3
kaplan vs. Sports Illustrated
Peter B. Kaplan has negotiated a settlement with
Sports
Illustrated for $75,000 for CD-ROM use of his image of the New York
Ranger's ticker tape parade in New York City following their 1994 Stanley
Cup victory.
The picture was used, without Peter B.'s authorization, on a CD-ROM disc
entitled, Sports Illustrated Multimedia Almanac, 1995 Edition . The
disc was produced for SI by Star Press in California.
In the agreement SI said, "SI has made the payment to you (Peter B.
Kaplan)...in order to resolve your claim that SI made an unauthorized use
of the Photograph, but despite such payment, SI admits no liability or wrongdoing
in connection with the matters covered herein."
The settlement allows SI to distribute a maximum of 25,000 copies of the
CD, and prohibits SI from using the photograph in any other manner or format
without prior written approval.
Peter B. commented, "I guess they made this payment because either
my work is much better than my peers, or they like me more."
The photograph in question was taken on assignment from 49 stories above
Broadway with an 800mm lens, hand held, on Kodachrome film. It was used
as a double page title page for the SI issue that appeared at the end of
June 1994 and was the only Stanley Cup photo in that issue.
Most other photographers covering the parade shot with Fuji which was processed
faster and as a result Peter B.'s film was the last to be seen by the SI
editors. At the time, Steve Fine, SI Photo Editor told Peter B., "You
nailed it. You saved me."
As a normal procedure after every shoot, Peter B.'s office manager, John
Koeneman registers the images actually published with the copyright office.
This was done with the Ranger's Parade shoot on July 15, 1994.
Peter B. first learned of the SI CD-ROM when Ann Wykoff, project assistant
for Star Press called in February 1995 to get clearance to use the image.
Ms. Wykoff talked initially to John and offered $40.00 for the usage. After
learning more about the project John advised her that she definitely needed
to talk to Peter B. and suggested that she call back in an hour.
Two days later when they had heard nothing, they sent her a fax and made
other efforts to make contact. When Peter B. was finally able to talk to
Ms. Wykoff, he pointed out that it was his understanding that Time-Warner
had recently agreed to pay $75 for each image used on any CD-ROM. She assured
him that all they were paying was $40 and he indicated that he could not
allow his image to be used at that price, but that she ought to check with
Time-Warner to see if they could do better. During this conversation, he
was also able to determine that his was not the only image to which she
was trying to "clear rights." She said that SI had sent her a
list of photographers that needed to be contacted in order to clear rights.
After talking with Ms. Wykoff, Peter B. called a friend at SI and said,
"Are you aware that SI is getting ready to distribute a CD-ROM?"
The friend said, "What do you mean 'getting ready,' I'm holding it
here in my hand."
Peter B., "Put it in the computer, look up Rangers and see if my image
is there."
Friend, "OK,... Yea, here it is." After a few minutes discussion
with Peter describing the image the friend said, "I'm sure its yours.
What's this little button over here that says print? Here, I'm printing
a copy of your photo on my laser printer, I'll fax it to you."
Anyone Can Make A Mistake Once
This is not the first time that editors at Time-Warner have made unauthorized
use of one of Peter B.'s photographs. In fact this is fourth settlement
that he has received from Time-Warner in the last eight years.
Back in 1982, LIFE decided to reproduce a double page spread from the magazine
as a double page ad. The picture was the "Great American Flag."
They reproduced the page which at first glance looked like it had come from
the magazine and LIFE argued that "we have a right to reproduce our
product to promote ourselves." On closer examination it was discovered
that they had retouched 18 separate things out of Peter B.'s photograph.
John Loengard, the photo editor, said they had a right to change the image.
Peter B. sued and the case was settled in 1987 out of court.
One month after the settlement Peter B. was watching television and discovered
that LIFE was using one of his famous Statue of Liberty pictures in a TV
ad.
In the first instance the picture was not registered, but Kaplan had learned
from his previous mistake. This time when he called them he was able say
that the photo was registered and they made an out-of-court settlement for
this infringement also.
Next, it's Time-Warner TV. Peter B. discovered that they were using "Liberte
Mon Amore" without his authorization. This is his most valuable Statue
of Liberty photo which has earned in excess of $300,000 and sales are still
being made.
The producers of the show had taken an Air-Jamaica poster of "Liberte
Mon Amore," cropped the Air-Jamaica information, but left his copyright
notice in view . They framed the image and placed it on the wall of the
set to the "Living Single" TV show. This was the only wall hanging
in the background that the camera ever focused on.
In this case the out of court settlement was $54,500.
And now we have the latest incident. (Editors note: One would think that
eventually they would get the message that if they have to steal they ought
to pick someone else's images other than Peter B. Kaplan's. However, they
seem to be very slow learners.)
Peter B. has pointed out that, "Since I have stopped working for Time-Life
I have earned over $167,000 from them."
The Negotiations
The negotiations that resulted in the $75,000 settlement had some interesting
twists.
Peter B.'s goal as a photographer is to work with clients, not sue them.
Therefore, he set out to try to develop some equitable settlement that would
make it possible for him and the Time-Life editors to continue to work together.
