Tuesday, August 30, 2011

It's my tomato

So Gourmet Live, a rather lovely Conde Nast website, risen from the ashes of Gourmet, writes to ask me for permission to use a photograph of mine, of an heirloom tomato, as their featured Image of the Day. There it is, up there. In return I would get a link to 66 Square Feet. Fine, I thought, I'd love to. Nice site, rubbing shoulders with good things. Will do.

Oh, but there's the question of the release form I must sign. So I read it.

Here it is (underlining is mine). Read the first paragraph:

As we discussed, GourmetLive would like to publish your photograph(s) of      .  This letter will confirm your agreement that we may publish the photograph(s), and that any publication or republication by GourmetLive or anyone authorized by GourmetLive of the article or other material with which the photograph(s) are published, in any media now in existence or hereafter developed, may include the photograph(s).  The photograph(s) may also be used in the advertising and promotion of GourmetLive and its information products and services.  GourmetLive may retouch, crop, or otherwise alter the photograph(s) for publication, in its discretion.

You represent and warrant that you created the photograph(s) and/or that you are authorized to allow us to use the photograph(s) as provided herein, and that our publication of the photograph(s) will not infringe any third party’s copyright or other rights.  No contrary or inconsistent terms, conditions, restrictions, or other provisions in delivery memos, invoices, letters or other documents will be binding on GourmetLive unless expressly agreed to in writing by GourmetLive.

We understand that this grant of permission is non-exclusive, that you may authorize others to use the photograph(s), and that no fee will be due for the use of the photograph(s).

So that our files are complete, please sign and return the copy of this letter that is enclosed.  Thank you for your consideration.


So I wrote back saying I can swallow this all but may we make one small change and add that the photographer shall be given credit for any possible future use of this image?

The response, from the friendly-sounding Allison Poindexter:

Unfortunately we can not allow changes to the agreement. This is the same agreement that every blogger has to sign when they are featured on the blog. Let me know if we can still feature the image, otherwise, thank you so much for you interest. 

So, it appears that bloggers get their own agreement, and sign their photos over, for free, for any hypothetical future use, sans credit. Because they are...just bloggers? What if you are blogger who is a photographer? Actually, does that matter? No. The principle does.

And it wasn't my interest. You guys approached me.

So I thought a bit. Pros, cons, exposure. Then I realized, Wait! I 'm behaving as though I am being blackmailed. Because the truth is that bloggers - and increasingly all entities working on their own - are scared of making a noise about this. Because then the big website won't like them. Or link to them, or ask them to write a story for them. So they say nothing, wag their tails, and lick the bone tossed at them.


Where do you draw the line?

So I wrote back:

Much as I love Gourmet Live, under the circumstances I can't sign my image over to you for any and every use (as implied in your release), with no compensation or credit given in such use. I earn my living by my images and words. So do many others. When images are signed over for nothing, for your gain and free use, they become worthless.

If it were only for a one time use on your website I would have no issue with it. But the release you require is unreasonable and exploitative. I say that objectively, no ill will intended. I trust you understand.

I consider Gourmet a class act. It would be worth your while to re-visit the wording of that release, and not issue a one-size-fits all. It doesn't reflect well on you.

Small concessions. Respect for good work. Integrity. Give a little, take a little.

I was willing to share that tomato. But I realize that it is, in fact, mine.



Thank you for everyone's input (and encouragement). I may take this farther - not with Gourmet Live but the issue itself. If anyone has been approached via their blogs or Flickr, or Facebook, etc., for photo usage by publications, please get in touch; whether the terms were for free (no terms!), for a link or whether payment was offered. I'd like to start taking notes, and names


  1. Good for you!
    Sometimes you have to stand up for yourself and not be taken advantage of. They will make money off your work by using it in their products which they expect people to pay for. Why should you give them multiple use of your work for free.
    Plus....it's a Really Beautiful Tomato. If I could eat tomatoes (without negative consequences) I
    would certainly gobble that one down.

  2. Rock On ! & yes what a beautiful tomato it is - kisses to D xo les Gang

  3. Yes, it is your tomato and you are right to stand your ground.

  4. You make a good point. In various fields some legal eagles are looking at re-drafting standard formats.
    It will be a win-win(I believe) should Gourmet Live rewrite their agreement.

