We’re giving away US$5,000 of B&H photography gear. What will you spend it on?

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Earlier this month, the ImageBrief techies rolled out our new referral program by offering up a US$5,000 B&H credit to help you grab some of those items from your gear wish list. That next lens, a new Mark III, XT1 or perhaps simply replacing the Profoto Flash that your first assistant accidentally left out in the rain last week (bless him).

What would you do with a US$5,000 gift card to B&H?  Here are my picks:

Canon EOS 5D Mark III DSLR Camera (Body Only)

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I’m a Canon shooter and always have been. I still haven’t made the upgrade from my Mark II up to the III but you know I’m DYING to! 

Canon EF 50MM f/1.8 II Camera Lens

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I currently have 4 lenses in my kit. The 24-70L 2.8, 85mm 1.8, 100mm USM Macro, and the 70-200 2.8L.  If I had to get a 5th lens, this would be the one. I find the lenses I currently have tend to cover my focal needs, however, a 50MM lens would be a nice bonus, plus it’s compact!  

Fujifilm X-T1 Mirrorless Digital Camera with 18-55mm Lens

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I’ve been eyeing this camera for a while now, especially since I was looking for a replacement for my Canon s100.  The s100 was a great camera but I found the image quality a bit inconsistent and focusing to be really poor in low-light situations.  As a photographer, if I want to have a carry-around compact camera, shouldn’t the image quality be top notch?  Enter the X-T1, everything about this camera screams top-notch.  Not only is the image quality stellar, throw in a wi-fi share function, electronic viewfinder, interchangeable lens and you’ve got yourself a party!  It’s slightly bigger than a normal compact but it also just looks cool.  For the first time I have complete manual/creative control of my images with a camera that fits in my side bag.  Exciting!  

Nikon D800 Digital SLR Camera (Body Only)

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I’m not a Nikon shooter but all my friends that are say this is their body of choice!  

Nikon 105mm f/2.8G ED-IF AF-S VR Micro- Nikkor Lens

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Everyone should have a macro lens in their kit! This one looks pretty spiffy! 

Wacom Intuos Pro Professional Pen & Touch Tablet (Black, Medium)image

I’ve had my old Wacom tablet for almost 6 years now, it’s still kicking and I love it, however, I do think it’s time for an upgrade soon.  I do all my own retouching and have found Wacom tablets are an absolute necessity, especially when it comes to retouching skin and hair.  This tablet, in particular, is drool-worthy due to its size and all of the amazing functions that come with it. 

Apple Mac Pro Desktop Computer (Quad-Core)

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Who wouldn’t want more power when it comes to editing and processing your images?  This is about as powerful as they make ‘em, giving you everything you need to turbo charge your workflow. Dreamy!  

SanDisk ImageMate All-in-One USB 3.0 Memory Card Reader

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I threw this in because every other memory card reader I’ve ever owned has fallen apart.  I literally have some that are just the innards and only work if you wiggle the connection around a certain way.  Since I have CF/SD cards now, it would be amazing to have an all-in-one. This pick would do the trick nicely! 

PocketWizard Plus III Transceiver - Black

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I’ve been a huge fan of PocketWizards for years. They are durable and work with any type of flash unit. These are super fancy, as they are a Transmitter/Receiver all-in-one, and have a whopping 32 channels to choose from!  

To win the US$5,000 credit, all you have to do is refer photographers to ImageBrief using your unique referral link. You’ll find it under your referral page once you’re signed in. The photographer with the most approved referrals at midnight on the 31st of May 2014 will win the lot. If you’re new to ImageBrief sign up here to get started.

What’s on your wish list? Tell us in the comments. 

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Ken Pao is ImageBrief’s in-house photo editor and a freelance commercial photographer. View Ken’s site.

5 Minutes with ImageBrief Photographer Carolyn Lagattuta

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What’s your favourite shot you’ve ever submitted to ImageBrief?

This image was taken one night when I went to the beach to take photos of the sunset. I went to take some shots and this sweet couple passed by me. I was snapping shots of them and when they went in for a kiss, I was like, “Oh yes!” and got this shot that I absolutely love.

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I walked over to them and said, “Don’t think I am crazy, but I need your e-mail….” When they looked at me like I was crazy, I held up my camera so they could see the shot. They were darlings and told me they were newly married and just found out hours before that they were pregnant and came to the beach to celebrate. They emailed me later to say they LOVED the shot and it is hanging over their fireplace. That is a big part of my love for the photo. Sharing my work and bringing some happiness to someone by saving that special moment. Or just a regular moment.

Tell us a little about your technique in how you captured and produced it.

