A while ago, I was contacted by an agency representing Frommer’s, an august name in travel publishing, to provide photos of Philadelphia for a guidebook. I had the depth and volume of photographs they needed, and it was winter and they were in a hurry, so shooting the thing would be difficult. The rates for the photos were the new dismal normal, but the volume sale of existing images would have made it worth it.

Worth it, that is to say, had they not wanted more rights….like the rights to use the pictures in a variety of their publications, and license the pictures to others, in perpetuity.  They didn’t ask for the copyright, they just wanted all the rights that copyright affords the creator. In other words, they wanted to own them and they wanted to pay $70 a  subject ( and a subject could include up to 5 photos) to do so.

But, there was a “bonus” fee for any photograph published as a “feature,”  up to $675 for a full page. So if there were larger pictures in spreads or “features” as they were referred to in the contract, they’d pay more, but basically it was $70 a subject for all rights.

I told them it was “one time use” at those rates, or nothing. They decided that they couldn’t live with that, and I walked.

Then, a little while ago, I heard from a young colleague who actually shot a similar book for them in the Middle East. She photographed the whole book, handed it in, got the layouts which had many of the big pictures and “feature” spreads, and waited for her check. Which, when it arrived, was much lower than provided for by the contract because Frommer’s all of a sudden decided that “feature” means “cover” and that no inside picture usage was worth more than $70.

Last I heard, they were going to court. A mega-publisher against a fresh-faced freelancer in a battle of lawyers….hmmmnn, wonder if they thought she might be naive and back down in the face of all that firepower. Think again.

I guess when you put life and limb on the line to document civil unrest, war, and violence while covering the Middle East like she does, a few suits from Hoboken with Ivy League law degrees are just not that scary.

And, in the spirit of three strikes and yer out, I just heard from another colleague about a photo contest Frommer’s is running….probably because of the problems they’re running into screwing the photographers they signed to work with. You can win $5000 and get your photo on the cover of one of their guidebooks. Sounds like a cool contest, until you read the fine print:

Participant retains ownership of the copyright in any submitted photographs. However, by entering photograph(s) in this Contest, participant grants Sponsor the irrevocable, perpetual right to edit, adapt, use and publish in any media now known or hereafter discovered any or all of the photographs without compensation to the participant, his or her successors or assigns, or any other entity. ENTERING A SUBMISSION IN THIS CONTEST CONSTITUTES PARTICIPANT’S IRREVOCABLE ASSIGNMENT, CONVEYANCE, AND TRANSFERENCE TO SPONSOR OF THE FOREGOING RIGHTS.

Yeah, um, you didn’t win, and sure you “own” the photos, except that we’re going to use your photos in perpetuity for nothing, (so screw you and your sense of what ownership or copyright means!)

Apparently Frommer’s is expanding its field of operations  from screwing professionals to duping amateurs, and they are doing both with energy, audacity, and an astounding lack of scruples (way to use your law degrees, guys. Keep burying that shit in the fine print—-who reads anymore anyway? After you finish up with the photographers, there’s always taking candy from babies and foreclosing on disabled veterans to look forward to!).

I think it would be wise to boycott this contest, and boycott Frommers guidebooks or travel products entirely, and let everybody within earshot or “webshot” know that this is another rights grab in sheep’s clothing.

UPDATE: Below is  response from Jason Clampet, Senior Online Editor of Frommers, and my response to his response! These are in the comments section, but I wanted to give them more play so here they are below.

I’m an editor at Frommers.com and one of the judges for the photo contest. I wanted to respond to your blog post.

At Frommer’s, we engage dozens of professional freelance travel photographers on a commission basis as well as license images from stock photo agencies. This year we’ll spend a substantial sum on professional travel photography. Our per-location rate is higher than just about any other competing guidebook company (I should know, I’ve shot books for two competitors myself) and it is significantly higher than the day rate for a news outfit like the AP. We also employ photo editors to work with freelance travel photographers. To me that says we’re investing in professional photographer talent, and not screwing professionals.

Like all travel publishers, we pay for comprehensive rights when we commission photos, but we do not ask for assignation of copyright or prevent photographers from selling their images elsewhere. In fact, the commission fees we pay help many photographers underwrite additional photography of the locations we send them to. We typically bundle dozens or even hundreds of location shots into our agreements, which is much more profitable to the photographers we work with than one-off agency licenses — and the photographer gets to keep 100% of the fee we pay, not share half of it with their stock agency.

