Publishers Owe For Past Uses

Posted on 12/1/2009 by Jim Pickerell | Printable Version | Comments (0)

In a previous story I outlined how the business of producing pictures for textbook usage has changed in the last decade and how sellers have acquiesced to any price publishers were willing to pay to use images.

Current established usage fees are so low that many photographers and small agencies that have specialized in selling to textbooks have either gone out of business, or are on the verge of doing so. Nevertheless, the excessively low prices were still not enough for the publishers. To press their advantage it now appears that many of the larger publishers have systematically, not occasionally or accidentally, printed many more copies of books than they licensed rights to print.

Now, additional compensation is owed for many of the textbook uses that have occurred over the past decade. Until about two or three years ago nearly all requests for invoices from publishers were for print runs of 40,000 or less. We are now discovering that in a large number of cases significant numbers of books were printed in excess of the number licensed.



As a result publishers have technically infringed copyright. If the seller’s invoice clearly specified the allowable print run for the fee paid then the publisher’s actions are also contract infringements. This distinction is important. It is very difficult to bring a copyright infringement action in federal court unless the image was registered with the copyright office “prior to the first use.” A contract violation, on the other hand, is much easier to deal with, and while the potential damages are not near as high as they might be in a successful copyright infringement action, they are worth pursuing.

Information is just coming to light that in the last couple of years there have been a number of legal actions brought against Houghton Mifflin Harcourt (HMH) for circulations of several texts that far exceeded the number authorized in the invoices. Most of these actions have been settled out of court. We have no idea what the settlements were because the court imposed a “gag order” on all parties involved.



However, as a result of these actions it appears that all the major publishers, not just HMH, realize that they have some liability issues they need to settle.

It is unclear exactly why publishers exceeded the authorized print run of 40,000 by, in at least one case, almost 1,000,000 and in several cases by 100,000 to 250,000 copies. It may have been poor record keeping; it may have occurred after an acquisition when all of the actions of the acquired company were not clearly understood by the acquirer. According to one source, at least one picture researcher was told to license rights for 40,000 when the publisher and the researcher knew at that time that they were going to print 100,000.

In a number of cases the publishers now want to print even more copies of these books. Consequently they are sending requests for large print runs that often read something like the following: “Estimated total print run 500,000 including Electronic and Print Uses as defined below.” (The electronic rights are unlimited for the term of the license, not based on any count of the uses.) In another case the language was more specific. While it asks for a print run of 250,000 it also specified in another location that “100,000 copies were printed in 2002, the balance will be printed at the end or this year.”



These publishers seem to be hoping that the recipients of these request will not read them carefully (some include two pages of detail) and invoice for the gross number of printed copies at their normal rates. If the seller does that and the publisher pays on the invoice the publisher has legally covered his previous error.

I ENCOURAGE EVERYONE TO READ THESE RE-LICENSING REQUESTS VERY CAREFULLY. DETERMINE THE NUMBER OF COPIES PREVIOUSLY PUBLISHED AND INVOICE FOR THEM SEPARATELY FROM THE NEW COPIES THAT ARE STILL TO BE PUBLISHED.

Photographers should not be afraid to charge for these unauthorized uses. Recommended multiples for size of use and circulation can be found here. Multiply the resulting number by 10 for the “retroactive license.” This number may seem ridiculously high compared to what you normally charge, but for the publisher it is preferable to getting involved in a drawn out legal battle. Negotiate if necessary, but the publishers are in a rapidly changing business. They need to get old problems cleared up and as many rights as possible nailed down for the next ten years as quickly as possible.

When in doubt get the ISBN number of the book. Go to Amazon.com and determine if that book and any additional editions of the book are currently available. Then ask the picture researcher how many copies have been sold.

There is an industry standard, established in 1994 in an out-of-court settlement, that stipulates that in the event there is an unauthorized use the user may be offered the opportunity to obtain a “retroactive license” for 10 times the fee that would have been charged if the image had been licensed properly. Most of the original invoices submitted by stock agencies since that time have contained language to this effect.

For the copies already printed the seller should offer a “retroactive license.” For the copies that will be printed in the future the seller should offer a separate invoice/license for his/her standard rate.

We are told by some picture researchers for the major textbook companies that many photographers and stock agencies are only asking $100 or $200 extra above a normal fee for retroactive licenses. These people are leaving thousands of dollars on the table. We also know of photographers and agents who have received multi-thousand dollar settlements for these unauthorized uses.

DON’T BE STEAMROLLERED BE REASONABLE, BUT DON’T GIVE AWAY YOUR BUSINESS.

I strongly recommend that anytime you receive a request from a publisher to print more than 40,000 copies of a book examine that request very carefully. It could represent significant dollars in your pocket.


Copyright © 2009 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 www.selling-stock.com, 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: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  

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