Supreme Court To Hear Tasini Case

Posted on 11/13/2000 by Jim Pickerell | Printable Version | Comments (0)



November 13, 2000

The Supreme Court has agreed to review the Tasini copyright infringement case and render a

verdict before June 30, 2001.

The Court's decision will have a major impact on creator rights in the digital age.

The case (The New York Times Co. v. Tasini, No. 00-201) revolves around the question of

whether publishing companies must obtain permission from free-lance contributors' before

including their work in electronic databases.

In September 1999, the U.S. Court of Appeals for the Second Circuit, in New York, reversed

a lower court and ruled that under a provision of the Copyright Act of 1996, the companies

can not publish free-lancer's work without permission and compensation.

The complaining companies are the New York Times Co., Newsday, Time Magazine, and two

database companies, Reed Elsevier Inc.'s Lexis/Nexis division and University Microfilms

International. These companies have been supported by friend-of-the-court briefs filed by

23 publishers and trade groups.

In his brief the Times' lawyer, Lawrence Tribe, argues that the 2nd Circuit ruling should

not be allowed to stand because, "the Second Circuit's judgment, as a practical matter,

sets a national rule requiring the destruction of decades' worth of articles currently

stored in electronic archives."

Patricia Felch of Chicago's Banner & Witcoff, who represents

free-lance authors in the case, thinks the publishers are vastly

overstating the impact of the 2nd Circuit decision. The destruction of databases won't be

necessary, she insists. A mechanism is already in place -- known as the Publication

Rights Clearinghouse -- to handle republication rights, analogous to ASCAP and BMI in the

music world. "Publishers won't have to track down every author," she says.

Whatever the decision it is not expected to have a large impact on the future publication

of articles and pictures because many publishers now require free-lancers to sign over the

rights to both print and electronic archive versions of their work. It may, however,

result in higher initial compensation for those uses if it is clearly recognized by the

courts that the creators are entitled to additional compensation for these additional


It is also interesting to note that while some publishers archive in this manner (and

usually charge fees for access to such archives) not all do. Should all publishers be

required to pay additional higher fees for archive usage when only some are archiving

their material.

It is hoped that the Supreme Court will recognize that while a decision in favor of the

New York Times et al may make life easier for the large publishers, it may hurt many small

publisher as well as all creators.

See original stories on the Tasini case




107, and



One major publisher that will certainly be affected by the Supreme Court decision is

National Geographic. When they first published their "108 Years of National Geographic"

on CD-ROM they argued that they did not have to compensate photographers for the work that

appears on these discs and cited the original Tasini decision.

There are at least four cases now working their way through Federal Court. They include

two separate cases filed by photographers Jerry Greenberg and Fred Ward, an action filed

in Colorado by Minden Pictures and photographer Louis Psihoyos and an action on behalf of

several plaintiffs who are represented by attorney Stephen A. Weingrad.


Minden Pictures is not innvolved in a legal dispute with NGS over the CD-ROM at this time.

They settled their case on unauthorized use issues and have retained their rights to

proceed with the CD-ROM case pending the outcome of the other legal actions in this


Copyright © 2000 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-251-0720, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to:  


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