Photographers whose business it is to produce stock images that are designed for use in textbooks should IMMEDIATELY look for another line of work.
For years the major textbook publisher -- not fly by night organizations -- have been paying fees based on minimal press runs. Then, with no regard whatsoever for the written contracts they executed with the sellers, they have made extensive additional uses of the images without making any attempt to compensate the image creators in any way for the use that exceeded the original license agreement. These additional uses have resulted in millions of dollars of extra revenue for the publishers. Such actions were not occasional oversights, but policy.
For many years these actions went undiscovered because the publishers were never required to provide image suppliers with circulation figures. Evidently, they thought it would be alright ignore their agreements because they could never be caught. Except that someone finally figured out how to obtain circulation information and the deception was revealed. Once caught, rather than admitting that they did something wrong, most have done everything possible in and out of court to try to excuse their actions, hide what they did from as many potential suppliers as possible and delay payment of compensation for interminable periods of time to those few who challenged the publisher’s rights to continue to use their images without reasonable compensation.
Meanwhile, these people are the ones publishing the books that teach business ethics to our children.
The latest actions by the publishers are to require that sellers sign agreements like the following:
In the event that Publisher’s use of a Vendor Image exceeds the license granted to Publisher, Vendor’s sole remedy shall be to invoice Publisher and Publisher’s sole obligation shall be to pay Vendor for such additional use or uses in accordance with the Pricing/Rights Schedule, and the terms and conditions of this Agreement shall apply to such additional use or uses by Publisher. Vendor agrees that payment of such amounts by Publisher shall be in lieu of any right to assert any further claims or seek any further remedies or damages under any theory including without limitation any claim by Vendor, a photographer or other rights holder, or a model or owner of depicted property, for breach of contract, copyright infringement and/or violations of any individual’s moral rights, and/or rights of publicity/privacy for such additional uses. This provision shall survive the expiration or termination of this Agreement.
Basically, it says, “We may tell you that we’re only going to print 20,000 copies and therefore we really can’t afford to pay much for your picture, so please don’t charge us much to use it. But, we know (and we’re not telling you) that we are going to print 1,000,000 copies. We’re also going to use the images on the Internet and do all kinds of other things with it. If you happen to catch us in any of these other uses your 'sole remedy' is to invoice us for any additional fees that were stipulated in the 'Pricing/Rights Schedule.' However, if you didn’t have the foresight to stipulate a fee for the kind of use we eventually made of your image, fat chance of getting anything.”
Another vendor proposes the following:
If Publisher increases total usage after the initial use, the additional fee will be the difference between the increased total usage fee and the fee already paid.
In this case there is no penalty for making more use of the image than licensed and the seller had better have inserted language in the original agreement for what the “additional fees” would be, otherwise there won’t be any way to determine how much more should be paid. And, of course the publisher will not tell the supplier when there has been an “increase in total usage.” The supplier must somehow catch the publisher.
And just to make sure there are no damages for wrongdoing the publisher inserted this sentence.
EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Another publisher is asking the following:
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL DAMAGES, OR ANY OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES.
This Agreement shall be construed and interpreted pursuant to the laws of the State of New York, without regard to such State’s conflict of law rules or rules requiring construction against the drafter. Any legal action, suit or proceeding arising out of or relating to this Agreement or the breach thereof shall be instituted in a court of competent jurisdiction in New York County in the State of New York and each party hereby consents and submits to the personal jurisdiction of such court, waives any objection to venue in such court and consents to service of process by Registered or Certified Mail, return receipt requested, at the last known address of such party.
This last publisher is also eliminating any reference to print run from the purchase orders. They are requiring “life of edition”, yet they do not even define “life of edition” in the agreement.
How Are Agencies Responding?
Publishers certainly have a right to try to protect themselves from all contingencies. But anyone agreeing to these terms should recognize how they are being exploited.
Unfortunately, the majority of stock agencies are agreeing to these deals. A few agencies, mostly with unique imagery for which the publishers cannot find a replacement, are holding the line, refusing to agree to these terms and taking publishers to court when they discover unauthorized uses. In some cases they are getting publishers to agree to better terms, but in others they simply lose the business.
Many agencies and photographers have built their business around supplying pictures to textbook publishers. It is not easy for them to transition into another line of business. They are dependent on the textbook market. Much as they dislike being exploited, they feel they have no choice but to accept what little they can get in an effort to try to keep their businesses afloat long enough to figure out what else they can do to make a living.
