Reflections On PhotoPlus Expo 2007

 

 

By Mickey H. Osterreicher

BUFFALO, NY (October 24, 2007) – When I attended the PhotoPlus at the Javits Center in New York last week I thought I would be like a kid in a candy store; instead I was more like a stranger in a strange land! There were so many booths offering the latest in cameras, digital technology, computer software, as well as lighting, accessories, backgrounds and gadgets. It was all pretty mind-boggling, given that I have a Nikon D-70 and all of my Nikkor lenses from 30 years ago.

I listened to a number of lectures and heard some presentations, the most informative and entertaining of which came from David Pogue, technology columnist for The New York Times. He regaled the audience with his musical talent singing such technical hits as “You’re Being Sued by the RIAA” [Recording Industry of America] to the tune of “YMCA." But substantively, he did his best to put to rest the myth that more megapixels means better photos. An offshoot of that presentation was the fact that out of all of the techies that send him more than 400 messages (eMail and snail mail) a week, no group loves to disagree more than photographers. They disagreed with him and then each other. It is worse than the old standard: ask two Rabbis a question and get three opinions.

That got me thinking about the state of our profession. A few weeks before I read a continuing discussion on SportsShooter regarding the merits of belonging to NPPA. Sean Elliott (NPPA national secretary) did a great job of answering a lot of the issues, but it all goes back to the fact that photographers by-in-large love to point out what’s wrong with something and almost always seem to have excuses as to why they cannot be a part of the solution.

I spoke to Roy Hsu, President of the Stock Artists Alliance. He asserts that “the digital technology has lead to a fundamental shift in the behavior of consumers in how they access news, entertainment, and advertising.” While seeing “a higher volume of images being needed by clients,” he attributes some of the challenges facing photographers to “shorter attention span of consumers, small image files being sufficient for Web use, a new generation of image users, and infringements having been made extremely easy.”

While all of that maybe true, it is the issue of copyright infringement that was the cause for the most discussion. As demand for more images and content increases on the Web it is paramount that photographers register their work with the U.S. Copyright Office. The difference between a suit over unauthorized use of an image when that image has been registered and when it has not been registered is significant. [See Baker v Urban Outfitters 254 F. Supp. 2d 346 (S.D.N.Y. 2003), where a photographer sued for copyright infringement without having first registered the image in question and not only lost the case but was found liable to pay the defendant thousands of dollars in attorney’s fees and sanctions.]

The issue of Orphan Works is also cause for much concern worldwide because of the far reaching implications it will have for works that, although properly copyrighted, may still be used without permission or payment where it is difficult or impossible to find the copyright holder. The U.S. House of Representatives failed to pass The Public Domain Enhancement Act (H.R. 2601) in 2003, and it was reintroduced as H.R. 2408 in 2005 where it died again. H.R.5439 was introduced in 2006 and unfortunately is expected to be enacted in one form or another sometime in 2008. As written the bill would release certain orphan works into the public domain if the copyright renewal registrations are not properly updated; and would also limit legal remedies and monetary compensation in cases in which the work was used after it was determined that the copyright holder could not be found.

It is because of these two important issues that the Imagery Alliance was formed in 2006. The Alliance is a coalition of professional, visual, arts and trade associations “representing more than 300,000 artists and copyright owners.” According to the web site www.imageryalliance.org its mission “is to advocate for the rights of our member associations and their constituencies and to promote their shared interests.” NPPA is a member along with the American Society of Media Photographers (ASMP); Picture Archive Council of America (PACA); Professional Photographers of America (PPA); Stock Artists Alliance (SAA); and White House News Photographers Association (WHNPA) to name just a few.

The Imagery Alliance is itself a member of the Copyright Alliance, which is another 43 member coalition composed of a broad range of groups such as Microsoft, NBC Universal, Disney, the National Football League (NFL), and the Motion Picture Association of America (MPAA) along with artists’ unions and publishing houses. It is “committed to promoting the cultural and economic benefits of copyright, providing information and resources on the contributions of copyright, and upholding the contributions of copyright to the fiscal health of this nation and for the good of creators, owners and consumers around the world.”

While I have been most busy dealing with First Amendment issues such as the new Federal Shield Law, Cameras in the Courtroom and overall press access it became increasingly clear during the time I spent at PhotoPlus that without copyright and contractual safeguards the concept of a free press will be a moot point. The choice between covering a story and caring for oneself and one’s family is one that none of us want to be forced to make. Yet that is what may happen as the digital age erodes some of the safeguards that were previously more available.

What became very clear to me is that a number of other groups representing professional photographers were able to do a lot for their members but that is because their members were willing to pay dues that far exceeded those of NPPA. So if our members want to have a stronger voice when it comes to: proposed legislation, copyright infringement, Orphan Works, metadata management and standards, fair contracts and day rates along with equitable licensing fees it is incumbent that they be willing to actively participate in our organization and encourage others to join. We have seen our membership grow over the years to 10,000 but there are far more still and video photojournalists, students and editors out there who are not members.

It was an honor and an education to work with Greg Smith of the Business Practices Committee who has spent years dealing with these issues on his own time. Alicia Wagner Calzada, NPPA's immediate past president, continues to work tirelessly on the Advocacy Committee while attending law school. Tony Overman, president, couldn’t resist a second year of abuse and continues his leadership. Jim Straight, our new executive director, hit the ground running and like Forest Gump has not stopped. I could go on and on but my point is that we as members (and I have been one since 1972, member #982) need to participate more and to get our colleagues to join. As Benjamin Franklin said, “We must all hang together, or most assuredly we shall all hang separately.” As journalists in a digital age those words could not be any more prophetic.

Attorney Mickey H. Osterreicher, Esq., NPPA's general legal counsel, has been an NPPA member since 1972. He is the chair of the NPPA Media Government Relations Committee and is also a member of the New York State Bar Association Media Law Committee. He’s been a photojournalist for both television and newspapers for over 30 years in Buffalo, NY, where he now practices law.

 

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