WELCOME
TO RAY SOLOMON'S NEWS MAGAZINE.
CAUTION. YOU ARE ABOUT TO ENTER MY OPINION PAGE.
SPECIAL
REPORT:
INTELLECTUAL
PROPERTY RIGHTS VIOLATIONS BY HANDGUN MFR INDUSTRY. TIP OF THE
ICEBERG?
BY RAY SOLOMON
EXHIBIT A: JULY/AUGUST 2004 FRONT SIGHT MAGAZINE OF USPSA
EXHIBIT B: INSIDE FRONT COVER IN COLOR FULL PAGE AD
EXHIBIT C: ORIGINAL IMAGE SHOT MAY 3, 2003 AT BEST OF THE BEST
MATCH
EXHIBIT D: OVERLAY OF ORIGINAL AND ADVERTISEMENT
Mesa, AZ. September 3, 2005
Complaint procedure: pull
pin and count to five. Your complaints will go
away.
Note to self: You cannot use someone else's photography or art in
your commercial advertisement, period. Any reasonable-minded person
would agree. Yet two darlings of the USPSA/IPSC gun manufacturing
industry who should know better have done just that.
Is this standard operating procedure within the industry? That's
what they call a rhetorical question. Ponder on that.
Imagine my surprise when I received my July/August 2004 issue of
Front Sight™ magazine with my photo used for the inside cover
in a commercial ad. Not only that, they only used a small portion
of the image. The shooter is Wil Schuemann and the gun is a
SVI™ with two .38 super (rimmed) plated brass being ejected
in short succession. Read: quick double-taps. How many of us can
still do that! Image was shot May 3, 2003 at Best of the Best Match
in Reno, Nevada. I was there. Wil was there.
Let me share how my industry sets prices for commercial use.
Typically,
magazine photographers such as ASMP (American Society of Media
Photographers) members and others have helped set photographer
photo use rates as used by the magazine publishing industry.
According to www. asmp.org web site, photographers charge a
Creative Fee as well as a Usage Fee. These fees are negotiated up front using various
estimator models. These estimator models factor in the final size
of image, circulation of publication, inside/cover or inside use to
arrive at the photographers fees.
Photography Fees (sometimes
referred to as Creative Fees) reflect the experience, creativity
and vision that the photographer brings to the assignment, along
with the complexity of the project. Issues such as the total number
of finished images needed, scheduling, site logistics or the need
for specialized skills or equipment can affect the overall
Photography Fee.
(source:
www.asmp.org)
Using the Estimator™ model at: www.fotography.net/magazine/formulas.html
as
used and referenced by ASMP, the Creative Fee would be: $329.28
based on circulation of 13,000 and full page ad space of
$1200.
Licensing
Fees (sometimes referred to as Usage Fees) reflect the value of the
usage for each image in the assignment. This is determined by a
number of considerations, including how widely and for how long the
images will be viewed, reproduced and distributed. (Source:
www.asmp.org)
Using the Estimator™ model at: www.fotography.net/magazine/formulas.html,
the Use Fee for inside cover would be: $570.97.
The total fee would be: $329.28 + 570.97=
$900.28.
In
addition, every commercial use of photography requires a
signed model release by
persons recognizable in photo, and a signed property release of any
property recognizable in photo. In this example, both model and
property releases would be required. I know what you're thinking.
Do they have one? Probably not.
Front Sight™ has approx 13,000 circulation and ad space rates
are $600 half page, $1200 full page. Inside cover is more
expensive.
I have been
photographing IPSC/USPSA practical shooting competitions since
February 2002 to present. My photo style is very distinct. I use
extreme high shutter speeds between 1/4000 to 1/16,000 second to
achieve that brass stopping look that is a trademark of my unique
style. That's how I instantly recognized my image.
At the Best of the Best Match in May 2003, I provided 100-125
competitors a CD-ROM of personal-use only images I photographed of
them at stage 3. I chose stage 3 because I can get several great
views of each competitor. I provided these for personal-use only.
My purpose was to advertise my unique high speed photography style
to a wide audience for possible commercial-use referrals and
assignments. Hey it worked!
