260
INFRINGEMENT AT GLENCOE
November 3, 1999
In late September we sent out an alert
(Story 253) about the Glencoe division of
McGraw-Hill not paying for re-use for pictures that appeared in the 1998 revision of
Biology: The Dynamics of Life . These images were originally published in the 1995
edition.
It now seems that was only one of the problems. Glencoe has produced another series of
science books for middle schools for which they have not cleared copyright or made
proper payment. This series is called Science Voyages 2000 and includes three
different texts for 6th, 7th and 8th grades (red, green and blue). The ISBN numbers
for these books in order are: 0-02-828629-4, 0-02-828579-4 and 0-02-828669-3.
The books have a publication date of May 2, 1999 and are currently available for
purchase. However, we have been unable to find any stock agency, credited in these
book, who has even received notification that the books have been published, let alone
received payment for the usages.
At this point Glencoe is clearly in violation of federal copyright law for every image
in these books since they did not request a license prior to publication. Based on
what just recently happened with Dynamics of Life this is not a single oversight, but a
pattern. It is the standard custom in the photo industry that publishers who have not
properly cleared copyright before publication will be offered a "retroactive license"
once the error is discovered. The usual fee for a retroactive license is ten (10)
times the fee that would have been charged for a 'normal' license requested and paid
for prior to publication."
We were able to contact Alexander Mlawsky, Vice President and Director of Art, Design &
Production at Glencoe. He refused to comment on any of the issues regarding this
series except to say, "This was not an oversight. We are in the process of notifying
suppliers."
In this situation, it is recommended that all photographers and agencies who have
images in one of these three books should invoice for a "retroactive license."
This series has another unusual problem. Many of the images are credited to Morgan
Cain & Associates, a research firm in Tucson, Arizona that handled trafficking to the
printers of pictures already acquired by Glencoe. Morgan Cain did not do any of the
basic research on this project and did not receive any images directly from stock
agencies or photographers. John Meyer of Morgan Cain has no explanation for how the
pictures could have been credited to his company because they had absolutely nothing to
do with preparing the photo credits that appeared in the books. Normally, images must
be credited to the photographer and/or agency who provided the images.
In order to be sure how many images you have in these books you should obtain copies
and check the actual usage. It is likely that Glencoe's records are incorrect. In
those cases where credit is incorrect, photographers and agencies should bill three (3)
times the normal usage fee for improper credit.
To order copies of the books you may call Glencoe's main office in Westerville, OH at
1-800-848-1567. Ask for the sales or marketing department. It is also a good idea to
ask for a copy of Glencoe's most recent catalog and try to get on their mailing list
for future catalogs, if you are a regular supplier.
Dynamics of Life
There are additional problems with the Dynamics of Life book. In addition to the
Student Edition there are other versions listed in the Glencoe catalog for which there
should have been payment. There is a Teachers Edition, a Spanish language translation
and a CD-ROM edition in English.
The description of the CD-ROM edition in the catalog says it has "every illustration
and image" in the student edition. This is part of a 6 disc series and has a list
price of $539.94.
In addition there is 2000 edition of Dynamics of Life which is out and available. Some
sellers have been paid for new images included in this edition, but not for the pick up
images from previous editions.
In an effort to try to settle this matter Glencoe has finally started sending some
agencies checks to cover the usage in the 1998 edition. Along with the check comes a
letter that says, "We propose to pay you at 100% of your new image fee, instead of a
reuse charge of 75%. By cashing this check, you acknowledge receipt of full payment
for all rights necessary to use these photos in the 1998 edition and the full
resolution of this matter."
Sounds like they are giving more in recognition of their late payment doesn't it. In
fact, the amount offered is about what sellers would have charged for the "student
edition" alone. Glencoe's language implies that this payment covers "all" uses
connected with the 1998 edition.
One agent calculated the amount owed for all the various uses connected with the 1998
edition, and invoiced for more than seven (7) times the amount Glencoe offered with
their check.
Another irritation about this letter and check is that the letter was dated September
24th, but not mailed until almost a month later because it arrived at least one agency
on October 21st. Anything to delay payment a little longer.
There is also a connection between Glencoe and National Geographic. NGS prepares a
mini chapter which is bound in the center of most, but not necessarily all, of the
Glencoe science books. NGS is offering to pay photographers for a 40,000 press run for
a Spanish language usage in this book. It is unclear whether the NGS chapter will also
be inserted in the English language edition of this book.
Glencoe is claiming that the combined total a press run of the English and Spanish
language versions is UNDER 40,000. We don't know who is making the mistake here, but
it defies belief that National Geographic would pay for more usage than necessary.
What About Other McGraw-Hill Divisions?
Clearly, it seems that the different divisions at McGraw-Hill do not talk to each other
and that each division has different policies and practices.
For example, in October we reported that McGraw-Hill is now asking for:
Rights Granted: For the ten (10) year period commencing April 14, 2000, licensor
hereby grants to McGraw-Hill the following non-exclusive rights for inclusion of the
Licensed Materials in the Program materials: i. the right to edit and use the
permission material in the Program Materials and in connection with the Program,
including use in minor revisions (concerning no more than 25%) of the Program..."
While this request raises some deep concerns, so far it has only come from the College
division of McGraw-Hill which includes Burr Ridge, IL and Dubuque, IA. This may not be
the policy of all McGraw-Hill companies.
What To Do?
You can no longer depend on this publisher -- and maybe any publisher -- to tell
you when they have published your work. You can't wait to be notified.
When you deliver images to a book publisher you must get the tentative
publication date as well as the working title of the publication.
Get the publisher's catalog and keep checking to see when titles appear for which
you have supplied images. Buy a copy of the book. One photo seller reports he
purchases every book in which his images are published to validate his usages. He
invariably finds at least one error the publisher has made in its favor. At $60 to $70
these books are expensive, but this sellers says the additional money he makes from
spotting errors nets him at least $20,000 a year.
You must follow up. Business practices are not the same as they were a decade
ago. You can no longer trust the publisher to supply you with the information you need
to properly invoice.
Invoice for retroactive licenses.