To most, “one-time rights” licensing means the customer gets the right to use the image only once, not multiple times, for the purpose specifically outlined in the invoice. Any use beyond that is viewed as copyright infringement. However, Houghton Mifflin Harcourt is currently trying to argue in court that “one time” means the publisher can print any number of copies of one edition of a book, so long as they do not use the image in other unauthorized editions.
Apparently, Houghton Mifflin Harcourt sees this interpretation as overriding all other limiting conditions of an invoice, including a statement that restricts the print run to “up to 40,000 copies” or any other specified number of copies. Hopefully, the court will decide against Houghton, but it takes a lot of chutzpa to make such a claim. But what really upsets me is that the company claims that their interpretation is the same as mine, according to what I supposedly wrote in my book, Negotiating Stock Photo Prices.
I would never suggest that there should be a single price to license use of a rights-managed image regardless of the number of copies printed. In fact, it is well known by everyone engaged in either creating or using stock photos that all rights-managed licenses are based on the principle that circulation should be a factor when establishing a usage fee. The more a customer benefits from the use of an image, the more its creator should be paid for the use.
It is worth noting that technological developments of the 1990s brought dramatic changes to the way textbooks are produced. It has often been difficult for image sellers to keep up with all the implications of these changes. However, it has never been the intention of anyone I know who licenses images as rights-managed to grant unlimited rights to use an image unless that was clearly and specifically stated in the invoice.
“One time” should not be interpreted as unlimited. It means the image can be used once, not multiple times, in the book. It also means the image cannot be used for other purposes, related or unrelated to the book for which it was licensed. Finally, it does not erase or invalidate other limiting factors that are part of an invoice, such as circulation.
In the 1980s and before, it was very uncommon for a publisher to print more than 40,000 copies of an edition of a book. It was also clear and understood by both sellers and publishers that it would be a violation of copyright if more than 40,000 copies were printed without an additional license. Printing economics drove this number, because it was very costly to set up a press to print a book, and publishers did not want to print and store more books than they were sure they could sell. If, after the first printing proved itself and the publisher had sufficient orders to justify going back on press, another 40,000 would be produced with a different ISBN number.
When this new edition was printed, the publisher normally paid 75% of the original fee for the additional use of the image. I personally had a 1973 picture of H.R. Haldeman being sworn in before the Watergate committee that was used in a government textbook and reused in 6 or 7 editions of that book over a period of a decade. I earned an additional re-use fee each time the book was reprinted. During this period, it was common for most stock-image sellers to earn significant amounts from reuse fees, because so many books went into second and third printings.
In the 1990s, technology advancements made minor adjustments in text and shorter print runs possible. Rather than going through the process of frequently re-licensing uses for each new print run, some publishers began to estimate the possible maximum number of copies they would print over a period of years and initially license rights to print many more than 40,000 books. The more books they printed, the higher the image licensing fees. It was still understood, however, that if, at any time, they needed to print more than the total number they had licensed to print, they needed to re-license rights to use the image.
Future invoices
First, continue to stipulate “one-time use,” because it does have meaning in the industry. But, also be very careful to spell out exactly what you are allowing the publisher to do with the image and what you are forbidding. You may have a great relationship with the researcher you deal with, but never assume that the researcher’s boss or his accountants and lawyers are going to treat you fairly and honestly.
One option is to simply assume publishers will print many more copies than they originally said they would print. Allow them to print as many copies as they want, but base your fee on the assumption that they will print 2 million copies. See this article for the methodology of calculating a fair fee for such a large book distribution. No publisher who really is going to print 40,000 copies is going to want to pay to print 2 million. But if we cannot trust them to be honest, and there is no reasonable way to audit sales, then our only alternative may be to charge a higher fee.
Another strategy is to treat every transaction as if it were an assignment. Charge what you would be happy to accept if the customer had contracted you to produce the image. Then if the customer increases image uses to more than anticipated, at least you will have received reasonable compensation. Given the way compensation for stock photo usage is headed, it may not be long until the only sensible way to produce images for profit is to do the work on assignment.
In 1995, when I published the third edition of Negotiating Stock Photo Prices, the industry standard was to license rights for under or over 40,000-copy print run. If a paying the over-40,000 price, which was usually about 20% more than the under-40,000 price, the publisher was entitled to print an unlimited number of copies. Despite this opportunity to lock in the legal right to make unlimited future printings of a book for a slight additional fee, it was very rare for anyone to request permission to print more than 40,000 copies of a book.
By the fourth, 1997 edition of Negotiating, we were recommending prices for under 20,000; 20,000 to 40,000; 40,000 to 80,000 and over 80,000. The recommended prices were $175, $200, $230 and $290, respectively.