Monday, July 27, 2009

TIME magazine cover now pays $31.50

Recently there has been a lot of internet buzz on how TIME magazine used an istock photo as the cover of an issue last April.

I first ran across the TIME magazine istock cover on a forum at the website modelmayhem. What I noticed right away, is that the number for the photographer payout and the licensing numbers istock charges were not adding up.

Now one of the things we are seeing is how an issue like this can go viral.

EDIT: We don't know what TIME paid for. We only have the photographer's word on what he was paid. He was paid, according to his word, $31.50, 20% of what TIME paid for licensing. Istock guarantees its contributers no less then 19¢ per credit. We know what TIME should have paid in terms of credits for the image, so we know about what number of credits TIME purchased. TIME purchased somewhere around 158 credits (if we go from the lowest payscale per credit possible), which is not the full 400 and some credits they would have needed.

Also in fair disclosure I don't think TIME deliberately bought the wrong license, didn't credit the photographer, and sold the image illegally. However I do believe that TIME does not currently hold the correct licenses, and owes the fees set force in the license they have bought to istock photo, and the photographer. I do not believe they should be allowed to retroactively buy more licensing. /end edit

Pro photographers and hobbiests arguing back and forth over what TIME should pay for a cover, how micro stock is ruining the industry; and of course, in the end, somebody had to call communism.

Well here is answer to that argument, that saying paying a working wage is communism, it isn't. It is objectivism.

So that is that, but more then that I am concerned over the apparent disregard TIME magazine is showing to the licensing agreement they made with istock photos, which is the manager for the artist's work in this particular case.

With the payment made to the photographer it looks like TIME bought 87 "credits" from That is a multi-user license (which they need if they want it on more then one computer at a time,) and the standard license.

As an objectivist I have problems with this, and I have been stating my problems all along.

1. the amount the artist was paid WAS NOT the amount he should have been paid. Not should have in a universe owes him way, but should have as in the magazine bought the wrong usage way. I have outlined this at the end of this post if you want to understand my reasoning.

TIME currently states its circulation is around 3 million. So accordingly they have broken their licensing agreement with istock and oversold by 2.5 million. Istock charges a fee of .01 for every publishing past 500,000 on the normal license. Because of the payout to the photographer we know TIME did not buy an extended license.

So far no one has come forward explaining how istock is going to fix this. So far no one has explained how TIME is going to fix this.

2. Let's talk about communism.

Let's not talk about communism, lets talk about objectivism.

"No man is a means to an end. Man is an end to himself."

What does that mean? Well it means that by hiding who buys your photos istock is currently making it difficult to track down usage misconduct. So when a magazine like TIME makes at least 3 licensing errors, the person who owns the photo doesn't know. If they don't know, how can they ask for fair payment, and for istock to uphold their rights as the agent who sold the photo.

This cover is from last APRIL. The photographer just saw it now. Istock must have known it was being used, and they must have known that the photographer was not getting the usage payment they agreed to give for this type of usage, but they have done nothing.

They have shut down the discussion in their forums, and so far have made no statements.

Everyone must take responsibility for their own lives. And that means honoring your contracts. Two contracts have been broken here,

a. the contract between the photographer and the micro stock company which has failed to take action against a broken licensing agreement

b. the contract between TIME and the microstock agency, TIME has failed to buy the license for the product they have used. How is that different then shoplifting? They were hoping nobody noticed they took what wasn't theirs.

3. Lets talk about objectivism again.

The whole man an end to a means thing, that encompasses paying a fair labor rate to your contractors, employees and other people you do business with. It means don't take everything you can grab at an unfair rate of pay, rather pay your own way and other people will pay their own way. Take care of yourself, but not by taking advantage of others.

What many of us have found to be insulting is that the OP doesn't really care that TIME owes him about $5,000+ just in unpaid licensing, according to the contract TIME signed when acquiring the photo.

He doesn't care that by excluding his name that TIME again broke the licensing agreement, and that the framed artwork sales make a THIRD time that the magazine is doing an unlawful usage.

At the rate of $150,000 per violation, and the fact that in the 90s in the USA commercial copyright violation involving more than 10 copies and value over $2500 was made a felony, TIME and istock should be jumping onto this burning barge before it becomes a real news story. Not shutting down all discussion, or not coming in and saying what they will do to rectify.

And that is where people like me, and other professional photographers have to step in and say even if he doesn't care we have to care. That by not taking action against TIME magazine we are not the people who will lose out in the end.

The next time the magazine oversteps its bounds, and istock decides to notice because this time the photographer does care, it will be too late. Having been informed of this behavior in the past, and done nothing to stop it, istock has set the precedent for how it will enforce its licensing contracts.

If they take action they can get money owed, and damages and copyright violation damages. But only if they step in, only if they say something.

And that my friend is not communism, it is objectivism. Taking care of yourself. Not using others to obtain your goals, with no thought to the consequences to the people you use.

It is a social construct, but so is everything.

some information on istock and the licensing they sell

the licensing for what TIME magazine used would be 462 "credits". The smallest amount per credit that this could pay out still totals to a $91.20. (according to istock's credit calculator)

Also they CANNOT do the unlimited sales of a poster by any available istock license.

Here is the extended license clauses, and because of the artist's payout it is obvious they DID NOT buy a full extended license.

"Items for Resale - Limited Run

Notwithstanding the restriction contained in section 4(a) of the Standard License Prohibitions prohibiting the use or display of the Content in items for resale, you shall be entitled with respect to this specific Content to produce the following items for resale, license, or other distribution:

1. up to 100,000 postcards, greeting cards or other cards, stationery, stickers, and paper products,
2. up to 10,000 posters, calendars or other similar publications, mugs or mousepads,
3. or up to 2,000 t-shirts, sweatshirts, or other apparel, games, toys, entertainment goods, framed or mounted artwork

in or on which the Content is used or displayed (the "Resale Merchandise"), provided that:

1. the right to produce the Resale Merchandise in no way grants any right to you or any recipient of the Resale Merchandise in any intellectual property or other rights to the Content;
2. you agree to indemnify the iStockphoto Parties from any cost, liability, damages or expense incurred by any of them relating to or in connection with any of the Resale Merchandise;
3. any production of Resale Merchandise in excess of the allowed run size is prohibited and requires the Content to be purchased separately;
4. all other terms and conditions of the Agreement remain in full force and effect, including all Prohibited Uses."

THEY DID NEED TO CREDIT the photographer as the artist

from the extended license
"Reproduction / Print Run Limits

Notwithstanding the restriction contained in section 4(a)(14) of the Standard License Prohibitions limiting you to 500,000 reproductions, you shall be entitled with respect to this Content to an unlimited number of reproductions, and the Agreement is deemed amended in that respect. All other terms and conditions of the Agreement remain in full force and effect, including all Prohibited Uses."

from the standard licensing contract

"may not use the Content for editorial purposes without including the following credit adjacent to the Content:[b] “©’s Member Name]; or
# either individually or in combination with others, reproduce the Content, or an element of the Content, in excess of[b] 500,000 times without obtaining an Extended License, in which event you shall be required to pay an additional royalty fee equal to US $0.01 for each reproduction which is in excess of 500,000 reproductions. This additional royalty does not apply to advertisements in magazines, newspapers or websites or to broadcast by television, web-cast or theatrical production."

in the spirit of fairness I should mention that I do contribute to some microstock agencies.

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