Me and Kenneth Cole
January 11, 2015
The year was 2008. I was still a novice with a camera, and the basics of photography were still very unfamiliar to me. I knew what my eyes liked, even if I didn't understand how to get the camera to capture it. On March 1 of 2008, I snapped this photo looking north on 5th Avenue. At the time, I didn't have a tumblr page to share my photos, and I didn't have flickr, either. The only place my photos lived was on my computer's hard drive, and occasionally it would show up in a facebook post to my friends. There was one other place, though.
I had started uploading some of my photos to a site called stock.xchng. The site—now called free images—was a free-to-use offshoot of paid stock photography site iStockphoto. The premise was to provide royalty-free images for general usage. The images could be used for a personal website, personal decoration, and anything non-commercial. You could add additional stipulations in your license agreement to require credit to be given, and you could add restrictions that required a formal request to be made before access could be granted. I had uploaded this photo and several others to be used in this way. A photo of a bridge here, a picture of a pattern there. Since I had no idea what else to do with my photos, I figured this was a good way to get it out there, and a good place to see what kinds of images people searched for. It also got me into the habit of keywording, which I think is a really underutilized aspect of photography. Over the course of a year, I would track the number of downloads, and occasionally I'd get an email request for someone to use an image of mine on a website. I always said yes, and I never requested payment. After all, it was a free image website, and nobody was trying to make a profit from my work.
Jump forward to 2009, and I really hadn't thought much about how my work was being used. I knew that the site I was posting my work to allowed for free downloads, and I knew the terms of service, because they were in plain view on the page. I knew that you couldn't sell the images, and you couldn't download them with an intent to sell or reproduce for sale. It says so right here. Well, one day, it would seem that someone didn't read that part of the terms.
One day, while walking through the 34th Street Macy's, I walked by the Kenneth Cole section, where there were several styles of t-shirts hanging. One style in particular caught my eye, and I really couldn't put my finger on why. After some time staring at the shirt, it clicked.
I took out my phone, and signed in on stock.xchng to see if my hunch was correct. A few moments later, I was holding up the screen of my phone to the shirt. I was right, and the shirt I was looking at was definitely a reproduction of a photo I had taken the year before.
I really didn't know how to feel at first. I mean, my first reaction was one of surprise and even a bit of flattery. Someone at Kenneth Cole thought that my photo was worth turning into a t-shirt? Plus, it was a brand I actually wore regularly, so that made me feel really good. That feeling was short-lived, though. I thought about the terms, and I thought about how I wasn't even contacted for permission, and the flattery vanished. I thought about how this company was producing these t-shirts at a retail price of $35 each, and how I wasn't seeing a single cent of it. Yes, a photo of mine was living on a t-shirt, but who knew it aside from me, and why would such a big company, one who can afford to buy licenses from the likes of Corbis and Getty (parent company of iStockphoto and free images) opt to break the rules here? I was angry and confused. I called some friends, returned to Macy's to photograph the shirt, and a friend of mine even purchased it as evidence.
I made some phone calls over the next few days to a few law firms, and no one really wanted to help. I was a guy crying foul against a big corporation, and nobody wanted to really hear my story to even consider taking the case. I certainly didn't have the money to pay legal fees. Eventually, a nice guy at one of the firms I called suggested I speak to legal at Kenneth Cole Productions, so see if I could make some progress there.
His idea was that maybe it wouldn't have to come to a court visit, and that I wouldn't need to spend an exorbitant amount of money to get this settled. His words made me feel less hopeless, and so I set out to locate someone I could speak with at Kenneth Cole.
I couldn't really get any leads on who to reach out to, and I had no idea. I eventually just dialed their corporate line and connected with Kenneth Cole's personal office. When reception picked up the phone, I informed the woman on the other end that I wasn't actually looking to speak to Mr. Cole, but that I wanted some help. I explained my story briefly, and she connected me to their legal department. Thankfully, I wasn't turned away.
I explained my story again, and I was totally expecting to be talked into oblivion, but that didn't happen. I was asked if I knew more information about the shirt, my image, etc. I gave him all the information I had: the shirt's style was called Griddy City, I found it in a Macy's in NYC. I hadn't been able to locate it on the Kenneth Cole website or in the flagship store. He told me he would make some calls and get back to me—and he kept his word.
Later on that day, I received a call, and the explanation was something like this: Kenneth Cole Productions hired a freelance designer for the creation of Griddy City. It was this designer that selected the source material, and they were only provided with the finished design. It was nice to have an explanation, but something told me that a claim of ignorance wasn't sufficient to clear them of wrongdoing. KCP had reached out to the designer to confirm the origin of the photo, and he admitted that the photo was taken from stock.xchng. I was then told that they couldn't pay me for it. Why? Your guess is as good as mine. What I was told, is that they were going to give me a gift certificate equivalent to the value that would have been paid to me if they had licensed the photo. According to the guy in legal, that amount, for the image size and its usage, was $500. I had no idea whether or not that was true, and I really didn't know what to do. I said I would think about it and ended the conversation.
