Unlicensed Usage by HBR
and My Dealings with Allan Ryan

 

Freelance photography is a challenging way to make a living, but along with a lot of hard work and ethical dealings with my clients, I did well enough. From the start of my career in 1976 to present, there are only two instances that I know of that I failed to get paid for my work. In one, the client died. Surprisingly, the other is Harvard Business Review, which has not died.

As has happened more than once, one of my images was published without license. In every other known case, once contacted, the offender and I worked out amicable terms. But not Harvard Business Review.

Peter DruckerThe photo in question is from an afternoon that I spent with Peter Drucker in Estes Park, Colorado. The session produced a variety of unusual images in that Drucker was not in his typical suit and tie, but in the woods, enjoying the outdoors. The photos were licensed and published several times by both Business Week and Success Magazine as well as by other magazines around the world; The Chronical of Philanthropy, World Executive's Digest, Association Management, Management Today, The Los Angeles Times...

Profession of ManagementAnd there were two book covers; Adventures of a Bystander Adventures of a Bystanderpublished by Wiley & Sons and Peter Drucker on the Profession of Management published by Harvard Business Review. Wiley & Sons licensed their usage, Harvard Business Review did not - and I was unaware of the book.

One day while cruising the web, I came across the book and its cover. Realizing it had not been licensed, I contacted HBR to point out what I could only assume as an error.

Expecting to be treated professionally and courteously, I demonstrated that I had created the photos and that it was indeed one of them used on the HBR publication.

Wow! Was I in for surprise. I ended up feeling like the offender and a mere nuisance by HBR's Director of Intellectual Property, Allan A. Ryan, Jr. He wrote, "I’d propose that you and HBSP amicably resolve the matter for payment of $250, which is half the fee we likely paid to the Drucker family for the photo in 1998."

I was all for amicable. It's standard practice that the license for use of an image on a book cover is priced by the number of copies printed. With no discussion, Allan Ryan was giving me a take it or leave it offer of $250.

Although he could find no records, he somehow concluded that $500 was paid to the Drucker family. If so, why would half that amount be fair to me? Without knowing how many copies were printed, I had no way to know if the offer was reasonable or not. It's similar to telling a store cashier what you'll pay for what you have in a bag without revealing what's in the bag other than your offer is probably half the amount you already paid someone else who had no ability to sell it.

I asked for more information and Allan Ryan wrote back, "This is not a negotiation for a license fee. It has been 14 years since the book was published, and it has been out of print for five years. We can no longer locate records on the transaction, and I gather from your note that you have not located any either."

Umm, no, I cannot locate the records for a transaction that did not occur. That's the point.

He went on, "I am not questioning your good faith, but at the same time we cannot responsibly pay a fee on the basis of a long-delayed request, in the absence of any evidence at all that it is owed or indeed was not paid at the time."

There was more and, in my opinion it was very dismissive. I couldn't prove that I hadn't been paid. I'm not sure how to do that; send a photo copy of no check? Allan A. Ryan was technically and legally correct on many of his points. He is, after all, a lawyer, a professor teaching law at Harvard and Harvard Business Review's Director of Intellectual Property. The question in my mind is whether his treatment was fair or ethical and I had assumed Harvard Business Review would be among those with the highest ethical standards.

Clearly what is ethical and what is legal are different matters.

And "a long-delayed request"? Not finding out sooner that the image had been misappropriated was my error?

Why don't I file a copyright suit? Well, filing in Federal Court is expensive and even with a solid case it can take years. I served as an expert witness in a suit against National Geographic by a group of photographers. They were eventually worn down financially by the deeper pockets, so the merit of their case never even became a factor.

Allan A. Ryan knows all of this and is confident in blowing me off. But me, I'm one who likes to be fair and I don't want to be making unfair or inaccurate accusations. What you're reading here is my best effort to summarize and honestly describe the situation. Any reader who is interested in reaching their own conclusions is welcome to read the email exchange in its entirety. It follows below. I'll welcome your thoughts.


From: James Cook
Date: Tuesday, September 11, 2012 12:46 PM
To: "Wieckowski, Ania" <awieckowski@hbr.org>
Subject: Re: Peter Drucker Photograph

Dear Ms. Wieckowski,

The photograph of Peter Drucker, used on the cover of The Profession of Management, is from a set of images of Peter Drucker taken by me at Estes Park, Colorado in August 1987. There have been numerous licensed usages through the years including: The Los Angeles Times, Management Today, Association Management, World Executive's Digest, the Chronicle of Philanthropy, Business Month, Success Magazine and on the cover of the Adventures of a Bystander book. There were four separate uses licensed by Business Week magazine alone from 1987 to its latest use in November 28, 2005 published double truck in their article regarding Mr. Drucker's death.

It was never licensed for use by Mr. Drucker, his estate or by Harvard Business Review for use on the cover of The Profession of Management. I only became aware of the book recently.

I am not finding instances in which others are complaining of Harvard Business Review as a problematic publisher, ignoring creators' rights. Assuming that we can resolve this amicably I'm willing to accept that it was an oversight and will seek fees that represent a fair price for this usage. Please advise me of the number of copies printed and whether or not there were related or other uses. I'll respond with what I consider to be a correct fee for the usage and a retro-active license contingent upon payment.

Thank you for your attention to this matter.

