Houghton Mifflin Harcourt (HMH) has started requesting images directly from some very experienced stock photographers and offering them $300 for all-future-rights,
including copyright, to any image they select.
They have suggested to some photographers that they are willing to look at “second” and “third” quality images, not what the photographer considers his/her very best. But, of course, the only images HMH will actually accept are those that meet HMH's high quality standards.
In some cases a particular educational title may be listed in the request, but the fine print in the three page license agreement gives HMH the right to also use the image in countless other titles, over an unlimited number of years. Any selected image may also be used for book covers, advertising, any type of electronic use or for (and here’s the best part) “all forms and media, whether now known or later developed.”
As far as we know no similar offers have been sent to any stock agency.
Will They Get Images?
Such offers will probably appeal to image creators who take pictures for fun, and have no long-range ambition to ever earn a reasonable living from photography. For then, the sale of one or two images will help cover the cost of that new lens they want. And they get the satisfaction of knowing that a major corporation likes their images enough to use them in an educational program.
However, these creators should recognize that just because HMH buys one, or a few, images from a photographer doesn’t mean HMH will buy more of what that photographer produces on his/her next shoot. This is particularly true for nature, wildlife and scenic photographers. Once HMH has built an archive of images, to which they own the copyright, the number of images they will need to license in the future will dramatically decrease. If they can get all-future-rights to one shot of a grizzly bear catching a salmon, they’ll never need another.
It might be slightly different for pictures of school children reading or playing. Styles change. Over a period of years they may have to update some of those images. But you can bet they know they are going to get a lot of use out of any $300 image. It will not be used in just one book with a limited print run.
Reviewing The Agreement
It is worth taking a look at some of the language in this agreement (
see attached).
"This letter of agreement commissions you to provide to Houghton Mifflin Harcourt (the “Publisher”), the services listed below for use in connection with the Publisher’s educational trade book entitled …………… in all forms and media, whether now known or later developed (the “Program”)."
The agreement is structured to be both an assignment agreement and a stock purchase agreement. Consequently, it says:
“Any charges in excess of the amount stated must be approved by the Publisher In writing within 48 hours, before you perform the services to which such additional charges relate. You will deliver all materials required under this Agreement, including revisions required by the Publisher, in accordance with the schedule set forth below.”
I suppose there could be a side agreement where the publisher agrees to pay expenses and a day-rate for a particular shoot, but the way the payment structure is set up in the agreement it is based entirely on $300 per accepted image. What if you have a lot of travel expenses, spend three days working on the project and the publisher only wants to buy one image? Or maybe you’re unable to get exactly what the publisher wants and HMH doesn’t want to buy any of the images. The agreement clearly says:
“The Publisher may withhold payment for any deliverable it does not consider acceptable, and you will revise any material not satisfactory to the Publisher without additional compensation.”
Get back out in the field and keep shooting until you get it right!
And, of course, anything delivered under this agreement (and this includes stock) is a “work made for hire.”
"All work to be prepared by you under this Agreement in any media, whether now known or later developed, shall be a work made for hire as defined by the copyright law of the United States, specifically ordered and commissioned by the Publisher. All right, title, and interest in and to such work, including without limitation copyright shall vest exclusively in and be the property of the Publisher."
If the publisher is covering all expenses, paying a regular salary and providing benefits the publisher is entitled to own the copyright of the production of its salaried employee. According to the law freelance image creators own the copyright from the moment of creation. They can give up their copyright, but they must sign a formal agreement that uses the specific terms “work for hire” in order to give up or lose their copyright. There is nothing wrong with giving up your copyright if you are getting paid enough for it. For most image creators $300 would not be nearly enough.
?
But, let’s suppose you shoot a job and the publisher doesn’t want to pay you for any of it. Can you take that work and sell it to someone else. I don’t think so! The agreement that you must sign before you begin the job, or submit the work for consideration says”
"To the extent that, for any reason, all or any part of your work is not deemed a work made for hire, you hereby transfer and assign to the Publisher any and all right, title, and interest, including without limitation copyright, in your commissioned work. All right, title and interest to such work shall, at all times and regardless of the state of completion, be owned by the Publisher. You will execute at the Publisher’s request any documents necessary and appropriate to confirm the Publisher’s ownership of all rights to such materials. Your submitted original material will become the property of the Publisher."
The first sentence under “Assignment” said:
“Submit unpublished image options from the following shot list by March 13, 2015. HMH will then reply with image selections for all rights licensing.”
By my reading, if HMH supplies you with a “shot list” of subjects they would like to see and you submit “unpublished images,” shot on speculation – and you sign and include this agreement with your submission – HMH LEGALLY OWNS THE IMAGES YOU SUBMIT. This is true regardless of whether they pay you anything for the images.
Once you have signed the agreement, if there are any claims related to use of the images without a model or property release, or any other type of claims related to the image the photographer, not HMH, is responsible.
And, if you want to use any of the images you have produced in your own self-promotion you probably can’t.
“You agree not to use the Publisher’s name, the name of any publication or Program in which your work is used, or an illustration or reproduction of a photograph of such publication or Program in any advertising or promotional materials or efforts on behalf of your services to others without first obtaining the Publisher’s permission.”
How Is All This Likely To Affect Professional Photographers or Stock Agencies?
Most professional probably won’t go for this offer. But it is getting easier and easier to find amateurs who specialize in certain types of imagery. They may jump at the chance.
HMH can search microstock sties for certain subjects of interest. In many cases they can easily find contact information for the photographers. Many of these photographers, if contacted directly, would jump at the chance to license use of an image for $300.
If HMH has success in building an archive in this manner, other major publishers will certainly follow.
Not only are the prices paid for usage going down, but the numbers of images licensed for educational use are likely to decline as well.