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by Jack Alexander 51 Comments
One photographer has learned about royalty-free licensing the hard way. After failing to read the terms and conditions when uploading to Shutterstock, he found his image was used on over 500,000 units of merchandise being sold at Walmart stores. He received $1.88.
Michael Stemm, who is based in Fredericton, often finds himself taking pictures in the city. The photo in question is one he took of a snowy bridge back in December 2017. In seeking additional income from his photography, he uploaded the photo the following February, as part of Shutterstock’s royalty-free library.
https://www.instagram.com/p/Bcs6Xy8lrbv/?utm_source=ig_embed&utm_campaign=embed_loading_state_script
He then completely forgot he had even done so, until a couple of months later when friends discovered it again. As per his own words in a video posted to his Facebook, which has 70,000 views at the time of writing, Stemm found the picture used on a calendar, greeting cards, and large throw blanket, all of which were on sale at Walmart.
So, what happened? Newfoundland-based Islandwide Distributors were using it on their merchandise, having purchased it from Shutterstock. Upon further inquiry, Stemm discovered the company has distributed 500,000 units of the calendars and cards. Ordinarily, usage of an image for such a large production would equal a hefty payday for a photographer. However, Stemm pocketed only $1.88 for the sale. To add insult to injury, he is also unable to redeem the money until his account reaches $50.
Speaking of the incident, he said:
[I feel I’m] being taken advantage of: the small guy who makes the time, effort to take the picture, and upload, and now, it’s being exploited by big companies.
Marc Belliveau, a copyright specialist of over 25 years, dispelled any foul play and said the situation is “consistent with copyright law.”
Walmart reached out to Stemm in the comment section of his Facebook video. He says he sent them his details but is yet to hear back.
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A 28-year-old self-taught photographer, Jack Alexander specialises in intimate portraits with musicians, actors, and models.
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51 Comments
Alex Cooke [Edited]
Everything about that video, from the title ("...Selling Without My Permission") to his sense of entitlement annoyed the daylights out of me. Like it or not, everything that happened here was legal and standard. You deciding to experiment with stock photography and not bothering to read the terms and conditions is not the problem of the companies on the other end of the transaction. Show some responsibility for your business, do the proper research, and don't blame others when your own laziness and apathy toward being informed in financial transactions bites you in the butt.
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Deleted Account Alex Cooke
Bang on.
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Jack Alexander Alex Cooke
It's a hard pill to swallow, and naturally I'm always on the side of the photographer, but really he only has himself to blame for this one sadly. A lesson he'll never make again, I'm sure...
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Erpillar Bendy Jack Alexander [Edited]
Actually, Jack Alexander, you are not always on the side of the photographer, even when you should be. The distributor did not purchase the enhanced license required to produce products like blankets. The reason the photographer only got $1.88 is because they purchased the standard license. Shutterstock's terms require purchase of the enhanced license in order to produce blankets and other merchandise. So the distributor is the one to blame. But you took the wrong lesson from this story, and you published the wrong lesson about it. By blaming the photographer, you let the distributor get away with cheating the photographer and cheating Shutterstock too.
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Alex Cooke Erpillar Bendy [Edited]
It's likely the company has a premiere account agreement with Shutterstock that includes the enhanced model because merchandising graphics departments buy up cheap art all the time. Even if the company didn't purchase the correct license, that doesn't change the transaction he agreed to between him and Shutterstock. Even if we assume that they purchased a single, ad hoc license (which 99% likely isn't the case), he would have netted, what, $60 or $80 for an image being used on a half million products? It's still terrible judgment on his part.
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Erpillar Bendy Alex Cooke [Edited]
Shutterstock's terms explain how much the photographer gets for enhanced license purchases. It's clearly not $1.88. It's 20% of the purchase, up to $80. If the distribution company has some defense to dishonestly purchasing the "standard" license, the burden is on them to prove it via whatever agreement they have with Shutterstock. As far as I know, they haven't presented any defense. Apparently everyone is piling on the photographer, while not asking the buyer or Shutterstock the relevant questions.
Sure $60 to $80 isn't a lot of money for this, but it's $60 to $80 more than he got. It's $60 to $80 stolen from his pocket. It's the difference between getting paid X dollars and approximately 40X dollars. You don't think a difference of 40X is relevant? Then you won't mind getting paid just ~ 3% of what you're entitled to under your agreements, right? It seems you would rather blame the photographer than the actual wrongdoer.
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Alex Cooke Erpillar Bendy
No, in absolute terms, I think a difference of $58 to $78 pales in comparison to the larger issue: a photographer willingly submitted himself to a business transaction designed to take advantage of him, then got upset when he was taken advantage of because he didn't do his homework.
