Ben Roberts
Photographer

This is an interesting case. I can’t help comparing it to the situation of blogs and other online content. On the internet, photo referrals complete with images are made all the time with little complaint, presumably under Fair Use doctrine. This seems to be similar to the approach taken by GUP magazine but it’s created a firestorm. It makes me wonder how different the two situations are. Is there some magic boundary that print journalism crosses that doesn’t apply to the web? Or is the web just too massive and unchecked to be regulated by any rules? I don’t know the legal answers, just asking.

okay – trawled through it all now.. and it did cause a storm in a tea cup.
peter – regarding my getting ‘the point’ of loving photography – of course i do.. i could tell you how i have suffered and strained to remain in business while doing work that i love… encouraging others? well yes – i lecture photography.. tight deadlines? hmm.. do you really need to ask?

i have also helped to set up a monthly magazine.. had many many niche-market clients with many more contributors than gup and in every case, local, national and international, everyone has been informed of use.. asked..
even on much shorter deadline..
i know print costs for 30 000 mags.. 15 photographers in nothing..

just so you can understand my disgust at first reading bens post.

i’ll not twist the knife more on what must have been an embarrassing episode – but will say that free-press has NEVER bought me work.. a 4 page cover story in the british journal of photography did not bring work in.. 3 pages in norwegian pr magazine did not..

at a guess you are all fans of photography and mean well..
it is difficult though to try and preach a falsehood to the converted..

anyway.. astonished to see you reply at all.. sorry that you tripped up, somewhat.. and glad things are calming down..

db

Excellent post Mikael.

I suppose GUP did gain a bit of extra exposure for a while.. I admit to having had a look at the site, and considered looking more into it, seems like a nicely presented and professional publication despite it not appearing to be directly relevant to my line of photography. Frankly though – the astonishing arrogance of the publisher has put any thought of subscribing to the magazine right out of the frame… I have no interest in subscribing to a magazine that claims to champion the work of photographers, while stealing it for the supposed benefit of said photographer….

This discussion is absurd! There is only one thing that needs to be said in this matter:

Copyright! Both economic and artistic!

I am a journalist myself and I regularly write about new and old photographers and their work. We would _never ever_ even think of publishing something without even gotten in touch with the copyright owner!

And the main argument “there’s +15 photographers from all over the world…” bla bla. WHAAT?? This is the way you make magazines? If the photographer doesn’t answer his/her e-mail they can suit themselves, or what? Contacting people one way or another is what journalism is all about! If you don’t get confirmation of facts, picture clearance, ok on the quotes etc YOU DON’T PUBLISH!

And, lastly, lets say that you DO have fair use on your side, and the photographer DOES NOT want to get paid, doesn’t he/she have the right to decide in what magazine and in what context his/her work is being put? Don’t answer that, let me do it for you: OF COURSE THEY DO!

On October 13, 2009 at 8:06 pm I commented:

“It’s highly unlikely that we will ever publish commercial work. We’re an art-photography magazine publishing mainly autonomous work.”

Peter Bas

Because of all comments I like to make a statement:

GUP (Guide to Unique Photography) magazine is born out of love for photography, 4 years ago. In shops we couldn’t find an affordable, high-quality publication on (art)photography in which the creative mind of (art)photographers was key. Ever since we have been making, publishing and distributing the magazine in our spare time, without making a dime. We can only do this because we have the support of numerous volunteers, journalists, renowned museums and galleries, media and of course a whole lot of photographers.
We closely work together with photographers featured and always get their full permission and will always run full courtesies, website addresses and any additional information necessary. Selections are determined in close collaboration with the artists involved. It’s a joyful process, the entire magazine is one big positive work about (art)photography and (art)photographers.

As far as copyright is concerned for the section in our magazine called ‘bkmrks’ we go by Dutch laws, in this case it’s called ‘citaatrecht’ and basically works the same way as US ‘fair use’. It means the law allows us to run up to two (small-sized) photos with a review of the photographers website. (For the ones that haven’t seen the magazines-section, the photos dimensions are ±5x5cm max.) Our lithographer easily scales (bigger 72dpi) photos down to 254dpi without quality loss, as you can see in the magazine.