Sincerely,
James Cook


From: "Ryan, Allan" <ryan@hbsp.harvard.edu>
Subject: FW: Peter Drucker Photograph
Date: September 12, 2012 at 4:11:05 PM EDT
To: James Cook

Dear Mr. Cook,
Ania Wieckowski has forwarded your correspondence to me.
I don’t disbelieve you, but the photo is not registered with the Copyright Office, as far as I can tell, and there is no information on the jacket itself to indicate the photographer and any copyright. Given the passage of time since its publication and the deletion of our files in the meantime, I’d propose that you and HBSP amicably resolve the matter for payment of $250, which is half the fee we likely paid to the Drucker family for the photo in 1998. The photo was not used in the paperback version.  
If you agree, please provide your address and SSN and we’ll cut you a check. A formal license back to us is not necessary.
Sincerely,
Allan Ryan  
 
Allan A. Ryan
Director of Intellectual Property
HARVARD  BUSINESS  SCHOOL  PUBLISHING
60 Harvard Way|Boston, Massachusetts 02163
ryan@hbsp.harvard.edu
617.783.7849 phone  | 617.783.7663 fax


From: James Cook
Subject: Re: Peter Drucker Photograph
Date: September 13, 2012 at 9:49:53 AM EDT
To: "Ryan, Allan" <ryan@hbsp.harvard.edu>
Cc: Ania Wieckowski <awieckowski@hbr.org>

Dear Mr. Ryan,

Thank you for your response.

I too would like to resolve the matter amicably and without undue trouble for either of us.

It's probable that the copyright was registered in late 1987 though in all honesty, I can't swear to it. My assistant at the time was fairly diligent about filing bulk registrations on my behalf. Since it pre-dates my digital files it would take some effort to research it. I believe the selection of images I provided adequately demonstrate that I am the photographer and owner of the copyright, registered or not. Those and the other original images remain solely in my possession. On that basis, I would expect HBSP to be reasonable, honorable and fair. 

The only licensed usage of this particular image for a book cover was by John Wiley & Sons for Adventures of a Bystander. They paid $1,970 for a print run of 25,000 copies. Your offer for half the fee you likely paid to the Drucker family is curious. I'm not sure why that would even be offered or considered. I sincerely doubt that I need to explain that fees for such usage are based on the number of copies printed. I have no way of knowing if your offer is fair without knowing how many copies were printed. Surely you can provide that information.

I'm not looking for a fight or some bonanza, just proper compensation for my work and the value it added to The Business of Management - exactly as I would have done if properly approached in the first place.

Regards,
James Cook


From: "Ryan, Allan" <ryan@hbsp.harvard.edu>
Subject: RE: Peter Drucker Photograph
Date: September 14, 2012 at 3:44:49 PM EDT
To: James Cook

Dear Mr. Cook,
This is not a negotiation for a license fee. It has been 14 years since the book was published, and it has been out of print for five years. We can no longer locate records on the transaction, and I gather from your note that you have not located any either. No one connected with the work is still employed at HBSP. We have no reason to believe that we did not pay a fee at the time of publication. Indeed, it would have been unusual for us not to do so, especially to a freelance photographer. There is no extrinsic evidence to support your claim, and for that matter no record of copyright registration. Your request comes for the first time some 14 years after any payment would have been due. I am not questioning your good faith, but at the same time we cannot responsibly pay a fee on the basis of a long-delayed request, in the absence of any evidence at all that it is owed or indeed was not paid at the time. And as a legal matter the statute of limitations expired years ago.
Our offer to pay $250 was in lieu of invoking a legal defense, and as a gesture of good will for what we take as an honest request. If you wish to accept our offer in that spirit, please let me know.
Yours truly,
Allan Ryan


From: James Cook
Subject: Re: Peter Drucker Photograph
Date: September 17, 2012 at 10:15:20 AM EDT
To: "Ryan, Allan" <ryan@hbsp.harvard.edu>
Cc: Ania Wieckowski <awieckowski@hbr.org>

Mr. Ryan,

Your response is disappointing and it's especially disingenuous. I had expected a bit more honor from HBSP. You won't even disclose the number of copies printed to simply hear what sort of fee I would suggest. And to offer me half of what you suspect might havebeen paid to others for the use of my work!? That does not seem like a gesture of good will.

The fact that the book was published 14 years ago does not diminish the responsibility for the usage or the fees. Otherwise, you and other publishers would do well to use work without license routinely, on the assumption that the longer you get away with it, the less you'll be obliged to pay - if at all. Fortunately the laws don't agree with your attitude.

Of course, it's impossible for me to prove I wasn't paid for the use. What sort of form would such proof take? I can prove the images are mine though, and apparently you can't show that any authorization was ever received. Frankly I'm amazed that HBSP doesn't have the records; I have all the records from my entire career saved. Surely HBSP has accounting records farther back than that from which you can pull the book's expenses. 

Regardless, I'll pass on your offer. As I go through those old boxes of papers, I will have my eyes open. Since it was after 1978, there is no deadline, for all practical purposes.

Thank you,
James Cook


No reply has been received from Allan Ryan, Director of Intellectual Property at the Harvard Business School Publishing. Before this page went live, he was invited to correct any factual errors within. That offer still stands in my desire to be fair and honest. To date there has been no response.

Email: Jim at JamesCook dot Biz
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