Photographer should recognize that not only are usage fees declining, but their agents are giving away any chance at additional future revenue from the images they license, no matter how extensively the image is eventually used by the publisher. While photographers are normally not aware of the contract terms that their agents agree to, they might want to let their agents know if they do not want them licensing rights to their images under the contract terms described above. One way of doing that would be to send a copy of this story to their agent.
Another factor to consider is that very soon all images licensed in the last few years, or in the future, will be used in a wide variety of electronic products delivered on the Internet. The way agreements are currently being written there is no limit on how much use in these products the publishers can make of the images for the price they are currently paying.
For the photographer’s protection there are several things that should be included in licensing agreements:
- Specified print run limits.
- Shorter durations for Internet use before additional fees must be paid. (Currently, the standard is unlimited use for 10 years.)
- The publisher’s agreement to a stipulated damages clause that is legally binding in the event that the image is used in a manner unauthorized by the agreement.
- A requirement that the publisher keep track of the number of copies printed and report that figure to the seller in a timely manner when requested. The seller should not be allowed to make such a request more frequently than once a year. (Without some system for determining the number of copies printed the seller has no way to determine whether an unauthorized use has occurred. Some picture researchers have told us that they are unable to determine the number of copies of a given title that have been printed, even though the original agreement stipulated that they would not print more than a certain number.)
- If terms like “life of edition” are used in an agreement, a clear definition of what the term means should also be included.
- Agencies should have the right to pursue copyright infringement in a court of the agency’s choosing when terms of the agreements are exceeded.
- A clause granting the photographer or agency the right to audit would certainly be justified. However, as a practical matter enforcing such a clause is so difficult and costly that it is probably of little value. If the publisher were to routinely supply the information requested in item number 4 and comply with the requests in 1 through 6 that would probably eliminate the need for an audit.
Unfortunately, most publishers are unwilling to agree or honor any of these terms.
Back in the 1980s we did business with a one paragraph explanation of the rights granted. Publishers honored the terms of the agreements. Now most agreements are at least two pages of difficult to understand legalese that not only requires a lawyer to interpret, but probably a court decision. If the publishers were to agree to any of the terms above the agreements would definitely get longer. The only thing we can be sure of is that now image creators have less protection and are more likely to be exploited than was the case two decades ago.
Today, publishers seem determined to continue their copyright infringement practices and their lawyers are doing everything possible to eliminate the publisher’s liability in such instances. Our legal system encourages such actions by making it extremely difficult to get restitution for any wrong. Unfortunately, we have reached a point where we must assume that anything we are told by a book publisher is a prevarication.
In most cases the researchers with whom we have direct dealings are friendly and want to deal with us honorably. But we cannot trust what they tell us because they either are not given all the facts, or cannot tell us all they know for fear of losing their jobs.
Photographers who have a choice of engaging in any other kind of business activity need to think hard about whether these are the kind of people with whom they want to do business. If the pictures you’re producing for the textbook market have applications for other types of uses then maybe it makes sense to continue to offer them to textbook publishers and take what little extra they are willing to give you for your work. But recognize that you are being exploited and that your contribution enables them to earn huge profits.
As it happens many of the pictures that are of interest to textbook publishers have little application or value anywhere else. Photographers need to think hard about whether, as a business proposition, it makes sense to produce this type of imagery. If the photographer is just producing images for fun and doesn’t need to make a profit, then he has no need to worry about these problems.
If a publisher wants to hire you to shoot an assignment, by all means take it, but know that the publisher will lie to you about the extent of the intended use. Make sure that the fee you charge to do the work fully covers all the time and effort necessary to do the job and don’t expect any residual fees.
If the pictures you’re taking will be of interest to other users in addition to the textbook publishers then make sure they will be available to as many potential customers as possible. This may mean that you would be better off trying to sell them as microstock rather than as rights-managed. While the price for an individual microstock sale may be lower than book publishers usually pay for usages, they may not be that much lower and you will have a much better chance of making multiple sales in microstock. Of course with microstock you will need to have model releases and digitally remove all logos.
The chances of changing the way publishers operate are slim. Therefore, if at all possible, photographers should become less dependent on this market and try to find customers with a greater sense of fairness and ethics.