Textbook Market Declines for Photographers - Part 4: Publishers Owe for Past Uses

Posted on 11/23/2009 by Jim Pickerell | Printable Version | Comments (0)

Textbook publishers now have total control when it comes to setting prices and have no reason to want a dialogue with sellers on the subject of pricing. However, past uses is one area where publishers might want to open a discussion, seeing the outcomes of several recent court cases.

It appears that 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 many cases where significant numbers of books were printed in excess of the circulation on which image licenses were based.

As a result, such publishers have technically infringed copyright. If sellers’ invoices clearly specified allowable print runs for the fees paid, publishers exceeding such print runs would also be in breach of contract. This distinction is important, because it is very difficult to bring a copyright infringement action in federal court, unless the image was registered with the copyright office prior to its first use. A contract violation is much easier to deal with, and while the potential damages are not nearly as high as they might be in a successful copyright infringement action, they are worth pursuing.

A number of legal actions have recently been brought against Houghton Mifflin Harcourt for producing several textbooks in quantities that far exceeded the number authorized in related invoices. Most of these actions have been settled out of court. The settlements are not known because of court-imposed gag orders.

However, these actions demonstrate 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 million and in several others 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 new owner. 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, 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 asked for a print run of 250,000, it also specified elsewhere that “100,000 copies were printed in 2002, the balance will be printed at the end or this year.”

Some such requests include two pages of detail. These publishers seem to be hoping that the recipients will not read carefully and will invoice for the gross number of printed copies at their normal rates. If the seller does that, the publisher has legally covered his previous error. As such, everyone should read these relicensing requests very carefully. Determine the number of copies previously published and invoice for them separately from the new copies that are still being published.

Photographers should not be afraid to charge for unauthorized uses. There is an industry standard—established in 1994 in an out-of-court settlement—that stipulates that in the event of 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.

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 drawn-out legal battles. 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 a 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. 

For copies already printed, image sellers should offer a retroactive license. For the copies that will be printed in the future, sellers should offer a separate license and invoice at standard rates, which will probably be much lower.

If the publisher’s representatives can work a deal where they do not have to pay for any of those back uses, or pay a minimal fee, they might be willing to talk about other things. But, the sellers will have to decide if that is really in their best interests. Any publisher request to print more than 40,000 copies of a book should be examined very carefully, because it could represent significant dollars.

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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