  5. Oh yes, that's your tomato and your image. They may be a high-quality publication and blog, but their release form is unfair. I'm glad you showed them not every blogger accepts their terms.

  6. You say tomato, they say tomahtoh.

    Stick to your guns!

  7. What breed of tomato is that? It looks like a red version of my lovely green zebras. I'd love to know - I'm allergic to tomatoes so I grow them, oo and ahh over how lovely they are, then give them away :)

  8. The only way they will alter their agreements is is EVERYONE pushes back. I wish everyone had a spine like yours.

  9. You did the right thing! That agreement is ridiculous. what would it cost them to give you a credit line?!

  10. Amen, Sister! They were essentially taking your photo and turning it into theirs, with no credit at all! No way. glad you stood up for yourself.

  11. Yay...well done! Perfect words...and wonderful tomato!

  12. Your response to the "tomato thieves" was gracious, well-reasoned, honest, and courageous. As someone else said, every blogger or freelancer needs to do the same to end this sort of exploitation of creative work. Just one thing left hanging: where did they plan to put the link to your blog? Would it have had some kind of connection to the tomato? Puzzling because, why not then give a photo credit?

  13. You are absolutely right and your response was perfectly worded. Good on ya!

  14. Well crap, I looked them up, which is probably not what you intended at all. There really is some truth to that expression that there's no such thing as bad publicity. Have I just announced myself as a non-foodie?

    Seems to me that you won't be able to make a living at all if everything is for free on the internet. But I think that's the story of a lot of journalists, editors and photographers. It wasn't so long ago that people paid for content, and by that I mean both the publishers and the consumers. Good luck. Think you made the right decision.

  15. Thank you, everyone.

    I must make clear: The initial use of the photo on Gourmet Live's website would have been credited to me via 66 Square Feet, and I have no doubt it would have been done well, and quite above board.

    My issue was, is, that the release form made no future provision for credit. I would have had to consent to the image potentially being used again, anywhere, by anyone, in any form, shape, or size: cover, feature, anything - without credit, certainly without payment. It's a worst case scenario, of course, and the image may never have been used again.

    Stock photography rights like this are extremely expensive. Basically I am providing free stock, in return I am thrown the apparently irresistable bone of linkage from a well-regarded site.

    Publishing is changing, collapsing and reinventing itself faster than people can keep track of. But this this is still Conde Nast. Stop exploiting the little people! because that is what this is. You might love locally grown food but you sure don't show that love behind the scenes to the photographer who takes pictures of the local food.

    This legal form was a silly, unnecessary one. I have seen so many, and they do not have to be worded this way.

    And the tomato is a Red Zebra!

  16. The organized labor argument would well be that free-giving bloggers, no matter what their intentions, are undermining the hard won gains of labor.

    Credit is sometimes a worthy paycheck, but more in theory than practice. In the artworld, having your work shown, or even just mentioned, is considered payday. Of course, most artists will tell you that payday never arrived.

    In my opinion, I think you can afford say no to this. You have professional goals, you play like the professionals. The 'blogger rule' is condescending (we are a real media outlet).

    Why? Cause they get paid.

  17. Hah, I didn't know there were red zebras, it makes perfect sense. Thanks!

  18. The only thing missing was a waiver to all rights of the actual tomato.

  19. Many credit images if not their own. Why should this lot be any different.

    Reads like arrogant bollox to me, perhaps. If you'd have been getty images, reuters, gap photos and so on, there'd be a credit everytime.

    I wish them luck, but they should re-visit that contract.

  20. Very occasionally, I get requests from places to use photos of mine that I've posted online, usually via Flickr. There always does tend to be a hint of "you posted this online, so you should let us republish it for free". My response varies according to who's asking. If it's for something like a book or a paid-for magazine, I always insist on payment.

    With the very tasty-looking tomato: they may well not have intended, in this specific case, to keep the photo on file and use it for all heritage tomato requirements in future. That's not the point, though, if that's what they force you to agree to. At some point, they probably asked their lawyer to come up with some sort of "all bases covered" one-size-fits-all boilerplate, without realising that it might create backlash.

