April 01, 2012 —
These are tough times for working photographers. There are many causes and factors at work here, and a major one is competition from amateurs. It seems that, wherever you look, there are people taking photographs. Everyone and his cousin appear to have, at a minimum, a small, inexpensive digital camera in their pockets. These cameras are usually “point & shoots,” but they have capabilities that those of us who started to use 35 mm. cameras back when Tri-X was rated at ASA 200 would have killed for. Needless to say, they are quite capable of producing images that are, at least in technical terms, quite adequate for almost any publication purpose. Even those who are not carrying cameras per se have cell phones that can make astonishingly good photographs, some up to 8 megapixels in size and more.
All of this has led to a massive explosion in the number of photographs available to satisfy the needs of licensees and buyers of photography. As if that were not bad enough, the explosion of the Internet and social media as channels of distribution for all of those photographs has worsened the situation exponentially. All of this has created an enormous supply of photographs that increases daily at an ever-expanding rate. Everyone knows what happens to prices when the supply side increases. Even worse for commercial photographers, corporate consolidation on the publishing and art buying side, combined with the demise of many print publications, has led to a decrease in demand and a decrease in competition within the demand side. When you plug these factors into the equation, prices drop even further.
Within recent years, wedding and social photographers have experienced many of the same changes in the supply-demand-price equation. On top of those changes, though, they have been faced with an additional problem: many of their clients have started to leave “disposable” or “single-use” cameras on every table at their wedding receptions and other events.
All of a sudden, wedding guests have been supplying, for free, all of the candid shots that a bride and groom could want and used to buy from professional photographers. Even worse, many of those candids capture subject matter that is never even available to the professional photographer who is shooting the wedding. The “photographer- guests” simply turn over the cameras to the bride and groom at the end of the reception, and the bride and groom then do as they wish with the images contained in them. Although this trend started with film cameras, these disposables in recent years have even become digital, allowing virtually unlimited online uses of the images—all without clearing rights to these images or paying usage fees.
All of this reduces drastically the number of professional images that the clients want to buy and pay for. What is the poor, beleaguered wedding photographer to do? I was scratching my head thinking about this issue, when a potential solution occurred to me. I have not done any research to see whether the photographic community is already doing this and is way ahead of me on the curve, but here it is anyway. As the old saying goes, “if you can't lick them, join them.” Consider the possibility of, instead of having the bride and groom leave these disposable cameras on the tables, the photographer doing it and offering that service as part of the wedding package. Then, after the reception, the photographer collects all of those cameras and the images in them, instead of the bride and groom doing. Now, the photographer is in control of almost all of the images created at the wedding.
The problem with doing that is this: while most of the guests will never think about it, these guest-photographers are the owners of the copyrights to those images, not the professional photographer who supplied the cameras. While the risk that one or more guests actually try to enforce their copyrights in these images against the photographer might be small, the potential cost to a photographer of even a single claim is substantial. So, how might one get around this issue? In order to transfer the copyrights to these images, our Copyright Act requires that the transfer be in writing, signed by the copyright owner. Obviously, getting signed transfers from each guest is not a workable alternative. Instead, however, consider this possibility: what if each camera had a sticker affixed to it bearing a legend stating that, by using the cameras supplied by the photographer, the user is agreeing to grant an unlimited, non-exclusive license to the photographer to use the images stored in it? With such a grant of rights, the photographer could legally use in package any of these images however he or she would like.
Is this a perfect solution? Of course not. However, since the risk of a guest-photographer coming forward is fairly small in the first place, this additional protection might make that risk so close to zero as to be acceptable to even the most cautious photographer. As I said earlier, I do not know whether any photographers are actually doing this already. If there are any I would love to know about them, as well as whether any of them have run into any problems stemming from the practice. Just send me an e-mail at Perlman@ASMP.org.