Malice in Wonderland

Yesterday, my "office space" for Saturday night was still undergoing some finishing touches; a little over fourteen hours from the time as I'm typing this, I'll be cageside (Side A, position 4) for the landmark event that is UFC 112 in Abu Dhabi.

My time here so far has been an adventure that has been mind-blowing; not knowing what to expect of Abu Dhabi and Dubai, my senses have been overloaded and this has only been surpassed by the incredibly genuine warmth and hospitality that has been extended to me by my hosts here - so much so that my experience warrants a post all of it's own... one which will come once I've had time to digest and properly find the words to express what I have experienced so far.

As it stands, I should be resting up and getting ready for what I expect to be the most interesting and visually stunning UFC show that I'll ever had the good fortune to witness. If the fights themselves have a fraction of the raw energy that is enveloping this city right now, then prepare to be blown away.

The Business of Photography

Since the events of yesterday will have brought dozens of fresh eyes to this blog and my twitter feed, I'd like to say a few quick words about the business of photography

Professional photography can be a very expensive venture. Since I'm best known for shooting UFC events, here's a run-down of what I cart around to each event on average

• Two Nikon D3 digitial SLR's
• One Nikkor AF-S 70-200mm f/2.8 VR lens
• One Nikkor AF-S 24-70mm f/2.8 lens
• Three Nikon SB-800 flashguns
• Two Nikon SD-8a battery packs
• One Lastolite EzyBox Hotshoe 24" softbox
• One Lastolite tri-flector Mk II
• Three Calumet lightstands
• Two Sandisk 16Gb CF cards
• Six Sandisk 4Gb CF cards
• One Pelican 1510 case
• One Dell Precision M4300 laptop
• Miscellaneous accessories for the above

Add all that together and you'd be looking at about £14,000 at today's prices; I've not factored for the cost of maintaining an ever-growing image library and keeping up-to-date with software, applications, insurance - not to mention incidental costs such as meals, travel and accommodation when I go to shoot these events.

All these costs add up and it is therefore essential that my photography is treated as a business. I license my images to editorial and commercial clients in an effort to recoup the expenses I incur and hopefully also eventually turn a profit - all in an effort to support my spouse, children and dog,


I enjoy what I do. I get great pleasure from it - an immense personal satisfaction from knowing that I've done a job well; that I'm one of the few people out there who shoots the sport of MMA at the upper levels, fortunate enough to call folk like Daniel Herbertson, Esther Lin, Ed Mulholland, Paul Thatcher, Lee Whitehead and Tracy Lee both friends and my peers. (Sorry, Lee - couldn't find your website details!)

For all that, simply enjoying what I do doesn't pay the rent, nor feed or clothe my family. The 21st century society in which I live dictates that I have to earn money; I choose to do this via my skill as a photographer.

To do this, good business sense is required to overcome the all too common challenges, hurdles and sometimes outright seemingly nonsensical requests that are faced by creative content producers when dealing with potential clients. I could try to explain these issues but these following two videos do a far better job of it than I ever could

The Vendor Client Relationship by Scofield Editorial - a wry take on common client requests

Harlan Ellison on Getting Paid - warning.. not wholly SFW in terms of language!

So: work at what you love and do it well, but ensure that you're being fairly and adequately compensated when you do so. There are still many great clients out there who understand the value of creativity but it always pays to be prepared and approach all opportunities in a businesslike manner.

Taking on the "Mafia"

As every creative individual out there knows, be they painter, sculptor, writer, photographer and so on, one of the unfortunate challenges that we face is where less than scrupulous individuals or companies seek to use our works without permission or due payment.. especially in instances where such use of our works generate some form of revenue for them

Some months ago I read (via Twitter) that MMA fighter Nate Quarry was engaged in a back-and-forth tussle with apparel company The Fight Mafia; the core of the exchange was that Nate was owed nearly $8000 in sponsorship revenue for wearing one of their shirt designs at his fight against Tim Credeur.