  21. Well done Marie - unfair release form and totally justified, intelligent response from you. And what a handsome fruit! :)

  22. I think they are working illegal. They have to change the terms of his contract because is a fraud an only a child give his work for nothing.

    When someone signs a contract with one photostock agency, they respect and control the copyright, why not a magazine online?

    Bello tomato!!
    (sorry for my english,

  23. I agree that they are taking advantage of bloggers. Another blogger whose writing I enjoy became aware that a magazine had taken her photo off her site and used it in their publication. She eventually received compensation, but not without a great deal of pressure. Those who care should mark their photos.

  24. Impressive !

    Love your integrity !

  25. I agree with you. Even more damning was the line "..may retouch, crop, or otherwise alter photographs..".

    I get many request like this that I turn down. I am happy to let bloggers use my work when it's acknowledged and credited, it's amazing how many others want more than that

    Oh, and nice tomato.

  26. Did they offer you any money at least? A seed company wanted to use of my pics. At least I'm getting a $100 bucks out of it.

    Just because we don't make a living from our photos doesn't mean we shouldn't be compensated or credited for them! Unbelievable.

  27. Frank - funny, I was thinking about unions, which I don't often like, as you know (don't kill me, Betsy).

    Chris Arnade - yes, interblog is another thing, on a case by case basis. Honour amongst bloggers. Looking forward to your book. You're gonna make one, right? :-)

    Thomas, no money. no. Yes, the seed companies are great (at least, the ones we know about!).

  28. First of all, gorgeous photo! That's one beautiful tomato. Second, good for you! You did the right thing. Publications have become too used to getting most bloggers' work for free; it needs to stop. Brava!

  29. Hey!!!! That tomato had integrity and so do you

  30. Good on you for standing up to Conde Nast! Brava!

  31. Well done. It is indeed a handsome tomato... to go with the cat and husband. Go you!

  32. You are right to make it known to other bloggers/readers that these things are happening and it isn't fair to anyone!
    Thanks for taking a stand for your
    tomato, too!

  33. Marie:
    Well done!

    Thank you for saying what too few people have the courage to say.

    You are absolutely RIGHT!!

    Love your blog, too.
    Linda Ann

  34. Another good story about standing up for what is right. Good for you. Glad you wrote about it.

  35. Once upon a time, photographers were paid for this sort of usage (now we agree to links instead), and these contracts were written on the check....so when you endorsed the check, you agreed to the usage 'now and forever in any form'.....or you didn't get paid. Not exactly a win-win situation.

  36. As usual, you not only did the right thing, you did it with class in your response.

    I think you're getting significant exposure even without Conde Nast. I'm routinely and pleasantly surprised to come across people who, when I rec your blog, already know and read it (including my favorite of the Garden Rant ladies just last weekend)! And, well, there was that visit to your balcony earlier this year by the one who is not to be mentioned.

  37. Love the photo and good for you!!! Thanks for reminding us bloggers to stand our ground! We need credit and $$$ for our words and images. We need to refrain from link temptation.

  38. Tanya - nice website - and interesting about the checks.

    Paul - the one who must not be named...yes, can't wait to see all that!

    Thank you for everyone's input(and encouragement). I may take this farther - not with Gourmet Live but the issue itself. If anyone has been approached via their blogs or Flickr, or Facebook, etc., for photo usage by publications, please get in touch; whether the terms were for free (no terms!), for a link or whether payment was offered. I'd like to start taking notes, and names.

  39. Thanks for sharing this story. I'm not surprised, but it doesn't lessen my frustration (or sadness) because that's just so amateur-hour. The 'thanks for your interest' part is laughable. Derisive, scornful laughter.

    I read an interesting article from a designer I admire yesterday - Jessica Hische - who talked about the dark art of pricing, and it really did shed more light on how sinister these in-perpetuity requests are. They're ridiculous. That's why stock photo sites are set up the way they are! You should check it out if you have a few minutes to read: http://www.jessicahische.is/obsessedwiththeinternet/andhelpingyougetpaid/the-dark-art-of-pricing

    Anyway, I'm definitely interested to hear other responses you get. Rights management is a real interest of mine -- any artists selling or licensing their work need to understand they retain all rights unless otherwise contractually stated! I think Big Publications have gotten so used to steamrolling creatives that it's a surprise when folks say no.


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