Image Licensors Should Be Given Passwords For Textbook Websites

Posted on 3/21/2011 by Jim Pickerell | Printable Version | Comments (1)

Those who license rights to use photos in textbooks should include language in their invoices that requires publishers to provide the licensor with a password to any web site where the licensor's images are used.

Last fall Houghton Mifflin Harcourt CEO Barry O’Callaghan told Education Week magazine that his company has “12 million online users” at that time, and growing. Clearly, online use is already a major part of the education market.. This is not a small side issue and there is no reason why content providers should not be allowed to see how their imagery is being used. Currently, that is impossible because the content providers are not given passwords.

According to Simba Information, publishers of the newsletter Educational Marketer, HMH had estimated revenue of $1.75 billion in 2009, the highest revenue of any K-12 publisher. A significant portion of that revenue comes from online delivery of HMH products.

O’Callaghan said that, “as part of recent textbook adoptions in Texas and Florida in addition to textbooks, we separately gave them online portals that work in tandem with their textbook, so everything they’re doing in their textbook they can do online, but then they get the benefits of certain online feature that a physical book can’t give you (italics mine). And I mean, the proof of that is we have now got 12 million online users, sitting in school; we have 12 million, a mixture of teachers and students coming to our various online resources on a daily basis….The online resources are designed to be more prescriptive, so designed to be very much aligned to the individual learner.”

He continued, “So we’ve got an online portal, for example, called Learning Village, which is effectively a teacher portal where you can go and you can basically get the lesson plans you need, you can click into, if I’m teaching X, you know, here’s five suggested lesson plans, and its automated, and you look at an online tutorial to actually see a best-in-class teacher teaching this particular class.”

License Requests

Currently, image licensors are being asked to provide publishers with unrestricted rights to use their images in web based products. Here is a sample of the language found in a recent HMH license request. This is standard.
    “Estimated total print run (number specified) included Electronic and Print Uses and Formats as defined below and excludes Web and Other Uses and Formats as defined below.”  (The key phrase here is excludes Web and Other Uses.)

    The electronic uses are defined as “Electronic, optical and magnetic media (such as CD-ROMs, DVDs and flash drives) and similar or successor technologies. Images within electronic products will be low resolution.”

    The Web uses are defined as, “Access to Publication though a Website (or similar successor technology). We will use reasonable security measures to limit unauthorized usage of the vendor’s photographic images reproduced in electronic form, which may include password-protected access. Edition may be accessed on HMH websites or via customer-hosted servers. Web usage is limited by the length of term (which in most cases is 10 years), and not by print run or number of users.”
Based on this language the publisher may make unlimited use of the images on the web for 10 years and the count of the passwords provided is not included in the total number of Electronic and Print uses specified. It is impossible for the licensor to establish a fair price for the use with so little information and if he has no idea how the images will be used online.

Recommended Language

In those cases where online use is requested (which will probably be all licenses these days) I believe the license should read:
    “Electronic usage is granted for (10) years on password-protected web sites provided that each password granted is counted as part of the total circulation authorized. During the life of this license (publisher) agrees to provide licensor with the URL and a password that provides access to all sites where the publisher has licensed right to use this (these) image(s). Access to the site(s) will be provided within 90 days of the site going live. Failure to do so will be considered a violation of copyright. Notice may be sent to the following email: (licensee should provide a complete and accurate email address).”
In discussing the customization of textbooks O’Callaghan also said, “It’s a different publishing process today … because everything is electronic. …So all of your content is effectively in a repository or a massive jukebox, and then you basically serve that up aligned to …the standard. …And that’s why, increasingly what’s happening is we’re talking to the customer, letting the customer tell us what they want, and then serving that up, as a customized edition for them.”

If image licensors expect to be properly compensated in the future for use of their imagery there must be more transparency about usage. This language does not prevent the publisher from making a huge use of an image without any additional compensation during the term of the license. The initial fee the publisher pays is all he will have to pay for the term of the license unless he prints more than the authorized number of copies. But it will give the licensor valuable information and enable him to establish a reasonable fee for the next license. It will also encourage licensors to grant licenses for shorter terms so that errors made in estimating the initial license value can be corrected for future uses.

It is clear that in coming years there will be dramatic growth in the delivery of educational information online. Technology and strategies that have yet to be designed will be used. Content licensors must understand and be able to adapt to these changes.

Problems For The Publisher

Given the rate at which digital technology is developing, it is reasonable to assume that at the time of the original license the publisher may not know all the various ways in which the online content will be used in the years ahead, or even when and how certain online offering will be made. However, that should not relieve the publisher from the obligation and responsibility of informing the image creator of the new ways the creator’s images are being used.

Publishers will argue that the administrative overhead is too burdensome to re-invoice for each new type of use. Thus, it could be agreed that additional fees would not be charged for new uses of the same title when they are made within the length of term of the license. But, at least the licensor would begin to understand the extent of the various ways his images are being used and be able to restructure his pricing for future uses.

The publisher may argue that the administrative overhead for supplying such information to content providers is too burdensome. But an email address could be provided with each invoice for use in a particular title. The publisher could build a database of content provider email addresses for each title. Whenever material from that title is made available on a new web site an email could be sent to each provider with a password that would give the content provider to access to the site thus making him aware of the extent of the use. This is not a burdensome procedure.

Copyright © 2011 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 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of, 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:  


  • John Harris Posted Mar 22, 2011
    Very useful many thanks.

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