In reading this exchange, never did I once think that I'd find myself up against Noel Brooks' company, trying to get payment from them for their use of a photograph I took after UFC 105.

What I'm trying to sort out is this:



Yep, that's one of my photographs of Dan Hardy that they used to advertise the branded bandanas that they were selling.

It was ripped off my from my Facebook page as here. Upon finding out that they'd used and modified my photograph - without consent or appropriately licensing it from me - I went straight to emailing them. Here's what I said

March 14, 22:49 GMT

"It has came to my attention that the website danhardybandana.com, which is cited as 'owned and operated by Dan Hardy MMA Brand & The Fight Mafia', is using a photograph that I took of Dan Hardy after UFC 105 without my prior knowledge or consent - an unmodified example of which is attached to this email.

I am the sole copyright owner of this photograph and would like to know how you intend to resolve the breach of my copyright"

A few days later, I got this response

March 17, 01:20 GMT

"Hello, we were unaware that the photo had been copyrighted.  The photo was taken from Dan's facebook page were it was cited as a tagged photo of Dan.  There were no copyright symbols or information on the photo.  We can do two things.  (1)  Take down the image.  (2)  Ask for your consent to use the photo and credit you as the one responsible for the photograph.  We just loved how it turned out.  Let us know how to proceed"

Wow! They're offering a photo credit byline - lucky me! Oh, wait - I suddenly remembered the five years and many thousands of pounds that I'd invested in my photography equipment... that, and the fact my local supermarket has stopped accepting photo credits as payment for groceries. 


I guess I have to feed my kids thin air and clothe them in a mix of nitrogen, oxygen and other atmospheric gasses... 


Wait, that doesn't work. Oh well, best send a message back to them.

March 17, 09:07 GMT

"Thanks for your response. Your offer of simple removal of the photograph or merely "crediting" it's use is unacceptable as you already appropriated it for commercial use.

Specifically, your claim that "There were no copyright symbols or information on the photo" is blatantly false. Whilst it is true that the photograph exists on Facebook and, being metatagged with the name "Dan Hardy" makes it visible on his profile page, the attached screen capture (file owner_info.jpg) shows how the image would be displayed when viewed using a Facebook account other than my own.

For your benefit I have highlighted the portion of the image that shows information on who owns the photo; clicking on my name would have enabled you to send me a message via the Facebook network where you could have communicated to me your request to use license the photograph for use on danhardybandana.com

Furthermore, specifically on the lack of a copyright symbol, I would like to draw your attention to the following webpage www.copyrightservice.co.uk/copyright/copyright_myths - in particular, sections four, five, six and eight.

In closing, the options that are open to you are twofold

1. Pay an appropriate license fee for the commercial use of my photograph, or

2. Pay an unauthorised usage fee and remove the photograph from danhardybandana.com

As a UK based photographer, non-client usage rates are based on the NUJ's Freelance Fees Guide; the license fee would fall under the section "Commercial and Business" and, as the photograph has been used at 981x786 pixels, the fees for 800x600 pixel (attached file usage_size.jpg) would apply as follows, with $US values taken from current rates as provided by XE.com

• 1 months use: £225  ($342.63)
• 3 months use: £450  ($685.26)
• 6 months use: £675  ($1027.88)
• 12 months use: £850 ($1294.37)

Please advise how you would prefer to proceed; once you have done so, I can prepare an electronic invoice and payment can be made via direct bank wire transfer"

Hrm, seems that Noel has been caught with his hand in the cookie jar. Being ignorant of copyright law is not a valid defense, and I'd also busted their claim of not knowing it was me who took the shot. 


At this point I'm thinking that common sense will prevail; unfortunately, common sense isn't as common as I thought...

