Photographers vs. Publishers

Posted on 12/30/2009 by Jim Pickerell | Printable Version | Comments (3)

For much of the past decade, textbook publishers have licensed rights to print a minimum number of copies of the books they published and proceeded to greatly exceed the authorized press run, without informing the content creators. Only recently have photographers become aware of this problem, which we covered last month (see “Textbook Market for Photographers Declines - Part 1: Introduction,” “Part 2: Electronic Uses,” “Part 3: Who Is in Control?” and “Part 4: Publishers Owe for Past Uses.”

Consequently, a large number of federal court actions for copyright infringement have been initiated against several major publishers in the last few years. The table accompanying this article lists photographer plaintiffs and publisher defendants. Many of the cases have already been settled, although some were filed in 2006 or 2007 and were not Settled until 2009; 10 cases are still active.

Non-disclosure agreements have made it seemingly impossible to learn the amounts of any of the settlements. One of the keys to success in these actions was that each image was registered with the U.S. Copyright Office prior to the infringement.

The law firm handling most of the cases was Harmon & Seidman (“HS” in the table), with offices in Grand Junction, CO, and Northampton, PA. The Hawaii case was handled by attorney Rush Moore, and Seny Norasingh used Larry Coats of Coats & Bennett in Cary, NC. Norbert Wu and Louis Psihoyos used New York attorney Dan Nelson, who specializes in intellectual property litigation. While the cause of action in most of these cases was copyright infringement, the Minden Pictures action is for breach of contract.

Photographer lawsuits and arbitration actions against major publishers
Filing date	Plaintiff	Defendant	District court	Judge	Suit type	Plaintiff’s attorney	Status
15-Dec-09	Viesti Associates, Inc.	HMH Publishing et al	Colorado	Wake	CR	HS	Active
14-Dec-09	DRK Photo	HMH Publishing et al	Arizona	Wake	CR	HS	Active
6-Jul-09	David Hiser	John Wiley & Sons	NY Southern	Hellerstein	CR	HS	Active
23-Jul-09	Norbert Wu, Louis P. Psihoyos	HMH Publishing et al	NY Southern	Baer	CR	Nelson	Active
23-Jul-09	Norbert Wu	Pearson Education	NY Southern	Koeltl	CR	Nelson	Active
11-May-09	Viesti Associates, Inc.	HMH Publishing et al	Colorado	Brimmer	CR	HS	Settled
10-Apr-09	Pacific Stock, Inc.	HMH Publishing et al	Hawaii	Ezra	CR	Moore	Active
2-Apr-09	Viesti Associates, Inc.	HMH Publishing et al	Colorado	Kane	CR	HS	Settled
26-Mar-09	Alaska Stock, LLC	HMH Publishing et al	Alaska	Burgess	CR	HS	Active
23-Mar-09	Muench Photography	HMH Publishing et al	NY Southern	Preska	CR	HS	Active
19-Dec-08	Robert Vavra	HMH Publishing et al	Illinois Northern	Darrah	CR	HS	Settled
15-Dec-08	Robert Vavra	HMH Publishing et al	Illinois Central	McDade	OT	HS	Settled
16-Apr-08	Grant Heilman	HMH Publishing et al	Colorado	Krieger	CR	HS	Active
15-Apr-08	Julio Larraz	HMH Publishing et al	Massachusetts	Tauro	CR	HS	Settled
28-Mar-08	Robert Vavra	HMH Publishing et al	Massachusetts	Woodlock	CR	HS	Settled
1-Oct-07	Jon Krakauer	HMH Publishing et al	Colorado	Daniel	CR	HS	Settled
24-Aug-07	Hilda Semerdjian	McDougal Littell, et al	NY Southern	McKenna	CR	HS	Settled
26-Jul-07	Tom Bean	McDougal Littell, et al	Arizona	Duncan	CR	HS	Settled
26-Jul-07	Phyllis Shuptrine	McDougal Littell, et al	Tenn. Eastern	Collier	CR	HS	Settled
18-Jul-07	Ted Wood	McDougal Littell, et al	Colorado	Ebel	CR	HS	Settled
15-Aug-07	Seny Norasingh	Houghton Mifflin et al	NC Eastern	Flanagan	CR	Coats	Settled
11-Jun-07	Neal Beidleman	Holt, Rinehart & Winston	Colorado	Weinshienk	CR	HS	Settled
10-Jan-07	Robert Sacha	McDougal Littell, et al	Illinois Northern	Castillo	CR	HS	Settled
28-Aug-06	Michael Bergt	McDougal Littell, et al	Illinois Northern	Schenkier	CR	HS	Settled
27-Jun-06	DeVore Family Partnership LLP	McDougal Littell, et al	Illinois Northern	Conion	CR	HS	Settled
11-May-06	Bill Pogue	McDougal Littell, et al	Illinois Northern	Castillo	CR	HS	Settled
28-Mar-06	Neal Beidleman	McDougal Littell, et al	Illinois Northern	Kocoras	CR	HS	Settled
1-Feb-06	Jay Maisel	McDougal Littell, et al	NY Southern	McKenna	CR	HS	Settled
12-Jan-06	Jay Maisel	McDougal Littell, et al	Colorado	Weinshienk	CR	HS	Settled
AAA arbitration actions
30-Dec-05	Jay Maisel	McDougal Littell	New York		CR	HS	Settled
28-Oct-06	Neal Beidleman	McDougal Littell	New York		CR	HS	Settled
5-Oct-07	DeVore and Beidleman	Houghton Mifflin	Colorado		CR	HS	Settled
13-Mar-08	Hiser and Chesley	Houghton Mifflin Harcourt	Colorado		CR	HS	Settled
16-Apr-09	Hiser	John Wiley & Sons	Colorado		CR	HS	Active
20-Jul-09	Network Aspen and Still Media	Houghton Mifflin Harcourt	Colorado		CR	HS	Settled
15-Oct-09	Network Aspen and Still Media	Pearson Education	California		CR	HS	Settled
16-Dec-09	Minden Pictures, Inc.	Houghton Mifflin Harcourt	California		CO	HS	Active

Copyright © 2009 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.

Comments

Paul Melcher Posted Dec 31, 2009
A few comments here:
- seems as we have repeat offenders here
- Does any of these photo supplier get blacklisted after bringing legal action ?
- How come there is no big player like Getty or Corbis. Do they get paid additional fees or do they not sue ?
- What are associations like PACA or ASMP doing about this ?
Jon Feingersh Posted Dec 31, 2009
Jim-- Thanks for keeping this in the forefront of photographer awareness. The attorney information is of particular interest, as is the the number of cases.
Jim Pickerell Posted Dec 31, 2009
Paul - Indications from their online price lists are that Getty and Corbis get paid LESS than most other suppliers, not more. Corbis says they've never had a problem with unauthorized use by the major publishers. I'm not sure about ASMP, but PACA has certainly made their membership aware of this problem. However, there are indications that not many of the PACA members are making claims.

I suspect that suppliers do get blacklisted after they sue, and fear of that is probably the reason that so few pursue settlements. On the other hand it is hard to see why Getty and Corbis should be so fearful. Can you imagine the publishers doing without any of the pictures Getty or Corbis have in their collections?

We don't have a list of the books where these violations occurred, but it is reasonable to assume that not all cases concern unauthorized used within a single book. The average textbook has about 200 photos in it. If the publishers are not paying for extended use of one photo in a book, chances are they didn't pay for any of the extended use of photos in the book. Thus, very likely there are a lot of other photographers and agencies who have legitimate claims if they could only uncover the actual number of copies that have been printed of the books where their photos have been used.

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