I was using a Canon Rebel Xti (after that I got a 40D and now have a Mark II) at that time and had on my beloved 70-200 2.8 lens with the aperture all the way open and ISO 400.  That lens allowed me to be far away and not intrude on their moment. It sounds a little voyeuristic, but everyone was happy in the end so it worked for me.

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How long have you been shooting for and what kind of work do you shoot?

I have been shooting since 2007 and got serious about shooting for stock in the last 3 years. I basically shoot my life. Real, authentic moments. Things happening at home, when I am off work and doing fun things and moments I witness in public. I really think the old days of posed images in front of white backgrounds are gone. People want real lifestyle images.

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Do you have an agent and how do you approach your own marketing?

I don’t have an agent. The thing that has worked for me is A LOT of social networking. I have spent a ton of time on Flickr, Facebook, Instagram and G+ getting my name and photos out there. Making friends, sharing information and our photos, meeting up with people I have met online and nurturing those relationships. It has served me really well.

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Tell us about your photography business and how ImageBrief fits in your process.

I like ImageBrief because I can either tailor a shot based on what the client is asking for or dig into my archives and find something I have already taken that will work too. The amount of money you can make on one photo is really lucrative and that is important to the artists of this day and age. One of my friends just made more money than he has ever made on one photo by selling it via ImageBrief. That’s so exciting!

Check out Carolyn’s Profile on ImageBrief.

Photography Marketing from an Expert: Photographer’s Agent Patrick Casey

No one understands how to execute photography marketing like a photographers’ agent. With so many semi-professionals and photography enthusiasts looking to break into full time photography, it’s important to keep in mind that carving out a successful career in this area requires dedication and a plan – one that an agent is an expert carrying out. We recently managed to catch up with seasoned Creative Director and photographers’ agent, Patrick Casey, at CASEY in New York. Patrick is second generation of the Casey name, which has been in the agent business for 30+ years, working with the biggest and best advertising agencies in New York and around the world.

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“In the past, if someone was talented you could put together a plan for them and if followed in a formulaic way, 9 times out of 10 it would work. Now it’s a little more unpredictable.” Patrick admits as we discuss how marketing is more important than ever. Luck and timing is much more of a factor now due to market saturation. “A great agent has to find smart and interesting ways of showing a photographer’s work and forge the right connections in the industry” says Patrick. Early on, however, a photographer is going to have to do this himself (or herself) before even trying to find an agent. Generally, a photographers’ agent will only sign a new artist who has an established client base. “The launching time to get photographers off the ground is so long now that photographers need to be able to sustain themselves, as well as the agency, during this period.  Being an agent is still one of the only jobs that works on spec and it may take years for the artist to start making real money.”

CRITERIA FOR SUCCESS

Before even thinking about your photography marketing, take a step back and consider what an agent and an art buyer looks for in a professional photographer. “Talent and personality are very important attributes” Patrick tells us. “Being a smart business person with good business relationships is also an important component”. Being likable and possessing the right personality type has become increasingly important now that talent is more readily available than it ever has been.

Patrick offers, “Don’t make the mistake of trying to go after a specific area of the commercial marketplace. In the beginning, creativity trumps. I really think that someone needs to be shooting and working from the heart and passionate about the work they’re producing and that’s the very first priority.  You need to make sure that you’re producing work that you love. Don’t worry so much about what piece of the market you fall into, just create work and then figure out how to package it.” Once you develop your own style, you can think about what discipline to hone in on. 

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POSITIONING YOURSELF

Over time, you’ll want to be known for a certain style if you want to stand out as a professional photographer. “It’s about a client, over a period of time, remembering that a photographer or director is good in particular areas so when they have a campaign that falls into that area, the photographer is in the top couple of people that they think of.” You don’t have to limit yourself to just one category, however.  “Anyone can shoot multiple things as long as there’s a concise thread to their work. A great advertising lifestyle photographer could also shoot great still life if those two genres are linked together through their style. For example, one of my guys, Bill Diodato, shoots still life, fashion, accessories and beauty.”

PHOTOGRAPHY MARKETING TO ADVERTISING AGENCIES

These days, it’s a combination of doing really widespread marketing as well as very niche marketing. “It’s very hard nowadays because no one is in agreement on how they want to be solicited.” This means, you need a smart and varied photography marketing campaign that speaks to all people, so including email, print and picking up the phone to call people are all necessary. “Go as wide as you can with as many mediums as you can afford and then also target the people that would be specifically interested in your work.”

