Getting "Fair" Compensation from Publishers

MAY 20, 1998

If you sell pictures to a magazine or newspaper you should expect that they will be

published on-line as well as in the printed version of the publication. Most

publications

will not tell you they intend to do this -- unless you ask specifically. And, the

publications expect to get this additional distribution at no additional cost. Most

publications are claiming that the "Tasini" (Jonathan Tasini et al vs The New York Times

et

al)

decision last year gives them the right to make such extra uses without any additional

compensation.

In most cases, your images will stay on-line in an archive indefinitely, not just for the

week, or month, that the printed version of the publication is in circulation. This

archive may also be put on CD-ROM discs and may be a total re-edit of the way it appeared

in the original printed version. While not all publications are to the point of putting

everything they publish on-line, YET, most are moving rapidly in this direction.

Relying on copyright law to protect you is simply not good enough, anymore. If you want

fair compensation you must pay careful attention to contracts and make sure there is a

written agreement for all transactions. You can get additional compensation for

electronic

uses, but in order to do this you must be very specific in the written terms you send

with

every delivery of your images to any publication. Also, be prepared to track uses and

fight

for the additional compensation.

Paula Borchardt learned recently that even the New York Times (winner in the Tasini vs.

The New

York Times case) will pay for on-line use when your contract with them is clear and in

writing. Paula is a lifestyle and location shooter working in the Southwest. In

February,

she was asked to submit images for a NYT Sunday section article. One picture was used in

the printed newspaper, and also used on The NYT web site.

Paula's delivery memo to the Times had specificed that the images were being offered for

the print version "only" and that electronic/digital, advertising, and reprint rights

were only

available for an additional fee.

After the picture was used Paula sent the editor she was working with an invoice for both

the print and electronic use. Her fee for electronic uses was 50% of her normal fee for

print

use. The editor called and informed her that The NYT "does not

pay for electronic use," and said they consider the print use and the electronic use as

"one use."

Paula replied, "Well, I CHARGE for electronic use." She pointed out that she had never

granted rights to use her image electronically, and that the NYT was in copyright

violation

until they pay for the electronic usage.

The NYT editor claimed that she could only pay for the print usage, and that Paula must

now

mail a separate bill to the person in charge of the web site, to get paid for the

electronic

use.

As an interesting side note, Paula contacted two other photographers who also had images

in

the same printed article. The images of one had been returned, but there was no

indication

that anything had been used. All his images were in plastic mounts and they appeared to

have

been unopened. Neither photographer was aware of the possibility that their images

would be used electronically.

Now The "Fun" Of Collecting

A couple weeks later Paula received two phone calls from the web site department at the

Times:

Phone Call #1: She was told by the person at NYT web site that The Times' policy is that

once they use a photo for one section (like the print edition) it is available for all

other

sections (like the web site). She pointed out that this was not HER policy per her

Delivery

Memo terms. The web site person also said they try not to use stock for the on-line

version

of NYT, just assignment.

The web site person said Paula would now have to take the matter (of getting paid for

electronic use) up with the NYT legal department. Paula informed the web site person

that

she would be passing that persons name, the original editor's name, and the NYT's

lawyer's

name on to her "own" lawyer, as this is a case of copyright infringement, a FEDERAL

offense,

and she thought it best the lawyers handle it from this point. (By the way, if anyone is

wondering, the image in question had been registered with the US copyright office).

The web site person had not seen her Delivery Memo terms which stated print use only, and

asked that she fax over a copy of the Memo for them to review. Paula emphasized a few

times

that this is a serious matter of copyright infringement and she would recommend they just

end the matter now by paying for the web use rather than getting lawyers involved.

The web site person also mentioned that NYT would not be interested in working with Paula

in the future after this situation. [This threat probably works very well for the Times

when

they are dealing with many stock agencies because the stock agency may be afraid of

alienating a potenial large customer over one sale. Photographers, whose stock agency

has

made sales for them to the New York Times, or any publication, can easily check to see if

this is your agency's practice. First ask your agency if the fee you were paid included

web use rights. Then check the publication's web site and see if the picture is there.]

In

this case, Paula replied that she had no interest in ever working with NYT again, not

only

because of the problem with payment for electronic use, but because of problems in

getting

her images returned (see insert at the bottom of this story.)

Phone Call #2 (20 minutes later): The web site person looked at her Delivery Memo and

called to inform her that the invoice was being put through to Accounts Payable and that

she

should be receiving a check for the electronic use soon.

In May, two months after the original use, Paula finally received payment for the

electronic/web site use of her image.

