Photographers vs. Copyright Clearance Center

Posted on 12/9/2011 by Jim Pickerell | Printable Version | Comments (0)

A philosophical battle is being waged on the web between ASMP (American Society of Media Photographers) and APA (American Photographic Artists) over how to address the issue of the lack of compensation from the Copyright Clearance Center (CCC) for the collective licensing of reprography and digital uses of literary and visual works, and other secondary uses of audiovisual works. Here’s some background.

What The CCC Does

Under the Copyright Act of 1976 creators are entitled to compensation whenever their work is photocopied (reprography). Recognizing the logistical difficulties of obtaining permission and licensing rights every time someone wants to make a photocopy, in 1976 the U.S.Congress suggested that a not-for-profit organization be set up to facilitate such licensing of secondary rights. In 1978 the Copyright Clearance Center was founded by authors, publishers and content users to provide innovative licensing solutions “that simplify the licensing of content [and] lets businesses and academic institutions quickly get permission to use copyright-protected materials, while compensating publishers and content creators for the use of their works.”

As a "collective agent" for rights the CCC  represents thousands of publishers and hundreds of thousands of authors and other creators. This arrangement provides one-stop shopping for users, and obviates the need for users to continually track down many rights holders to legitimately license rights to use copyrighted content.
The CCC’s business is based entirely on voluntary (opt-in) contracts with each rightsholder (or rightsholder representative) and user. A key difference between the CCC and counterpart “collecting societies” in Europe and other countries is that the collecting societies operate, at least in part and in some cases entirely, under statutory (opt-out) licenses that by government mandate take in all rightsholders’ rights and focus on licensing primarily to educational users in their countries. Then they seek to make distributions of royalties on whatever reasonable basis they find appropriate in their particular circumstances.

The rights that CCC manages are focused on “reuse” – meaning uses that are ancillary to “primary uses” like sales of books and subscriptions. The usage data CCC collects indicates that a large proportion of copies made and works reused are from the technical and professional fields.

The vast majority of CCC’s distributions of domestic and most foreign royalties are based on actual usage. A very small portion of the royalties received are “non-title specific.” In the case of non-title specific royalties it is necessary to statistically-project usage (based on surveys). These econometric models are managed for CCC by third party experts.

The CCC has contracts with publishers, authors, other creators and various forms of their representatives (estates, literary agents, partnerships, etc.). There is no charge to become a participating rightsholder with CCC. The contracts are non-exclusive. Photographers are eligible to individually contract with the CCC to represent them for secondary uses of their works. For more information go to:

While the contract requires rightsholders to represent that they are authorized to administer the rights which they are engaging CCC to manage, there is no specific provision in the rightsholder contract that addresses royalty payments to other parties. While publishers are obligated by contract to share royalties received with other rightsholders who have copyrighted work in their publications, there is no provision for the auditing of this procedure.

According to Tracey Armstrong, CEO of Copyright Clearance Center the CCC issues licenses and collects royalties under two basic licensing models:
    1.     Pay-per-use licenses - The individual rightsholder who has put the work in the service sets the price for each type of use that he, she or it is willing to authorize. CCC collects the royalty, retains a service charge and remits the balance to the rightsholder.

    2.     Repertory licenses - CCC collects the same right from each of many rightsholders and packages them in a single license to a user for a single annual fee, somewhat like a subscription.  Most of these licensees are businesses that are required to deliver survey information to CCC about their uses but only under confidentiality agreements.  CCC uses that data to build an econometric model of actual usage in businesses by industry and distributes the royalties to the rightsholders who have contributed the rights on that model.
The CCC has collected and distributed over $1 billion to rights holders in the last 10 years. CCC has more than 240 employees and total revenues of $239 million in its most recent fiscal year. It is the largest rights management organization in the world, and a global rights broker for the world's most sought after print and online content, from books, journals and newspapers to blogs and images. The CCC also provides international licensing expertise to organizations around the world in an effort to simplify licensing and support the intellectual property rights of content creators. The CCC provides copyright licensing solutions to companies of all sizes, as well as academic institutions, law firms, healthcare organizations and government agencies.