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Try email campaigns and putting together a small print run to send out. “Don’t be afraid to pick up the phone to call people and set up meetings. Forging relationships and meeting people is also one of the best things you can do. It’s an absolute must for people to see if you’re the kind of person they would like to work with.”

Remember, creation of personal work is the most important thing and that’s not just to develop as a professional. “You should always be marketing from your personal work, no matter what stage of your career you’re at. Using your personal work as much as possible is truly important.”

WHO TO TARGET

You need both bigger picture marketing and to specifically target people. “It’s not limiting yourself to one creative type or another, like photo editors only or just art producers. You want to cast as wide of a net as possible, but at the same time, there are lots of great art buyers and art producers out there that it would be wise to build a relationship with one-on-one”. In the end, if given an opportunity of going out to lunch with someone versus doing a portfolio showing to a creative team, Patrick would prefer the lunch for a more direct opportunity to build a relationship. 

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RELATIONSHIPS & NEGOTIATION

Although it’s the next step beyond your actual photography marketing, keeping a tight and trusted relationship is key when it comes to positioning in the mind of your client and how well you can negotiate your fees. “I think an honest and true dialogue with your art producer is the best thing that you could have” admits Patrick. “I think you really need to trust your relationship with the person that you’re negotiating with.” Patrick suggests figuring out what the job is worth in a real sense and not between inflated senses. “If you don’t have that relationship with the person or if you’re not getting the information you need, it’s always good to have a little bit of breathing room. Chances are, you are going to be asked to requote or rebid to bring your numbers down regardless of where you’re coming in. Don’t drop all of your cards to the lowest price or exactly the number that you want to get from the beginning. You won’t get what you want. You’ll be disappointed.”

In fact, the thought that made the most impact on us was how Patrick defines what makes an agent exceptional: “they have to handle pricing and negotiation in such a way that is ethically minded in terms of helping the industry as well.” All aspiring professionals should remember that your work as an artist has a value and having that value reflected by setting fair fees is critical.

Ready to get your shots in front of the biggest brands, agencies and publishers in the world? Get started here

Do photographers make good directors?

According to many they don’t. Crossing the divide seems to be high on the agenda of many shooters yet eludes most. Cue the beautiful model walking on the street in slow mo, wind blowing in her hair - absent of dialogue or storyline. It’s an all too common cliche these days with the advent of motion capture on every SLR. 

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Image courtesy of our very own Ken Pao

With content marketing continuing to be one of the biggest trends in 2014 and with it an insatiable demand for engaging visual imagery, motion has become just as important as stills for brands and agencies. In addition, there is a move toward agencies selecting a photographer who can direct motion (or vice versa) in order to cut costs by rolling the two roles into one.

In a recent interview on photography marketing with photographer’s agent Patrick Casey, the long established owner of the NY based Casey photographer agency suggested that the trend is definitely moving in the direction of repping agencies signing more talent that can do both. As he puts it however “just because you are a stills photographer does not make you a good director”. He sees a real distinction between the photographer adding some motion on the back of a shoot and a director capable of shooting high end ‘broadcast’ material.

But why is it that so many creatives in advertising agencies are rolling their eyes at the mention of “I’m a photographer AND a director”? Surely much of the skill set is the same? Perhaps the common thing that would-be photographer-directors lack is a fundamental story telling ability. Being able to tell a story in 30 seconds may be more of a honed skill than telling a story in one frame. In motion, the crux of story telling is defined by a brilliant script and a director’s vision to interpret it in an even more amazing way. Then a great edit is the icing on the cake, as Thomas Richter’s tells us in his interview with F stop

So who is crossing the divide and how are they doing it? One emerging directing talent within our ImageBrief community is Alina Gozin’a, an award winning stills photographer who built a solid reputation in production stills, key art and celebrity portraiture. Her recent break into motion saw her debut TVC shortlisted in the Young Directors Award at Cannes last year and made us wonder how photographers can jump the gap and master both.

3 Fat Babushkas by Alina Gozin’a

Alina tells us that she approaches her stills shoots as mini film shoots, where in one frame she tells an entire story through an enticing concept, production design and cinematic lighting. We saw this in her portrait of Oscar nominated director Luke Doolan which won gold at the LPA in 2012. Alina conceptualized it on the ‘Infinite Monkey Theorem’, a theory that Luke strongly subscribes to (yes the monkey is real and was shot in a single take!). It was on the back of Alina’s signature style of stills that despite all odds she was signed by Australia’s legendary Film Graphics production house without even having a showreel.

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'Monkey Business' by Alina Gozin’a

So, what’s her advice to photographers aspiring to direct motion? “Take the time to think about your concept and start by using the good old tools of film making like props, costumes and cinematic lighting to tell a story in one frame. I start by writing out a one page outline for the sitter about the story I want to tell about them. The story could be fictional… it’s really about how I see them”.

