The grim outcome of Greenberg vs. The National Geographic Society should be of deep concern to every photographer who believes copyright offers legal protection. Rather, this case teaches us two things: the law is not always fair or equitable, and those who have deeper pockets tend to win.
I disagree with my colleague who argued, “Photographers’ only remaining option is to negotiate all potential future uses at the time of commission and to put the results of such negotiations into non-ambiguously worded contracts.” In my opinion, there is nothing whatsoever photographers can do to protect themselves from being exploited in this way.
If there was ever a photographer who dotted all the Is and crossed all the Ts in executing a contract for photographic work, it was Jerry Greenberg. His written agreement with the National Geographic Society said that for the fee he was paid he was licensing only the rights to publish his work in a single edition of the printed magazine. If NGS wanted to use his work in any other way, it would be necessary to compensate him for that use.
Greenberg also had letters from NGS transferring the copyright back to him. It should be noted that these images were used by NGS before the passage of the 1976 Copyright Act. At that time, copyright rested with the organization paying for the work and not the creator. as it does today. Thus, the formal transfer of copyright back to Greenberg was extremely important.
Greenberg had the images registered with the Copyright Office years before “The Complete National Geographic: 108 Years of National Geographic Magazine” CD-ROM discs were created. Robert Gilka, retired NGS director of photography and the man who hired Greenberg to do the work, testified that it was his intention to use the images only in the magazine and pay an additional fee for any other use.
The discovery process revealed that the discs containing Greenberg’s pictures—and the pictures of every other photographer who had ever had images published by National Geographic—generated over $70 million in revenues for the publisher.
In the 1960s and early 1970s, the idea of such a thing as a CD-ROM disc that could hold images was inconceivable, as was the idea of delivering images online. Stock photographers cannot anticipate and spell out all possible future uses of their images 30, 40 or 50 years down the road. All they can do if carefully define exactly the rights that are being licensed at the moment and stipulate that all other rights are reserved.
Rumor has it that pursuing this case has cost Greenberg over $200,000 in legal fees. Greenberg’s attorney Norman Davis, the senior counsel of Squire, Sauders & Dempsey, said that his client did this not only for himself but to look after the interests of other creatives. “In pursuing this cause, he has exhausted virtually all of his means,” Davis added.
Photographers owe Greenberg a tremendous debt of thanks. Hopefully, they will take the lessons of this case to heart. If the infringer is a small organization without a lot of resources to pursue legal action, and the photographer has the copyright registered, he may get an out-of-court settlement, or at least keep legal costs to a minimum. Infringers with deep pockets will eventually get their way, even if it takes 11 years, regardless of what might be fair or equitable.