My previous two blog posts discussed the new California Labor Law, referred to as AB-5, also being referred to as the “freelancer” bill. In this post I’ll try to wrap this up in a neat little package for you.

A lot of concern has been voiced concerning photographers losing their copyrights because of this law, which goes into affect on January 1st.

There is nothing in the law that specifically requires a photographer to transfer ownership of their photographs, or any other intellectual property for that matter, to some publisher. The copyright issue is a hot button topic, but that’s not what this new law is really about.

What’s it really about then?

The California law AB-5, is really about changing how employers deal with temporary help. Employers hire temp workers to fill voids in their workforce, usually on a short term basis, but not always. There are a lot of different terms used here to describe a “temp” worker such as “seasonal”, “contractual”, “interim”, “outsourcing”, “freelance”, etc…

The benefit to the employer is they can fill holes in their workforce using outside help without having to hire people on a permanent basis and that allows them to avoid having to pay insurance costs and provide employee benefits that they might otherwise be required to provide under law for regular full time and part time employees. The other benefit to the employer is that these “temp” workers are usually paid wages that are much lower. It also gives individuals who are not actively employed by a company or business access to jobs and income that would not otherwise be readily available to them, for a wide variety of reasons, as cheap labor.

I used to work for a major newspaper and from time to time I’ve hired temporary help via “temp agencies” to fill holes in my working staff, while I recruited suitable full or part-time people to fill job openings. But this isn’t always how the “temp” market works for everyone.

In the case of photographers and writers, many have no direct access to jobs in their field. For example, the internet has been credited with the demise of the newspaper. A writer or photographer who may have once had a job with a regular printed newspaper writing stories or taking photographs for the publication may now be out of the employment market because newspapers have been unable to make a profit and have laid off staff to save costs, or even more dramatically, shut down completely. Just take a look around your own home town and see how many local or even large newspapers have gone by the way-side, no longer printing their publication or no longer providing that product. Some have converted their publications to focus on the online internet publishing market. The demise of printed publications and the move to the internet product has created a lot of lost jobs and a large “temp” market of available skilled labor and has shifted the expense of maintaining a staff to the worker who now provides their own services as a contract worker (freelancer) at a much lower cost as well as their tools needed to do that labor.

For the purposes of this article I’m going to discuss a fictional web publication that focuses on the photographic industry and explain how this “gig economy” may work in that world.

I’ll call this fictional Internet publisher “Through The Lens”

Through The Lens started out on the internet as a small Internet site devoted to the world of photography. Sound familiar?

Through The Lens would publish camera and equipment reviews, write interesting articles on the world of photography and try to generate an Internet following. They lucked out. Their page hits continued to grow over the years and the readership increased as a result.

Their following became big enough that Through The Lens could now look for methods of generating revenue. The biggest generator of revenue of course is advertising. The publishing world has always relied upon advertising revenue to generate a profit. Newspapers today still rely on advertising to bring in the money, and the larger the audience for the publication, the more they can charge for that advertising. An advertisement run in a large print newspaper can bring in tens of thousands of dollars, depending the the size of the ad and the visual placement in the publication and how often that advertisement is printed or displayed. Selling advertising is what pays the bills, and that includes the costs of hiring and maintaining a work force to produce that publication.

Through The Lens is now a big internet publisher in the photography industry and their advertising comes from other businesses that want to sell photographic products and other related services. You’ll see this on just about every major Internet Website. Some advertising may be in the form of direct advertising from advertisers who pay a fixed rate for a placement in the publication, other forms may include “affiliate links” where a small ad is displayed and a reader can click on that ad and be taken to the retailer’s Website and any sales that result in that action provides a cut of the sales to the business that forwarded that sale. Through the Lens has a number of these links on their website and readers may from time to time click on those links and buy a product, the result of that action is they make a commission on the sale. It may not be a big commission though. It could only be a few dollars or even a few cents. Still, that’s money coming in to the referrer.

Through The Lens realizes, as all publishers eventually do, one way to generate more income is to increase readership, because, more readers equate to more clicks on affiliate links and more market exposure for their advertisers. One way to increase that readership is to increase the relevant content in the publication. They need more articles and relative information in their publication to attract more readers. What do they do? They could hire writers and technical people to generate that content in house or they hire independent contractors to create that content for them and those contractors are now given a cut of the pie when their article is published.

This brings us to one of the current economic models of the Internet.

