Image creator success stories in the current educational publishing environment are few and far between. The strategy one photographer used when licensing educational re-use of an image may be instructive.
Background
Recently, a photographer contacted me for advice about pricing a particular re-use. This photographer has been licensing rights to use his pictures in textbooks for decades. Over the years he has watched as publishers ask for more and more rights while at the same time offering to pay less than they did a decade ago for much more limited usage.
This time he was asked for re-use rights to one of his previously published images. Here’s the rights requested:
World, English language rights for 20 years
In print versions of the Program/Title and derivatives (e.g. translations [in languages other than English I presume], abridgements, split editions, brief editions, English language adaptations, and custom version for use by a particular school or instructor).
In non-print media versions and derivatives of the Program/Title (e.g., translations abridgements, split editions, brief editions, English language adaptations, and custom versions for use by a particular school or instructor.) in all formats and methods of delivery (e.g., eBooks, online or download through browser or other application, or tangible versions, such as optical disks).
In accessible versions (e.g. Braille) for use by individuals with disabilities that impede their use of standard versions. [We presume this could also include audio versions.]
In some versions, we may re-use only parts of the Program/Title, suc as an individual chapter, alone or together with content from other works. In all cases, we will continue to use your Selections in the same context. Our request also includes the right to display the Selections in context for purposes of promoting the Program/Title.
The publisher also asked for a Total Circulation: Up to 100,000, but then they included the following paragraph:
In the event that use of a Selection by (publisher) or its affiliates exceeds this license granted to (publisher), or any other terms or obligations between (publisher) and you, (publishers’) sole obligation to you and the rights holder shall be to pay for such additional use or uses in accordance your or the rights holder’s standard fees for such use, and the terms and conditions of this Permission Request and License shall apply to such additional uses.
[It should be noted that it will be virtually impossible for the seller to determine whether the circulation figure has been exceeded, or not. There have been countless cases in the past decade where this and other publishers have exceeded the circulation figures in their agreements without telling the licensor. Thus, it would appear that the existence of a circulation figure is really meaningless.]
I have omitted reference to the specific publisher because this language is very typical of what photographers and agents are receiving from all the major publishers.
Given the way the education business is changing the photographer could understand why the publisher might need this flexibility. Education material is being offered in a wide variety of printed and digital forms. New strategies for delivering education information are being invented every day. Many will turn out not to be economically viable, but publishers need to test every idea.
On the other hand, it is virtually impossible for the photographer to have any understanding of how his image might be used next month, let alone in 20 years. Without some understanding of what the actual usage will be it is impossible to establish a fair price for the usage.
The photographer said, “I really want to get out of this business completely. This is just the latest example of how it's turned into a no-win proposition for the suppliers. Lots of vendors have been trying to screw photographers - at least in my experience - since I first got into the business forty years ago, but now it is worse than ever before - 20 years and all rights? Amazing!”
My Advice
Based on recent experience it seems unlikely that publishers will be unwilling to more narrowly define how the image will be used. They argue that the administrative overhead to actually clear rights before each new type of use is cost prohibitive and doesn’t provide them with the flexibility required to try new things.
On the other hand the photographer is losing some control on how the image may be used he may be able to do something about the term of use. I suggested that he offer a fee for unlimited use rights for two years with the condition that he will re-bill the publisher the same amount every two years for as long as the publisher wants to continue to use the image.
Photographer’s Offer
The photographer decided on a fee of $275 for the two year term and submitted that offer to the publisher.
Publishers Response
"We would be willing to accept this agreement, and look forward to receiving your invoice."
(It should be noted that in this case the particular image in question would be very difficult to replace with one from another photographer as there are very few photographers who shoot the particular subject matter.)
Nevertheless, it is a remarkable shift to go from 20 years to 2 years without any attempt to negotiate a middle ground.
Everyone Wins
1 - If the publisher actually continues to use the image for 20 years the photographer will receive a total of $2,750 for the use. This is significant compared to what most licensors are receiving today when they grant 20 year rights.
2 - The photographer or licensor is in control of when to invoice. He doesn’t have to wait for a request to re-license.
3 - The publisher’s administrative overhead is limited. They don’t have to track usage. All they have to do when they receive an invoice is determine if the image is still being used in any new product. If it is, they must pay the invoice. If not, they can notify the licensor that they are no longer using the image.
4 - The initial cost to the publisher is reduced. They pay over time as they actually use the image. Their costs are spread out so they are more in line with actual income.
5 – Tracking unauthorized use will be much easier. All the licensor has to do is determine if the image is still available in any of the publisher’s print publications, or if it is available for online download by any customer.
6 – The likelihood of infringements will be reduced, and thus the likelihood of legal action resulting from infringements will be reduced benefiting both licensor and licensee.
Recently, I wrote three articles
here,
here and
here dealing with this general subject in more detail. The second article dealt with a number of complaints from image suppliers as to why the strategy wouldn’t work and why it placed too much of a burden on the image supplier.
As far as I know this is the first time someone has tried the strategy with such success, but it may be something to consider.