Geographic Guilty of Copyright Infringement

Posted on 6/16/1999 by Jim Pickerell | Printable Version | Comments (0)

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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

    copyrighted work.

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

decision.


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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