Tasini Decision Overturned

Posted on 9/28/1999 by Jim Pickerell | Printable Version | Comments (0)

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TASINI DECISION OVERTURNED


September 28, 1999

Freelance writers have won a major victory with a ruling by the U.S. Court of

Appeals in the Second Circuit of New York. The court overturned the lower court

decision in Tasini et al. v. New York Times et al.

The decision says that the "collective works" privilege in 201(c) of the 1976

Copyright Act does not protect the Times and other publishers from copyright

infringement claims. The publishers had claimed that the 201(c) privilege

allowed them to make "any revision in a collective work" that they had

originally published without being required to additionally compensate the

creator of the original work.

In his written decision Chief Judge Ralph K. Winter said,

"there is no feature peculiar to the databases at issue in this appeal

that would cause us to view them as 'revisions'." Judges Rosemary S. Pooler and

Senior Judge Roger J. Miner joined in the opinion.

"Because it is undisputed that the electronic databases are neither the original

collective work -- the particular edition of the periodical -- in which the

Authors' articles were published nor a later collective work in the same series,

appellees rely entirely on the argument that each database constitutes a

"revision" of the particular collective work in which each Author's individual

contribution first appeared. We reject that argument."

"We emphasize that the that the only issue we address is whether, in the absence

of a transfer of copyright or any rights thereunder, collective-work authors may

re-license individual works in which they own no rights. Because there has by

definition been no express transfer of rights in such cases, our decision turns

entierly on the default allocation of rights provided by the Act. Publishers

and authors are free to contract around the statutory framework," Judge Winter

concluded.

The decision greatly narrows what might qualify as a "revision."

While certain uses could still be considered revisions, for all practical

purposes the vast majority of digital uses that have been made in the last few

years would no longer qualify, and would require separate specific licensing for

the digital use.

Many publishers have been arguing that the "Tasini" ruling has given them the

right to re-publish, in a variety of digital formats, anything that apperared in

their print publications. This decision make it clear that those uses were

infringements.

What's Next

Publishers will likely to be much more agressive in adding clauses to their

contracts that expressly transfer electronic rights as well as print rights to

any material they purchase. Many will require the creator to agree to the

transfer of both rights before they use the material in either format.

It is extremely important that photographers and agents read all new agreements

and purchase orders carefully. You should precisely and narrowly define the

rights you are transferring. Also, be sure to charge an appropriate amount for

these additional rights when they are transferred.

If it also time to begin agressively pursuing unauthorized on-line use of images

supplied for print use only. As a first step we recommend sending a "Settlement

Offer" (not an invoice) for three times the normal fee for any unauthorized use

you discover.

Many publications have been very sloppy in checking rights before they put

images on-line. A few settlements may convince them to be more careful and to

negotiate rights before using images.

This decision puts teeth back in the copyright law for photographers, but in

order to collect registration is still important. To register your copyright,

go to the Copyright Office website at http://www.loc.gov/copyright or call

202-707-3000 for application forms.


Copyright © 1999 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 www.selling-stock.com, 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: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  

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