Negotiating, Cafeteria Style
The following is a true story—only the nameshave been changed (well, deleted, tobeprecise)to protectthe innocent. The parties involved in- clude a professional photographer
and a major book publisher. The photographer
had a body of work with a stock agency (one that
later went out of business), and a couple of those
images were licensed for publication in a book.
As is—or at least was—typical for that situation,
the license and fee were based on a specified print
run. Any additional printings would be unauthorized and
subject to an additional fee.
As you might have guessed, the publisher exceeded the
print run specified in the license and violated other specified terms and conditions. The photographer, aware of the
publisher’s misstep, started making inquiries as to the extent
and nature of the unlicensed uses in order to calculate an appropriate fee for a retroactive license. Those inquiries started
a 14-month series of communications that the photographer
described as “on-and-off, mostly off,” in the sense that his
point of contact at the publishing house rarely responded.
As the photographer told me, had the publisher responded
promptly and fully at the beginning, the matter would have
been settled more quickly, with much less waste of worker
hours, and for significantly less money than the publisher
ended up paying.
After the first few inquiries by the photographer, the publisher sent a one-sided agreement to renew and extend the
license. The photographer promptly replied with a rejection
and his objections to the terms. As soon as that happened,
the photographer’s usual contact at the publishing house
stopped replying to his e-mails. The photographer told me
that the agreement was poorly-drafted and had obviously
been cut-and-pasted without much thought. (For example, it
included provisions that were totally irrelevant.) He took this
as an indication of vulnerability on the part of the publisher,
and he interpreted it as a sign that the matter was being
handled without the participation of the publisher’s lawyers.
In the meantime, the photographer was able to obtain some
advice from a pro bono lawyer, who remained invisible as
far as the publisher knew. Keeping the lawyer’s name off the
e-mail routing lists was a good move by the photographer
because the publisher would have brought in its lawyers the
instant it knew that the photographer had legal counsel.
Three-to-four months after initially contacting the pub-
lisher, the photographer received—out of the blue—a check
for the use of two of his photographs, along with an accord
and satisfaction (basically, a receipt and release, acknowledg-
ing the payment and releasing the publisher from any and all
claims). The photographer rejected the offer and sent back
both the agreement and the checks. At the same
time, he asked for more information about the
extent and nature of the use of his images. The
publisher never replied.
Victor S. Perlman, Esq.
Victor Perlman is general counsel to the American Society of Media Photographers, Inc. (ASMP). He is co-author (with Richard Weisgrau) of the
book Licensing Photography, published by Allworth Press.