UPDATE: Sunday, May 23, 2010
@photoasia sent me this link this weekend which is pretty fantastic. It is in direct response to my comment below that a lot of stock photos seem contrived or fake. The photography is impressive, as is the agencies social media tactics in making this video. This changed my view of stock a bit.

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Yesterday I saw a Tweet come across from Twitter friend @photoasia who is the Creative Director of PhotoAsia — a Malaysian based Stock Photo Library that provides excellent Asian and Malaysian Stock Photography. The Tweet read:

Looking for more Muslim lifestyle images for a client. Contact me via DM.

If you have images — find out more about how to submit them here.

Quickly, I responded with some links and comments. When I was first trying to make money with photography, I dabbled in stock a bit; however, I had not revisited the idea until recently. The Tweet got me thinking about being involved in stock photography while working as an editorial photographer. And while the idea of making money from something you did a long time ago is great — the reality is a bit complicated and requires some legal navigation as well as some difficult ethical decisions. I’m sure if you were an actual ’stock photographer’ it would be less complicated. But for those of us who are based in editorial photography, we have a much different situation.

Legal Complications: The Fine Print

A big question for me is on ownership of the intellectual property for editorial photographs. And to clarify — ownership before something went stock. Let’s take this hypothetical situation that might have happened in the past …

1. You worked as a staff photographer for a newspaper.
2. The newspaper was disorganized and never had you fill out a contract on terms of ownership of intellectual property.
3. You used your own cameras, lenses and gear.

So — who owns the rights to the images? The photographer? The newspaper? Is there a dual license? Could these images be used for stock purposes?

Does signing a contract with an employer which details salary and benefits, but does not mention anything about intellectual property, negate the photographer’s rights to the property (given the above criteria)? I’m sure most newspapers have very clear policies on this. However, if a paper didn’t — does the assumption of ownership hold up in court? While this is clearly something an employee should work out with their employer to avoid any bad interactions down the road, a photographer with an enormous archival stock of editorial photos doesn’t necessarily have ownership of their images to submit to a stock agency. In addition, the stock world has its own set of legal obstacles.

To test the waters, I made a contact sheet with some images of Muslim people and places (I avoided submitting anything that was shot for publication to avoid the “hypothetical” situation above). Most of these images came from street photography in Malaysia and Algeria. Although I’m an avid street photographer, and shoot with purpose even in my spare time — I am not in the habit of walking around with model release forms due to the nature of where I normally publish images. Images that appear in magazines, newspapers, photography exhibitions or for educational purposes don’t normally require release forms. When I’ve done commercial shoots, I will always bring model release forms since I know the images will be used in advertisements, posters or promotional materials where they are required (here’s the last model release forms I was using — very simple but necessary). However, this makes any street photography one does where there are identifiable people in the images financially useless for commercial or stock purposes. This doesn’t mean they couldn’t be used in editorial publications later. However, unless you are in the habit of trying to make any stranger you see on the street that you photograph sign a contract before they move on, your out-of-luck in the stock world. In a multicultural sense, given language barriers I wonder how easy this would be without a translator. Furthermore, the Arabic world isn’t the most camera friendly environment.

If we take the images in this post — the top one could be used, with no people being identified, as well as the second photo only showing the back of someone’s head. The third photo however, has no commercial or stock value since this woman was photographed at a market in Cameroon Heights, Malaysia. At the bottom are some of the other images I shared with the stock agency. About half of them can not be used.

This gives me a little more respect for stock photographers who actually setup life style shoots with all sorts of situations and peoples, although I feel like most of them are sitting at their house taking pictures of inanimate objects. However, are they actually visually representing life accurately with their models?

Or better yet — are they even trying to? Do stock agencies want a “real image” or the “idea of a real image?”

The great thing about street photography is how real it is. Even with assignments for newspapers and magazines, subjects are usually aware of the photographers. With street photography its easy to create images with relatively little “camera presence.” There’s no doubt a good stock photographer will certainly be able to create natural looking scenes. However, if you look around at the images that surround us in advertising, billboards, brochures or products — the images are overwhelmingly fake and contrived.

For those photographer’s that did grab that model release or have a nice picture of a clock, sock or dock — than there is the details of the actual contracts between photographers and stock agencies. I can stomach the difference between “royalty free” images and “rights-managed” images; however, some editorial photo agencies can’t use your images if they have been used for commercial stock before. This is certainly another important consideration for photographer’s wanting to be represented by editorial agencies.

Ethical Decisions

Perhaps the most important question is: Do you want your images to be used for stock purposes?

I have mixed feelings about this, but it really comes down to — how much money is it worth to be able to control your images? With some images I might not care at all — however, other images would certainly lose their intrinsic value by turning them into advertisements.

I took part in Photo District News Photographer’s Income survey last year. The results are very interesting, especially when you look at the variation in income between an editorial photographer and a stock photographer. The survey concluded:

The largest category of respondents by far was self-employed photographers. In all, 1,040 of them completed our survey. They included 244 advertising photographers, 229 photojournalists and editorial photographers, 200 wedding and portrait photographers, 101 corporate photographers, plus dozens of others specializing in architecture and interiors, stock, music and entertainment, and other niches.

The rankings of freelance photographer specialties by income was mostly–but not entirely–predictable. Male photographers still vastly outnumber female photographers; more surprising, however, was the great disparity in their earnings. (By comparison, the mean salaries for male and female reps are almost identical.) Advertising, corporate, and stock photographers earn twice as much (or more) than photojournalists and editorial shooters. Music and entertainment photographers do signicantly better than photojournalists/editorial shooters, though not as well as the advertising and corporate types. And pity the ne-art photographers, who obviously get up in the morning for reasons other than money. The surprise was the lower-than-expected median income for the 27 fashion photographers who responded; they had a few high earners who brought the group average up, but the low earners among them are on par with photojournalists.

So how do different photographer’s incomes measure up? Here’s some big points from the survey:

1. Self-employed photographers reported 2005 earnings of $95,000 on average, while the median income of respondents was $57,500. Stock photographers, meanwhile, reported earnings of $125,400 on average, with a median income of $87,500. Earnings for advertising, architectural, fashion, editorial and other categories were also reported.
2. The disparity between incomes of male and female self-employed photographers was striking: men earned $104,900 on average, with a median income of $67,500, while women reported an average of $27,900 and a median of $32,500. (Male respondents also outnumbered female respondents by a ratio of 3 to 1)
3. Photo editors reported 2005 earnings of $63,500 on average, with a median income of $57,500.
4. Photo editors reported that their incomes topped out sometime between 13 and 20 years on the job, while reps reported that their incomes peaked, then declined sometime between 13 and 20 years on the job.
5. Account executives reported incomes of $68,500 on average, with a median income of $67,500.
6. Art directors and designers reported incomes of $93,000 on average, with a median income of $72,500.
7. Studio managers’ incomes averaged $40,600, with a median of $36,000.

So — To stock or not to stock? That’s the question. Beyond navigating the complicated web of intellectual property law I say — being well rounded never hurt anyone. Why not balance income from the two opposites sides? I’m off to print out more model release forms.