starving artists out there which is why you should never really equate the aesthetic value of an image with its potential monetary value. Its a lesson all aspiring professional photographers need to learn to become successful. Beautiful looking chocolate box landscapes may look good but will never really sell, that photo of your grandads medal of honor, purple heart or victoria cross sitting in the cupboard will sell many many times over.

It is funny to read some of the comments about infringing crap images. Well if they were that crap, then why steal them? Go over to flickr and get some free or creative commons stuff! If you felt it was good enough to take it and use it for your business then obviously it has value to you. You may not think its worth paying for but then you will be questioned about why you thought if an image was crap that you were using it to advertise your business? Surely thats counter intuitive?

I think you will find that a lot of photographers think that some of the numbers that are being reported to have been quoted are ridiculous but we dont have all the facts, we dont really know the circumstances and for everyone demanding 9k for a blog image there are those of us quoting a grand for an image we know we would get 3 for when we go to court but want to be reasonable.