Where the Growth Is

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■Third-Party Imagespage (e.g., quarter page), or in inches (e.g., 5" × 4"), or in pixels(e.g., 2,000 × 3,500 pixels). Be sure that any size limitationencompasses the maximum size your use might require.Medium. The medium you will use to distribute your workmakes a difference. Photographers are well aware that digitalis more susceptible to unauthorized harvest and use thanprint, and they charge accordingly.Each vendor can and does imposeits own limitations on use in avariety of forms.Quantity. Be sure that any quantity specified in a licensecomfortably covers at least your first print run (plus anyallowable overage), and be equally sure to go back and getlicense extensions before ordering a subsequent printing.Territory. Specifying world rights will certainly cover you,but it may mean paying for rights you don’t exploit. Determinedifferences in price and make your decision accordingly.Then don’t forget to go back for an extension if it turnsout that you want to exploit an export opportunity.Duration. Many licenses are described as perpetual orunlimited in time, but Rights Managed licenses have finitedurations, and even some Royalty Free licenses have finiteterms (e.g., seven or ten years or more) just to avoid openendedcommitments. Watch for these and arrange forreminders to pop up in sufficient time for you to get an extensionor replace an image.Versions. If a license contains a limitation on versions,make sure the limit encompasses the maximum numberof design versions and editions, and any ancillary works inwhich the image will be used.Language. Look for limitations on the language of the textin the work that will include the image, and think not justabout the book’s language but also about the language(s) onWebsites that may feature it.Exclusivity. The meaning of nonexclusive is pretty straightforwardbut exclusive can be defined by any number of metrics. Makesure any exclusivity is clearly and unambiguously described.The way a license expresses limitations is critical. If you see aterm that is unfamiliar to you, consult the Picture LicensingUniversal System (PLUS) terminology glossary, developedby a coalition of associations representing photographersand other affected constituencies (useplus.com/useplus/glossary.asp). And when in doubt, add your own definitionsomewhere in the purchase documents.Limitation LocationsIt would be terrific if you could find limitations on yourlicense rights in just one place, but the terms of the deal areoften widely dispersed.Terms may appear in a pretransaction document that mightbe provided as a print or online form called a bid, a quote, anestimate, an assignment confirmation, or the like. Althoughsuch a document, in and of itself, is merely an invitation tonegotiate and not a binding contract, your acceptance ofthe offer—either by issuing a purchase order or simply bymaking payment—will have the effect of incorporating theproposed terms, as well as any terms contained in any set of“Standard Terms” (or “Terms and Conditions”) attached tothe offer document. (For some tips on how to counter theseone-sided terms, see “Add Power to Your Purchase OrderForm: A New Year’s Resolution Worth Keeping,” in the January2011 Independent.)Terms may appear in a formal license document. Especiallyif your transaction is effected online, you will probably beasked to click your assent to one of those documents as a partof completing your purchase. Don’t do this until you haveclosely examined the terms of that license that just flashed by.A photographer or stock agencymay elect to recover the profitsyou made from unauthorized useor the profits they lost.And sometimes terms first appear in a post-transaction document,such as a delivery memo, change order, or invoice.Although you can’t be forced to accept these terms if they werenot disclosed prior to your commitment, you will likely haveassented to those after-the-fact restrictions if you pay the invoicewithout examining it and making or arranging for changes.Punishment PossibilitiesWhat happens if, despite your best intentions, a restriction8 | IBPA Independent | February 2013
