89 PHOTOGRAPHERS FIGHT FOR RIGHTS
September 17, 1997
Twelve photographers have retained Alan Trachtman of Dealy & Trachtman, LLP in New York to pursue a monetary settlement with National Geographic Interactive for the proposed use of their images on a 30 disc set of CD-ROM's entitled The Complete National Geographic: 108 Years of National Geographic Magazine . The discs are scheduled for release this fall.
NGI is a for-profit organization affiliated with the non-profit National Geographic Society.
The photographers - Charles O'Rear, Fred Ward, Loren McIntyre, Tom Nebbia, Adam Woolfitt, Nathan Benn, Linda Bartlett, David Austen, Jim Pickerell, Steve Wall, Paul Horsted and Nick Sebastian - have had a total of more than 2700 images published in National Geographic Magazine between 1958 and 1993. They also wrote 24 articles for the magazine and had their pictures used on 16 covers.
National Geographic believes they have the right to re-use these images and stories without paying any additional compensation to the creators. Tom Stanton, Director of CD-ROM product management for National Geographic Interactive, a for-profit division of National Geographic Society, said, "Because the CD-ROM archive consists of an exact image of every page as it was originally published, this reissuance (or reprint) is not a 'further editorial use' of material such as requires additional payment to the photographers whose contracts commit the Society to payment under those circumstances."
Most of the images in dispute were produced under contract to National Geographic Society. Those contracts specified that there would be additional payment for additional uses of the images. Some photographers produced images on a freelance "one-time-use rights" basis and other images were purchased from stock.
In no case did National Geographic Society purchase electronic use rights to the images in question.
These photographers believe this set of 30 CD-ROM discs is a new usage under the terms of their contractual agreements. They believe they are entitled to "appropriate" compensation for this usage, and that it is the photographer, not NG, who decides what is "appropriate." They believe that if a photographer and the magazine can not come to an agreement on "appropriate compensation" then the photographer has the legal right, based on their contracts, to withhold the work.
Moreover, the photographers believe that if NG is allowed to make this additional electronic use of their images and text, without providing any additional compensation, it will set an extremely dangerous precedent for the industry.
National Geographic Interactive is claiming the right to use this material not only in this CD-ROM archive, but also "on versions in CD-I, DVD, and other versions, editions, adaptations, or sequels to the original title." The term and territories they intend to use the product in are, "twenty years worldwide, in all languages."
Jim Pickerell, who helped organize this group, said, "So far, not a single photographer or writer has come to me and indicated that they support NGI's position or believe it is fair or reasonable. Many, who still do occasional assignments for NG, have indicated that they support the photographer's position, but they are afraid to allow their names to be used for fear of retaliation by NG."
Some have asked if this is a class action that will benefit everyone who has ever provided pictures or text for the magazine. The answer, at this time, is NO. This action will only benefit those who are active participants within the group, who have paid a share of the retainer, signed a retainer agreement with the lawyers, and who are willing to allow their names to be used as being part of the group.
It is expected that NGI will insist on knowing specifically who they are compensating, and therefore it is impossible for individuals to benefit if they want to remain anonymous. Once NGI has reached an agreement with our group, there is nothing to prevent NGI from offering the same terms to everyone who has ever worked for National Geographic Magazine. However, given the position NGI has taken thus far, it is hard to imagine them doing that.
Pickerell emphasized, "Individuals or organizations who join our group are not required to accept a majority approved settlement offer. Once such an offer has been made each individual is free to reject it and pursue other remedies on their own, if they believe that is in their best interest."
In all likelihood, photographers who decide to sit on the sidelines will receive nothing for this use.
Preliminary research has revealed that in a two-and-a-half year period more than 500 photographers had at least one picture published in the magazine.
Any photographer, anywhere in the world, who has had work published in National Geographic Magazine is welcome to join this group. Individuals or agencies can do so by paying a retainer of $2.00 per image or $25 per text story published. In addition they must supply us with detailed information about when and how the work was produced and used. There is a minimum retainer or $50 per participant. Interested parties should contact Jim Pickerell at 301-251-0720 for more information.
The above rates are good until November 2, 1997. After that time the retainer fees per image will be $4.00, but the fee for text and the minimum retainer will remain the same. As we get close to an agreement it will be necessary to close the group in order to provide NG with specific details as to who will be compensated. We have no idea when this might happen, but the group may be closed to new entries at any time, without notice.