Alina’s passion for film and art is very apparent and she admits this is a driving force behind creating intriguing work. “I now watch and rewatch good films and award winning TVCs not just for entertainment but to absorb the lighting techniques, production design and performance to draw on for my own work”. A healthy knowledge of art and painting doesn’t hurt either as she tells us “some of my biggest inspiration have been the old masters of painting like Vemeer Caravaggio and Rembrandt because they are the original masters of lighting”.

We’re are a fan of Erwin Olaf’s cheeky work and of course Anton Corbijn is one of the most high profile photographers who has mastered both stills and directing. We love his debut feature “Control” which made its mark on the film world so we had to include it!

Name any other great photographers that are carving out a reputation in directing and give your opinion in the comments. We’d love to hear from you!

Want to license images with the biggest creative agencies and most talented photographers out there? Get started on ImageBrief and feel the force, Luke.

In search of the next Doisneau

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“Le baiser de l’hôtel de ville” © Robert Doisneau

Romantics and photography aficionados will be well acquainted with Robert Doisneau’s ‘The Kiss by the Hôtel de Ville’. The iconic photo, taken in Paris in 1950, epitomizes his work and graced postcards and posters the world over. Likewise, Alfred Eisenstaedt captured a similar moment in his ‘V-J Day in Times Square’ with an American sailor kissing a woman in a white dress on Victory over Japan Day in New York City, on August 14, 1945.

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'V-J Day in Times Square' © Alfred Eisenstaedt

These incredibly mesmerizing photos struck a nerve with their subjects’ total disregard for the environment around them and immersion in one amazing intimate moment, leaving the viewer utterly transfixed. For us these photos are timeless art that remind us why we got into the industry in the first place. What better time than the lead up to Valentine’s Day to ask ImageBrief’s incredible photographer community to pay respect to these great artists through a call for entries to capture a Kiss with a similar sentiment.

The brief called for the image to capture the surrounding environment which should tell a story beyond the couple. We received 179 entries in a diverse spread of interpretations. Helping us judge was Digitas New York’s Karen Meenaghan, which resulted in 3 highly commended entries and the final winner. ”My focus was on the kiss itself, people who seemed totally in their own space while the world goes on around them… and of course a shrink would tell you that I picked images where the woman’s face shows she is radiantly deliriously in love with an anonymous man!” 

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Highly Commended - Yasmin Mariess, United Kingdom

"It makes you wonder if they are all laughing at the couple, or is this a disapproving mom, what this event is they are all attending…"

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Highly Commended - Nigel Clarke, United Kingdom 

"Feels a bit timeless. If you told me this was the night of a big election, or the night they won their soccer cup, or some other emotional celebration, I would totally believe it."

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Highly Commended - Cara Viereckl, South Africa

"The street scene is fantastic ("Love Bites"!)"

The winner is one that we found not only compelling but made us laugh. Its almost the exact opposite of the Doisneau’s Kiss - a juxtaposition of the sophisticated Paris to the grungy street but still with so much love, passion and human truth. It reminds us of Erwitt and as Karen so rightly puts it “love comes in all shapes and sizes.” 

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WINNER - Hayk Shalunts, USA

Congratulations to Hayk Shalunts who captured this fantastic shot! We asked him for a little background on how he managed to capture it:

"The shot was taken in October, 2013 in Downtown of Los Angeles by Fuji x100. I was about to cross the street when I noticed this couple hugging each other and waiting for green light to turn on. I felt there’s something interesting here and prepared the camera. It took just 1-2 seconds when they decided to kiss each other, meanwhile the light came up to green and this man appeared. He seemed to be in a hurry but managed time to throw that angry look on them while walking in a rush. I was really lucky to capture that moment."

You can view many more of our favorite entries that are being posted to our Instagram over Valentines day and into the weekend.

We are loving the entries from this continuing series of artistic competitions and so are our guest judges, who are personally requesting wall prints and the portfolios of many of ‘The Kiss” contributing photographers. We can’t wait for the next one which we are already planning! 

