Archived - Gajdel, Djanka

9 September 2009

The Honourable Tony Clement
Minister Of Industry, Science & Technology
House of Commons
Ottawa, Ontario
K1A 0A6

The Honourable James Moore
Minister of Canadian Heritage and Official Languages
House of Commons
Ottawa, Ontario
K1A 0A6

The Right Honourable Stephen Harper
House of Commons
Ottawa, Ontario
K1A 0A6

Dear Ministers:

As someone who has represented photographers for the past 25 years I am concerned about the Governments direction of copyright reform in Canada. I'm especially concerned about the anti-circumvention provisions which undermined each of the new made-in-Canada user rights being used to sell this legislation to the Canadian public. It is unreasonable to accept any future legislation that gives consumers rights with one hand and quickly takes them away with the other as Bill C-61 did. It is essential that Canadian copyright laws advance consumer and creator interests by not employing an all-encompassing prohibition on the development and manufacturing of circumvention devices and technologies, commercial trade of circumvention devices and technologies, the possession and/or utilization of any device or technology that can circumvent a TPM or DRM for a non-infringing purpose or otherwise lawful activity such as fair dealing, interoperability, time and format shifting. Further, the copyright laws need to recognize the livelihoods of all creators including photographers who haven't had fair representation.

The notion of making the works of artists easily available is fine in theory provided the creators of that material have been financially remunerated for all the potential uses that exist for that creation to appear in. I'm certain you realize that what you are considering can undoubtedly alter the domino chain of interdependence. You simply cannot change the rules of the business without any repercussions to the entire chain.

There is a grave misconception the public has that Photographers are some how raking in big money and therefore their images should become public domain. The reality is that the market is saturated with imagery and professional creators are struggling to stay in business. The creators of editorial photography have not had their fees change since after the Second Word War. No increase in fees, no cost of living increases, no increases in the billing of expenses. There is no governed body to champion the livelihoods of these individuals and there are many.

As some background history, protocol for magazines in the early forties was to commission an image and the first rights for a full page image would sell for $400.00. That was in the early forties. Immediately following that it was the responsibility of the creator to generate any further revenue to cover their overhead and expenses. Fast forward 70 years and with onset of technology the fees have remained the same and in most cases even lower which is anywhere from $250.00–$500.00 per commission. Further less expenses are covered. Need to rent a lens, in some cases it's on the photographers dime not the clients that commissioned it. It's impossible to acquire, house and insure all the technical tools that exist.

To make things even more difficult there is a minimum embargo of 90–120 days that denies any further revenue from being generated. This is especially difficult when it's time sensitive material that you need to resell. Therefore, that income is naturally lost and with fees that haven't risen in close to 70 years it's impossible to generate any type of livelihood in the editorial marketplace. Furthermore, the images are commissioned with the understanding that they are getting not only first rights for the magazines, however all the varied internet, marketing, reprint and web usages, as well anything else they can extract from that artist. An unseasoned artist is fodder for corporate abuse and such abuse is abundant due to the current lack of protection these individuals have. Magazines couldn't survive without the advertisers and they won't commit to advertise without the promise of being aligned to a magazine that provides exquisite images which provides a landscape for them to feature their brand. Sadly, in this creative equation the photographer is the weakest link.

Usages that in the late 70's and 80's commanded a few thousand dollars are now considered part and parcel of the $400.00 fee. The magazine profits off of the backs of its creators. It's a curious business model. Imagine building a car and selling it for profit however getting all the pieces for free. One page of ad space sells for thousands of dollars. Depending on the consumer magazine anywhere from five to thirty thousand dollars however the artwork that makes that magazine so desirable to advertise in is commissioned at only a few hundred dollars. Sure you can make the work of great living artists available to everyone to enjoy and learn from, this is the essence of a good thing, however you need to create a model whereby such contributions to cultural, spiritual and scientific evolution are enabled in a pragmatic sense. How do we ensure that they continue creating for the world and are allowed to enjoy the fruits of their creations. Right now currencies are those fruits. We have yet to establish a more enlightened economic model. I'd be curious to know how Michelangelo would do during this time if he had the same restrictions placed upon him and how denied history and culture would be had he not been renumerated for his contribution.

The contracts submitted to editorial photographers these days routinely have the word "Rights to the Universe" and "technology that is not yet known or yet to be created" to cover satellite transmission of the works. All this for $400.00. What a deal! Our living artists have a huge role to play in all of our lives. They are storytellers, historians and the archivists of our existence. Are we supposed to take even more from them? What other profession can you name that hasn't had a pay increase in close to 70 years? Any remuneration they would receive through their fees sadly doesn't even begin to cover their operating costs of which there are many from their capital expenditures like camera gear and studio to their insurance costs to cover a cornucopia of variables. Their expenses for such hard costs are not recognized as they once were. Furthermore, more often than not they cannot produce an image without the assistance of the make-up artists, stylists, assistants, set builders, caterers and a host of others that they employ. No one can do that for $400.00. However if you're going to even entertain to take what they make into the public domain you are taking more then you know and essentially killing any history of culture and crippling all the collateral employment possibilities that are also hanging on a string at the same time. The collateral employment is one of the areas that has room to grow and expand during these technologically transformational times. The point is to keep people employed not unemployed and proposing anything other then granting the creative first rights to the creator is doing exactly that.

