142 GETTING "FAIR" COMPENSATION FROM PUBLISHERS
MAY 20, 1998
If you sell pictures to a magazine or newspaper you should expect that they will be
published on-line as well as in the printed version of the publication. Most
will not tell you they intend to do this -- unless you ask specifically. And, the
publications expect to get this additional distribution at no additional cost. Most
publications are claiming that the "Tasini" (Jonathan Tasini et al vs The New York Times
decision last year gives them the right to make such extra uses without any additional
In most cases, your images will stay on-line in an archive indefinitely, not just for the
week, or month, that the printed version of the publication is in circulation. This
archive may also be put on CD-ROM discs and may be a total re-edit of the way it appeared
in the original printed version. While not all publications are to the point of putting
everything they publish on-line, YET, most are moving rapidly in this direction.
Relying on copyright law to protect you is simply not good enough, anymore. If you want
fair compensation you must pay careful attention to contracts and make sure there is a
written agreement for all transactions. You can get additional compensation for
uses, but in order to do this you must be very specific in the written terms you send
every delivery of your images to any publication. Also, be prepared to track uses and
for the additional compensation.
Paula Borchardt learned recently that even the New York Times (winner in the Tasini vs.
York Times case) will pay for on-line use when your contract with them is clear and in
writing. Paula is a lifestyle and location shooter working in the Southwest. In
she was asked to submit images for a NYT Sunday section article. One picture was used in
the printed newspaper, and also used on The NYT web site.
Paula's delivery memo to the Times had specificed that the images were being offered for
the print version "only" and that electronic/digital, advertising, and reprint rights
available for an additional fee.
After the picture was used Paula sent the editor she was working with an invoice for both
the print and electronic use. Her fee for electronic uses was 50% of her normal fee for
use. The editor called and informed her that The NYT "does not
pay for electronic use," and said they consider the print use and the electronic use as
Paula replied, "Well, I CHARGE for electronic use." She pointed out that she had never
granted rights to use her image electronically, and that the NYT was in copyright
until they pay for the electronic usage.
The NYT editor claimed that she could only pay for the print usage, and that Paula must
mail a separate bill to the person in charge of the web site, to get paid for the
As an interesting side note, Paula contacted two other photographers who also had images
the same printed article. The images of one had been returned, but there was no
that anything had been used. All his images were in plastic mounts and they appeared to
been unopened. Neither photographer was aware of the possibility that their images
would be used electronically.
Now The "Fun" Of Collecting
A couple weeks later Paula received two phone calls from the web site department at the
Phone Call #1: She was told by the person at NYT web site that The Times' policy is that
once they use a photo for one section (like the print edition) it is available for all
sections (like the web site). She pointed out that this was not HER policy per her
Memo terms. The web site person also said they try not to use stock for the on-line
of NYT, just assignment.
The web site person said Paula would now have to take the matter (of getting paid for
electronic use) up with the NYT legal department. Paula informed the web site person
she would be passing that persons name, the original editor's name, and the NYT's
name on to her "own" lawyer, as this is a case of copyright infringement, a FEDERAL
and she thought it best the lawyers handle it from this point. (By the way, if anyone is
wondering, the image in question had been registered with the US copyright office).
The web site person had not seen her Delivery Memo terms which stated print use only, and
asked that she fax over a copy of the Memo for them to review. Paula emphasized a few
that this is a serious matter of copyright infringement and she would recommend they just
end the matter now by paying for the web use rather than getting lawyers involved.
The web site person also mentioned that NYT would not be interested in working with Paula
in the future after this situation. [This threat probably works very well for the Times
they are dealing with many stock agencies because the stock agency may be afraid of
alienating a potenial large customer over one sale. Photographers, whose stock agency
made sales for them to the New York Times, or any publication, can easily check to see if
this is your agency's practice. First ask your agency if the fee you were paid included
web use rights. Then check the publication's web site and see if the picture is there.]
this case, Paula replied that she had no interest in ever working with NYT again, not
because of the problem with payment for electronic use, but because of problems in
her images returned (see insert at the bottom of this story.)