After some consideration he proposed a settlement that would enable SI and
Time-Warner to get some additional photographic services for the fee they
would be paying to settle the infringement. As he pointed out, "It
seemed obvious that they like my work because they keep stealing it."
He proposed that they guarantee him 50 days of work a year for five years
at the normal editorial day rate of $400 per day. That would come to $100,000.
During that time he hoped they could rebuild a relationship.
Time Inc.'s lead attorney considered the offer and refused it.
At that point Peter B. moved to file suit.
He and his lawyer were anxious to negotiate a settlement and with some difficulty
a meeting was arranged. The first meeting was set for a Friday and Peter
B. made a trip from his current home in Delaware to New York. When he got
there he was told that the meeting had been canceled because the lawyer
for Sports Illustrated had just had a baby the morning before.
A second meeting was scheduled for the following Friday afternoon. On the
morning of the second scheduled meeting, Donald Prutzman, Peter B.'s lawyer
called and said that SI wanted to reschedule again because one of their
secretaries had set up a conflicting appointment. Peter B. insisted on a
meeting that day and it was set for two hours later than previously scheduled.
Later, Prutzman called again and said he had a family emergency and could
not attend the meeting. Peter B. decided that he did not want to wait any
longer for this initial meeting which he believed would be preliminary at
best. He told Prutzman he would meet with SI alone. He took John, his office
manager, with him.
When the meeting began Steve Zales of SI made a short apology for having
made use of the picture without first getting clearance. Peter B.'s response
was, "That's fine, I'm glad to get your apology. That's what I teach
my 7 year old to do -- to apologize -- but in business when we do something
wrong we talk money."
At that point Zales pointed out that they had paid $40 for most images used
on the disc. They paid $75 to some photographers, and for a few images they
paid as much as $200. Zales also indicated that when SI discovers a misuse
of their images they usually charge double the normal fee.
Peter B. asked, "Are you offering me $400?"
Zales said, "No, we want to offer you $5,000."
Peter B. responded, "That's insulting."
He then pointed out that he had them for two willful infringements because
the image was used twice on the disc, one with his name attached and one
without. There were also two breach of contracts because SI did not put
his name on one of the images (which the paperwork with the original sale
of the image required) and they made an unauthorized release of a dupe to
the company that produced the disc.
In a separate agreement after the original use of the image in SI, Peter
B. had allowed SI to retain a dupe of the image with the understanding that
any use of that dupe would be cleared before use. (Editor's note: Photographers
should be aware that when they allow a publication to retain dupes in their
file they run the risk that the agreement will not be honored. I believe
the only relatively safe way to leave reference material with a publication
is to provide a heavily watermarked low resolution digital scan of small
file size. This way it cannot be used for anything but reference. Let them
hold something they can reproduce from and you are asking for trouble.)
One of Peter B.'s other complaints was that he had been put into an industry
that he does not want to participate in, i.e. CD-ROM. He stated that if
he had been offered the option up front he would not have allowed any of
his images to be placed on an interactive CD.
There was an offer of $25,000 which Peter B. still found totally unacceptable.
He indicated that if that was the best they could do he would see them in
court.
Peter B. used the opportunity to ask Zales if he had to pay for his desk
and telephone out of his salary. The obvious answer being no, he then went
on to point out that photographers are not becoming rich on $400 day rates.
They have to pay for their office, office equipment, camera equipment, phone
and secretarial help out of their fees. They get no free medical and disability
benefits, or paid vacations. He added that $25,000 only covers about 2 1/2
months of his studio overhead. The SI lawyer then said she was authorized
to go to $50,000.
In less than 20 minutes they were half way to the figure that Peter B. originally
asked -- $100,000 in work over five years -- but he was not willing to accept
this offer.
At one point it was suggested that suing would damage Peter B.'s reputation
in the industry. He countered that he thought it would help his reputation
because he wanted photo buyers to know that they cannot use Peter B. Kaplan
images without clearing rights in advance of use, and properly compensating
him for each use.
After some more discussions they left the meeting with an understanding
that Peter B. would probably accept $75,000. The proposal was phoned to
John the following Tuesday. When the written proposal drafted by SI came
it included a gag against talking about the fee received. This had not been
discussed in the meeting and Peter B. refused to accept it. He insisted
on having the right to discuss the specifics of the settlement and indicated
that it would take an additional $75,000 ($150,000 total) for him to agree
not to discuss the settlement.
SI decided it was not worth paying more money to keep the settlement from
being discussed and paid $75,000 to Peter B. and $3250 to his lawyer for
legal fees and expenses.
It is also important to note that if Peter B. had not registered the image
prior to the infringement it would have been impossible for him to meet
the legal requirement of registering within 90 days after the infringement
because SI did not even notify him that the disc existed until almost 90
days after its release.
Postscript: Part of the agreement was that SI would return the dupe to Peter
B. One would think that after having just paid out $75,000 for a misuse
of an image that SI might take great care in complying with the specific
details of the agreement.
I can report that the dupe has been received by Peter B. It arrived in Peter
B.'s mailbox in Delaware by regular mail -- not registered, not Federal
Express. SI has no proof that the image was ever received.
As a courtesy Peter B. Kaplan has written them explaining that he has received
the image, and that it is his normal practice to send valuable images by
either registered mail or Federal Express.