Greenberg vs. Audubon Magazine

Just so you don't think Paula's is an isolated situation that this only happens with

major

newspapers, let me tell you about Jerry Greenberg's recent experience with Audubon

Magazine.

In September 1996 Jerry Greenberg contacted Audubon Magazine with a set of photos on the

Florida mangroves. He had been shooting this subject for several years with the hopes of

producing a book. Audubon liked the images and made plans to publish a story entitled

"The

Magic of the Mangroves" in the March/April 1997 issue of the magazine.

Jerry negotiated a contract with Audubon that specified that the use was to be "one-time

print rights only", that no other use was allowed, that Audubon would pay a base fee

against

space for this use, and that all pictures would be copyrighted in his and the name of his

son, Michael.

When it came time to go to press Audubon called and said that they would not copyright

the

pictures in the Greenberg's names because it "was not their policy." They tried to agrue

that Greenberg would be covered under their collective works copyright of the magazine.

Jerry insisted that either they copyright the pictures in his and Michael's names, or

they

not publish the pictures. He was prepared to return the advance. Audubon backed down

and

listed copyright credit to the Greenbergs. As soon as the publication was released Jerry

sent copies to the copyright office and registered the copyright.

Later in 1997 Jerry discovered that for $11.00 he could buy an electronic copy of the

article through UMI, a reprint service in Michigan. When he recevied the UMI printout it

included B&W reproductions of each of his photographs and a label on the printout that

said,

"reproduced with permission of the copyright owner." Of course, Jerry had given no such

permission, and in the normal course of things would receive no portion of the $11.00

paid

for this copy. Audubon, however, would receive payment for this use.

Audubon claims that their "collective works" copyright gives them the right to make this

use, irregardless of the fact that they signed a contract agreeing to the opposite.

Their

lawyer cites last year's Tasini decision as justification.

Jerry has offered to settle the dispute. He asked, first, that they should remove his

photographs from the UMI reprint service and any other electronic databases in which they

might have been placed, and that they pay him an additional 100% of the original fee as

compensation for any uses already made by the reprint service.

Audubon made a minimal and totally unacceptable counter offer that Jerry rejected. It

appears that Audubon would rather fight than settle. Maybe their lawyer should talk to

the New York Times lawyer and find out why the Times believed they needed to pay Paula

Borchardt in spite of the Tasini decision.

Jerry Greenberg has turned this matter over to his lawyer.

Lessons Learned

• Ask every editor, up front, if there is any likelihood that the article will be

  used

  on-line.

• When someone tells you that you are covered under their "collective works

  copyright,"

  what they are really saying is, "we want to rip you off." You may be covered if someone

  else attempts to use the image, but given the interpretation many publishers are putting

  on

  the Tasini decision they can do anything they want with your pictures under their

  "collective works copyright". Be sure to register your images.

• Have a rock solid delivery memo. Be as specific as possible about the use in the

  delivery memo and invoice. Use ASMP etc. publications for reference on what to include.

  Do

  not worry about your terms and conditions scaring off clients. It will just make you

  look

  more professional.

• Do not back down when you really feel you are in the right. Of course there may be

  some

  negotiating with the price sometimes, but remember "you" are the seller and they came to

  you

  because you have something (images) they need.

• Be professional but firm.

• Invoke the "L" word (lawyer), if necessary.

If you know your pictures are going to be used in a certain issue of a newspaper it is a

good idea to check the newspaper's web site that day. Not all the images they put up

initially will be kept on the site for more than a few days, or a week.

The Other Problem - Getting Your Images Returned

There was also a problem with the way the New York Times handled the return of Paula's

images. During the initial conversation Paula asked when they were going to return her

images. The editor replied that the images were sent back to her 2 weeks earlier via

registered mail/return receipt. Paula says, "I almost blew a gasket, because my Delivery

Memo specifically says (in bold, underlined, italicized print) that all images "must" be

returned by Federal Express."

The editor did not have an answer, but promised to get more information and get back to

her.

A few days later a second employee from NYT called Paula and said that according to his

records, her images were shipped back via Registered Mail/Return Receipt.

One month after The NYT employees first indicated the images had been returned by U.S.

mail,

Paula did receive her images, by -- surprise -- priority overnight

Federal Express!!!!!!!!! Evidently the images were NOT sent back to her office via US

mail,

despite the records of two NYT employees. There was no note in the FedEx envelope

apologizing for the

mix-up,

and the delay, or explaining what happened on their end. Also, no check(s)

were

enclosed. Just the images in cardboard.

Sellers, You have been warned!!!

Feedback:

Tom Sayler

David Stuckel