231 GEOGRAPHIC GUILTY OF COPYRIGHT INFRINGEMENT
June 16, 1999
Judge Joan A. Lenard has found that National Geographic Society infringed the
copyright of underwater publishers Jerry and Idaz Greenberg when they used Jerry's
copyrighted images as reference materials for two projects without
permission or compensation. The case was heard in Federal Court in the Southern
District of Florida in Miami.
The case has been referred to Magistrate Judge William C. Turnoff for the purposes
of holding a settlement conference to determine the amount National Geographic
will be required to pay to the Greenbergs.
This is the first time National Geographic has been found guilty of copyright
infringement of a photographer's work. The case may open the door for legal
action by other photographers against the Society.
In a review of the facts of the case it was shown that Walter Cutler, the
work-for-hire illustrator hired by the Society to produce illustrations for an
educational GeoPack project, improperly used books produced by the Greenbergs as
reference for his illustrations.
On his working drawings Cutler noted the page references referring to the
photographs he had copied so the Society editors could verify that the
illustrations were accurate. This clearly laid the responsibility on the Society
editors because they were fully aware of what had been done and were responsible
to obtain proper permissions and deal with compensation issues.
Cutler's illustrations also met the test of "substantial similarity" according to
Judge Lenard. The Greenbergs had produced overlays from their books that clearly
showed the illustrations were almost exact matches of the Greenberg's photos.
In challenging the Greenbergs' motion for Summary Judgement on Liability, lawyers
for National Geographic Society argued that the newly created illustration did not
violate the Greenbergs' copyright, and "that even if these images reflect
copyrighted material, this use constitutes "fair use".
Judge Lenard found that the illustrations "improperly infringed the photographs at
issue, and that the doctrine of fair use is not applicable to these facts."
The court took into consideration the four nonexclusive factors to be considered
when determining whether the fair use doctrine applies and concluded, "that
neither the GeoPack product nor the Jason Project poster qualify as fair use."
The four factors are:
1 - the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
2 - the nature of the copyrighted work;
3 - the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
4 - the effect of the use upon the potential market for or value of the
The courts detailed presentation of the facts related to each of these points
should be useful to others faced with a "fair use" claim by any organization, and
particularly National Geographic.
Counts three and four in the Greenberg's case are not a part of this decision and
dealt with the use of the Greenbergs copyrighted images in the "108 Years of
National Geographic on CD-ROM". Earlier in the proceedings lawyers for National
Geographic argued that the "Tasini" decision in the Southern District of New York
confirmed their right to make uses in the "108 Years" project without compensating
photographers in any way. The Greenberg's argued that "Tasini" should have no
bearing on their case because that decision was being appealed.
On this point the judge agreed with National Geographic and issued a partial summary
jusgement on the two counts. Thus, the arguments relating to the use of the
Greenberg's images in the "108 Years" project were never heard. The Greenbergs have
the option to appeal that decision of the judge.
Oral arguments for the appeal of the "Tasini" decision have been heard in the New
York Appeals court and all parties are presently waiting for the judge's ruling in
that case. The results of that case could affect the Greenbergs ultimate