Though I have focused on editorial photography the inequities have certainly surfaced in all areas of this medium from commercial and corporate to book publishing. Editorial however has been the navigational template on which the others have built on.

A pen or a camera is nothing more than an enabler. In the same way that one might write a grocery list with a pencil another individual might craft a Rembrandt. With photography there are those that can document a sunset and those that can document that magical miniscule moment where they know their shutter must fall to make it truly an image that is worth a thousand words.

No profession that I know of has had as many restrictions or ridiculous requests or even as many hurdles in place in order to generate a living, as does the profession of photography. I have witnessed several skilled artists declare bankruptcy and lose families because they could no longer generate the revenue to support themselves. These are talented people who are continually sold on the concept that in order to work they have to give more and more of their rights away until they have nothing left to give. Meanwhile, others profited on what should have been theirs.

Struggle is intrinsic for those that have pledged an allegiance to this medium. I believe that photographers are dully entitled to generate a living. In fact I believe that to be true for all creators whether they be photographers, musicians, writers, illustrators or painters. Furthermore, this medium employs a large national demographic who all contribute to the tax base.

The next technology that will invade our society is creativity. Current technology is about getting smaller, faster and holding more information. It's creativity that will solve and heal what ails the planet. MARS which exists in Toronto is about "Medical and Related Sciences." It is a 'convergence of science and technology and connects the communities of science, business and capital and fosters collaboration among them.' It is currently using art to communicate its complex concepts to the public. This is the new landscape that awaits artists and business is invested in the solutions they will bring to the table.

Fortunately PLUS (Picture Licensing Universal System) is moving through the world and into Canada. It is the genesis of an American photographer to establish a language that is fair and equitable designed to recognize the varied uses that exist for a visual artist. It embraces many organizations not just photographers and is the future of how rights need to be recognized. There is great virtue in the approach they have taken which is out of the box thinking.

As a 25 year member of CAPIC (Canadian Association of Photographers and Illustrators in Communication) and a member of ASMP (The American Society of Media Photographers), I would like to see fair and proper remuneration for all the incredible creators that exists, regardless of what medium they have chosen.

You cannot compare sites like "Flicker" where banal images are posted for free to sites like "Stock That Doesn't Suck" where there are provocative, informative and breath taking images created by some of the worlds foremost visionaries. These images are sold for commercial use to convey powerful messages and to stir conversation amongst the masses. I'm certain the later is who you would feel best to take your own image and convey your best side to the public. At this time in our civilization this is the most powerful way of communicating — through compelling visuals. Why then shouldn't these creators generate an income off of what is their livelihood?

It is fundamentally clear what the difference is between a professional and an amateur photographer. In this time of economic turmoil I'm optimistic to believe that there is nothing left to take and in fact it is time that the pendulum swings in another direction where we as a community and a society begin to recognize those that have given so unselfishly of themselves to document for us historically what is transpiring in today's society. It will not be Flicker that are children's children will be reflecting on to catch a glimpse of who we were in history, it is the master photographers that have struggled financially to tell their tale whose images will supply them with their story. For those that believe the photographer was paid once and need not generate revenue I ask them to wear the shoes of a photographer and all encompassing aspects of it and after exercising that, then pose to them the question of ultimately surrendering their work to the public domain. I think they would best understand the great inequity that exists and why copyright is so fundamentally important. Photography is a mistress that calls so many and chooses so few. For those that are chosen, their work demands to be properly remunerated otherwise why bother inventing.

As an advocate for copyright I have penned many letters both to Congress and to Parliament. It has been my experience that legislation of any type can be amended, edited or eliminated. Therefore I propose to the Honorable Minister the protection of the artists original work in the Charter of Rights and Freedoms and for the Minister to recognize the innate right of original creations.

Freedom of speech is protected by the Charter of Rights and Freedoms and enforced by the courts of Canada. Why then shouldn't the freedom of original creation also be protected at the same level for every Canadian citizen?

I look forward to your reply.

Kind Regards,

Djanka Gajdel
Photographic Representative
Who's Who of Canadian Women — Art & Commerce

cc: Roani Levy, Access Director

cc: Marc Garneau, Official Opposition Critic For Industry, Science & Technology

cc: Pablo Rodriguez, Official Critic For Canadian Heritage and Official Languages

cc: Charlie Angus, NDP Digital Affairs Critic

cc: The Honorable Michael Ignatieff, Leader of the Opposition