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Letters, More Imagesetter & Ownership of Plates

Copyright January 18, 1996

Here s info from our good friend, Joe Polanco, the head of the Printing Industry Association of Texas. He writes about the Imagesetter issue:

Tom & Readers:

Here s an observation from someone who s watching what the commercial printers in North Texas have been doing for the past several years. As you well know (or may not know) in this part of the country there are MANY high quality commercial printers who have embraced epp (electronic prepress) technology and have been utilizing it successfully for several years. By far, the choice they have made, and continue to make is with AGFA equipment. Reliability, repeatability, and uptime seem to be big issues. I m also aware of several of our process color printers using AGFA equipment for direct to plate (paper) output.

Don t get me wrong ECRM is a good company, but they have not had the success that AGFA has had here in the Dallas/Fort Worth area.

Thanks, Joe. And here s a comment about the Hell Ultresetter.
From: ERWIN38348
To: TomCrouser

I have had a HELL Ultresetter for 5 years with no service contract. We had one service call in all that time and that was to clean interior of machine. It has been very reliable. We output tight trap 2/c with screens up to 150ll. The unit cost at that time $21,000. We are a high quality shop and the ULTRE fit us perfectly.

And, now, getting back to our discussion of ownership of plates which brought the following message from AnneB94398. She related ownership of the plates to research she had done recently on work for hire. Specifically, she asked, When producing advertising for a client, who owns the ad? And, how come this didn t apply to the plate issue? Listen in on my response to her.

. . . . .Your case law on advertising is probably centered on the copyright law, revised in, what, 1989? Anyway, work for hire is a concept under the copyright law which allows a newspaper to copyright the work of a journalist working for them. This would also, in my printer s legal opinion, apply to advertising, etc. or other creative works.

How this differs from printing, is printing is manufacturing a product (or converting) not creating an original work, composition, etc. Therefore, in my opinion, the copyright law would not be the operative law under which the printer and customer transact business.

Rather, we transact business under contract law. Absent a contract, some courts have relied upon trade customs or general trade practices to settle issues such as who owns the negatives. However, trade customs are easily defeated in court. What is very effective is for the printer to include the trade customs in a terms and conditions of sale which is a contract. The contract spelling out who owns what then would, in my opinion, be upheld. And that s how contract law would prevail over the work for hire logic (again, in my printer s legal opinion).
And here is a view from a CUSTOMER!!!! Yikes, a real customer!

From: B3699
To: TomCrouser

Tom, as a customer, I read with interest your article and responding comments. In my experience as a customer, I have noticed that receiving electronic files and film depends on what type of vendor you are dealing with. For instance, I have never had a problem receiving electronic files from my printers while ad agencies hang onto them for dear life! My film only gets returned when the life of the brochure is finished.

In speaking with other customers, we have concluded (correctly?, incorrectly?) that the ad agencies look upon those electronic files as further revenue regardless of the inconvenience to the customer. I can recall a recent incident where it took 3 weeks to make an address change because the agency could not get it right. Had I been able to work on the file, it would have taken two days-and only that long because I needed the owner s blessing. While the final product turned out perfectly, it just took too long.... Your thoughts? BLBell

Hmmmmm. Deal only with printers? Too obvious. Yes. My experience is similar to yours. Ad agencies are much more likely to hold onto files and go by the letter of the terms and conditions of sale than printers. And, they also charge more for the same work although the ad agency has a broader array of services than the printer. Now, before I get irate ad agency mail, I think this is admirable and should be a lesson for us poor printers. Thanks for your comment. (And be careful what you write here people, we have customers listening!) Here s more on the same issue.

From: Michae0912
To: TomCrouser

TOM: I agree completely - the customer does NOT own the negs or plates; at least not with us. We ve been in business since 1950 and have always charged for the making - or make-ready of the plates/negs, but do not actually hand them over to the customer. When - and on rare occasion they will - ask for them we offer them for a price. This works about 90% of the time. The other 10% of the time I have to wear a rubber whoppy cushion to sit on cause they customer chewed off my @#$.

I like the terminology you use though about tools of production. Having just hired a plumber and dry-wall specialist for my home - it really makes a lot of sense the way you ve worded it all. Thanks... Mike, Printing Center, Bartlesville, Oklahoma

And, here, Joe Polanco, our head honcho of the Printing Industries of Texas adds his two-bits worth on plate ownership. Pull up a sasparalley and listen.