Through The Lens discovers that there is a large surplus of available workers in their industry. In this case, there is an over-abundance of photographers, writers and other skilled workers who could be utilized to produce content for their Website. They make agreements with these workers to create content and once that content is published, the worker now gets a cut of the action. Often times that income comes in the form of being paid on the basis of the number of page hits their article or content receives. There is a scale for this payment. An article that receives 3,000 page hits may generate $15 of income, an article that receives 30,000 page hits may generate $150 or more for the content provider. The more their article gets read, the more they make.

Through The Lens have now created a staff of contract workers who can pump out content for their Website at a fraction of the cost of hiring actual employees to do that work for them in house.  Through The Lens now makes more money and contract workers looking for income that would not normally be available, now have a way of generating income. One of the problems though, is that these workers end up working for next to nothing. Maybe the equivalent of 25 cents and hour, maybe more. It’s based on the time and expense of creating content vs the amount of income received from that created content. These workers get no additional benefit of their work such as unemployment insurance, health care, reimbursement for their business expenses and so on. It effectively becomes an employment situation not unlike the old garment industries of the 1800’s where people work piecemeal producing garments for pennies in what was referred to as sweatshops.

The issue here is when does it become exploitative?  The contract workers, in our case, freelance photographers and writers, put a lot of time and effort into creating content. They submit that content and hope it’s literally a hit (page hit), as the more page hits they get, the more they make. But, it is low paying. Many of these content providers end up spending a great deal of time and effort, at their own expense, generating content for these Websites, and in return they are making a substandard wage as a result. One way they increase their income is to submit more articles to the publication. They’ll make more money if they have more people reading their articles, so creating more articles is the result. For a typical photographer or writer who does this, it could increase their income from $30 a week to maybe $300 a week or even more if they are really talented and find their niche. To produce that content, they’ll spend a lot more time and money too. But on the other hand, nobody is being forced to do this type of work. It’s the choice of the freelancer to work a lot for very little income, if they so desire. At least to a point, because historically, the lawmakers will try to put a halt to anything that spins out of control. They always have.

The California “freelancers” law, AB-5, seeks to draw a line as to when the content provider ceases becoming a contract “temp” worker and now becomes classified as regular “full time” or “part time” employee and part of that line is defined by how many articles they are submitting to a particular publication each year. A lot of these freelancers are putting in an extraordinary amount of effort and spending their own money to make pennies in return. It’s become an exploitative employment market in a lot of cases and California lawmakers have decided that more market regulation is the solution.

The issues at stake with the challenges to this law are the limits placed on the number of submissions that a photographer or writer can make to a publication each year before they become legally reclassified as an employee rather than an independent contractor.

Once the freelancer reaches a statutory defined threshold, they become legally classified as an employee of who they are working for by the state and a whole new set of laws and regulations take effect. It’s no longer contract employment as they are now treated as regular employees for purposes of labor law and the state has the right to regulate labor practices in their jurisdiction. After all, lawmakers are really working on behalf of the general public and the general public has required them to regulate the industry to prevent unfair and exploitative conditions from occurring. Laws are just the will of the people.

One of the side effects of this situation for photographers and writers is that once classified as an employee, any intellectual content they create and submit the Website or “employer” now, by law, becomes the property of the employer as that content was created for them by an employee, not an independent contractor.

The end result of course is that by regulating the industry, the state is stepping in to regulate free commerce in order to prevent unfair and or exploitative business practices in industry. All new regulations have side-effects, some intended, some not, some good, some not so good.

The argument against this regulation boils down to the concept that everyone should have the right to work for substandard wages and that a business should be allowed to operate according to their economic needs without government interference. It’s an age-old argument and has been addressed in state and federal courts again and again since this country was founded.

It all comes down to supply and demand. Demand drives supply, not vice-versa. If the supply of workers remains constant and the demand for those workers decreases, the wages of those workers will go down. There is no longer a large demand for photographers and writers who used to make $75,000 a year generating content, but there is a demand for photographers and writers who will work for 25 cents per hour.

In the end, the Internet Websites who provide work for contractors at very low wages will be regulated out of the business or go out of business because of under-demand of their services. We are already seeing this happen, as Website publishers who use these practices are being subjected to more legal and economic pressure to change their business model.

What this ultimately means for freelance photographers and writers is that the free market and it’s associated regulations will require many of them to find an alternative profession as there are simply far more photographers and writers than the market really needs.

