James McGrath Morris’s publisher thought the cover for his upcoming biography of Ethel Payne was all set. It showed the pioneering African American journalist with her head resting on her hand, a slight smile spread across her lips. Everyone who saw it loved it. The only problem, the publisher learned just two months before the book’s publication, was that it could not secure the rights to the picture from the major newspaper that first ran it.
“As publication neared, we contacted the newspaper and the company that represented the licensing of its photographs,” Morris said. “It turned out that while they owned the work and could use the photograph in their publication, they could not license it for others to use because they could not identify which staff member had taken the photograph. Without being able to compensate the original photographer, they could not license it to be used by my publisher. It was back to the drawing board to find a replacement photograph.
The publisher was able to secure another photo, but the ordeal raised a key concern for biographers and other non-fiction writers. The reality today is that photo researching and getting permissions is an important—and some writers say tortuous—part of preparing their books for publication. The problem is amplified when they can’t track down the copyright owner or have to deal with the laws in other countries.
TBC reached out to members to get their views on the photo research process and tips gleaned from their own experiences. Some responded via email, others on the BIO Facebook page. Here’s a distillation of what they had to say.
Several writers agreed that photo researching should be an integral part of the overall research done for the book. Catherine Reef has done extensive photo research for her YA biographies. She said that while doing initial research, “I stash photocopies and printouts into a folder of potential images, always noting the source. Then, once my manuscript is taking shape, I match the images to my chapters, deciding which ones I can use and where they will work best.”
Reef offered these other tips to consider when deciding on what photos to use and how to get them:
- Try to feature something new about your subject, while remembering that finding previously unpublished images will likely require searching onsite, by hand.
- A photograph of a person doing something conveys more information than a head and shoulders portrait, but “active” photographs may be difficult to find for years prior to the early twentieth century.
- To help with costs, deal with stock agencies only if you can’t get comparable images from other sources (government, libraries, archives, museums, private collections, etc.). The Library of Congress now makes many high-resolution images available for download at no charge, so it is worth searching on their website.
Along with finding the best images, writers often have the additional onus of tracking down the owners of the picture and getting permission—and usually, paying a fee. For Sue Rubenstein DeMasi, the task seemed daunting for a recent book: “I found a photograph in an archive in Amsterdam, taken circa 1926 by a photographer from Russia who later became a Mexican citizen. He had no children, but how do I find out if he passed on ownership to someone? The archive is happy to give it to me but has this blanket statement that it is up to me to determine who owns the copyright.”
From her experience with photo research and permissions, Munker offered these tips:
- The National Archives in Washington, DC, is an excellent source for both American and foreign subjects. “In most cases, you pay only for the print, not permissions fees. The exception is if a print you find was taken by a private photographer or magazine, and then, of course, you have to get permission from the owner.”
- If you make a genuine effort to trace a photo’s owner/executor without success, rather than omit an essential photo you can always put a disclaimer on the copyright page or in the acknowledgments saying you made “every effort” to trace the owners. Keep a paper trail of your efforts.
- When drafting a permissions letter—or a release form of any kind—keep it as vague as possible. “If the owner or executor wants to restrict your use, they’ll let you know. A commercial archive will definitely let you know—in fact, they’ll probably send you their boilerplate. Don’t be afraid to negotiate if the owner doesn’t accept your original (sweeping) request—although if they do, great. By the same token, if you get back a boilerplate or the equivalent, don’t be afraid to send back an unsigned amended version as a way of suggesting changes.”
For Brian Jay Jones’s biography of Jim Henson, the Henson family gave Jones their own photos to use “free and clear,” but dealing with two corporate entities that controlled the rights to Henson’s creations led to “procedural headaches.” His advice: “I can’t stress enough the importance of making sure (as others have said) that you have all your ducks in a row. Copyright attorneys do NOT have a sense of humor.”
Those lawyers’ stern nature is worth considering when coming across an image on the Internet. Pat McNees said, “The images you find through Yahoo and Google have rarely been posted there by the copyright owners…. Remember,‘royalty-free’ does not mean ‘free.’”
The Internet, though, can be an ideal place to start searching for photos. McNees has assembled a long list of online stock houses and institutions that provide photos. You can see them at her website. Another source is PacaSearch, offered by the Digital Media Licensing Association, which brings together more than 100 organizations involved in digital content licensing. PacaSearch is a meta search engine with access to more than 132 million images.
To help others understand copyright and other rights issues, McNees also offered a link to her website Writers and Editors, which features resources for clearing rights in the visual arts. Another online source for similar information comes from Stanford University, which offers an “Introduction to the Permissions Process” at its libraries’ copyright and fair use page. The University of Chicago Press has its own overview of permissions, available here. One interesting note from the site: A still or frame capture taken from a movie does not require permission when used in a scholarly work. As the website explains, “Essentially, a frame capture represents 1/24th of one second of a film, which hardly represents the whole heart of the work, and cannot be said to infringe upon the market for the film.”
Cost, of course, is something writers have to keep paramount, since the budget for photos usually comes out of their advance. One exception comes when authors are skillful negotiators. Cathy Curtis recounted her experience with her upcoming book on painter Grace Hartigan: “During contract negotiations with my publisher, I asked for, and received, a sum of money specifically for this purpose, so that I wouldn’t have to dip into my advance.”
But for most writers, counting photo-related expenses is a reality. Based on her experience, Carol Sklenicka suggested writers not pay for a photo until they’re sure their publisher will want to use it. She also said it’s wise to secure permission to use a photo in all formats, editions, and translations of a book right from the beginning, But she added, “Some professional photographers will not give you that, of course. They would prefer to get a new fee each time, but this complicates the paperwork for years to come.”
For the lucky writers who can afford it, or simply can’t afford the time to research photos and secure permissions, they can turn to a professional. The American Society of Picture Professionals has a search function on its website to locate photo researchers and rights/permission specialists.