Yesterday I attended the much-anticipated EAC seminar on picture research, presented by Mary Rose MacLachlan and Derek Capitaine of MRM Associates. In addition to helping clients find the images they need for their publications, their company negotiates licensing agreements with copyright holders, clearing permission for their clients to use copyrighted text, images, and footage in their projects. MRM Associates works mostly with educational publishers.
The workshop was packed with information, and I wish it could have been an hour or so longer, as I had a list of questions I didn’t get the opportunity to ask. This summary is a mere sampling of the material the speakers covered, but I’ve tried my best to focus on the highlights.
MacLachlan and Capitaine began with an overview of copyright, starting with the Statute of Anne—the 1710 act of the British parliament that first defined copyright and served as the precedent for copyright acts in the U.S. and Canada. In Canada, copyright protects the creator of a work for the period between creation to fifty years after the creator’s death (after which it enters the public domain), and it is overseen by Industry Canada and the Department of Canadian Heritage. Whereas the U.S. has the concept of fair use, Canada has fair dealing, which is far more restrictive. For example, use of a copyrighted work as part of criticism falls under fair use in the U.S. but wouldn’t be permitted in Canada.
To learn more about copyright, MacLachlan and Capitaine suggest consulting the Copyright Advisory Office at Columbia University or following copyright experts Michael Geist and Lesley Ellen Harris. Michael Geist focuses on Canadian copyright, and his site has some interesting articles about Bill C-11, which proposes some significant changes to how copyright is assigned. For instance, whereas currently the copyright of a work-for-hire image taken by a photographer is held by the entity that hired the photographer, if Bill C-11 is passed, the photographer would retain copyright.
Determining whether permission is required underlies what MRM Associates does for its clients. Naturally, clients want to save money, and so knowing sources of low-cost images and images in the public domain is important. MacLachlan and Capitaine warn that artwork is a particularly tricky area: a work of art itself may be in the public domain, but the photograph of the artwork may not be. In fact, the art galleries and museums that house a work of art may own the copyright to the photo and would likely charge for its use; their image databases are a revenue stream for them. Bridgeman Art Library is a good place to begin searching for all artwork (both in copyright and in the public domain); it has built relationships with galleries, museums, and archives all over the world and has an extensive, searchable database. In fact, if you know that a certain gallery with which Bridgeman has a representation agreement houses a given work of art but you don’t see it in the database, you can still contact Bridgeman, which will more than likely be able to procure an image of that artwork on your behalf.
I asked if someone who scanned in an image now has rights to it, much as a photographer of a work of art would. MacLachlan and Capitaine said no—a scan qualifies as a reproduction and thus doesn’t carry copyright. However, if the person then manipulates the image—retouches it, cleans it up, etc.—then that is value added that the person may wish to charge for.
For artwork still under copyright—even art in a public space—you need permission from the artist. If a photograph features a person or trademarks and logos, you may require additional permission. This YouTube video about image rights explains the many layers of permission you may need to clear.
MacLachlan and Capitaine then outlined their research process:
1. Receive brief or photo log
A client gives them a list of the images that they need. Sometimes these lists are just vague descriptions, and other times a client may have a very specific image in mind. At this point, the client will also specify the budget for the project.
The photo log is an essential record-keeping document. Usually in a spreadsheet, the log records the following:
- Unique asset identifier
- Description of asset
- Reproduction size—quarter page, half page, full page?
- Final page number
- Type of asset—photo, illustration, cartoon, etc.?
- Source contact info—full address details (some copyright holders request copies of the final book)
- Source asset number
- Credit line
- Estimated and final fee
- Rights granted
- Status indicators—when contact was made, when the image was ordered, etc.
2. Research assets
Sources of images include stock agencies, museums and archives, the Internet (but use with caution), and photographers. Getty Images and Corbis are the “big two” among stock agencies, but because of their size, their fees are usually non-negotiable. However, your client may have a vendor agreement with them, allowing you to use that agreement’s pricing. In addition to Getty and Corbis, however, there are scores of smaller stock agencies, many of which specialize in certain niches. Microstock agencies, such as Dreamstime and Shutterstock, are a source of low-cost royalty-free images, but the quality may not be as reliable. You can also turn to aggregators such as the Picture Archive Council of America or the British Association of Picture Libraries and Agencies.
