Photo Attorney

Jul 2, 2008

Court Finds National Geographic CDs Don't Infringe Photographer's Copyrights

Yesterday, the U.S. Court of Appeals for the 11th Circuit issued its decision to vacate a $400,000 copyright infringement award for Jerry Greenberg against National Geographic Society in Greenberg v. NGS. The court heard the matter "en banc," where all of the judges of the 11th Circuit (instead of the original panel of 3 judges) weighed in on the ultimate decision.

By a close vote of 7-5, the 11th Circuit closely followed the Supreme Court's analysis of Section 201(c) of the Copyright Act in Tasini v. New York Times, 533 U.S. 483 (2001), finding that CDs of previously published National Geographic magazines were "revisions" and not new works, despite the addition of new copyrightable elements such as an introduction and search functions. Although Greenberg wanted to be paid additionally for the use of his photos in the CDs, the Court found that NGS' use of the photos in the CDs was included in his initial license to NGS. My Sept 6, 2007, and June 16, 2007, blogs provide some history of the Greenberg case.

Judge Birch's dissenting opinion is twice as long as the majority's opinion. A scholar in copyright law, he is a clear advocate for artists, noting that "the 1976 Copyright Act was supposed to reverse two hundred years of publishers' exploitation of authors under the 1909 Copyright Act." Judge Birch also recognized that, "At the end of the day this case is not about education, access by the masses, or efficient storage and preservation - it is about who gets the money," finding that "the profits are enhanced exponentially when the publisher can exclude the contributing artists, authors, and creators of the content from sharing in those profits."

As explained in my June 25, 2005 blog, photographers who submit photos to publishers for inclusion in a book or magazine retain their copyright in the photos unless the copyright is specifically transferred in writing to the publisher. The publisher's use of those photos is limited by the license agreement. The publisher, however, creates a new copyright, called a "collective work," when your photos are combined with other photos, text, illustrations, etc.

As the owner of the copyright in a collective work, the publisher may reproduce and distribute your photos as part of that particular collective work, but not as a separate item. The publisher also may distribute any "revision" of that collective work. While a "revision" is a new "version," it still is considered to be the same work. When this law is applied to the Greenberg case, the 11th Circuit Court found that the NGS CDs are the same work as the magazines. Thus, NGS does not have to pay Greenburg for using his photos in the CDs.

The dispute still is not over for Greenberg. His case will be remanded to the Southern District Court of Florida to determine other issues. For example, Greenburg still has a claim against NGS for using one of his photos during an introductory montage for the CD. While the outcome of this particular issue on revision is not what we hoped for, Greenberg is to be commended for fighting for photographers' rights.