is use in a book classed as editorial or commercial?

Discussion in 'Business of Photography' started by robertbanks, Jan 15, 2012.

  1. I've been approached by an author interested in using a number of my images in forthcoming book.
    The book is a guide for fashion designers. The publisher is a well known academic publisher.
    The images the author is interested in were taken at fashion week show events (which are governed by a trade council).
    The conditions of entry for photographers to the shows, set by the trade council, states that the images may only be used in an editorial context, such as reviews in magazines/newspapers/websites etc. No releases are provided for the images, which feature models wearing designers' clothes.
    So my question is: Would use in an academic guidebook be considered editorial or commercial?
    I will probably seek qualified legal advice on this matter, but I just wanted to get a consensus here or maybe experience from anyone who has been in this position.
    I have other questions for the author which I want to clear up before spending money on legal advice - for example they want the images supplied "copyright free", which I think is the same as royalty-free, but I can't see why they would not be able to use a rights-managed licence. Royalty free gives them too much scope for future use which I am not happy about. Also, no mention was made of payment, and I'm hoping the author does not think royalty-free means free-of-charge, so I need to clarify that!
    TIA
     
  2. "Copyright free" is not the same as "royalty free" - However, I'm not at all sure what it does mean, since the photographer has a copyright (all else being equal) from the moment of shooting. What they probably mean is they want unlimited usage - which would be a real problem for you if they used the shots later in some definitely commercial context.
    The publisher should be able to answer the question about whether this is editorial or commercial -- they have to have lawyers for this sort of thing if they are a well-known publisher. You don't want to sign anything from them without thoroughly checking out what you are signing away.
    You need to find a lawyer who actually knows something about copyright law - the corner law office won't have the training.
     
  3. The book is a guide for fashion designers.​
    What is the book going to be used for? An "academic guide" is a little vague. Is sound like an educational tool which is editorial but is that the real use? Is there a sales/marketing component?
     
  4. Spearhead

    Spearhead Moderator

    John asks an interesting question, which begs another one - who is publishing this? If it is a true academic or mainstream publisher, it's probably editorial. But if it's published in association with other products or services, then it's commercial.

    I'll give you an example. I had a magazine I had never heard of contact me for photo usage. I did a deal with them, never saw the magazine before doing the deal. However, I had clear rights to the photo, and my contract said they had to deal with model release issues. Interestingly enough, when I got the magazine, it was quite nice and slick and put out by a company that made products for spas...
     
  5. The safest way to proceed is to ask the trade council because, regardless of what your lawyer says, they can sue you if they think that your usage falls outside the agreed license. The main reason that I say this is that they have given specific examples of what they consider constitutes "editorial" and the examples don't include usage in an educational or other book.
    As for the copyright free issue you are right. The image should be licensed to them for specific usage in the book and you should retain copyright. Any claim that they can't use the image unless it is copyright free is due to either ignorance or dishonesty. As for royalty free that is a different issue. It is perfectly acceptable to sell them the rights to use the image for a one off fee, with no further royalties paid - provided that you are happy with the one off fee. Getting a royalty for every copy of the book sold might be nice if it is a number one blockbuster title but an academic book is unlikely to top the Times Best Sellers List. You might however want to have separate one off fees for different regions. So you get X$ for publication/sales in North America, then an additional Y$ if the book is published/sold in additional territories such as Europe, Asia, Australasia, South America etc.
     
  6. The publisher is J Wiley and Sons. I have a load of books from them from when I studied physics at Uni. I don't think the author, who is freelance, knows enough about copyright and licensing.
    As a first step I will try to contact Wiley and get their advice, then run the usage by the trade council. However, whenever I have tried to contact them before (on 6 occasions) they have never replied. Finally if I still think its worth it, I will get some legal advice of my own.
    BUT! Of course the author needs it all sorted out by Friday. Which makes me inclined to decline. The effort and time pressure is hardly worth it. I've been there before. I offer all of my images through my own online picture library on a rights-managed editorial license basis, where it clearly states the usage and license conditions, and once paid for they can be instantly downloaded. I would rather the author just bought a RM license to use the images and then took on all the risk themselves if it subsequently turns out that their use outside of the license.
    What they are asking me to do is to take on all that risk, and for little or even no pay (yet to be established!). Wiley's turnover was $1.2 billion in 2006. I am not a charity. I believe the time, effort, money and skill that I put into my photography is worth something, let alone taking on the risk of litigation.
    Well, sounds like I've answered my own question! If in doubt: avoid!
     