The Issue

For many photographers the issue is that some of these contacting rightsholders do not have the right to license reprographic rights to some of the images in their copyrighted products and they are not properly compensating the real copyright holders of the images. There seems to be three possible solutions:
    1 – Publishers should pay photographers whose works are contained in their products a portion of the monies they receive for reprographic rights of their products.
    2 – When a publisher licenses rights for its primary use of an image it should also license reprographic rights (presumably for an additional fee). It should also be recognized that if the CCC were to change its policies publications would probably change the terms on their license agreements to read “one-time non-exclusive rights plus reprographic rights.” That would allow the publishers to continue to collect all the money from the CCC and pay nothing extra to the creators. In theory the creator could charge more for this additional right, but from a practical point of view that is unlikely to happen.

    3 – CCC should find a way, using econometric models, to determine which copyrighted photos are used within each publication; divide the payment proportionally and distribute the monies to the individual copyright holders.

What’s A Photographer To Do?

Photographer can contract with the CCC to represent their interests, but that does not solve all the problems.

When a photographer’s work is published it is usually part of someone else’s copyrighted work. CCC maintains a database of works, including the work’s title, primary publisher and other metadata. Photographers would need to supply the title of each work where their image was published and somehow define the portion of the work that is their copyright (one-quarter of page 82 for example).

CCC only licenses rights to use those works that are listed in its database. A creator may authorize the CCC to license rights to some, but not all, of the creator’s works. Armstrong, says, “if the title is not one represented in our database then the user must make other arrangements to license the rights or ask CCC to seek the rights on the user's behalf.”

Thus, if a work has been published in a magazine or book, but the photographer forgets to note that specific use in the CCC database neither the user nor CCC would know that the photographer’s work was part of the primary publication. The user might note a photographer’s credit line and ask CCC to confirm that the right to use the image was included in the right to use other parts of the publication, but such actions seem unlikely.

Some Suggested Solutions

1 - Both ASMP and APA agree that if a use is author identifiable then the individual rights holder should be compensated directly even if it is a small amount. That seems to be happening. The problem is that very few photographers have contracted with CCC to represent them, or are prepared to update the database frequently enough so their copyrighted material can be identified.
There is no system for searching for a title like “Harcourt Social Studies” and knowing who the copyright holders of each image in the book are so any royalty revenue generated can be divided proportionally between each of them. The same would be true of a specific issue of Time Magazine or Sports Illustrated. It might be possible to identify a specific title, but not all the creators with work in that title.
2 – Another solution advocated by some in the APA is to set aside a certain portion of the monies collected for the photographic and illustration portions of the copyrighted material, and pay that money out to individual photographers based on the proportional share of the photographer’s images that are registered with the copyright office.

In my opinion this would be a very unfair way to distribute the funds because such a small percentage of the images used are actually registered with the copyright office. It would certainly benefit those who have been aggressive in registering their works and it would undoubtedly encourage registration. However, the number of images registered has no relation whatsoever to the number of images used in publications. Photographers would be encouraged to register millions of junk images to get their numbers up without ever having any one of their images used. Some photographers who have never had an image used in any publication that was eventually photocopied might receive compensation simply because they had registered images.

3 – ASMP and other trade associations favor a distribution system for non-title specific works similar to that used by the European collecting societies. These collecting societies have made a determination that a certain percentage of publications are photography. That portion of the monies collected is then distributed to organizations that represent photographers with the stipulation that the monies must be used for either advocacy or education to benefits the general creative population. Organizations receiving the monies are specifically prohibited from distributing them to individual authors or creators because it is impossible to devise a system that would fairly allocate the monies.

What Can Be Done To Effect Change?

ASMP’s basic strategy is to develop a dialogue with the CCC and through negotiation encourage the CCC to adjust its methods of revenue distribution. ASMP has been engaged in quiet behind the scenes discussions for about a year. While there is no evidence of significant change in the CCC’s position, the two organizations are currently jointly presenting a series of copyright education webinars.  General Counsel of ASMP Victor Perlman will be part of a panel discussion sponsored by CCC on Monday, Dec. 12 in Washington, DC. It will be live-streamed here:

APA’s solution is confrontation and to go after the CCC in the courts. Members of APA tried the legal route in 2001. That case was thrown out of court and the plaintiffs decided not to pursue it further at that time. Now there are indications that some in the APA want to give it another go and are trying to raise a legal defense fund.

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:  


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