March 18, 00:16 GMT

"Our apologies.  We have no knowledge or I guess are oblivious on the proper steps in regards to use of copyrighted materials.  We have no interest in purchasing the rights to this photo or any other photo for that matter.  The site was launched fairly recently and we just liked the photo.  We will take it down immediately!  After talking with Dan, we will have to figure out how to proceed compensating you for past use if nessassary in regards to copyright laws.  We of course at that time must see proper documentation that you are the actual propietary owner of that photo.  If you don't mind we can have further correspondance after Dan's fight as distracting him with this matter at this time is not appropriate.  I assume you are a MMA fan and hopefully understand.  Dan also might have a fee if images of him are being sold for licensing purposes.  Thanks."

Wow, there's an eye opener: The Fight Mafia - who produce clothing designs that would be covered by copyright - are "oblivious on the proper steps in regards to use of copyrighted materials" 

Ssssh! Don't let all those other MMA clothing companies know this. They might start using your designs and just give you byline credits for doing so. Or maybe they'd just stop doing it if you asked them nicely. No way would you ever expect to be paid because, hey, you're an MMA fan and created those designs because you just love the sport....

Their wording also made it clear that they're not in the habit of paying for photography. Just like they weren't in the habit of compensating Nate Quarry for wearing one of their shirts.... of course I know that'll all cleared up now but still.

The icing on the cake in this exchange is the following nugget.

"Dan also might have a fee if images of him are being sold for licensing purposes"

The mental gymnastics displayed here are astounding - truly world class. Allow me to put it into clear terms that show how ridiculous this concept is.

1. The Coca-Cola Company hires David Beckham to promote their drinks
2. The Coca-Cola Company hires Annie Leibovitz to photograph David Beckham for their ad campaign
3. The Coca-Cola Company pays David Beckahm a fee for appearing in said adverts
4. The Coca-Cola Company also pays Leibovitz a fee for her to shoot the campaign photos
5. More people buy Coca-Cola products based on the campaign = Coke makes $$$$

Using "Fight Mafia" logic, David Beckham would be due a cut of Anne Leibovitz's fee - because she took the photographs of him for the Coca-Cola company.

Wait.... what??

The analogy for what has went on here is fairly accurate...- except Fight Mafia never hired me to shoot Dan Hardy; instead, they used one of my photographs without permission or payment to advertise a product that they sell - one which Dan no doubt gets a cut of the profits.

Can you imagine what would happen if Coke ripped off a Leibovitz shot of David Beckham and used it in an ad campaign??

Luckily for me I have the original RAW file of this photograph which handily has the date, time and serial number of my camera embedded into it - thus proving beyond all doubt that it's my photograph. Not to mention that there were a ton of UFC fighters, staff, friends and other people all milling around the lobby of the Hilton Hotel at the time who would also be able to verify I took that shot.

The neat little email exchange also proves that the Fight Mafia knowingly used this photograph without my consent and, upon my request to be compensated for doing so, they've employed stalling tactics and are seemingly unwilling to pay - despite them clearly breaching my copyrights.

Photography is the only thing I do. It's my sole source of income. I've been doing it for five years now, earning what I can and largely re-investing those earnings in gear - very expensive gear - so that I can stay at the cutting edge of my profession and deliver the results that editors, readers and fans of my photography are accustomed to.

Fight Mafia could have done the decent thing and either licensed the image from me or, better yet, employed me to take some shots of Dan wearing their new bandana design that they could have used for their website. I'd have turned in some top-notch shots and everyone would have been happy.

So what next? I'd given Fight Mafia until 31st March to respond and as of today (April 3rd) there's been no reply. It took Nate Quarry several months to get the nearly $8000 dollars he was owed from Fight Mafia; I'm asking for far less than that but I'm not going to hold my breath. Still, like Nate, I'm not going to let this go without a fight.

Who's in my corner on this one?

Towering

Why was I in NYC early on Saturday, March 27 with Jacob "Stitch" Duran? ; info to come in a post later.

For now, I'd like to shout out to UFC cutman Rob Monroe for taking this picture; you'll have seen Rob work some of the fights at UFC 111 last weekend - be sure to hit up his website here.