Phone Call #2 (20 minutes later): The web site person looked at her Delivery Memo and
called to inform her that the invoice was being put through to Accounts Payable and that
should be receiving a check for the electronic use soon.
In May, two months after the original use, Paula finally received payment for the
electronic/web site use of her image.
Greenberg vs. Audubon Magazine
Just so you don't think Paula's is an isolated situation that this only happens with
newspapers, let me tell you about Jerry Greenberg's recent experience with Audubon
In September 1996 Jerry Greenberg contacted Audubon Magazine with a set of photos on the
Florida mangroves. He had been shooting this subject for several years with the hopes of
producing a book. Audubon liked the images and made plans to publish a story entitled
Magic of the Mangroves" in the March/April 1997 issue of the magazine.
Jerry negotiated a contract with Audubon that specified that the use was to be "one-time
print rights only", that no other use was allowed, that Audubon would pay a base fee
space for this use, and that all pictures would be copyrighted in his and the name of his
When it came time to go to press Audubon called and said that they would not copyright
pictures in the Greenberg's names because it "was not their policy." They tried to agrue
that Greenberg would be covered under their collective works copyright of the magazine.
Jerry insisted that either they copyright the pictures in his and Michael's names, or
not publish the pictures. He was prepared to return the advance. Audubon backed down
listed copyright credit to the Greenbergs. As soon as the publication was released Jerry
sent copies to the copyright office and registered the copyright.
Later in 1997 Jerry discovered that for $11.00 he could buy an electronic copy of the
article through UMI, a reprint service in Michigan. When he recevied the UMI printout it
included B&W reproductions of each of his photographs and a label on the printout that
"reproduced with permission of the copyright owner." Of course, Jerry had given no such
permission, and in the normal course of things would receive no portion of the $11.00
for this copy. Audubon, however, would receive payment for this use.
Audubon claims that their "collective works" copyright gives them the right to make this
use, irregardless of the fact that they signed a contract agreeing to the opposite.
lawyer cites last year's Tasini decision as justification.
Jerry has offered to settle the dispute. He asked, first, that they should remove his
photographs from the UMI reprint service and any other electronic databases in which they
might have been placed, and that they pay him an additional 100% of the original fee as
compensation for any uses already made by the reprint service.
Audubon made a minimal and totally unacceptable counter offer that Jerry rejected. It
appears that Audubon would rather fight than settle. Maybe their lawyer should talk to
the New York Times lawyer and find out why the Times believed they needed to pay Paula
Borchardt in spite of the Tasini decision.
Jerry Greenberg has turned this matter over to his lawyer.
- Ask every editor, up front, if there is any likelihood that the article will be
- When someone tells you that you are covered under their "collective works
what they are really saying is, "we want to rip you off." You may be covered if someone
else attempts to use the image, but given the interpretation many publishers are putting
the Tasini decision they can do anything they want with your pictures under their
"collective works copyright". Be sure to register your images.
- Have a rock solid delivery memo. Be as specific as possible about the use in the
delivery memo and invoice. Use ASMP etc. publications for reference on what to include.
not worry about your terms and conditions scaring off clients. It will just make you
- Do not back down when you really feel you are in the right. Of course there may be
negotiating with the price sometimes, but remember "you" are the seller and they came to
because you have something (images) they need.
- Be professional but firm.
- Invoke the "L" word (lawyer), if necessary.
If you know your pictures are going to be used in a certain issue of a newspaper it is a
good idea to check the newspaper's web site that day. Not all the images they put up
initially will be kept on the site for more than a few days, or a week.