  7. I would rather the author just bought a RM license to use the images and then took on all the risk themselves if it subsequently turns out that their use outside of the license.​
    When access is predicated on your images only being used in certain ways, you assume the risk of non compliant use whenever they are not in your complete control. Even posting online, they can be lifted for web use by others. Hopefully your arrangement with this trade council is not actually as vague as it seems here.
     
  8. Hi John H - my license contains about 12 clauses related to permitted use, client's responsibilities for preventing third party use and limiting my company's liability if the client misuses the images. Very similar clauses as is used by the big picture libraries/agencies, i.e. standard stuff.
    Yes the trade council permission is vague, in fact it contains contradictions, which the conspiracy theorist in me thinks is deliberate so things can be interpreted any way they wanted if the need arose.
    Off-track a little, but the point about web use is just a fact of life in our digital/web connected age. My high-res versions are only available after purchase, but I'm sure someone with a bit of knowledge could hack the site and even get at them. The point is they would be breaking the law. Just as if you break a shop window and take a TV. But to be honest I'm not too worried if a few people download and re-post some of my low res images in a non-commercial context (you can get these simply by right-clicking on my site) - sure if I find them I would go after them and ask for a credit or a take down depending on context, but I'm not going out of my way to find them. But if a business in the sector that I'm targetting, i.e. magazines and fashion industry sites, uses my images without paying their license fees that is a different matter.
     
  9. "I'll give you an example."
    I'll give you another example. A good friend of mine is a textbook author. I think his book is published by Wiley also. He makes a ton of money from sales. He spends a lot of his "free time" editing the book since it is revised every three years, but he makes a ton of money from his textbook. (It just happens to be a best seller in his specialty area.) I would not give even my good friend free images for his book. I'd gladly sell him some, and make them available with a very generous, if not unlimited, release. The only academic publicationthat I would give away freebies for would be student usage, like thesis and dissertation publications... or academic journals.
     
  10. Wiley is not an "academic" publisher in the same sense as a university press. Much of their line is textbook publishing, which I think would definitely be "commercial" - Wiley are (they hope) a for-profit publisher, and they will definitely know what THEY are doing. Your rights, as always, are first and foremost your own concern.
     
  11. well, this is a common misconception: that just because a publisher makes a profit, its use is commercial. Vogue (or Conde Nast) make a profit, but their use of my images is editorial when they write a review. Its more about being "news-worthy" in the widest sense of the word.
    Look up J Wiley and sons on Wikipedia, and it states they are an academic publisher....
     
  12. here's an interesting case from photo attorney:
    http://www.photoattorney.com/?p=94
    Basically a photographer tried to sue amazon for using a book cover featuring his image on their site, arguing that the image was promoting the book and therefore this was commercial use. The judge ruled against this saying that the display of the book cover was incidental just like a book store might display books in its window...
     
  13. "Look up J Wiley and sons on Wikipedia, and it states they are an academic publisher...."
    Not exactly, nor does their own web site exactly say that.
    This is, perhaps, a better example of an academic publisher:
    http://www.press.uillinois.edu/about/mission.html
     
  14. Who led the pedants' revolt? Which Tyler.
     
  15. Huh? There is nothing pedantic going on. But good luck to you since I just lost interest in your problem/question.
     
  16. Ditto to Brian.
    You're entirely welcome, by the way.
     
  17. my license contains about 12 clauses related to permitted use, client's responsibilities for preventing third party use and limiting my company's liability if the client misuses the images.​
    Good.
    the trade council permission is vague, in fact it contains contradictions, which the conspiracy theorist in me thinks is deliberate so things can be interpreted any way they wanted if the need arose.​
    Not as good.
    the point about web use is just a fact of life in our digital/web connected age.​
    True and innocent conduct on your part is key. The original overall description seemed somewhat unclear and that I thought it might have been more draconian than usual.
     
  18. textbook publishing, which I think would definitely be "commercial"​
    Why?
     