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Erpillar Bendy Alex Cooke
Wow, so you are totally ignoring the fact that they paid him about 3% of what Shutterstock's terms require them to pay. You are just piling on and blaming the photographer, totally excusing the gross violation of the Shutterstock terms. Just blame the photographer, again and again. The photographer made a deal with clear terms. The distributors violated it, whether out of ignorance or as a intentional theft. You can say there is a "larger issue" — of course there is. But there is also a very clear violation of the license terms and a gross underpayment of what is due. The distributor is required to read the Shutterstock terms and abide by them. To ignore that is to blame the wrong party, and to excuse the distributor's behavior. It's pretty sad when photographers don't support a photographer who was so obviously cheated of even the $58 to $78 that he was due.
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Alex Cooke Erpillar Bendy
We don't know that there was a violation of the terms, and I doubt there was; see my response about the company likely having a premiere account with Shutterstock. And, for the sake of the argument you're making, let's assume that an agreement was violated. Then there's two issues: the distributor violating the contract with the stock agency and the photographer who still made a bad business deal out of willful ignorance. I would say the distributor still needs to be held responsible and would have plenty of an opinion on their role in hurting the industry, but my opinion on the photographer would remain the same.
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Daniel Medley Alex Cooke
Absolutely. I don't get the "taken advantage of" quip. No one held a gun to his head and forced him to upload the image under the TOS that he did not take the time to read.
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yanpekar Alex Cooke
Totally agreed. Best reply ever. Thank you.
Rick Nash Alex Cooke
You might be wrong on this one. Find my comment below.
Alex Cooke Rick Nash [Edited]
I saw. It's likely the company has a premiere account agreement with Shutterstock that includes the enhanced model because merchandising graphics departments buy up cheap art all the time. Even if the company didn't purchase the correct license, that doesn't change the transaction he agreed to between him and Shutterstock. Even if we assume that they purchased a single, ad hoc license (which 99% likely isn't the case), he would have netted, what, $60 or $80 for an image being used on a half million products? It's still terrible judgment on his part.
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Rick Nash Alex Cooke
I agree that compensation at $60-$80 is insufficient for any 500K+ products. However that's clealy written in the terms. Some stock sites might pay better but not going to provide a living out of sales.
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Mike Kelley
Stop putting your photographs on stock websites. Don't fall for the marketing bait, it's almost NEVER worth it.
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Johnny Rico Mike Kelley
But what about all those sponsored, pro Micro Stock articles posted on Fstoppers? How do you feel about those.
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Gerald Bertram Johnny Rico
I'd be curious to know this as well.
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Mike Kelley Johnny Rico
Maybe I need to have a chat with the boys :)
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Johnny Rico Mike Kelley
You should.
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Carl Murray Mike Kelley
Does that "marketing bait" include the MANY "sponsored" articles here on Fstoppers for stock websites? :P
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Studio 403
Good post, I get it. I have been a dumbo too...for me it was my ego, just to get "noticed"? The big companies know the game, and if legal, will skin us all and enjoy the profits. When in doubt, I got to my mirror, "who's to blame". I have never found anyone but me looking at me.
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Johnny Rico
And that Ladies and Gents is why Micro Stock is a cancer to the industry.
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yanpekar [Edited]
"insult to injury"?? It sounds like the photographer did not bother to get familiar with terms and conditions, and then started thinking how much could be earned, or thinking how famous he could have become if the world would know the name of the photographer...What insult and what injury are you talking about?:) Everything seem to have been in line with legal matters.
S M
“Jerry! Jerry! Jerry!”
This felt like a weird Jerry Springer confessional
Jonathan Brady
This is hilarious!
Rifki Syahputra
sharing is good.
it's Christmas anyway
michael buehrle
it is a nice pic though. i can see why walmart wanted it.
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Brian Cover
Having no experience with Shutterstock, I don't understand why he would only be paid $1.88. Is that their going rate for using/ selling your images?
If so, then he was an idiot for uploading even a single one. How does he expect to make even minimum wage getting paid $1.88 per image?
michaeljin Brian Cover
Still better than the people uploading their images for FREE use on Unsplash.
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user 65983 Brian Cover [Edited]
.
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Ann Quimby Brian Cover
It's even worse than that. Their image payouts start at 25 cents. That's right. A QUARTER.
Color Thief
Looks like he hit the exposure lottery. Bet all his friends and family will be hounding him to borrow some exposure. He can bath in exposure or light cigars with it. Granted, it would be a lot more fun if it was money.
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John Dawson
Bottom line: Read the [insert expletive here] terms and conditions!
michaeljin
This guy is a clown.
