August 21st, 2014

Has a Textbook Publisher Trampled Your Copyrights? There’s a Solution for That.

Photographers and stock photo agencies have filed dozens of lawsuits against textbook publishers in recent years, alleging reproductions of photos the far exceed the limits of usage licenses. Courts have ruled in favor of photographers in many of the cases. Robert Frerck, for instance, won summary judgment this month on his copyright claims against Pearson Education, and won a settlement from McGraw-Hill last May on another claim. Despite all the claims and settlements, new claims continue to surface.

Photographer Joel Gordon recently filed his third copyright infringement lawsuit this year against a textbook publisher. The first two claims were against McGraw-Hill and Pearson Eduction; both cases are still pending. Gordon alleges in his newest claim, against Houghton Mifflin Harcourt (HMH), that between 1990 and 2008, he granted photo usage licenses that “were expressly limited by number of copies, distribution area, language, duration, and/or media.”

HMH ultimately violated those limitations, according to Gordon’s claim. He does not specify the extent of the alleged infringement, explaining that only HMH has that information. But he cites a previous claim against HMH by photographer Ted Wood, who had limited use of his photographs to 40,000 copies, only to discover that HMH had published more than 1 million copies. Wood won his case on summary judgment.

Gordon goes on to cite another 25 claims of copyright infringement against HMH, and he accuses the publisher of having a business model “built on a foundation of pervasive and willful copyright infringement [that] deprived Gordon and hundreds of other photographers and visual art licensors of their rightful compensation and unjustly enriched HMH.”

He is seeking unspecified monetary damages, and an injunction to bar the publisher from further use of his photographs.

Attorney Maurice Harmon of Harmon & Seidman LLC, the lawfirm that represents Gordon, Frerck and many other photographers for claims against textbook publishers, explained via e-mail why these types of claims persist, and how photographers who believe their copyrights have been violated by textbook publishers can protect themselves.

PDN: Why do these claims by photographers against textbook publishers continue to trickle out?
Maurice Harmon: Photographers have only gradually come to realize their photographs have been infringed. Once they know of the individual infringements, the photographers have three years to file a case.

PDN: Do any publishers make good-faith efforts to settle the claims before photographers sue, or before claims go to trial?
MH: That varies greatly—but we always try to negotiate a fair settlement at every stage and 98% settle before trial.

PDN: What must a photographer be prepared to endure, in terms of an investment of time and money, and/or mental anguish—to take on a textbook publisher with one of these claims?
MH: That also varies greatly. Some cases are resolved quickly without anything more than sending us the invoices. Other cases require more documents and a deposition. We advance all expenses, so there is no out-of-pocket cost to the photographer.

PDN: What is required for a photographer to make a strong claim?
MH: Invoices/licenses with terms that identify the specific licensed photographs that limit the uses a publisher can make of those images. Each photograph must also have been registered or can be registered with the Copyright Office.

PDN: What can photographers expect to recover if they win in court?
MH: That depends on the extent of the unauthorized uses, the license terms and conditions, the registration status of the photographs, etc., but it has proven to be well worth our —and the photographers—time.

PDN: If a photographer never registered his or her image copyright, or registered after a textbook publisher misused them, does that make an infringement claim more difficult than it’s worth? [editor's note: Filing registration before a proven infringement makes copyright holders eligible for statutory damages, which are often much higher than actual damages.]
MH: Sometimes, but not always—it depends on the number of infringements after registration and the license terms and conditions.

PDN: Aren’t these claims subject to a statute of limitations? When is it too late to make a claim?
MH: The photographer has three years from the date he or she knew, or reasonably should have known, about the specifics of the infringement to file a case.

PDN: What percentage of these claims are successful? What are the most common reasons they fail—ie, they’re dismissed by a court, or a photographer recovers little or nothing in the end?
MH: The cases we bring have all been successful unless the plaintiff is determined by the Court to lack standing; that is, to lack ownership of the photographs.

PDN: How have textbook publishers changed their license agreements to avoid these claims in the future?
MH: The textbook publishers are now demanding rights so broad it is almost impossible to overrun the license.

PDN: What’s your parting advice to photographers who license images to textbooks?
MH: Act immediately to find out and protect your rights.

Related:
Appeals Court Upholds Copyright Infringement Damages Award to Louis Psihoyos
Judge Refused to Let Book Publisher Weasel Out of Copyright Lawsuit
 After Flouting Print Run Limits, Publishers Face Dozens of Lawsuits

April 26th, 2012

Judge Refuses to Let Book Publisher Weasel Out of Copyright Lawsuit

A federal court judge in Chicago has refused a textbook publisher’s request to dismiss a photographer’s claim of massive copyright infringement, saying Robert Frerck’s allegations that Pearson Education infringed about 4,000 of his photographs “are sufficient to put Pearson on notice.” The decision is likely to force the company to do what it has been trying to avoid: divulge its records so Frerck is able to identify all unauthorized uses of his images.

Frerck filed suit last August, and said he licensed the publisher usage rights to various photos between 1992 and 2010. He says the licenses were limited by the number of copies, distribution are, language, duration, and media (print or electronic.)

Frerck alleges that the uses often exceeded the license terms, and that the unauthorized uses weren’t an innocent administrative oversight. “Pearson often knew, from its pre-publication plans and its experience with prior editions, that its actual uses under the licenses would exceed the permission it was requesting and paying for,” Frerck asserts in his claim.

In addition, he claims, the publisher used some photographs with no license at all. Frerck says he doesn’t know the extent of those unauthorized uses, but asserts that “Pearson has created, or easily could create, a list of its wholly unlicensed uses” during the discovery process of the case.

He alleges that two Pearson Curriculum Group employees–Julie Orr, Image Manager, Rights and Permissions and Maureen Griffin, Photo Commissions Editor– have already testified that the company has printed textbooks in excess of photo license limits, and used images in some instances without permission.

“Pearson’s business model, built on a foundation of pervasive and willful copyright infringement, deprived Plaintiff and thousands of other visual art licensors of their rightful compensation and unjustly enriched Pearson with outlandish profits in the process,” Pearson alleged in his complaint.

Frerck’s claim is one of many filed against textbook publishers in recent years for unauthorized use of images, and uses far beyond the limits of usage licenses. Frerck cites claims by ten other photographers and stock agencies–including Norbert Wu, Louis Psihoyos, Grant Heilman Photography, DRK Photo, Pacific Stock and others–that are currently pending against Pearson.

Anticipating Pearson’s response, Frerck alleged in his own claim that the publisher’s strategy for getting claims dismissed is to argue that copyright owners can sue only for infringements for which they can provide evidence at the time they file their claims. And that’s exactly how Pearson sought to have Frerck’s claim dismissed. But Pearson hides its infringements from copyright owners, Frerck argues, so copyright owners can’t produce evidence unless a claim is allowed to go forward, forcing Pearson to divulge its records of image use. Judge Robert M. Dow, Jr. agreed, saying Frerck provided enough evidence of specific infringement to make all of his claims “plausible.” (Civil Action No. 1:11-cv-5319)

Related:
After Flouting Print Run Limits, Publishers Face Dozens of Lawsuits