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What constitutes "one-time use"?

Kent Newton , May 19, 2009; 06:14 p.m.

I recently made my first photo sale. I granted one-time, non-exclusive print rights to a local magazine. The photo accompanied one of the key stories in the issue and ran on a full page. They even gave me photographer credit. Needless to say, I was thrilled.

They sent me a complimentary advanced copy, and I have to admit that I've turned to page 56 several times in the four days since I received the copy to admire my photo. However, just today I noticed that they also used part of the photo in a collage on the cover.

Now my question is this: by using the photo both inside the magazine and as part of the cover, did they violate the one-time, non-exclusive print rights that I granted? Or, since both uses appear in the same issue, does that fall under the category of one-time use?

I want to build a good working relationship with the magazine because I'd like to get additional work from them, but I don't want them to take advantage of my inexperience, either. If it turns out that this is a violation of the rights I granted, I would politely contact them and point out the violation to see how they respond.

Any feedback on this would be appreciated.

Responses


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Cheryl Monahan , May 19, 2009; 06:33 p.m.

Kent, I am a photographer at a magazine, so my viewpoint might be a bit slanted, but it depends entirely on the agreement the magazine has, either with you or the stock agency. In a sense, the cover is a promotional element for the content. You might focus on that part of the agreement. It might be included somehow in that kind of verbiage. Personally, I would not be upset about this, but again, this is my skewed viewpoint.

Mikael Karlsson , May 19, 2009; 07:01 p.m.

Kent:

Let it slide in building a good connection to the magazine. Many smaller magazines use the best of the inside pics on the cover in some sort of collage and as long as your image isn't used for the majority of the cover, I wouldn't charge extra for it. To me, it's far more important to build a good relationship with the magazine/photo editor.

Justin Black , May 20, 2009; 12:48 a.m.

First of all, please understand very clearly that what the magazine has done is nothing less than copyright infringement. That is, unless your licensing language is very sloppy indeed.

Second, the cover of a magazine is the single most commercial/promotional aspect of it (the table of contents is the second most important part that sells the magazine off the newsstand). You should be paid for the cover use as the primary use (at a proper cover space rate), and then for the inside editorial use, possibly with a small discount (15%-25%) for multiple use on the latter use only. Frankly, I would rather "throw in" the inside use than the cover use, though there is no need to do that either.

It is entirely possible to negotiate fair compensation for the actual extent of the use of the work (and the value derived by the client), AND still build a positive relationship with the client. I have even hit client's with large financial settlements in cases of obvious willful/negligent copyright infringement and still gone on to have positive working relationships with them in several cases. Don't assume that the client won't happily pay for the cover use if they are simply asked. If they seem reluctant to pay for the full extent of use they have made of your work, then stay positive, don't get emotional, but do indicate that there needs to be a satisfactory resolution to this infringement of your copyright.

You can be a nice guy and still resolve this matter with appropriate compensation for the full extent of the use.

Eric Merrill , May 20, 2009; 07:06 a.m.

Kent:

If you want a legal opinion, contact a lawyer. :)

My opinion is that using just part of your photo in a collage on the cover doesn't violate the spirit of one-time use. Depending on how your contract is worded, it may not even violate the letter of the law. Does one time mean one event or does it mean one photo? Not sure.

Even if it did violate the contract, how much money is involved? You don't have the full cover. It's a local magazine.

If you want to work for them again, I would let it slide. I wouldn't even try to politely point it out to them. No harm, no foul.

Now, if it had been the full cover or the only photo on the cover, I'd ask about cover payment. But just a piece of your photo used in a collage? I'd let it slide.

Eric

L.J. Leonard , May 20, 2009; 09:17 a.m.

OMG, that has got to be the nit-pickiest thing I have seen in a long, long time!
Previewing something that is inside the magzine with a tiny portion in a collage on the cover seems to be normal, and part and parcel of the whole "one-time" usage idea.
What next? Writers complaining their story's title appeared in the Index?

Aimee Pieters , May 20, 2009; 02:55 p.m.

Kent,
How specific were you about defining "one-time" usage?
And what do you hope to accomplish here? Do you want to build a relationship with these people or not? Think about the big picture....-Aimee

Kent Newton , May 20, 2009; 08:22 p.m.

Thanks for the input, everyone. To summarize, it seems like it could be a violation, depending on specificity of the wording in the agreement. While I possibly could contact the publisher in a polite manner to negotiate payment for this use, it would probably be best to let it slide to build a good relationship with the publisher.

Just to clarify, L.J.: they didn't use the photo to preview the inside story. They took my photo and used it in a collage, making a new, derivative work of art. Had they used the photo to advertise the story (Read Tall Tales on pg 57 ), I probably wouldn't have even asked the question. But since some other artist used my photo to create a new work of art, I thought it fell into a different category altogether.

Thanks again for your insights, everyone!

L.J. Leonard , May 21, 2009; 08:09 p.m.

Would you mind uploading the collage and the photograph for us to see?
thanks

Kent Newton , May 21, 2009; 10:38 p.m.

Not owning the copyright for the cover image (even though it contains my copyrighted image), I don't feel comfortable uploading a copy of it. I wouldn't want someone to post a copy of my image without permission. They publish the cover of their latest issue on their website, so I could provide a link to their website when they release their June issue.


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