Third-Party Images■escapes your notice and your lapse is detected by the photographeror stock agency? Well, about the best you can expectis that you will be deemed in breach of your contractual commitmentand held to account for what you should have paidfor the uses you actually made.“Nonexclusive” is prettystraightforward, but “exclusive”can be defined by any numberof metrics.More likely, the licensor will claim that you made an unauthorizedand infringing use of a copyrighted work outsidethe scope of any license you had. In this event, the copyrightowner has some very potent strategic advantages and remedies.You may have to:Pay actual damages. A photographer or stock agencymay elect to recover the profits you made from the unauthorizeduse or the profits they lost because of your failure to takeand pay for a license.Pay statutory damages. In lieu of actual damages, aphotographer or stock agency may elect to ask the court foran award of statutory damages of up to $30,000 per workinfringed where the infringement was not willful and up to$150,000 per work infringed in cases of willful infringement.Pay the other side’s attorneys’ fees and costs. Ontop of actual or statutory damages, a photographer or stockagency may ask the court to award reimbursement of theirattorneys’ fees and costs (which can be quite substantial—a lawyers’ professional association reports that in 2010 thenational average cost to try a small copyright infringementcase was $350,000).Obey an injunction. Plaintiffs may also ask the court toprovide injunctive relief by ordering you to stop the infringinguse and to surrender all infringing inventory and reproductivematerials for destruction.Bear indemnification obligations. Since copyrightinfringement is a “no-fault” offense that reaches virtuallyevery party who participates in the reproduction, distribution,adaptation, or public display of an infringing work,your printer and/or your ISP may be named as additionaldefendants, increasing your cost and exposure. (See “Printers’Terms: What the Boilerplate Means and Where There’sWiggle Room,” in the March 2011 Independent.)Bottom-line GuidanceIt’s said that you get what you pay for. When it comes to photography,that doesn’t necessarily mean that low price equalslow quality. Instead, a low price for reproducing a photographprobably means sharply limited rights. So look for agood price, but focus hard on the license terms, and makecertain they cover what you need to avoid ending up in adamaging fight over photos. ■We cover all your needs from start to finish!Steve Gillen is a lawyer and partner in the intellectual property firm of Wood Herron & Evansand has focused his practice on publishing and media matters for 30 years. He is a memberof IBPA and a frequent contributor to the Independent. To reach him: sgillen@whe-law.com;513/241-2324, ext. 470.We cover your needsfrom start to finishRose IBPA ad.pdf 7/24/11 3:19:46 PMFrom 5 to 50,0001-Color to 4-ColorBook ProductionWeb • Sheetfed • Digital1-800-227-3725www.roseprinting.comIf There's a Book in Your Head...It's Time to Getit in Your Hands.Toll Free 1-877-705-9647Undergo a takedown. If your infringement is online, thephotographer or stock agency may serve a takedown demandon your service provider, which will likely result in some orall of your Web site being disabled.Visit the IBPA Website at www.ibpa-online.org | 9
Page 1: FEBRUARY 2013 | Vol. 31 • No. 2Wh
Page 4 and 5: President’s Postby Florrie Binfor
Page 6 and 7: What You Need to KnowAbout Using Th
Page 10 and 11: BOARD MEMBER’S MEMOIndependent Pu
Page 12 and 13: ■Independent PublishersYou have a
Page 14 and 15: ■ Websites✓✓there should be a
Page 16 and 17: From Self-Publishing to Success in
Page 18 and 19: ■Self-Publishing SuccessQuantity
Page 20 and 21: ■Publicityattention, the public
Page 22 and 23: MARKETING OPPORTUNITIESIBPA DIRECT
Page 24 and 25: Changing Printersin Midstreamby Wal
Page 26 and 27: ■PrintersPicking a PrinterMyriad
Page 28 and 29: ■The Language of Publishingor kno
Page 30 and 31: ■The Language of Publishinginclud
Page 32 and 33: ■Non-Retail Saleseach, I’ll giv
Page 34 and 35: ■Pausewith clients over the years
Page 36 and 37: ■PausePause is a holistic, integr
Page 38 and 39: ■Moving a Publishing Business Abr
Page 40 and 41: Metadata Mustsby Renée Register an
Page 42 and 43: ■Metadata MustsThe basic product
Page 44 and 45: ■Metadata MustsCyberwolf (cyberwo
Page 46 and 47: CLASSIFIEDS (continued)Publishing i
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