The idea behind the ‘bkmrks’ section is to promote/advertise (art)photographers and their websites. According to a recent subscribers research 72% of our readers love this section and, since 3 issues, we expanded it from 2 to 4 pages (from ±10 to 15 featured photographers). Everybody seems to love it and photographers involved have sent e-mails of gratitude, even though we’re only a messenger (it’s their own achievement).

As far as contacting photographers is concerned for this section, I must say my remark that this is “too complicated” was a clumsy one. I apologize for this, although it’s not as easy nor as black and white as some of the comments seem to state. We normally try to let photographers know they have been featured in the ‘bkmrks’ section and send them a pdf-file or magazine, upon request. (In Ben’s case he beat us and contacted us before we contacted him.) Future-wise we will do our utmost best to try and contact photographers before we will run a small, but always positive, review about their website.

Peter Bas

Actually an American doing that… in America is NOT ok, it’s dangerous indeed. People sue here for far less… it’s only a matter of time.

Take another look at 37th frame, they are ‘reporting’ on what stories are out there, often published by different magazines around the globe.

you on the other hand, lifted someone’s work and ran it in your mag to enhance your mag, as a feature rather than news reporting.

To clarify the legal side of this: Under Dutch law there is no such thing as “fair use”, we have the so called “citaatrecht”, which is a right to quote, to show a small portion of a protected work in a larger setting. For instance displaying a paragraph of text in a review of an article (or blogcomment, such as PDN did). This applies to photography as well. I can’t judge from the small image posted whether this exemption applies for the works displayed, it would be mostly dependent on whether it’s actually a review of the work posted. The small display size helps, on the other hand, the review being even smaller makes it less clear cut.
In any case, notification beforehand (and ideally asking permission) would probably have been the best course of action. Finding the site and images, I’m sure sending a quick email before publication wouldn’t have been too much trouble, the info isn’t hard to find.

I’m in Brooklyn too, so lets meet up… at the Expo or the Lucie’s..

I’ve written to you personally and it is disgusting how disrespectful you are, and lazy…

If you cannot get permission from a photographer then don’t run it, end of… there are millions of others out there willing to have their work in a rag for free (or so you mag editors tell us).

it’s not interesting to discuss, it’s THEFT pure and simple, backed up by lame excuses.

‘ Oh i borrowed your car… you weren’t around so i took it…’ I don’t have time to contact 15 car owners a month when I’m too busy driving them around…’

You’re overlooking the deadline factor Susan.

As a photo editor and photographer, I think the magazine should have, at the very least, made an attempt to contact every photographer by email. We all work under tight deadlines, it’s the current state of all businesses and one that seems to intensify as more and more people stay connected 24/7. This also sends a bad message to other publications who may end up use the same rationale in the future.

I guess photos and MP3′s fall under different areas of copyright.. heck, I’d love to see the reaction of any of the major record labels if it were a music magazine using commercial music without seeking permission.

Peter said: “@Jason – You’re clearly not in the business of publishing (niche) magazines. As stated we make the mag out of love for photography and I think our team has a very good understanding of what good photography is (otherwise the nomination wouldn’t be there..). So we are pretty certain about our qualities and as a fact know that a (small) publication in this section – ‘bkmrks’ – will never harm a photographer.”

You’re correct, I’m not in the business of publishing niche magazines – I’m in the business of supplying images to magazines, agencies, record labels, newspapers etc.

If you’d have lifted any images of The Eagles from my site, you could have landed me with a $15,000 fine per image.
A picture of Elton John, you could have me black listed by the concert promoter, preventing me from shooting any of the artists on their roster again…

So please don’t tell me that you know publishing images without permission will never harm a photographer. Unless you ask them, you have no idea what consequences your actions could spark.