 

Handheld.  Nikon D810/ISO 6400/200-500VR/f6.3/500mm/1-800sec.

I’ve used many different cameras and lenses over the years. My theory was “the right tool for the job”, meaning I really wasn’t interested in the brand I was using but more interested in how well that gear performed for the type of work I was doing.

The first “real camera” I ever purchased was the Canon AE-1 in the late 70’s.  The AE-1 is the camera that convinced me about the brand. It was the first mainstream 35mm SLR that had a microprocessor. It was solid and a reliable body with technical innovation and I never forgot my experience using it. Alas, it vanished in 1981 during my discharge from the Navy while having my household goods shipped back to the states from Cuba. I never replaced it.

In the 90’s, I had a Nikon F100 film body and it was a good camera but I knew at the time Canon made nice cameras. I never considered other brands. I sold the F100 and purchased a Canon EOS-3 and that was my personal hobby camera for several years. Being a still somewhat young engineer, the technical aspects of the EOS-3 intrigued me. The eye control focus was a point of major interest to my technical mind.

As I approached my retirement from The Wall Street Journal, I decided that digital photography was the future and I had better get up to speed on things before I jumped in up to my neck. I went through a series of DSLR’s over a period of a few years, just to understand where the market was and where the state of the art was.

My first DSLR was a Canon EOS 350-D/Rebel XT, a consumer grade camera with an 8 megapixel crop sensor and I was quite pleased with how well it worked. I did realize though that the 350D was not going to cut it for professional work, it was too basic and too limiting.

When I retired from The Wall Street Journal in early 2007, I started my own photography business and decided that the best gear for me at the time was Canon. I invested heavily in what I believed to be the “best tools for the job.” The job then, was primarily wedding and event photography along with some corporate portrait work.

In the day I was eventually shooting with the Canon EOS 1Ds MKII and a Canon EOS 5D. I had also added a Canon EOS 30D to the kit as a replacement to the 350D and later a 50D. Along with the Canon bodies, I used a Canon 24-105mm L, 70-200mm L and the 100-400mm L, along side a 20mm, 50mm and 85mm primes. I also had the kit lenses from the day, the 18-55mm and the 28-90mm from the film days with the EOS-3.

I still wanted to know more about Nikon and when the Nikon D300 hit the market, I purchased a kit that included the 18-200 VR along with a few prime lenses. I quickly fell in love with the camera and used it for several years as my main hobby, travel and home camera.  The predominant issue at the time was that I was more invested in Canon lenses, so I knew that I’d never be a full blown Nikon shooter at the professional level. I loved the Nikon D300 and kept it for several years but had invested far more money in Canon equipment by decision time. Still, I used the Nikon from time to time in my business but mostly it was relegated to a role as a personal hobby camera.

Life was good.

Fast forward a few years, sometime around 2010, I dumped the Nikon D300 and the Canon 30D and I relied on the 1Ds MK II as my primary business tool. A very sturdy and reliable camera it was. At 16.7 megapixels on a full frame sensor, it was the pinnacle of the DSLR technology at the time but was getting long in the tooth as well. The 1Ds MK III was released but I couldn’t see spending another $7,000 on a camera that was marginally better than what I had. By this time, I was beginning to explore nature and wildlife photography and was using my Canon EOS 5D as my primary camera for landscape work.

Fast forward a few years to around 2014 and I had a working kit consisting of the Canon EOS 7D for wildlife, a Canon EOS 6D for landscapes and studio work and was still hanging on to the now ancient EOS 1Ds MKII. By this time the market realities had shifted. Nikon was now in peak form with their camera bodies after releasing the D800, D810 and the D750 and my Canon gear was beginning to fall behind the curve technically speaking. Add to the equation the heavy use I had inflicted on my gear, the realization that my gear needed to be updated slowly filtered in to my brain.  Having a strong foundation in technical performance, I was now itching to update my Canon gear. Business finances being what they are, I’ve never been one to run out and buy something because it is new. I had been shooting with the 1 body and the 7D for many years and most of my business income was derived from those Canon cameras. My Canon lenses were beginning to show their age as well. I had to repair the 24-105 L at one point and my 100-400mm L had been sent in for repairs twice over the years, for the same exact problem. Gear malfunctions were occurring on the job. The repair costs were approaching the original purchase price of the lenses. The release of the new versions  of all my main lenses made me realize that I was going to have to sell off some gear and get new stuff.