Ready to get your shots in front of the biggest brands, agencies and publishers in the world? Get started here

We’re delighted to report a new landmark with one of our amazing ImageBrief photographers successfully selling our highest ever license fee of $28,000 for a single image in a brief. Thousands of photographers are now monetising their back catalogue through ImageBrief, and last month we had a record average of $2152 an image. We’re thinking… that’s not bad… in an industry where budgets and fees have been hit hard over recent years.
As for 2014, we’ve heard your comments loud and clear and our big focus is optimizing the user experience to give you the best chance of transacting. We’re also working on ways to obtain more and better feedback on briefs, both during decision period and after closing, plus various feature requests that you’ve sent us.
In fact we have huge plans this year to help you connect in even more and better ways with the biggest brands and agencies in the world. Stay tuned!
You can view a tiny sample of what’s been selling recently on our Facebook page.
And finally, our team witnessed our unofficial 2nd birthday this month which almost took us by surprise as things are happening so quickly! We skipped the birthday celebrations and went straight for an inter office table tennis competition last week (at which I’m afraid Ed, our fielded ImageBrief player, blew out on in the first round).

Ready to sell your images to the biggest agencies and brands in the world? Register on ImageBrief and start submitting your shots pronto!

We’re delighted to report a new landmark with one of our amazing ImageBrief photographers successfully selling our highest ever license fee of $28,000 for a single image in a brief. Thousands of photographers are now monetising their back catalogue through ImageBrief, and last month we had a record average of $2152 an image. We’re thinking… that’s not bad… in an industry where budgets and fees have been hit hard over recent years.

As for 2014, we’ve heard your comments loud and clear and our big focus is optimizing the user experience to give you the best chance of transacting. We’re also working on ways to obtain more and better feedback on briefs, both during decision period and after closing, plus various feature requests that you’ve sent us.

In fact we have huge plans this year to help you connect in even more and better ways with the biggest brands and agencies in the world. Stay tuned!

You can view a tiny sample of what’s been selling recently on our Facebook page.

And finally, our team witnessed our unofficial 2nd birthday this month which almost took us by surprise as things are happening so quickly! We skipped the birthday celebrations and went straight for an inter office table tennis competition last week (at which I’m afraid Ed, our fielded ImageBrief player, blew out on in the first round).

Ready to sell your images to the biggest agencies and brands in the world? Register on ImageBrief and start submitting your shots pronto!

Can I Sell My Image Commercially? Part 2: Trademarks

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Trademark minefield – You need to know the law before selling your images for commercial use.

One of the most confusing issues for photographers is understanding the rules and regs about selling their images commercially. The legal issues surrounding image sales are generally grouped in three categories: copyright, trademark and right of publicity. Previously on this blog we covered commonly asked questions about copyright. Here in this second installment, we tackle the issue of trademarks. Remember, this is not legal advice (you should always consult a lawyer), but more a guide to help you make better decisions when shooting and submitting images.

What is a trademark?

Trademark law was developed to protect consumers. Think about it. If anyone could slap the Coca-Cola logo on a bottle of soda, consumers might easily be fooled into buying an inferior product that wasn’t “the real thing.” Trademark law prevents that from happening by protecting marks (labels, product names, images, logos etc.) so that consumers can easily make the connection between goods or services and their source.

Rights may be established in words, marks, logos, and trade dress (the overall design, look and feel of a product). To continue with the example of Coca-Cola, these rights may refer to the name and font of the words “Coca-Cola” and “Coke,” the curvy shape of the bottle, the red can with white swirl, slogans and other marks that are recognized associations with the drink. The more a mark is recognized and associated with a particular type of product or service, the stronger the claim of its owner.

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Trademarks like this can present problems when appearing in images sold for commercial use.

What is trade dress?

As noted above, “trade dress” refers to the design, look, and feel of a product.  The Coke bottle is a good example, but there are others that are less obvious. For instance, an iPad has a distinctive shape, so even if you can’t see the Apple logo in a photograph that includes an iPad, the Apple corporation may be able to assert that the image infringes its trade dress. A similar argument could apply to golden arches, the shape of a Delorean car or even a particular color scheme, such as an image of a donut shop that shows the pink and orange combination used by a national franchise.

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High Risk – Featuring a trade dress and mark in a close up like this presents an elevated risk of confusion or false association. Removal of the “Blackberry” logo would result in this image being low risk.

Anything else I should know about trademarks?

Trademark rights can be asserted in a wide variety of contexts – going far beyond words and logos connected to consumer products.  An example of particular relevance to photographers is buildings that are distinctive and/or well-known. In such cases, an image may be subject to claims of trademark or trade dress infringement. Some examples of trademarked buildings include the Flatiron and Chrysler buildings in New York City, the Sydney Opera House in Australia and the Walt Disney Concert Hall in Los Angeles. Famous signs such as those for I ‘heart’ NY and Hollywood are also trademarked.

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High Risk – I <heart> NY is a registered mark of New York state tourism (not NYC), and the state is highly protective and vigilant against unauthorized usage. A close up like this would present an elevated risk of confusion or false association.