I also have exclusivity deals in place with some of the agencies I supply… they would be even less tolerant if they saw an image controlled by them being published without permission.

And just for the record – I never questioned the quality of the magazine or the content.. only the methods of sourcing it.

Very trustworthy of you to post this on PDN, a quality website that apparently does exactly the same, according to Izo Matsuka:
“That is funny : PDN actually promoted and has on its blogroll a website that does exacty the same thing. It is called the “37 th Frame” and while it gets money from advertising and I am sure pays its server and website bills, never, ever pays a license fee for the images it publishes. I guess because they are Americain then its okay.”
And even worse, PDN does profit from it.

And what made you/Daryl Lang decide to only publish an excerpt of the comments and not the remainder? What kind of journalism is this?

Peter, everybody seems to be in agreement that GUP is in essence a good magazine that is doing a good job of introducing some great photographers to a wider audience. However you must also have to accept that GUP has not painted itself in glory here.

You responded to one comment with this:

“of course we get permission. Read my remark in my first comment: “For every category in the magazine we contact the photographers involved” and of course ask, and get, their permission.”

However, this contradicts you’re earlier claim:

“For every category in the magazine we contact the photographers involved, however for bkmrks this proofed quite impossible. contacting ±15 photographers worldwide – every issue – is a very complicated thing.”

In that xase why not wait until you get a response, and if you don’t get a reply don’t use the photo. Also, in Ben’s case you clearly didn’t try to contact him at all, and if you did you didn’t try very hard.

It’s strange how you’ve managed to track him down now when GUP has been criticised for its methods on his website – if you’d have tried a bit harder to contact him before publishing his photograph in the magazine you would have saved yourself all this negative publicity.

Peter – you ask what bad publicity?

TO start with, the story in Photo District News today Magazine: Contacting Photographers is Too Complicated.

Next all of the comments it generated across the web

Aha, I thought you were from London. If I am over in NYC again, I’ll try to contact you.

your webspot is pretty impressive, so you too keep up the good work!

Cheers,
Peter

Peter Bas said: “(We’ve featured some 300 photographers in this section over the years without one single complaint.)”

He forgot to add “although 299 never found out that we did.”

Well, maybe I don’t get it. But I happen to think that anyone who publishes creative work should compensate the creators of that work, even if its just a matter of sending them a free copy of the magazine.

of course we get permission. Read my remark in my first comment: “For every category in the magazine we contact the photographers involved” and of course ask, and get, their permission.

Well that’s a lot of comments people. I feel very awkward by the lack of respect and hostility of most of the comments, but let me try to answer some questions and get some misunderstandings out of the way. I’ll try to be short. First off I like to say that the comment made by James Dodd is basically our mode of operation for this section (called ‘bkmrks’) and it covers all comments made about copyright.
@jamesdphotography – I understand Ben very well as stated and it was never my goal to criticize ‘db’, only to explain him our MO.
@Kate – Ben does make good points, I never said he didn’t.
@Jason – You’re clearly not in the business of publishing (niche) magazines. As stated we make the mag out of love for photography and I think our team has a very good understanding of what good photography is (otherwise the nomination wouldn’t be there..). So we are pretty certain about our qualities and as a fact know that a (small) publication in this section – ‘bkmrks’ – will never harm a photographer. (We’ve featured some 300 photographers in this section over the years without one single complaint.)
@BryanF – Sorry to say, but you too are clearly not in the business of publishing and distributing (niche) magazines. And if you really want to know; we’re still putting money in it, okay?!
@david sanger – What ‘bad publicity’?
@Andrew – It’s highly unlikely that we will ever publish commercial work. We’re an art-photography magazine publishing mainly autonomous work. As far as the effort of ‘asking’ is concerned, maybe you and David would like to help me out calling Tokyo, Beijing, Anchorage, Rio de Janeiro, NYC, Capetown and Seoul to name a few when photographers aren’t replying their e-mails (and that’s only the contacting part…)
Well, hopefully I cleared up some stuff. Probably did raise some eyebrows on the way, but if there’s still anything please comment again. Always in the mood for discussions about photography and publishing.