From: piatexas.joe@nt1.azone.net
To: TomCrouser@aol.com

Tom, I couldn t resist adding my two-bits into this discussion. This question is one of the most often asked questions of us association types. I must field it from printers and print buyers two-four times a week. As you originally stated the trade customs (practices) in the commercial printing industry (which really includes all printers) is very clear, and have been for many years. But they are not necessarily followed by all printers. And I strongly feel that all printers should follow the custom --- within reason.

As Dave Fellman stated, when you ve lost the customer, why rub salt in the wound. Gladly give up the material, but make sure that the customer understands that the materials are printer s aids and not his/her property. I always suggest that when the printer releases the film, that he has the customer sign a form that they ve taken possession. And the form should state that the printer is relinquishing ownership as a customer service. Remember, if the printer states that the film belongs to the customer, the burden of responsibility of maintaining those negs/plates in good working order are the printer s.

Just ask the Dallas printer who was being taken to court for $40,000 worth of film, copywriting, studio, model, and photography work because someone had inadvertently trashed the flats. The only thing that saved him, was that he had made it very clear in all customer correspondence that film/plates/flats belonged to him. Yet, there are extenuating circumstances (aren t there always?).

In Colorado, printers have taken the position of making the film their customer s property. Why? Sales tax issues. In order to avoid double sales tax implications on film and prep material, printers had to relinquish ownership of these aids.

Yet, sometimes I think we re our own worst enemy. As in the case that Cy outlined --- that person was taken predatory pricing to an all-time low, and thus creates problems for everyone else.

Thanks for the insight, Joe. Excellent as always. And, well, that s all for this issue of letters. . .er, wait a minute. We re getting another message right now!. . . .Hey, it s Oklahoma Mike again. Speaking of losing customer s files and plates reminded him of flood insurance. Flood insurance? Read on.
From: Michae0912
To: TomCrouser

TOM - I almost forgot...
We were in a flood in 1986 that pushed 4 feet of water through our building (we were not in a federal flood plain, then, but are now). Besides loosing our equipment and receiving enormous building damage, we lost nearly half our negs/plates/files (we had less then 2 hours notice of the flood). Insurance was not valid in a flood.

We bit the bullet when we re-opened the next week in a temporary location, and proceeded to handle re-orders just as we always did (our customers never knew we lost their files to the flood; we just re-shot or re-comped every job that was lost at our cost). Needless to say, we spent 2 years in the hole (red ink), but not only survived but came out much, much stronger, streamlined (and also Bartlesville s largest printer today).

A word of caution though; only AFTER we were declared in in federal flood plain were we allowed to purchase flood insurance; and even that stipulates, by law, that our building is insured but NOT the contents (contents are considered mobile and transportable, by federal law). Your readers might want to protect their backsides and not only check out EXACTLY what they re insurance covers (in Okla. we are covered for tornadoes, but not floods), but also make sure whether that insurance INCLUDES building contents under acts of God - in Okla. the contents are not insurable the way a building is, unless a special policy is purchased (we found out the hard way in 86- 87). We even had business interruption insurance coverage with one of the best companies and they did not have to pay because it was a flood.

Even now, we have full flood coverage, but it still, by federal mandate, cannot cover any contents.

This can pose a real problem for printers keeping their customers negs/plates/art, etc. We now have an Emergency Evacuation Procedure that moves our customer files out first, even before the equipment is moved (we can clear the building now in less than 3 hours and drill once a year to keep prepared. Mike...., Printing Center, Bartlesville, Oklahoma
Well, that s all our letters this week. Pamela and I are going to slip down to the Graphics of the Americas show which is going on today in Miami. Hate to leave my abode here in Fort Lauderdale, but it s a little cool (70 s) and, well, we ll do the beach tomorrow anyway. And, uh, keep warm. We ll be in the south Florida area for another week. Then, back to West Virginia next weekend and then on to Texas, partner!

Happy Trails.... Tom Crouser

Does your shop have what it takes to survive the next twenty years? Reply to this message with the word DETAILS and I will send to you information about our on-site threat analysis. Spring dates being accepted.

Crouser & Associates Performance Group program includes two on-site evaluations by Tom Crouser each year along with two group meetings. Management training is held during the group meetings along with participation in a meeting with non-competing printers. Join others who have decided to run their business instead of the business running them. Reply to by Email to Tom Crouser for more detailed information, or call Clark Workman at (304) 342-5100 or fax (304) 342-5187.


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Date inserted: Wednesday, January 31, 1996 7:34:55 PM

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