  19. a photographer tried to sue amazon for using a book cover featuring his image on their site, arguing that the image was promoting the book and therefore this was commercial use. The judge ruled against this saying that the display of the book cover was incidental just like a book store might display books in its window​
    I've seen cases where book cover use is deemed promotional and, thus commercial, even though the book contents within were not. (Sorry no cite). In the case above, a release was obtained but it was the retailer's use promoting the retailer at issue which is different from the "direct" promotion of a publisher of their own book.
     
  20. Rob Sheppard [​IMG], Jan 16, 2012; 01:59 p.m.
    well, this is a common misconception: that just because a publisher makes a profit, its use is commercial. Vogue (or Conde Nast) make a profit, but their use of my images is editorial when they write a review. Its more about being "news-worthy" in the widest sense of the word.​
    "Editorial" is not easy to pin down. I've learned that I know very little about copyright and usage law, but I do know this:
    There is a difference between 'fair academic use' in regards to a student's paper or an instructor's lecture, and a textbook. You can argue that it is because the book is expected to reach more people or that a large publisher has more access and can hire people to make THOSE photos (while an individual may have to use whatever he can get), but whatever the reason it is a different media, and thus may be different laws.
    The use of these images as 'news' are debatable. If Vogue wants to show the latest fashions from this season, they have a relatively limited amount to draw from, and they can't just make something up. There's no reason that the book needs your photos to demonstrate an 'A line dress', because the authours can just make the dress, and then photograph it themselves.
    I realize 'need' does not constitute legal right. However, it does mean that there are varying degrees of editorial use. To the best of my knowledge, the only time a book publisher gets free reign to use anything as 'editorial' they want is when the picture is used to comment on the work itself. In other words, if they are discussing your photo, and not the dress in it. Just about everything else is good lawyer territory.
     
  21. There is a difference between 'fair academic use' in regards to a student's paper or an instructor's lecture, and a textbook.The use of these images as 'news' are debatable... ... If Vogue wants to show the latest fashions from this season, they have a relatively limited amount to draw from, and they can't just make something up. There's no reason that the book needs your photos to demonstrate an 'A line dress', because the authours can just make the dress, and then photograph it themselves.​
    Rob was discussing a limitation of his own use of an image as a result of a contract. He traded access to an event in exchange for a limitation on his own use of his images. A limitation that happened to match a different topic, namely, editorial use which is an is an issue that ordinarily arises from misappropriation. A tort which does not arise if the use is editorial.
    You appear to be discussing 'fair use' which has nothing to do with either of these issues. Fair use is a situation is not an infringement according to the U.S. Copyright Act if certain criteria is met. None of that is applicable here.
     
  22. Are you sure a text book is a commercial use? I would think it would be editorial. Just the fact that something is sold for profit, doesn't make it a commercial use as it relates to images.
     
  23. Are you sure a text book is a commercial use? I would think it would be editorial.​
    Editorial means news reporting, commentary or criticism (inc reviews of things like movies, book etc). A book that teaches fashion design does not fit any of those criteria - it is educational, not editorial.
     
  24. It is also important to remember that in relation to image licensing the term "commercial use" does not generally relate to the sale of an image or item. You can sell an image to a newspaper and they in turn sell the newspaper containing that image - the usage is still considered to be editorial, not commercial. Conversely, if you give an image away free to a company (or even a charity) and they use that image to advertise a product that would be considered "commercial use".
    The term "commercial use" does not relate to the image being sold or used in an item that is for sale; it relates to the use of images for the purpose of promoting/marketing/advertising a product/service/or company.
    Obviously (or sometimes not so obviously) the term "commercial use" is different from the term "a commercial product". A license may allow the use of a stock image in a commercial product (such as a book) while prohibiting "commercial use" or the resale of the image as part of an image collection.
     
  25. Thanks Dan. And your last post also is useful to this discussion. And where does educational use fall in terms of fair use or commercial use in the U.S.?
    I'm glad you explained a little better for people the concept that "commercial use" is a term of art that, at least in the U.S. is informed by a particular body of commercial and case law. And selling or making profit from an image does not necessarily have any relation to "commercial use".
     