Our Cover Photo Contest on the other hand is not a forum for pro photographers but an extension of the upgraded community features we’ve had on our site for a year and a half. In that time, users have shared thousands of their photos in destination-specific galleries (“Best of Paris,” “Best of Italy,” etc.) in the same spirit that our users have shared advice, tips, and travel horror stories in our Forums over the past decade. When people travel, they tend to like to share, too, and our website is a mix of professional and amateur content. We think it’s a great idea to let travelers show off their photos and maybe even have a shot at getting on a cover. Like many websites, we lay a non-exclusive claim on anything that’s uploaded. This isn’t sneaky, fine print stuff, it’s standard Terms of Use language that you’ll see on just about every website.

Let’s be clear: We publish over 100 travel guides a year and only one of those will have a cover image sourced through this contest.

Perhaps we can agree to disagree, but I wanted to weigh in and add some insight and context from our side of the business.

–Jason

Jason: Thanks for weighing in here. But there are still things that I think your response misses.

Like all travel publishers, we pay for comprehensive rights when we commission photos, but we do not ask for assignation of copyright or prevent photographers from selling their images elsewhere.

Yes, you don’t ask for the copyright, you just take all the rights of reproduction that the  copyright protects. So what’s the difference? You let photographers continue to sell their own pictures that you’ve secured for let’s see, a location is 5 pictures and it’s $70 per location so 5 into 70 is, what, $14 a photo? For virtually all rights, including, if I remember the Philadelphia contract correctly, the right to license those photos to others!

That’s, um, something to be proud about?

We typically bundle dozens or even hundreds of location shots into our agreements, which is much more profitable to the photographers we work with than one-off agency licenses — and the photographer gets to keep 100% of the fee we pay, not share half of it with their stock agency.

Yes, volume sales are great, as long as they are not at firesale prices ($14 a picture for all rights). Let’s face it, you guys have to minimize your dealings with stock agencies because stock agencies would never sit still for those heavily one-sided agreements and throwaway prices. They’ve got lawyers too. It’s only the individual struggling freelance content producer that will bend to those terms for short term survival, (and long term extinction.)

When people travel, they tend to like to share, too, and our website is a mix of professional and amateur content. We think it’s a great idea to let travelers show off their photos and maybe even have a shot at getting on a cover. Like many websites, we lay a non-exclusive claim on anything that’s uploaded. This isn’t sneaky, fine print stuff, it’s standard Terms of Use language that you’ll see on just about every website.

Jason, puhleeze. Do you think the average traveler, whom you are so concerned about in sharing and creating community, knows that he or she is giving you guys carte blanche to make for-sale items from their vacation pictures when they enter them in your contest? Sure, take the winners pics, because they’re getting a quid pro quo for the usage.

You guys are counting on the fact that most people will never read the fine print, and most will never miss the income from their pictures because they’re not professionals. Please don’t couch this as some kind of community service. It’s out and out rights grabs from unsuspecting civilians (aka amateur photographers).

Your basic defense on all these points is that “other publishers are doing these things with even worse terms.”  It’s kind of like me telling you I went into Barnes & Noble and boosted 7 copies of Frommer’s Guides (I didn’t, this is just an analogy), but it’s okay, because everybody was shoplifting that day, and most people took more than 7 copies.

It’s kind of bogus logic when it’s held up to a mirror.

Look, nobody is more sympathetic to the trials of publishing than I am, having made a living from it in these last 30 years. And you know, we’re all accepting lesser fees and tightening our belts. I’m not one of these romantics who wants it to go back to the 80s. I understand the new realities.

What rankles me is that your contract (and that of many, but not all, I have to add, of your competitors) seeks to make up every shortfall in the business by taking it directly out of the hides of the weakest link in the publishing food chain, the individual freelancer. Offer $17 a picture…that’s fine. But make it for one or two time usage and not this bullshit “all rights throughout the universe” that your lawyers love.

If we could both shoulder the burden of the new business realities in a relatively fair manner, both sides might survive this recession/depression in publishing.

But if it’s up to your legal division, you’re gonna slowly kill the freelancers. Which is okay now that you can crowdsource travel pictures from gazillions of amateurs. Nobody said your lawyers were stupid, just a tad ethically challenged.

I appreciate the fact that you’re weighing in here and understand if you can’t come back at us. I notice you mentioned you’ve shot for competitors, which means you were probably a freelancer once. So don’t do anything to jeopardize the full time gig, because it’s murder out here at the moment!

Thanks, Bob