-PB

What Peter is also be overlooking here is the fact that some images on photographers websites have contractual commitments for publishing exclusivity. I recently finished an assignment for Canadian Geographic, my contract with them stipulates that I may not distribute the images for publication elsewhere until several months after magazine is released.

While I might have an image or two from the shoot in my portfolio during this exclusivity period, if a mag like GUP were to take and publish one of them, it could put me in hot water with the clients I have an exclusivity agreement with. If that were the case, the “Exposure” of my work could very well do more harm than good. I could lose a good client because of a perceived breach of contract.

A simple email from GUP saying “We would like to feature this image (image attached) in our next issue, is that OK?” would not be very hard to do at all. Saying that is is too complicated seems like a cop out to me.

It’s like taking a cookie at Grandma’s house, she will almost always say yes, but you still have to ask first. This isn’t just good business, it is simply polite, and the right thing to do.

-A

The extent that they’ve used the images does comply with fair usage and reviews and doesn’t infringe copyright etc (obviously if used in a non review type context it would be a different matter).

But not contacting a photographer to let them even know they are going to appear is a bit crummy.

“We’re just helping photographers we like, to get their name and work out there.”

Almost every blog and photography magazine in the world today is helping photographers get exposure and get their name out there. I don’t understand why publishers seem to think this is some great reward.

We seem to be living in an ‘exposure’ economy in terms of photography, and I’m not exactly certain that exposure means all that much anymore.

As Ben can attest, I doubt he’s landed many commissions from ‘free exposure.’

I’m perfectly ok with people blogging photographs without the consent of the photographer as long as it’s a non-commercial endeavor. But putting them in print, and selling a magazine for any amount of money, no matter the margins, requires the consent of the photographers. I don’t see this as a gray area in any regard.

Why don’t publishers, bloggers, photographers use some of their creativity to at least attempt to build a new economy that monetarily compensates creative professionals? The exposure business model doesn’t work. And as far as I know, exposure doesn’t pay the rent.

I have to say I’m amazed by this.

I think Ben makes a number of good points. Having your work praised or distributed can be a very good thing, even if you’re not paid. It seems entirely sensible for photographers to be strategic about how they distribute their work, possibly allowing some use for free while charging for other uses.

But surely this must always be the photographer’s decision as they hold the copyright of the image? I also work to tight deadlines and I don’t have a budget specifically for my photo blog but if the photographer says no then I find another picture.

I am also a little confused by the implication that in agreeing to the publication of their image the photographer will demand control over the text alongside it. Surely these are two entirely separate things? Have I missed something?

Like Ben, I’ve been impressed by some of the work featured in GUP magazine but this makes me very uncomfortable.

I am Peter and I publlsh GUP. First of I like to thank Ben for his support and kind words (and his great photography). I also like him explaining his inconvenience. To set things straight (db) we are certainly not ‘blagging’ free content. Actually all content published in GUP is free. We never pay, simply because we can’t afford this. If we would be starting to pay, we would need to stop publishing GUP right away. This is a magazine born out of love for the medium and respect for the photographers. It’s not profitable and probably will never be. It’s a podium for photographers (read our statement on our website). For every category in the magazine we contact the photographers involved, however for bkmrks this proofed quite impossible. contacting ±15 photographers worldwide – every issue – is a very complicated thing. We’ll get photographers wanting a say in the text we write, wanting to supply us with their own text, diverting us to their gallery, who are on assignment abroad, not reachable etc. etc. etc. We work deadlines. It’s a small and (we think) nice gesture/surprise to the photographers involved. Their website will go out to some ±30.000+ readers in 22 countries worldwide. Amongst our readers are photo-editor, magazine publishers, galleries, newspaper-editors, museums etcetera. We’re just helping photographers we like, to get their name and work out there. And we actually never had a complaint (only compliments). I hope db gets the point of loving photography, helping people forward and working – tight – deadlines…
Keep up the good work Ben.