Some sources of free or low-cost images include the Canadian government, Library and Archives Canada, the U.S. government, the Library of Congress, university digital libraries, and some NGOs, such as the UN or the WHO.
If you know you’ll need some images from museums and archives, MacLachlan suggests hitting them first, because they are often understaffed and can take weeks to get back to you.
If what the client has requested is extremely specific or regional, it may be faster to call a photographer. MacLachlan and Capitaine have found many good photographers just through Google or through aggregators such as AG Pix or Photographers Direct.
3. Submit selections to decision makers
MacLachlan and Capitaine will narrow down the selection to three to five images per asset, and the client will choose the final image.
4. Obtain high-resolution images
High-resolution images from stock agencies and most photographers are “comps” until licensed—so you don’t pay for them unless you actually use them—although sometimes photographers will charge a kill fee if you choose not to use an image. Royalty-free images are non-refundable. Many archives require pre-payment for the hi-res.
5. Compile acknowledgement copy
This is where having a detailed photo log comes in handy. MacLachlan and Capitaine strongly suggest being diligent in logging the image credit line as soon as the client has decided to use that image. They caution that getting the credit line wrong can be very costly. Licensing agencies can impose a 100 per cent surcharge if the credit line is incorrect.
6. Negotiate and clear licenses
There are three main types of licensing:
- Rights managed—based on one-time use; the intended use, media, territory, duration, print run must all be specified.
- Royalty free—a one-time fee based on the size of the image; the image can be used multiple times for multiple projects, within the terms of the license.
- Creative commons—creators can choose to allow others to use and distribute freely, as long as credit is given, or they may place restrictions on how their work can be used.
MRM Associates will finalize the usage letter for the licensing, specifying the items to be used, reproduction size, title of the publication, author/publisher/ISBN, print run, price, publication date, territory, target audience, and rights required. This usage letter is a legal document, so make sure the client’s name appears on it, not yours.
The agreements will generally state whether an image can be modified. Royalty-free images usually can, but rights-managed images and images from photographers may not allow it. Modifications include cropping, rotating, and flopping.
7. Submit completed log and paperwork
MRM Associates will finalize the photo log and return the supporting materials to the client.
MacLachlan and Capitaine touched on the issue of orphan works—works for which the copyright holders are unknown. (These abound on the Internet, of course.) They caution against using them. You can license their use through the Copyright Board of Canada, which will charge you a fee and keep that money in the event that a copyright holder comes forward with a claim. The researcher community, including the American Society of Picture Professionals, has some forums to track down copyright holders of orphan works; the idea is to get as many eyes on it as possible and hope that one of them can identify the creator. However, using an orphan work always carries the risk that the copyright holder could identify him- or herself and take legal action.
The presenters also mentioned a concept that was new to me—what they called a “client asset database.” Some of their bigger clients have their own image banks where they store public-domain images or royalty-free images they’ve already paid for. For example, although Library and Archives Canada images are mostly public domain, LAC will charge a processing fee, and there’s no point paying that more than once.
The main takeaways from the seminar for me
It’s all about risk assessment
Deciding when to secure permission can fall into a grey area in some situations, and since the client assumes the risk, it’s important to alert the client to all possible issues when they decide whether to use an image. How high is the risk of not securing a model release? Of using an orphan work? Of using ephemera and advertising from companies that are now out of business?
Get the credit line right
Although I’ve always tried to be careful to have the credit lines match what the copyright holders or stock agencies have supplied, I didn’t realize the consequences for errors were so severe. So I suppose it’s safest, if possible, to copy and paste rather than to key in a credit line when preparing acknowledgements.
Royalty-free images can be used again, for different projects
I had always assumed that royalty-free images could be used again only for new editions of an existing book; I didn’t know they could be used for multiple projects. Given the utility of a publisher’s own “asset database,” I will definitely start recommending to my consulting clients that they consider establishing one, if they work a lot with images.
The seminar was incredibly illuminating. Thanks to Mary Rose MacLachlan and Derek Capitaine for sharing their wisdom and for allowing me to post this summary of their talk.