Common Cents
The Law
October 2009

by Mark Loundy

"If we desire respect for the law, we must first make the law respectable."

Justice Louis D. Brandeis

Between 1919 and 1933 it was illegal to make, sell or transport liquor in the United States. Did that mean that nobody made, sold or transported booze during Prohibition? Heck, no. All it did was to make a popular and continuing activity illegal. Breweries operated openly in Chicago under the protection of corrupt public officials. So-called "speakeasies" were well known and well patronized in nearly every city. Liquor transport in the Southern states was so well entrenched that its drivers formed the nucleus of what became the multibillion auto-racing empire, NASCAR.

From 1974 until 1996 you risked getting a ticket if you drove your car faster than 55 miles per hour. That law was ignored even more widely than was Prohibition.

Lawmakers may make laws, but the will of the people is what defines society in the U.S.

Federal law prohibits copyright infringement but the average person thinks that if they pay a professional photographer for a print, they have the right to scan it and make enlargements from it. The law and what society believes is inherently "right" don't match up.

Pirated sports photos are common on eBay. Bloggers think nothing of "swiping" images that they find online.

Access to intellectual property is popularly perceived as a right that should be freely exercised. By "free" I mean that nobody should have to pay for it.

The impact is realized not only on the bottom lines of newspapers, but also on those of every media-related business – including freelance photographers.

Musicians have been counseled to capitalize on the exposure provided by pirated music by touring more and selling more T-shirts.

But photographers can't capitalize on ripped off images. They are nothing more than icons of a failing industry. Journalistic imagery has become nearly valueless. Certain celebrity baby images may have fleeting value. But with the near universal presence of consumer cameras, unique news images have become rare, indeed. The recent upheavals in Iran were covered largely by ordinary people with cell phones.

Just like network television, photography has shattered into thousands of tiny markets. But photographers with advanced niche skills can still do well.

Professional sports photography has become a boutique market shot by a handful of elite shooters and published in a single magazine.

But for the most part, the only images still recognized as financially valuable are connected with commerce. Top-level advertising and promotional photography is still beyond the skill set of most non-professionals.

If you still plan to be a general photojournalist 10 years from now, do yourself a favor: Develop a Plan B.


• Not this month.


• John Wiley and Sons, publisher of Frommer's Guides, for their all-rights-in-exchange-for-63-bucks-per-picture contract.

• The latest version of the Miami Herald contract continues to be awful. All rights, indemnification, the works.

• India-based Better Photography for its business model based on free photography.


• The contributors to Better Photography for contributing to Better Photography.

Please let me know of any particularly good, bad or ugly dealings that you have had with clients recently. I will use the client's name, but I won't use your name if you don't want me to. Anonymous submissions will not be considered. Please include contact information for yourself and for the client.


• Newly laid-off staffers at The Baltimore Sun can now participate in the same unprofitable contract offered to existing freelancers. To protect staff jobs, the guild contract forbade laid-off staffers from freelancing for the paper for a period of one year after hitting the bricks. The guild agreed that the former staffers could now start freelancing immediately. The upshot is that the Sun has essentially kept the same staff but now only has to spend a tiny fraction of what it once did. Isn't capitalism wonderful?

• Photographer Rich Legg is serious about Microstock to the point that he bases his business plan on it. He shoots exclusively for Getty's iStockPhoto and has made micro work for him. Jack Howard talked to Legg on his Tech Tock podcast about business, gear and the industry. Since losing a sale on a forklift image in which the operator was not wearing a mandated seatbelt, he exhaustively researches his markets to make sure that his images "look real." Interestingly, Legg is a former real estate agent who was a former studio photographer.


Rich Legg on Tech Tock

NPPA Independent Photographers Toolkit

Advertising Photographers of America Business Manual

Common Cents Column On The Cost of Doing Business

Editorial Photographers

Editorial Photographers Yahoo! Group (Message Archives)

Small Business Administration

NPPA Online Discussion Group Instructions

© Mark Loundy

Mark Loundy is a visual journalist, writer and media consultant based in San Jose, California.

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