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Chad D [Edited]
guess you found out about EXPOSURE :)
hahahahahhahahahahahahahahahaahahahahh
well college is expensive so are most learning experiences :) guess you got your best bang for buck out of this one :)
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Rick Nash [Edited]
Did the company that purchased the image purchase it under "ENHANCED IMAGE LICENSE"? Otherwise a "STANDARD IMAGE LICENSE" in the TOS limits the reproduction to a maximum of 500,000 copies in aggregate. (The story says that over 500,000 copies were made.) It's noted that two images purchased under the ENHANCED LICENSE cost $199.00 USD. The photographer received a pittance if all he was paid was $1.88 for the image. He may be eligible for more than $1.88. At the very least, the photographer should confirm that the correct license was purchased. Typical payment to a photographer under ENHANCED LICENCE use should be 20%-30% of the sale price.
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Erpillar Bendy Rick Nash [Edited]
Also, use in merchandise is not permitted under the cheapo standard license, no matter how many copies they produce. Use in merchandise requires purchase of the more costly enhanced license, which would have netted the photographer more money.
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imagecolorado
He agreed to sell is photo using the terms of the stock agency. This isn't a travesty, it's called Stock Photography. If you can't accept the terms of the agreement, don't make the agreement.
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Jason Lorette [Edited]
Having walked across that very bridge I think it's a wonderful capture of a nice moment (finding no one on that bridge is unusual, I probably would have removed the big blue sign though, lol)). At first I was angry for him, however after reading that he didn't read the TOS my opinion changed. Now if the Newfoundland company that bought the image did not buy the 'extended' license then he has a minor gripe, however he wasn't 'taken advantage of' he put the picture up for sale, it was bought, plain and simple. That said, if the extended license was not bought then you could argue there was some advantage taken and he is entitled to more, how much I wouldn't say (his percentage pay out of the extended license or more)?
Jon Winkleman
The United States has strong copyright laws that date back to the original draft of the Constitution even before the Bill of Rights was added. Both US copyright and trademark laws have reasonable "use it or lose it" clauses. If you want to retain ownership and control of either copyright or trademark the creator/owner must actively enforce it rather than selectively enforce it after falling into the public domain. Photographers who are more familiar with copyright have a responsibility to loudly educate the general public because it is in our own interest to push back against companies like Shutterstock or corporate lobbyists who try to pass new laws to undermine the rights of independent creatives.
Tom Reichner [Edited]
Putting my photos on ShutterStock has worked out well for me. I have made far more money selling through ShutterStock than I have by making submissions directly to publishers. When I upload a good image to ShutterStock, it sells and sells and sells. Just about every time it sells I get anywhere from 38 cents to $30 (every once in a blue moon a commission will be upwards of $100, but that only happens a few times a year).
When I submit a good photo directly to a publisher, 99% of the time they never use it and I never get anything. It takes a lot of time and attention to detail to make a real quality submission to a publisher - and yet it rarely yields anything at all.
It takes a few minutes to submit and keyword an image to ShutterStock, and when I do, it sells dozens, if not hundreds, of times.
One image that I submitted to ShutterStock 5 years ago has been licensed over 2,000 times, and from those sales I have made over $2300 in commissions. Yoo hoo!
So, I've tried to make money with my photography in many different ways, primarily via direct submissions to publishers. And it has yielded a pathetically low amount of money and an abysmal success rate. Conversely, I've tried to sell my photos through ShutterStock, and it has yielded a half decent amount of money, and a very high success rate.
I don't know what the photographer is all bent out of shape about - we all know what happens to our images when we sell them through a microstock agency. We know what types of corporations buy our photos, how they are used, and what kind of commission we will get for each type of license sale. If he wasn't okay with all of that, then why did he enter into an agreement with ShutterStock in the first place?
When publishers won't bother with you, and when years of submissions to macrostock (rights managed) agencies result in ZERO SALES, then what else is the photographer supposed to do? Microstock agencies are a viable option for those of us who must make money with our photos, yet have met with failure everywhere else.
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Dee Wallace Tom Reichner
Putting your photos on Shutterstock hasn't worked out well for you. No matter how much money you made, you were only paid a fraction of what the company would've paid you.
I know this because I used to upload to Shutterstock and promote the site as an affiliate. I had also made a few grand on a tiny handful of images like you, but I made quadruple that just by referring people. The reason why is that SS pays people more for their referrals than for their images.
To put it another way, had you put up a portfolio site with your images, placed a few banners linking to Shutterstock and promoted the site so it became popular in Google or Bing images, you would've made well over $4K with that one image you talked about (the one that earned you $2300). You wouldn't have earned it via license, but as an attractive lure to encourage people to click on your Shutterstock banners and sign up with it. Sad, but true.
