PACA Keeps Eye on Textbook Photo Licensing

Theresa Stone

Policing of textbook publishers over copyright infringement can lead to costly litigation and erode longstanding business relationships. In a time of economic challenges, companies, organizations and associations should work together to reduce unnecessary costs and seek fair resolutions to business differences rather than engage in long legal battles.
In the common interest of encouraging fair business agreements the Picture Agency Council of America (PACA) consistent with its mission statement, requests to serve as the center of an open dialogue among textbook publishers and stock photography professionals and is asking the publishing industry to join in its goal of fostering a healthy business community and avoiding litigation. PACA has prepared a statement to the publishing industry offering best practices in licensing images for primarily textbook use.
PACA, the Picture Archive Council of America, is the trade organization in North America that represents the vital interests of stock archives of every size, from individual photographers to large corporations, who license images for commercial reproduction. Founded in 1951, its membership includes over 100 companies in North and American and over 50 international members.
PACA mission statement: “To foster and protect the interests of the picture archive community through advocacy, education and communication.”
PACA, in accordance with its mission statement, finds it necessary to address the publishing industry to seek open communication, transparency and fair dealings with its members, particularly those that serve this industry. PACA supports its members who respect their photographers’ copyright, who seek fair dealing and improved business practices with clients, and expect clients to use best efforts in honoring the terms of their license agreements.
In the past, members have licensed images to publishers based on usage as reported by the publishers, relying on good faith, rather than usage reports or audits, to ensure that the licensed terms were being upheld and that usage was paid for. It has now known that the license terms were not fully complied with in many instances as unbeknownst to the photo libraries, many publishers apparently did not accurately record usage during print runs, nor observed the terms of license agreements with members and used images well outside the scope of the initial agreements. Perhaps prompted by recent lawsuits instigated by photographers against publishers, there are reported requests by PACA members for previously unlicensed usage where print runs have exceeded the initial license terms by the millions.
Instead of publishers communicating with image providers, and engaging in a dialogue on how to improve business practices to reduce costs, many members have reported that they have in the past few months been asked to sign contracts preventing them from enforcing past claims of misuse in order to continue to do business, or are requested to sign contracts that will permit this types of poor record keeping to continue. While PACA cannot require publishers to do business in any particular way, we can set forth minimum best practices and set a goal of rebuilding the trust and the goodwill between image providers and publishers that has been lost.
Many of these members are specialty image libraries that have built in-depth collections and maintained knowledgeable sales staff to cater to the needs of publishers, whether it is in the science, medicine, nature, social sciences, history and the arts. They have well-served the publishing community by supplying relevant, well captioned, high quality imagery for publications that are used in education markets In addition, as a result of extensive investments in digitizing image collections and creating readily searchable website interfaces, PACA members have transformed the image delivery system from physical delivery of analog transparencies to the immediate delivery of publication ready digital files. This investment has reduced publisher’s cost in picture research and licensing, without any incremental increase in fees to the members.
The well being of both the photo and publishing industries requires a licensing system that recognizes the value of imagery in the creation of publishing products. In order to continue to serve these markets, the method of licensing must be reviewed so that both supplier and user receive a fair return.
First, we ask that the publishing industry work with PACA to develop amicable, fair resolutions instead of placing PACA members in the position of having no other option but to choose litigation to obtain compensation for past unacceptable practices and to protect their contributors copyrighted works.
To avoid conflict in the future PACA proposes that a dialogue start to adopt practices to be incorporated in standard terms (other than price) that can be used by PACA members in the publishing industry. These terms need to reflect the changes that are happening in both the publishing and picture industry and how educational products are being licensed and used. We suggest that he following principles be incorporated.
1. Payment for each use, regardless of media version -In light of declining print versions in all publishing products, the definition of print run, units or users must take into account all uses of a book published in any format or medium. Going forward, many users of educational books will receive the product, including the images via intranet, electronic delivery, on hand held devices and ways which we cannot even know today. Electronic use is not a giveaway, it must be treated now as a predominant delivery system and members should be fairly compensated for image usage in this manner. PLUS definitions should be revised if necessary to reflect these changes. Licensing schemes can be adapted to reflect products delivered by download.
2. Terms of usage: Recognizing the way content is distributed and viewed is changing rapidly, the length of licensed terms should be reasonable so fair terms can be negotiated when usage changes. The licensing of content in perpetuity is not in the interest of contributors who rely on members to make appropriate licensing arrangements in order to protect the value of their works. A suggested alternative approach is that an annual fee can be charged for each year an image is in use, not requiring the parties to anticipate and charge for years that may or may not be needed.
3. Transparency: There should be transparency in the negotiations and subsequent enforcement of the contracts entered into between the publishing company and the provider of images. Usage should be discussed before licensing and usage should be paid for prior to any additional use or within a short defined time period after reporting the addition usage.
4. Verification: Without the means to verify usage, trust cannot be re-established. Members deserve the right to request information on usage and to receive reports on the products that include their images. The right to audit is standard in every industry which licenses intellectual property. The publishing industry should implement systems to make reporting part of its practice.
5. Credit: In light of pending orphan works legislation, proper credit attached to all images should be mandatory and images distributed electronically should be protected using the best technology and security currently available.
6. PLUS Compliant: PACA is a member and supporter of PLUS and encourages the adoption of PLUS by publishers in a meaningful way. If publishers are retaining member’s images in a digital database, it is critical that the license terms are retained with the image so ownership is retained and usage term can be complied with.
7. Mutual Cooperation, Fairness and Respect: A healthy image industry has provided publishers with many choices and a selection of professionally created and professionally captioned and key-worded images. It is not in the best interest of PACA, its members, or the publishing industry to make it financially impossible for image providers to serve the publishing market.
PACA as part of its mission can serve as a liaison between members and the publishing community. By *working* together we can develop these practices further. PACA asks that the Association of American Publishers join them in the development of a working committee with members of the APA Rights and Permissions Advisory Committee and an editorial committee of PACA members. It is time to start working on positive solutions to these issues.