When you discover that a large educational publisher has made extensive use one of your images beyond the rights they licensed is it wise to try to collect for the unauthorized use? Recently, there was a discussion on the
Stockphoto@yahoogroups.com forum and some photographers pointed out that publishers often “blacklist” those who try to collect for unauthorized use. Thus, it was argued that it may be better to accept a loss on one sale in hopes that in the years ahead you’ll make it up through additional sales to that same publisher.
Some Things To Think About
Considering black listing a case can certainly be made for not pursuing an infringement because in the long run (a career) the publisher will purchase more images from you at their low prices that you might receive in some type of settlement. However that requires several assumptions.
1 – That the publisher will continue to buy your pictures given the tremendous volume of competing images that are being made available every day from competing photographers. The odds are that the number of your images they will need will decline.
2 – That the publisher will be printing the same number, or more, books.
(a) – It certainly seems that fewer book will be printed and there will be much more delivery of educational information online and on electronic devices in the future.
3 – That the publisher will continue to need the same number of pictures overall.
(a) – Electronic devices may use more video than still images.
(b) - Most current agreements give publishers the right to make unlimited “electronic” use of the image, in any manner, (often not even connected to the same title) for the length of the agreement. Given the increasingly long agreement terms the publisher effectively has the right to use the image electronically, forever.
4 – That the existing publishers will continue to have a lock on the market for educational material.
(a) – Check out the Khan Academy. Also check out the 60 Minutes piece on Sal Khan and the Khan Academy. This may be the future of education and it may require a lot fewer images than we have expected to find in printed books.
(b) - In additions more and more school systems and instructors are making free course materials available through iTunesU as part of the Open Education Resources movement. To the degree that this new market will need pictures, how will you make the customers aware of your work?
(c) - The time will come in the not too distant future when it will no longer be necessary to pay hundreds of dollars to a publisher in order to get quality access to educational materials.
5 – The number of years left in your career.
Peter Dean commented:
This is an important topic because I reckon we must have earned more from collecting on infringements this year than actual legitimate licenses. Collecting on infrngements is now becoming a major source of income for us. However the manner in which this is done will affect your relationships with clients (good ones and bad ones). We collected a four figure sum from an agriculture business this year. Because of the manner in which we approached them we ended the process on good personal terms with his money in our bank account.”
The way you contact the client initially, the amount you claim and when and to what degree you start to press hard for a settlement can have a major impact on the possible long term relationship. “Too much force early on may lead to early blacklisting but in our experience enforcing rights can also lead to some respect from the ‘good guys’. We have no desire to work with those we identify early on as the ‘bad guys’. For us this becomes a black and white issue a little while after firstn contact and their reply the content and tone of which is key.”