PAY THE ARTIST!

About not getting paid (again) 

Every Christmas I give my wife a Chihuahua calendar.  Twelve months of cute little dog pictures never gets old.  This year I found a 2012 Chihuahua calendar at a store in the mall.  I hadn’t realized that one of the calendar pictures was mine until another photographer called me.

Oh boy was he pissed!  Not at me thankfully, but he was quite justifiably angry because he hadn’t been paid his portion of the licensing fee from the stock photo agency that had supplied the picture to the calendar publisher.  He’d looked me up because his picture in the calendar had been supplied by the same stock photo agency as mine.  I was easy to find because the credit line read: © 2011 Dale O’Dell/Alamy.

So he found me and called, which is a smart thing to do.  As creative artists we tend to get isolated in our studios and taken advantage of in business and if we don’t share information it just gets worse.  I’ve made these calls myself and I always try to be as helpful as possible when I receive them.  He hadn’t been paid, and wanted to know if I had since our pictures had both come from the same agency, Alamy, in England.  To be honest, I hadn’t checked.  While I had the guy on the telephone I went to the Alamy website, logged-in, and went to the ‘summary of images sold’ link.  I know that most calendars are prepared about eighteen months in advance of publication so I went back a full three years to look for the sale.  Nope, no sale recorded.  In fact there were no sales at all, ever, for my particular Chihuahua picture.  No, I didn’t get paid either.

Now he’s even madder.  He’s pissed at the calendar publisher for violating his copyright by reproducing his picture without compensation, but that’s not where he should sic the lawyers.  You see, when a picture is infringed upon, stolen is the more accurate term; the ‘thief’ does not credit the photographer and a stock agency in print ---that would actually be stupider than the original image-theft.  The fact that every picture in the calendar was credited indicates to me that a legitimate reproduction license was bought.  That means the end client, the calendar publisher, acted in ‘good faith.’  They licensed the images, paid the fee, and credited the agencies and photographers in the calendar.  The problem as I see it does not lie with the client, but rather with the stock agency, Alamy.  They’ve licensed images, collected the money, and then in violation of normal business ethics and their own contract, failed to remit payment to the photographers.  This happens more frequently than you’d think, especially with unethical stock photo agencies.  They’re all bad.  Alamy is one of the worst.  There’s no such thing as a ‘good’ stock photo agency any more.

He wants to sue someone.  I know the feeling, I’ve been there.  I gave him the name of a lawyer in New York who’s experienced in stock photography matters.  He could sue the calendar publisher.  They’d most likely respond with a copy of the license agreement with Alamy proving they’ve got a legitimate right to use the image.  That would mean the photographer’s problem is not with the publisher, but with Alamy, who’s supposed to be acting on his behalf, and paying him (and me) his portion.  In that case he’s generally fucked (to use a business term).  Good luck suing an England-based company in American court.  And for what?

“What are you going to do?”  He asked me.

“Nothing.”  I answered.

“You’ve, no we’ve, been ripped-off!  Copyright law is written in our favor, there’s a clear-cut case here.”  He ranted.

Yes, yes there is.  We’ve both been wronged.  Our works have been stolen and someone else has profited from the theft, both the publisher (who profits from calendar sales, although I suspect they did pay the license fee) and the agency, Alamy especially (who profits from the licensing fees our pictures generate, and in this case they kept one-hundred percent of the money); we’ve been hosed and there’s really not a damn thing we can do about it.  I calmly explained this to him.  He was very unhappy, but he seemed to be getting my point.

To clarify my point let me say this, we’re the only ones who give a shit.

This is how it works:  Although copyright law is written in favor of the artist, artists stand little chance in court.

First of all most large corporations have buildings that devote entire floors to lawyers and they are paid specifically to kick the asses of pissant little ‘vendors,’ ‘content providers,’ and self-employed one-man freelance artists.  They will pay tens of thousands of dollars to staff attorneys to avoid payment of photographers’ invoices for a couple hundred bucks.  That’s how they think and operate, folks.

Secondly, this isn’t a copyright-infringement case; it’s a breach-of-contract and conversion case against the stock photo agency, which to make matters more complex, is in a foreign country.

Thirdly, if the case made it to court (which it wouldn’t), no court, judge or jury really gives a shit about some little artist who didn’t get paid for some stupid dog picture.  They don’t get it.  What they ‘get’ is stuff like grand theft auto, pedophilia, or murder and can’t relate to ‘stolen pictures.’  They don’t give a shit about the Chihuahua picture someone ‘stole’ from you, it’s not important to them, it’s just a picture.