  26. Editorial means news reporting, commentary or criticism (inc reviews of things like movies, book etc).​
    Editorial use is not limited to these listed uses. Educational use is included in editorial use.
    A book that teaches fashion design does not fit any of those criteria - it is educational, not editorial.​
    Editorial use is nomenclature for any use that is non-commercial. In other words, uses that are not promotional/advertising/endorsement uses. Since Rob agreed to limit his own and his licensees' use to editorial, the limitation extends only to promotional/advertising/endorsement uses. Educational use is not one of those and is irrelevant to the discussion. Educational use is included in editorial use.
    Thanks Dan. And your last post also is useful to this discussion. And where does educational use fall in terms of fair use or commercial use in the U.S.?​
    While the discussion of getting paid not amounting to commercial use is correct, the prior post is bound to cause confusion and misunderstanding. To answer your question of where educational use falls in therm of commercial use, see my response just above. As to how it falls in fair use copyright infringement matters, its so off topic from this one that discussing it may only cause more confusion. It's a different topic altogether.
     
  27. And where does educational use fall in terms of fair use or commercial use in the U.S.?​
    As mentioned by a previous poster there is a difference between educational use (as it pertains to Fair Use exemptions to Copyright law) and publishing educational books.
    If I, as a student, use your photo as part of my degree course, that is educational use and would be considered Fair Use. If I (a book publisher) publish a book that I hope people will use as an educational reference that is not fair use. My primary use of your image is to make a book as part of my business - it's a commercial undertaking not an educational one. As John H says, fair use is irrelevant in regard to the situation being discussed. The author wants to use an image in a book that will be published. There is no fair use exception that would apply in this situation.
    Editorial use is nomenclature for any use that is non-commercial. In other words, uses that are not promotional/advertising/endorsement uses. Since Rob agreed to limit his own and his licensees' use to editorial, the limitation extends only to promotional/advertising/endorsement uses. Educational use is not one of those and is irrelevant to the discussion. Educational use is included in editorial use.​
    While that is correct in general I don't agree that it is necessarily so in the OPs case. Words can have specific meanings in law but those meaning can be redefined in a contract. Rob did not agree to limit his use his licensees' use to editorial [period]; he agreed to the images only being "used in an editorial context, *such as reviews in magazines/newspapers/websites etc.*"
    I don't know how precise Rob's quoting of the contract was, or if there are other clauses that might make the above section more or less restrictive. However the second part could certainly be interpreted as a definition, which limits usage is a more specific way than the normal definition of editorial. That is why I suggest that Rob talks to the Trade Body first to find out exactly what their definition is.
     
  28. Rob did not agree to limit his use his licensees' use to editorial [period]; he agreed to the images only being "used in an editorial context, *such as reviews in magazines/newspapers/websites etc.*" I don't know how precise Rob's quoting of the contract was, or if there are other clauses that might make the above section more or less restrictive. However the second part could certainly be interpreted as a definition, which limits usage is a more specific way than the normal definition of editorial.​
    Yes, we did discuss that Rob may have agreed to more detailed restrictions with the such as list that followed. We don't know and now its clarified as to what editorial use means and that Rob may have agreed to some unorthodox definition in this particular instance.
     
  29. Well, obviously I paraphrased my license! It runs to 44 clauses, but the gist is "editorial RM only" ;) I decided the author's use would be outside this, so I declined the deal. I let them know that they are still able to buy a license for use on my normal terms and they or Wiley can assume the risk if they subsequently use the images outside those terms.
    I considered the wording on the agreement from the author, which I think was given to them by Wiley, was too one-sided - they wanted me to take on all the risk for their use and warrant for releases (which I don't have) and trademarks and third party copyright - none of which is relevant to editorial use. And in fact I think the author wanted the images for free (we never even got as far as talking about prices!). I don't give away images for free, and I don't sell or give away my copyright (unless its an offer I can't refuse!), and even if I did I would not be able to sign the warranties they required without significant risk for little or no reward - complete madness!
    Several people have mentioned that my question was somewhat vague. The problem is that when you are in the middle of a business negotiation you don't want to give too much away, and photo.net seems to get search engine indexed very quickly. I was trying to balance the need for discretion while giving enough information for an informed decision. This may have been a mistake on my part.
    I was not trying to imply that this was academic use at all, and in hindsight the mention of an "academic publisher" may have been my other mistake since it seemed to take the thread in a certain direction, irrelevant in my view. I think Dan cleared this up with his comments regarding editorial use can still be for profit.
    There is actually some interesting and useful discussion amongst this thread, so thanks to all who contributed. I think though, if I have future copyright/license questions its best to go to a lawyer specialising in the subject, since its a complex area and there are a lot of misconceptions.
    cheers,
    Rob
     

Share This Page