The Other Problem - Getting Your Images Returned
There was also a problem with the way the New York Times handled the return of Paula's
images. During the initial conversation Paula asked when they were going to return her
images. The editor replied that the images were sent back to her 2 weeks earlier via
registered mail/return receipt. Paula says, "I almost blew a gasket, because my Delivery
Memo specifically says (in bold, underlined, italicized print) that all images "must" be
returned by Federal Express."
The editor did not have an answer, but promised to get more information and get back to
A few days later a second employee from NYT called Paula and said that according to his
records, her images were shipped back via Registered Mail/Return Receipt.
One month after The NYT employees first indicated the images had been returned by U.S.
Paula did receive her images, by -- surprise -- priority overnight
Federal Express!!!!!!!!! Evidently the images were NOT sent back to her office via US
despite the records of two NYT employees. There was no note in the FedEx envelope
apologizing for the
and the delay, or explaining what happened on their end. Also, no check(s)
enclosed. Just the images in cardboard.
Sellers, You have been warned!!!
I've been following Paula Borchardt's trials with The New York Times Sunday section on
the Stockphoto news group . I've been shooting on assignment for that
section for about 8 years, and was never informed of the web use. When Paula
first posted her experiences, I had just had 6 photos run in the Sunday
section. I checked out the web site and sure enough, three of my photos
All my paper work has indicated one edition only, no electronic use. I know
that as soon as I complain to the picture editor, or ask for more money, they
will cut me off assignments. Fine, you say, walk away, it's only a few days a
year. But the problem is, this taking advantage of photographers is happening
National Geographic World , another client, used to pay $100 for web use on top
of a day rate. Starting last year, for all of an extra 10 percent of the day
rate - $40 !! - they get unlimited secondary use in NGS products. For ever. I
questioned it. They said take it or leave it, " the legal department came up
I should add to my complaints, that some editorial clients DO work fairly. Success has a
contract paying $100 additional for electronic use, on top of a $350 day rate. They are a
little vague on what electronic use, and for how long. And Guideposts pays a total of
$550 a day, for one-time use in their magazine and web site. They also have the right to
use the pictures in other Guideposts magazines. If an image is used in an electronic
publication they pay an additional 25%. You won't get rich shooting for them, but at
least they pay extra for more use, and put it is writing.
I'm getting frustrated with editorial work.
Editors note: Next year the legal departments, will demand that photographers pay
the magazine to get their pictures used, instead of being paid for usage. The magazines
will keep asking for more until it becomes extremely difficult for the editors to find photographers
will accept their assignments. At that point they will be forced to raise their prices. This is
true of "Name" magazines. Nobody else will bail you out.
Each individual photographer will have to make his or her own decisions and simply quit
when they can't earn enough to justify doing the work. As long as there are photographers
willing to work at any given rate, prices will not go up.
Photographers remind me of pharmacists. Remember when everyone went to the independent,
locally owned drugstore for medicine needs? Pharmacists could not control the licensing of their
profession and soon third-party paid insurance plans (you know, where you pay $5.00 for a prescription
and someone else pays the rest) took over the retail drug business and squeezed margins so tight that
the little guy could no longer survive.
Retail markup became a thing of the past and now a drugstore is likely to receive less than the
average wholesale price for its drugs and tries to live on the small fee they charge you.
Photographers are headed down the same road with less and less leverage engendered by wholesale
disrespect for their services.
Registering copyrights is a pain in the ___, BUT that is the only way most of you can afford to have a
real lawyer take on your case against a large company. Without the added damages registration allows
as a remedy, even hundreds of usages cannot generate an award large enough to interest most good
lawyers (I know, but they have a right to make a buck too).
It takes a strong person to stand up for what's right and often the only reward is to shut off a source
of future income and watch a fellow professional jump for the next assignment. No one wants to be too
persnickety to get assignments, but there needs to be some kind of database where PHOTOGRAPHERS ONLY
can get straight info on who is playing fair and who isn't. For me, any sale to the Times, even one
that looks good up front, would really cause some soul searching. Who wants to run a real database
with good contacts for fair play information?