The law is on our side and the court could give a damn.  The most you can hope for is to find a lawyer who can write a good Demand Letter and hope the recipient makes good after being threatened.  In this case I’m one-hundred percent sure that Alamy would just come up with some bullshit excuse for not paying you and, using nicer terms, tell you to fuck off.  That’s my experience with them.

On the Alamy website there is a ‘price calculator.’  According to their pricing a full-page photo in a calendar, distributed in the U.S., with a press-run of 3000 copies, the photo would license for $290.00.  (This is for a ‘rights-managed’ image, I don’t do royalty-free or microstock.)  But Alamy’s ‘price calculator’ is bogus, I know of no instance where they actually charge what their ‘calculator’ says.  I’ve been working with one of the larger calendar publishers in America for the past ten years and prices paid per page for images have steadily gone down.  They pay $150.00 per image per page, not $290.00.  Based on my experience with Alamy, if $150.00 is ‘standard’ then they’d license the image for $75.00.  Of that $75.00 rights-managed licensing fee they remit 40% of it to me.  So I’d get $30.00 of a $75.00 sale that should have been between $150.00 and $290.00.  Got that?

For thirty bucks it just ain’t worth it.  Heck, forty percent of $290.00 is $116.00 and that’s not worth a lawsuit either!

That’s why I’m not concerned about it.  I’m not happy about it but getting ripped-off is part of the game, and it is a ‘game.’  If I’d of licensed the image myself, I’d of made sure I got paid.  With Alamy, I’m just one of thousands of photographers supplying millions of pictures to them for free, to license for whatever amount they feel like; they’re not in business to give a shit about me (or the guy on the phone).  If I were to complain to them they’d deny there was a problem and if I pushed…… they’d kick me out the door, they don’t have to give a shit about individual artists.  While each of us individually cares about or own incomes from licensing fees from Alamy, all they have to care about is their total bottom-line ---which isn’t dependent on any one photographer. 

So fuck it, what’s the point?

Last year I discovered another one of my pictures, licensed by Alamy, was reproduced in numerous places online by clients like Apple and other large companies.  This one was a unique digital illustration and not some generic photo of a dog.  I didn’t get paid for that one either.  And again, Alamy was the problem because they licensed the image without remitting my portion of the fee to me.  When the credit line reads photo: Alamy/Dale O’Dell, I know exactly where the image was obtained.  I was pissed.  I wanted to do something about it.  I thought about it, considered my options and then came to the depressingly inescapable conclusion, its more trouble than it’s worth, what’s the point?

Sad, eh?

This is just how things are kiddies.  If you’re a creative person working in any of the arts, you will get ripped-off.  We’re in a ‘Rodney Dangerfield profession,’ we just don’t get any respect.  Our ‘product’ isn’t valued and things with no perceived value get stolen without a second thought.  The thing is we expect a certain amount of theft from certain ‘end users.’  What we don’t expect are those (like Alamy) who are supposed to be our ‘partners’ who have the same ‘self interests’ as we do to rip us off, but they do.

But then ‘stock photography’ is a stupid business.  Really, is giving pictures for free to some company to license for whatever amount they feel like and then remit whatever amount back to the photographer they feel like (or if they feel like) very smart?  Uh, no!  So ya just gotta figure you’re gonna get hosed from time to time.  Alamy is bad, they’re stupid and unethical, but they’re not unique.  All stock photography sellers suck from the corporate giants like Getty and Corbis to the mid-levels like SuperStock, Masterfile and all the rest of the wankers.  Don’t even get me started on microstock (but then who gives a fuck if you don’t get paid forty percent of that dollar they sold your picture for!).

I’m old enough to have earned my cynicism.  I just hope to be paid more frequently than ripped-off, so I end up with a positive balance sheet.  I know they’ll (or someone else) will do it again.  I’m just so tired of fighting just to be treated fairly, but I can’t fight every fight.  I’ve given up, it’s hopeless.  I know my place in the economic food-chain.  I lost thirty bucks on that one, the price of a dinner.  I can certainly skip dinner so someone at Alamy can keep a few extra unearned bucks.

Oh, they say it was a ‘mistake?’  THEN PAY THE ARTIST!

Yeah, good luck with that.

From the Den-of-Cynicism.

February 2012

All is normal.