A certain genealogist and blogger (no names, please, but her initials are s.h.e.r.i.f.e.n.l.e.y.) a few months ago had an interesting proposition: she had a chance to sell her grandmother! What would you have done?
Here’s the tale: Sher, I mean, s.h.e.r.i., had some time ago written a post about her grandmother, Maryellen Harris Skillman, who as a young woman was one of the famed Harvey Girls. The post was illustrated with several photographs of her grandmother in her classic Harvey Girl outfit.
Quite some time later, She, uh, s.h.e.r.i., received an email from a representative of a large publisher (who really will remain nameless here; take my word for, they are BIG), who asked if our friend would allow them to use one of the photographs of her grandmother from her blog on the cover of an upcoming publication about the Harvey Girls. This publication would be sold to schools, professional groups, and community groups who would be charged a basic fee for copies of the publication itself plus a fee for each time the subject matter of the publication was used publicly by the purchaser. (Those are the basic facts; I’m being a little vague so as not to identify the company). The email said nothing about compensation, but instead had the breezy tone of a neighbor wanting borrow a cup of sugar.
Sheri (I’ve given up all pretense here!) wisely (or not, you decide) turned to her favorite genealogist-lawyer for a little advice. (She’s waived the attorney-client privilege for those you who worry about that kind of thing). Fortunately, I was familiar with the publishing company and I checked out what potential there was for their proposed use of Sheri’s photograph. (I also determined that Sheri was the likely owner of the copyright of the photograph–too complex to explain here).
The publishing company stood to make a tremendous amount of money from sales of the publication and the other fees. Sheri made them a very generous offer: basically a one-time fee of a few hundred dollars for the right to use the photo for a term of years (until the copyright expires) and some reasonable conditions to ensure that her Harvey Girl grandmother wasn’t morphed into a Hooters Girl granny. This offer was for U.S. rights only and did not include sales of the publication to certain professional groups who themselves stood to make lots of money from their use of the publication. There was also to be dealt with the matter of advertising the publication as well as advertising by groups who used the publication.
Sheri’s offer was very modest considering that she was being asked to authorize the use of the likeness of a revered ancestor for commercial purposes. It was also very modest in that the photograph itself is unique. There are sources of photographs of Harvey Girls available elsewhere, some in the public domain. None, however, are quite as suitable or nearly iconic as Sheri’s photograph. It would be reasonable to presume that Big Publisher knew that, but wanted Sheri’s photograph for its uniqueness AND their assumption that they could get it for nothing.
So what happened in the end? Well, Sheri never heard from Big Publisher again. That was a bit disappointing. Sheri would have been proud to have her grandmother be the face of the Harvey Girls in this potentially international publication; on the other hand, she didn’t want to sell out a special relative’s likeness and reputation without some safeguards. Sheri was not trying to profit from her grandmother’s picture. [But suppose she had? The rights she holds are valuable and Big Publisher was ready to exploit those rights.]
What would you have done?
COMING NEXT: A Few Tips on Protecting Your Rights and Your Ancestors’ Reputations
January 19, 2011 Wednesday at 3:26 pm