Infringement at Glencoe

Posted on 11/3/1999 by Jim Pickerell | Printable Version | Comments (0)

260

INFRINGEMENT AT GLENCOE


November 3, 1999

In late September we sent out an alert

(Story 253) about the Glencoe division of

McGraw-Hill not paying for re-use for pictures that appeared in the 1998 revision of

Biology: The Dynamics of Life . These images were originally published in the 1995

edition.

It now seems that was only one of the problems. Glencoe has produced another series of

science books for middle schools for which they have not cleared copyright or made

proper payment. This series is called Science Voyages 2000 and includes three

different texts for 6th, 7th and 8th grades (red, green and blue). The ISBN numbers

for these books in order are: 0-02-828629-4, 0-02-828579-4 and 0-02-828669-3.

The books have a publication date of May 2, 1999 and are currently available for

purchase. However, we have been unable to find any stock agency, credited in these

book, who has even received notification that the books have been published, let alone

received payment for the usages.

At this point Glencoe is clearly in violation of federal copyright law for every image

in these books since they did not request a license prior to publication. Based on

what just recently happened with Dynamics of Life this is not a single oversight, but a

pattern. It is the standard custom in the photo industry that publishers who have not

properly cleared copyright before publication will be offered a "retroactive license"

once the error is discovered. The usual fee for a retroactive license is ten (10)

times the fee that would have been charged for a 'normal' license requested and paid

for prior to publication."

We were able to contact Alexander Mlawsky, Vice President and Director of Art, Design &

Production at Glencoe. He refused to comment on any of the issues regarding this

series except to say, "This was not an oversight. We are in the process of notifying

suppliers."

In this situation, it is recommended that all photographers and agencies who have

images in one of these three books should invoice for a "retroactive license."

This series has another unusual problem. Many of the images are credited to Morgan

Cain & Associates, a research firm in Tucson, Arizona that handled trafficking to the

printers of pictures already acquired by Glencoe. Morgan Cain did not do any of the

basic research on this project and did not receive any images directly from stock

agencies or photographers. John Meyer of Morgan Cain has no explanation for how the

pictures could have been credited to his company because they had absolutely nothing to

do with preparing the photo credits that appeared in the books. Normally, images must

be credited to the photographer and/or agency who provided the images.

In order to be sure how many images you have in these books you should obtain copies

and check the actual usage. It is likely that Glencoe's records are incorrect. In

those cases where credit is incorrect, photographers and agencies should bill three (3)

times the normal usage fee for improper credit.

To order copies of the books you may call Glencoe's main office in Westerville, OH at

1-800-848-1567. Ask for the sales or marketing department. It is also a good idea to

ask for a copy of Glencoe's most recent catalog and try to get on their mailing list

for future catalogs, if you are a regular supplier.

Dynamics of Life

There are additional problems with the Dynamics of Life book. In addition to the

Student Edition there are other versions listed in the Glencoe catalog for which there

should have been payment. There is a Teachers Edition, a Spanish language translation

and a CD-ROM edition in English.

The description of the CD-ROM edition in the catalog says it has "every illustration

and image" in the student edition. This is part of a 6 disc series and has a list

price of $539.94.

In addition there is 2000 edition of Dynamics of Life which is out and available. Some

sellers have been paid for new images included in this edition, but not for the pick up

images from previous editions.

In an effort to try to settle this matter Glencoe has finally started sending some

agencies checks to cover the usage in the 1998 edition. Along with the check comes a

letter that says, "We propose to pay you at 100% of your new image fee, instead of a

reuse charge of 75%. By cashing this check, you acknowledge receipt of full payment

for all rights necessary to use these photos in the 1998 edition and the full

resolution of this matter."

Sounds like they are giving more in recognition of their late payment doesn't it. In

fact, the amount offered is about what sellers would have charged for the "student

edition" alone. Glencoe's language implies that this payment covers "all" uses

connected with the 1998 edition.

One agent calculated the amount owed for all the various uses connected with the 1998

edition, and invoiced for more than seven (7) times the amount Glencoe offered with

their check.

Another irritation about this letter and check is that the letter was dated September

24th, but not mailed until almost a month later because it arrived at least one agency

on October 21st. Anything to delay payment a little longer.

There is also a connection between Glencoe and National Geographic. NGS prepares a

mini chapter which is bound in the center of most, but not necessarily all, of the

Glencoe science books. NGS is offering to pay photographers for a 40,000 press run for

a Spanish language usage in this book. It is unclear whether the NGS chapter will also

be inserted in the English language edition of this book.

Glencoe is claiming that the combined total a press run of the English and Spanish

language versions is UNDER 40,000. We don't know who is making the mistake here, but

it defies belief that National Geographic would pay for more usage than necessary.

What About Other McGraw-Hill Divisions?

Clearly, it seems that the different divisions at McGraw-Hill do not talk to each other

and that each division has different policies and practices.

For example, in October we reported that McGraw-Hill is now asking for:

    Rights Granted: For the ten (10) year period commencing April 14, 2000, licensor

    hereby grants to McGraw-Hill the following non-exclusive rights for inclusion of the

    Licensed Materials in the Program materials: i. the right to edit and use the

    permission material in the Program Materials and in connection with the Program,

    including use in minor revisions (concerning no more than 25%) of the Program..."

While this request raises some deep concerns, so far it has only come from the College

division of McGraw-Hill which includes Burr Ridge, IL and Dubuque, IA. This may not be

the policy of all McGraw-Hill companies.

What To Do?

  • You can no longer depend on this publisher -- and maybe any publisher -- to tell

    you when they have published your work. You can't wait to be notified.

  • When you deliver images to a book publisher you must get the tentative

    publication date as well as the working title of the publication.

  • Get the publisher's catalog and keep checking to see when titles appear for which

    you have supplied images. Buy a copy of the book. One photo seller reports he

    purchases every book in which his images are published to validate his usages. He

    invariably finds at least one error the publisher has made in its favor. At $60 to $70

    these books are expensive, but this sellers says the additional money he makes from

    spotting errors nets him at least $20,000 a year.

  • You must follow up. Business practices are not the same as they were a decade

    ago. You can no longer trust the publisher to supply you with the information you need

    to properly invoice.

  • Invoice for retroactive licenses.


  • Copyright © 1999 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-251-0720, e-mail: wvz@fpcubgbf.pbz

    Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  

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