What Is Infringement?

If you sell an image that includes a trademark and you do not have permission (a property release) to use that mark, you are at risk of infringement. That’s the bottom line. If you end up in legal hot water, your liability will hinge on the answer to this question: Is it likely that a consumer who sees your image will mistakenly believe that you (or another mark in the picture) are associated with the owner of the trademark?  It’s all about the possibility of confusing consumers.

You may wonder why someone would object to having their trademark included in an image. Doesn’t that amount to free publicity for their product or service? Well, perhaps, but some trademark owners may object to the context of the image or to other elements within it. They may feel, for example, that the associations implied by the image tarnish their brand by placing it in a bad light. This is called trademark dilution. Another concern owners may have is that the association weakens the connection between their mark and their goods or services. This is called blurring.

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Low Risk – In this example, I ‘heart’ NY is not a close up or easy to make out so risk of false association is diminished.  However if this were used in a way that New York state tourism did not approve of, they could make a claim.

Thus, it may be very difficult for a photographer to assess whether a legal issue could arise from use of an image containing a third party mark.  It all depends on whether the trademark owner chooses to assert her rights. A trademark owner may make a claim even in dubious cases of infringement. This can cost image makers and users time and money, even if the claim never goes to trial.

How do I assess risk?

Any unauthorized use of a trademark presents risk. The more famous a mark is and the more prominently it is featured in an image, the higher that risk is. (See below for  sample illustrations and risk assessments.)

So what should I do?

  • Remove or significantly blur any trademarks in post production, before presenting the images for commercial use.
  • Be especially careful of trade dress, even if no logos are used.
  • Only use or present images where trademarks are truly background elements. The less prominent, the less risk.
  • Always make it known in writing that a trademark is present and that it is up to the advertiser to either remove it or use it in a way that won’t present a problem.
  • In the case of ImageBrief, as long as a photographer uploads the image and specifies that the image has “No Release Available” you will not be liable for trademark infringement. To boost the chances of your images being viewed or purchased make sure you remove trademarks before submitting.

Photo Examples

We wanted to create a comprehensive list of examples to illustrate the degree of risk in each image. Take a good look and you should be a pro on this law by the end!

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High Risk – Featuring a very recognizable trade dress like the iPad’s presents an increased risk of confusion or false association with that product.  “Trade dress” is, essentially, the term used to refer to a recognizable product design. Note: A more “generic” looking tablet computer would likely be fine. 

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Low Risk – This risk here is much lower because this tablet is not “featured” like the one above and is not immediately recognizable as an iPad (no “Apple” logo visible). In addition, the Frank Gehry building and the new World Trade Center building in the background are very minor aspects of the image. The Brooklyn Bridge is fine to use commercially. 

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High Risk – Featuring a mark like this presents an elevated risk of confusion or false association. Such closeups should really be avoided completely. Avoid professional sports league logos/trade dress unless you have express permission. 

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Medium Risk – This image features many highly recognizable marks, but the context makes it less likely any particular mark will cause risk of confusion or false association. Also, if there exists any copyrighted works (e.g., M&M characters) in the shot, then permission is likely needed. See copyright post.

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Low/Medium Risk – GAP and Boots are part of the background although GAP is quite distinctively shown. If this were used in a way that GAP did not approve of, they could make a claim. 

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High Risk – Featuring a shop or location name is likely a trademark and in a close up shot like this presents an elevated risk of confusion or false association.

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High Risk – Featuring a prominently featured mark as the focus of an image like this presents an elevated risk of confusion or false association.

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Medium Risk – Risk of confusion or false association presented by this type of use (the uniform of a trademarked character) is lower but still may present issues. 

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Medium Risk – Risk of confusion or false association presented by this type of use is lower but still may present issues.  Note that “Hello Kitty” character may be protected by copyright. 

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Medium Risk – The H&M logo and idea of shopping are central to this image and can quite clearly be made out.

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High Risk – Logos of U.S. professional sports teams should be avoided. They are highly litigious. 

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High Risk – You may recall this one from our last post on copyright as this is a heavily designed building by a famous architect. In addition, the owners may assert trademark rights in a distinctive landmark like this Gehry concert hall.

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High Risk – The Empire State Building asserts trademark rights in images and may well do so in this case because it is the main focus of the shot.

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Low Risk – The Empire State Building asserts trademark rights in images, but does not do so with respect to skyline shots where the Building is only a small part of the picture. In general, if the Empire State Building constitutes less than 20% of the total picture, no permission is needed for such a usage.  

