After publishing our story about the dozens of lawsuits filed against textbook publishers for reproductions of photos that far exceed the limits of usage licenses, we heard from travel photographer Robert Frerck. He won a summary judgment in August on his copyright infringement claim against Pearson Education, and a settlement last May from McGraw-Hill on a separate infringement claim.
“It seems that once a publisher used your image with a valid license, you were fair game for any additional products that they might fancy to produce,” he told PDN via e-mail. In the following excerpt of our exchange with Frerck, he touches on the risk of suing clients, then shares his advice and strategies for tracking down infringements by textbook publishers.
PDN: Was it difficult to bring suit against a client?
Robert Frerck: I had been doing substantial business with all of these publishers for decades, so it was a very difficult decision. I was aware that if I proceeded with this action I might be be putting an end to several profitable client relationships. However I was also very disturbed that these companies had not been truthful in their actions with me. Over [many] years I had met many of their picture editors personally and we had developed a relationship based on trust and I considered many of them to be personal friends. So I felt betrayed when I learned that these companies were knowingly cheating me as a standard business practice. I think that in the end that was the deciding factor in persuading me to pursue legal action.
PDN: What has the process been like for you? Have you ever questioned whether it was worth the headache?
RF: It has been very frustrating at times. However, it has also been rewarding to see that this information has come out and that my position has been vindicated. The bottom line is that it has been well worth the effort, from both a “securing justice” and a financial perspective.
PDN Are there any particular lessons you’ve learned from your experience pursuing these claims? Any advice you’d give other photographers who might be considering in a similar position?
RF: Fortunately, I still had almost two decades of past invoices and these were coupled with their respective purchase orders and related communications. Most importantly the language of these invoices very clearly stated: what reproduction rights I was licensing and what I was not licensing. So this was sufficient to make a case. However I then decided to expand my data collection in a somewhat different way from other photographers in similar cases. Rather than simply looking at past invoices and making those invoices the substance of my claims, I decided to purchase almost all of the textbooks that were indicated by my invoice record[s].
By actually having the textbooks in my hands, I discovered many things that were not revealed simply by looking at the invoices. For example there were numerous uses of my images that were not mentioned on the purchase orders and consequently never invoiced or licensed. Where only one use was indicated on the purchase order, I might find a second or third use of an image in the actual text (for example, a second use in the table of contents). I also found images that were indicated for use as a 1/4 page on the purchase order but in the text were used as a double page chapter opener, a mistake with a huge impact on the bottom line.
Another interesting thing I discovered – and for this I bless Google and the internet and companies like Amazon: I would find the title of the text that was listed on my purchase order/invoice but then I would also find that there was an “International Edition” of that same title; or a “Spanish Language Edition” or a newer “expanded edition” or a “CD or internet website use” that I had never licensed. Many of my claims against publishers are for uses in products that were never licensed in the first place. It seems that once a publisher used your image with a valid license, you were fair game for any additional products that they might fancy to produce. Unless you were actively spending countless hours researching these titles on the internet you would never have been aware that this was occurring. I guess that is what the publishers were counting on.
In the final analysis, pursuing this type of litigation is not for everyone; first it helps to have reliable records and a lot of patience and perseverance. However, in a way it is like the unraveling of a good mystery and you are trying to discover all of the wrinkles in the plot. You must also be prepared to put up with a lot of BS from the defense lawyers, but my lawyers have been great in countering them. And most importantly, remember that the truth will be found out in the end.