A few moments later, I received a call from an apologetic designer based in Brooklyn. He apologized for not contacting me, and for not paying attention to the rules regarding my photo. It really did seem like an honest mistake—one with larger scale consequences than usual, but a mistake nonetheless. The conversation ended with him offering to work with me again on other projects. I hung up the phone feeling just as confused as when this all began. If this was such a simple situation to remedy, why weren't the proper steps taken in the first place? Why was this being met with so little resistance?
I received an email from legal, and the basic rundown they gave me was that the shirt had a limited regional run, which is why it wasn't online or in the flagship store. This was also why the amount they were giving me was only $500. There was still no explanation as to why this amount couldn't be in cash. I had to sign a contract that retroactively licensed the image for a single use. In doing so, I also had to agree that I couldn't seek additional compensation regarding this situation. I really didn't like the sound of that, so I made a request. Using what the designer had offered me, I asked if I could be considered for future projects. There were no guarantees, but I was told that I would be put in touch with the design team and there would be the possibility of future work. Of course, a possibility isn't something that you can contractually uphold, so why wouldn't they agree to that? Hindsight is always 20/20. I made the deal, and picked up my giftcard, as well as a copy of the shirt, which I still wear on occasion. I dropped off a portfolio of my work, which admittedly wasn't very good, and I never heard back.
Unfortunately, that wasn't the end of the ordeal for me.
After I had picked up my portfolio from Kenneth Cole, I tried to at least keep a line of communication open. After all, I was only starting out with photography, and I figured that as my work improved, I could produce something they'd want to use. The first hurdle was the guy from legal leaving the company. The second was the freelance designer never getting in touch with me, and never responding to any emails. After a while I just gave up on the idea. That is, until 2011. I had received an email about Fashion's Night Out, which was a...you know, I don't know what it was supposed to be, but it seemed to bring a lot of people out who wanted to be seen, and it lacked the fashion shows of Fashion Week. I think it focused more on in-store events and appearances. Anyway, I found out in the email that Kenneth Cole would be at one of the NYC stores for this event. I figured this might be a nice opportunity to speak to him in person—so I did.
The appearance was naturally more of a photo opportunity than a networking one, but I didn't know what else to do. I figured that at the very least, someone from his team would be present and I could have a better conversation with them. I have to say, he handled things well. We met, shook hands, took a photo together, and then I mentioned to him that one of my photos had been used on one of his shirts, to which he replied "great!" Then I explained why it wasn't great. He put me in touch with his VP of public relations, and we exchanged information, speaking on the possibility of doing more work. That was September 8, 2011. I followed up the very next day. Then again in October. At that point, she responded, but only to tell me that she isn't the proper point person for this kind of request. Of course, I knew that, but it was your boss who pointed me to you, the guy whose name is on all the tags of all the merchandise. At the very least I was expecting a proper redirection. Well, she told me that she'd pass my work on to the design team, and by this time, I had more work to show. I linked her to my photo blog (I hadn't established a dedicated online portfolio yet) and that was that.
After I hadn't heard anything back, I gave up on the idea of doing any more work with the company. If you want to get technical, I never did any work with them. When I finally got enough nerve to make an actual portfolio page, I decided to reach out to them one more time. This time, it wasn't a request for work, but a request for an image of the design used. I wanted to use it in my portfolio, as an example of places my images have been used. I went back and forth with the design team for 4 months. I was asked if I had a copy of the image in question, then asked what I wanted exactly, then asked for a copy of the image again, and finally silence. I just wrote off the whole thing at that point.
I wish I was smarter about the situation, in retrospect. I wish I had held out for proper compensation, and I wish that I had known about the power of social media back then. When Brandon Stanton had his photos stolen for a campaign DKNY was running, he was able to rally enough momentum to get the company to make a donation to a cause of his choosing. I had no such following, and honestly, I don't even have a following like that today. It has certainly grown from the nonexistence it was back when I went through this ordeal, but I don't have the means to sway a company like that. Quite frankly, it shouldn't have to come to bad press to have a company make good on what should be a basic transaction. I no longer have my work up on stock.xchng. I never got contacted by Kenneth Cole Productions, the freelance designer, or anyone else for that matter. Not everyone is like that, of course. I got contacted by a magazine to reproduce an image I took in Washington DC, and I was paid for it. No sneaky tactics there. A big thanks to Modern Luxury DC for doing the right thing. Have you ever had to deal with something like that? If so, how did it go for you?