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High Risk – Eiffel Tower illuminations are subject to both copyright and trademark. Note that an image of the Eiffel Tower by day may be used without permission. 

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High Risk – The Chrysler Building’s design is trademarked. This would be high risk as the building is the central focus making confusion more likely.

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Medium Risk - The Chrysler Building is known to assert trademark rights. In this case the Building is not the center of this image, but it is featured prominently enough that a claim could be made.

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High Risk – The Flatiron building’s design is trademarked and this places the building as the central focus. Note this image also has a trademark for NYC Taxi. 

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Medium RiskEven though the Eiffel Tower is an exact replica of the original and therefore is likely not protected by copyright itself, Bally’s may claim that the general layout of the tower plus its fountains and buildings is a protectable trademark. 

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High RiskDisney is highly litigious. Anything Disney related is high risk and should be avoided without a property release.

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Low RiskAlthough the Hollywood sign is trademarked, just a small part of it here would likely not present a problem.

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Can I Sell My Image Commercially? Part 1: Copyright Law

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Copyright infringement? Youbetcha. | Image Credit: Jackie Weisberg 

If there is a single question most often on the minds of photographers, it is probably a legal question about selling or licensing photographs. This isn’t surprising because the issues are complex and there are several different laws that apply to the sale of photographs for commercial purposes. Each post in this three-part series will address one of the main laws that covers commercial photo rights: 1) copyright, 2) trademark, and 3) the right of publicity or privacy.

While we are not attempting to provide you legal advice (you should get a lawyer for that), our goal with this series of blog postings is to provide you with a better understanding of the different intellectual property and personal rights laws so you can make educated decisions and hopefully keep yourself out of legal hot water! Everything you read here is based on US law, which is a good benchmark to use because U.S. law is well-developed, and because the U.S. is one of the more litigious countries in the world. Even if you don’t operate in the US, this information should be useful as a guide.

What Is Copyright?

Copyright protects “original works of authorship”, which can include photographs, art, drawings, sculptures, books, lyrics, etc. But it’s important to remember that copyright rights extend only to “protectable expression” – i.e. copyright protection is limited to the particular means of expressing ideas and facts and does not extend to the underlying ideas or facts themselves. In other words, copyright protects an author’s “expression” of ideas and not the underlying idea itself.

A good rule of thumb for visual artists is that anything that is designed is automatically protected by copyright law, including designs, photos, artwork, architecture, tattoos and street art and graffiti (for graffiti, only creative works will be protected, a couple scrawly lines won’t cuFirst of all, you need to wrap your head around the fact that copyright is absolute. Owners of copyright have the exclusive right to (i) reproduce their work; (ii) prepare derivative works based upon their work; (iii) to distribute copies of their work to the public; and (4) display their work publicly. In this way it differs from the laws of trademark and right to publicity, which are often enforced based on how the image is used. Whereas for copyright, any infringement, even using a small portion of someone else’s work or simply capturing it within your own photograph, can be against the law.

So copyright is all about ownership. (Remember, possession is not ownership! Just because you own and possess that original Warhol, doesn’t mean you own the copyright in the work.) Generally, the owner of a photo (aka the holder of the copyright) is the photographer, but as you’ll remember from grade school grammar class, there is always an exception to every rule. In this case, the exception is when the photographer has sold the ownership rights to another person or an organization. If you shoot under “work-for-hire,” for instance (common when contracting for advertising agencies), then the business that hired you will own the copyright, even though you took the picture. Make sure you check this carefully before undertaking an assignment and negotiate hard to retain your copyright!

Generally, copyright protection in the U.S. will apply to anything made after 1923. This means that older creative works, such as the Mona Lisa or a photograph of Mark Twain, are likely considered public domain and thus use of these works would not constitute copyright infringement.

Types of Copyright Infringement

Copying, selling or using an image that is owned by someone else without permission for commercial use (advertising), even if it’s for a good cause, like for a charity calendar sale, is copyright infringement. The most blatant form is knowingly selling someone’s image that is not yours, however copyright infringement can be unintentional. Say, for instance, you shoot a photo in front of a famous building. Believe it or not, that might constitute copyright infringement if the building has distinct design elements (basically, anything not purely functional).The same goes for pieces of art that appear in the background of a photograph or even of a tattoo that is on your subject’s arm!

Buildings and architecture are copyrightable if they have significant design features. Note that in the U.S., federally government buildings and work and generally not protected by copyright (they belong to the public). So an image of a federal monument can likely be used  commercially. Note that U.S. state buildings/monuments may be protected by copyright, so be careful. In general, using an image of copyrighted architecture without permission will breach the law. And be careful here, because even if a building does not have “copyrightable elements” many buildings may be protected as a trademark (e.g., New York City’s Flatiron Building).