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Tom Reichner Dee Wallace [Edited]
Dee,
I have no idea what you mean by "referrals". No clue. I pretty much don't understand "how the internet works", and I am starting to think that I lack the aptitude to ever understand it. I don't "get" Instagram or Facebook, and have no idea how in the world people make money just by being there.
All I know is that I tried different ways to sell my images and they didn't work. Then I tried ShutterStock, and in 5 years I have made almost $40,000. How else could I make $8,000 a year with my images, with barely any time or effort invested? I have no idea.
For someone who doesn't know what referrals are or how they work, and who doesn't have the work ethic and follow-up necessary to sell directly to publishers, I really have no idea how else I could possibly make more than $8,000 a year by only investing, quite literally, 10 or 15 minutes per month.
I would love to know about this referral thing you speak of. If there is anyway you can explain it in a way that someone like me can understand, I would really appreciate that. I am living below the official poverty level and any way of making more money with the photographs I've already taken would be extremely helpful. In fact, it would change my life.
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Dee Wallace Tom Reichner
Sure thing!
Some companies run what's known as an "affiliate program." What you do is place a special link back to the company on your website. Sometimes the link is in the form of an advertising banner or a normal hyperlink. If a person clicks on the banner or link and purchases a product, you get a cut of the profits. This is what's known as a "referral."
So, for example, say you have a blog and you promote the hell out of it. It gains a lot of traffic. If you place some referral links in the right places, you will earn money in referrals.
Shutterstock ran (and still runs) such a program. If someone signs up for a subscription at SS, you earn money. If you refer a photographer to join up and they earn money, you earn a little money from their sales, too.
What I found out early on when I joined SS was that I was getting paid more per referral than I was per download of my images. Because of this, I pretty much stopped uploading to SS, deleted all but my most popular images, and then relied mostly on referrals to make revenue.
Here's how you could do the same:
1. Start a photo blog or website with your images. (Watermark them to protect your copyright).
2. Try to generate traffic for it on social media or other ways.
3. Place referral links on your website, but in a clever way that exploits your images.For example, maybe place a gallery and then a link that reads "get more at Shutterstock" or something to that affect.
In terms of this comment you made ("I really have no idea how else I could possibly make more than $8,000 a year by only investing, quite literally, 10 or 15 minutes per month."). I'm a little confused. If you mean using referrals, actually, it takes a lot of work to build and promote a popular website that earns enough money to make an affiliate program worthwhile. You would have to constantly update it with new content to keep it "fresh", so it doesn't get penalized by Google or people become too bored to keep coming back.
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Tom Reichner Dee Wallace [Edited]
Dee, you said you are a little confused, so please allow me to clarify my statement.
I make around $8,000 per year in commissions with my images on Shutterstock. I only spend about 10 or 15 minutes per month adding to my Shutterstock content. So I would not be willing to spend much more than that to get additional referral revenue.
If $8,000 a year takes just 10 to 15 minutes per month, then all of this additional referral revenue you speak of doesn't seem like such a good deal. If you measure it according to a "time invested per dollar earned" basis, then I make a lot more by just getting commissions on the images that I upload than I would ever get via referrals.
It seems like referral revenue would be good for someone who doesn't HATE promoting themselves and their work. I do hate it - it is the one of the most unpleasant things I can even imagine doing. Writing a blog, in order to get people to click on a link? My goodness, what a terribly unpleasant thing to spend my time doing! The one thing I hate about Instagram is having to write a caption for each image. I mean, I think I am good at writing the captions - I don't "struggle" with it. But I simply can't stand doing it. It is unpleasant to do. I can't imagine having to spend my precious minutes writing things to get people interested in my work. That would not be fun at all, and I really make an effort to avoid things that aren't fun to do! Referrals - definitely not for me.
Rick Nash Tom Reichner
"...Just about every time it sells I get anywhere from 38 cents to $30 (every once in a blue moon a commission will be upwards of $100, but that only happens a few times a year)."
Do you know why some commissions are $30 and others are $100? I'm confident that it has something to do with how it will be used. In the case of the phito in this story, it was physically printed on over 500,000 merchandise items. That requires an ENHANCED LICENSE. The photographer should have been paid more than $1.88.
Jonathan Dearth
What I'm getting from this story is.... dont put your work up on gutterstock.
Xavier Larios
Well at least he didn't put it in the public domain
imagecolorado [Edited]
There are two types of photographer in this world.
Those who spend more money on photography than they make from photography.
And
Those who make more money from photography than they spend on photography.
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