I increasingly looked at Nikon as being the better choice for the future. Canon seemed to stop progressing somewhere around 2014. Their new bodies were minor upgrades to existing equipment and the technical performance wasn’t keeping up with Nikon by this time.

The precipitating event that convinced me to switch brands came when I was out working one day and took a spill, falling down into some serious rocks with my camera and lens in my hand to break the fall. Well, break things it did. I destroyed the 24-105mm L. I also destroyed my wrist and seriously bruised my ribs. I was laid up for a few months and had to stare at my broken arm and broken lens while I contemplated my future as a photographer.

Contemplate I did and I made the decision to not replace the busted lens, instead making the decision to jump to Nikon.  I sold off all my Canon gear and used the money from those sales to finance a new kit of Nikon bodies and lenses. I started with the Nikon D750 and picked up a used D800 along with a fresh set of lenses to meet my business needs.

Fast forward to 2018. I’ve since added a Nikon D810 and D7200 to my kit. I’ve settled on a 24-120mm VR, 70-200mm VR and the 200-500mm VR as my main lens kit, along with a 20mm and 50mm prime and a 18-140mm DX lens for the D7200. I probably didn’t lose a lot of money on the switch, I was able to replicate what I had with Canon for only a couple thousand dollars additional expenditure.

Making the switch to Nikon was a good choice though. My business photography focus (no pun intended) had shifted away from weddings and events and more towards Nature and Wildlife photography, so a lot of the lighting equipment I had accumulated for the Canon kit was no longer needed. Selling that studio stuff helped me reduce the financial impact of the switch.

Today my primary kit is based on the D810, D750 and D7200. I won’t upgrade to the D500 or the D850 any time soon. At least not until something breaks and I can pick either body up used for a bargain. There’s just no need.

The D810 is probably the best camera I’ve ever used. The D750 is probably the 2nd best body I’ve ever used. The D7200 still has the best crop sensor of any camera in its class and though it is obsolete now, it has a low shutter count and has a technical performance that matches the Canon EOS 5D Mk III.

So how is it working out? Nikon vs Canon?

What I’ve discerned is that the Nikon bodies outperform any Canon body I’ve ever used. The image quality is a cut above, even on the now long toothed D750, which Nikon still sells like hot-cakes. The auto-focus on the Canon bodies was always one of the problem points I had with Canon. The 7D had an advanced auto-focus system, but low light performance was weak. It needed good light to get consistent, reliable focus. The 6D produced very nice images, but at 20 megapixels and a crippled auto-focus system, it was simply stuck in 2014. Nikon’s 2014 bodies smoked them in just about every regard.

I like the Canon interface more than the Nikon bodies. Canon’s operational controls are intuitive and their layouts don’t seem to change a lot from camera to camera. Very easy to maintain operational continuity with Canon. But, in comparison to the Nikon bodies, I have seen a lot better results. The Nikons are giving me higher resolution, more detail, less noise, better photographic dynamic range and much fewer missed focus images. Reliability as been 100% The Canon bodies focused very fast but were all over the place. The Nikon bodies with 3D tracking were exactly what I needed for wildlife. I don’t miss shots with the Nikons. With Nikon, the focus is either dead on 99% of the time or completely lost. With Canon bodies, I’d see a lot of variation in critical sharpness using AI continuous tracking and would lose a lot more potentially critically sharp photos. The Nikon hit rate is far better.

In three years since I’ve been on Nikon bodies, I’ve probably taken over 100,000 photos. Nothing has broken, nothing has gone wrong and when I pick up a Nikon camera I’m confident that what ever I aim my camera at, I’ll get a sharp and clean image that will post process much easier than anything I ever saw with a Canon body.

So, despite the constant advice you’ll hear on the internet photography forums, switching brands is not necessarily a bad thing. The investment in glass is of course a big concern but when your lenses are failing and the bodies aren’t keeping up with the state-of-the-art, one has to make decisions that move you into the future and not just “good enough.”

I expect to use this Nikon kit as a my core for several more years. I know there are newer cameras on the market now and the lure of mirrorless is wiggling away in that watery golden sunlight, but nothing I’ve seen tells me that I’m going to do any better at what I do with anything different. Canon and Sony and Pentax and Fuji all make fine cameras, but they aren’t going to give me a better result.

The lesson I suppose is; don’t be afraid to make the switch. I did and I’m in a better place now as a result.

Your mileage may vary.