Buildings and architecture are copyrightable if they have significant design features. The rule in the US is that you can sell an image commercially featuring copyrighted architecture only if the image was shot from public land. Shooting copyrighted architecture on private land or inside a building/museum will breach the law. Be careful here, because even if you avoid copyright infringement from shooting from public space, many buildings may also be protected by trademark.

Copyright Checklist

From the examples above, it’s pretty obvious that understanding the dos and don’ts of copyright law can be more than you bargained for. We hope this checklist will help you recognize what to avoid capturing in your images when on a shoot, if you plan on selling the images commercially:

❏      Artworks, either public or private, such as paintings in an office lobby, sculpture in a courtyard or as part of a building, a street mural or graffiti, or a drawing hanging on the wall of someone’s living room. 

❏      Significant design features on buildings, such as a bridge or structure designed by a famous architect or a building such as the Guggenheim Museum in Bilbao, Spain, designed by Frank Gehry. 

❏      Highly designed items such as clothing, furniture, specialized equipment, cars and toys, designer jewelry/accessories, cars, brand name appliances/equipment, mobile media devices and toys. 

Even if protected items are not the main subject of your photo and appear only in the background, unauthorized use is still copyright infringement. 

What if I’m not sure?

Consider covering tattoos, blurring artworks or cropping out offending sections if this doesn’t destroy the integrity of the image.

If only a very minimal, “non-creative” part of a work is used — a nondescript section of wall at the base of a building, for example, or a small, indistinct area of a street mural, there likely cannot be infringement of the copyright. It’s best, however, to err on the side of caution. Do you really need a lawsuit?

If it is not possible to alter the image to remove a potential copyright infringement then you must make clear to the organisation licensing your image that it is unreleased so they can attempt to seek clearance for using the work if possible. In the case of submitting to ImageBrief you should mark your image “No Release Available” and note the potential issue in the image caption.

Below are a number of examples to help illustrate potential copyright issues, assessed by our legal team, based on how likely a lawsuit may be brought against an infringer without proper clearances:

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High Risk – If pictures displayed in an image can be made out at all their use can constitute infringement. Image Credit: Steve Back

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Medium Risk – The artwork is copyrighted. Risk of prosecution may be slightly lower as this is a publicly commissioned work. Image Credit: Edward Duarte

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Low to medium risk.  Both graffiti and street art are copyrighted – but both are also generally illegal, so it is relatively unlikely someone would assert rights, especially in true graffiti. Image Credit: Tosin Arasi

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High Risk – Although street art may be graffiti, this is definitely art and street artists and muralists are highly protective of their copyright. Image Credit: Lauren Ewart

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High Risk – This is copyrighted artwork.  In addition the artist Robert Indiana has asserted trademark rights in this work. Double whammy! Image credit: Charlie Bennet

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Medium-High Risk – Partial display of an artwork can constitute infringement like this use of the Chicago Cloud Gate. Image Credit: Victor Korchenko

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Medium Risk – This image shows an artwork that would be copyrighted if not aged into the public domain.  It also appears this work is displayed in a museum; museums often have anti-photography policies, which would raise risk of using this image. Image Credit: Santosh Verma

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Medium Risk – There are two potential copyright issues in a work like this, which is a drawing of a sculpture: (1) copyright in the sculpture, and (2) copyright in the drawing.  This looks like a 19th century drawing of a classical work – in which case both would be in the public domain – but the works’ ages should be checked. Image credit: Janie Mertz

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High Risk – This is a heavily designed building, and by a famous architect to boot, the exterior is very likely protected by copyright. In addition, the owners may assert trademark rights in a distinctive landmark like this Gehry concert hall. Image credit: Richard Wong

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Medium-High Risk – This is a copyrighted work and the setting may also raise location issues.  We note that this particular statute was installed in 1937 and is likely not in the public domain – but that it may be worth checking on works of similar age to see if they are. Image credit: William Woodward

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High Risk – An interior image like this one presents architectural copyright issues due to the unique design (U.S. copyright law has no film/photography exception for interior shots). Image credit: Dara Pilugina

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Medium to High Risk –  Because this is an interior shot of a recent building this image  presents architectural copyright issues. Also paintings  are present in the background which can be depicted. Image credit: Adam Letch

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High Risk - Eiffel Tower at night? Big no. Eiffel tower illuminations are subject to both copyright and trademark. Image credit: James D. Watt

We hope that these guidelines will help with your copyright questions. Stay tuned to this blog for our next installment, when we address trademarks.

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