82 NATIONAL GEOGRAPHIC UPDATE
July 8, 1997
Since our last newsletter the story on The Complete NATIONAL GEOGRAPHIC: 108 Years of National Geographic Magazine on CD-ROM has taken some interesting twists and turns.
Tom Stanton, Director CD-ROM Product Management has written to most photographers published in National Geographic and offered them $0.00 -- that's right, zero -- compensation for the use of their images in this 30-volume set of CD-ROM which Geographic will be selling for $199 each.
Stanton's argument for paying nothing goes as follows: "Because the CD-ROM archive consists of an exact image of every page as it was originally published, this reissuance (or reprint) is not a 'further editorial use' of material such as requires additional payment to the photographers whose contracts commit the Society to payment under those circumstances. The Society holds copyright in the magazine issues as collective works, and we believe that the continuing copyrights permit the Society to republish its magazine archive in this CD-ROM delivery mechanism. This is comparable to magazines being made available on microfiche."
Geographic has also made an offer through a company called Total Clearance to a few stock agencies that licensed one-time rights to certain stock images that were used. The fee they are offering for this use is $20 for a 20 year license.
THIS IS NOT A JOKE, FOLKS. This is the truth, unbelievable as it may seem.
The offer from Jill Alofs of Total Clearance reads as follows: "I have been commissioned to offer you a fee of $20.00 per photo, regardless of the size (used), for the licensing rights to include these images in this CD-ROM archive, as well as on versions in CD-I, DVD, and other versions, editions, adaptations, or sequels to the original title. The term and territories sought for this product is twenty years worldwide, without alterations."
We know of no one who has accepted these offers. Many have written protesting. Unfortunately, many of the photographers who still do work for National Geographic are afraid to protest for fear of being black balled for life.
There are, however, hundreds of "former" Geographic photographers and writers who have no desire to ever do any work for National Geographic again, and who are seeking legal representation to force a reasonable settlement.
It seems that Geographic has decided that rather than trying to make some sort of reasonable offer to their suppliers, it will be cheaper in the long run to take a position that costs the minimum up front, and pay off the few who are willing to sue. This could be a good strategy if very few sue, but based on the response of the more than 150 photographers I have been in contact with, Geographic may have made a severe mis-calculation as to how much this strategy will cost before it is finished.
One slight complication, and the one which National Geographic seems to be hanging most of its hopes on, is that most photographers who did assignments in the last 25 years, or so, signed contracts that gave away their copyright -- under certain conditions. The key language which has varied somewhat from contract to contract is as follows:
"All photographs taken by you under this Agreement will be considered as specially commissioned for use by NGS and upon creation all rights, including the copyright and world publication rights, to these photographs will automatically, by virtue of this Agreement, be deemed transferred exclusively and indefinitely to NGS, subject to the following provisions:"
However, one of the provisions is: "if NGS makes further use (promotional, advertising, or other editorial use) of a photograph selected for publication, it will make additional appropriate payment to you but no such additional payment will be made if the use is as part of an NGS photographic exhibit or in an audio-visual presentation or lecture given by an NGS employee or under NGS auspices;"
Lawyers for the photographers believe that the photographers have a right to expect appropriate payment for this use. Geographic seems prepared to argue otherwise. The issue is likely to be fought out in court.
It is clear that photographers who have worked for Geographic have always been told that they would be paid for additional uses. Many have been paid for the additional use of pictures that first appeared in the magazine. Now, Geographic says they no longer have that obligation.
Those Who Lose The Most
It is also clear that people who stand to lose the most in this are the freelancers still doing work for National Geographic. They are the people Geographic will depend on to produce future stories for the magazine. It seems likely that they will be forced to take whatever is handed to them (nothing), even though they think it is patently unfair, because they must take this position if they expect to work for Geographic in the future.
Most organization would not consider this the best way to build loyalty among suppliers. Senior management at Geographic doesn't seem to be concerned. There are hints that some of those who will be charged with hiring photographers and writers in the future recognize the problem and are not at all happy with managements decision. However, they are powerless to change it.
It should also be clear to all suppliers that Geographic expects photographers to honor their side of any contracts they sign, but that Geographic will not honor its contracts unless they are taken to court and forced to do so.
What Might Be A Fair Settlement?
One of the big questions is, "what is a fair price for this use?" One of the problems with the way Geographic has structured the use is that we are not talking about one single use for a reasonably short period of time, but a whole range of uses, including possible web use, for 20 years.
Prices still vary quite a bit for single uses like this, but Forbes Magazine has been offering contracts to their suppliers that might be helpful. It should also be noted that Forbes does not have a reputation for being overly generous with suppliers. If anything, their reputation is one of being miserly. Nevertheless, in it's contracts with photographers who produce illustrations for existing stories Forbes agrees to a future payment of $100 per image for "The right to include Artwork in connection with the electronic reproduction of the article..."