I invested 3 days plus
round-trip travel in my motor-home from Mesa to Reno to photograph
the match. SVI™ used the fruit of three days labor and travel
expenses in their ad without compensation. Photography is not free.
Even royalty-free images have to be purchased before you use
them.
I offer the following:
1. Wil Schuemann, a gun-barrel manufacturer "gave", 'sold' or
'transferred' a personal-use only photograph to Strayer-Voigt, Inc.
(SVI™) handgun manufacturer who used the photograph in the
July/August edition of FRONT SIGHT™ inside cover. This is
commercial use.
2. When I contacted SVI™ after the fact, about the
unauthorized use of my photo in their Front Sight™ad, to his
credit, Sandy Strayer stated he will pull the ad from the next
edition of Front Sight™. So far so good.
3. I sent SVI a $1200 bill for use of that image. I also stated I
would take several times that amount (list price) worth of
SVI™ manufactured products since I like and use SVI™
products. I have NOT been paid nor contacted further by
SVI™.
4. I am the person who took the image. This has been established.
Did you know as a photograher, Federal law recognizes me as the
copyright holder and owner of all my photos even if I don't display
the © symbol or register my image with the US copyright office.
True. Thank case law for that. Also, all copyright ownership
transfers have to be in WRITING. This is important. I can publish
to the net, CD-ROM, brochure for distribution, yet NOBODY can use
my images in a commercial context without my consent.
5. SVI™ refused to discuss or return my emails or negotiate
in good faith with me. All my email inquiries to SVI™ were
responded by Wil of Schuemann Barrels™, another company
entirely. I email Sandy and Wil returns my emails? What's with
that?
What can I conclude?
1. Both SVI™ and Wil Schuemann™ place a low value on
photography when used in their commercial ads. After all, everyone
has a cheap digital camera, right? That image SVI™ chose to
use was taken by me using a $6,000 digital SLR camera
body/software/extra battery, a $300 memory card, an $800 lens, and
a $3,000 PowerBook to make it happen.
2. Sandy Strayer of SVI™does not wish to discuss or negotiate
with me. No phone calls, no emails. Nada. If SVI™ wishes to
pay their bill, I will take payments via PayPal™ or
BidPay™. $900.28. My email is raysolomon01@msn.com. That
would clear it up.
3. Wil thinks I want too much for use of my image. I won't lose any
sleep over this. In an email rant posted to a Brian Enos forum to
rebut my complaint about SVI™ non-payment (Karma moment), Wil
argued because they only used a tiny portion of the image, it is
only worth $100 bucks. Hmm. By the way, try to purchase anything
Wil sells for $100 bucks or less.
4. SVI™ will not pay because he already paid for it? Did Wil
get paid for use of my photo? Wil or SVI™ won't say.
5. SVI™ will not pay for it because they stole it and don't
care what anyone thinks about it? Is this a "Don't Mess with Texas"
sort of thing?
6. Did Wil promised Sandy he would take care of this, to leave it
to him, he is the self-proclaimed expert on copyright, etc? I
recall Wil emailing me and stating I don't know anything about
copyright, etc. and he knows the copyright laws better than me
because he manufactures things. Yeah, right.
I can't come up with any other scenarios, other than what I have
shared.
Question: Is this business practice typical for the majority of gun
manufacturers? You tell me. This was MY rude introduction and I'm
not amused.
SVI™ is not listed with Texas Better Business Bureau or any
other professional organization. Hurry up and join so I can file a
complaint.
Karma baby. Click click click click click click How about a
60-minutes™ exposeŽ on how evil gun manufacturers are truly
evil and rip off the little guy every chance they get? Tempting.
SVI™, you have pulled the pin, how long can you ignore
it?
I'm not trying to hurt the industry, they are hurting themselves,
and sometimes you and me.
Ray Solomon
Last updated: September 16, 2005.
SOURCES: ASMP, Estimator™, SVI™, Schuemann
barrels™, Front Sight™, PayPal™, BidPay™
and 60-Minutes™ are trademarks of their respective
organizations. Signed model release info linked to
www.photoattorney.com and their blog site which has free tips and
current information.