In addition to entirely unauthorized image use, reuse of images beyond the scope of the original licensing agreement is a prominent issue in the business of stock licensing. The best-publicized, precedent-setting case of this nature is 1997’s Tasini v. The New York Times. After a series of appeals, the newspaper lost to the freelance writer, with the court deciding that republishing copyrighted work in a database, outside of the original publication’s context and without permission or compensation, constituted infringement.
Another landmark case that will affect how imagery is reused, Greenberg v. National Geographic Society, is currently moving closer to final resolution. The general counsel of the National Press Photographers Association, Mickey H. Osterreicher, has penned an in-depth but plain-language outline of the issues. In this lawsuit, photographer Jerry Greenberg sued the magazine publisher in 1997 for reproducing his images on a compilation CD. Greenberg says he licensed the images for use in the print edition, and the CD is an entirely new product. The publisher argues that the CD is a revision, hence does not constitute either a new product or an infringement.
The U.S. courts’ decisions in this case can only be described as vacillating. Thus far, various divisions have ruled for both sides and subsequently vacated these decisions. Currently, the case is pending a new, supposedly final hearing by all 12 judges of the 11th Circuit Court of Appeals. Not surprisingly, publishing giants including Gannett, Hearst, Time, Newsweek, Forbes and a long list of others have sought permission to file amicus (friend-of-the-court) briefs arguing the case of NGS.
“It is also unfortunate to note that as of this date no one has sought leave to file an amicus brief on behalf of the Plaintiff/Appellee (Mr. Greenberg), and the time may have passed to do so,†comments Osterreicher. It is indeed surprising that in an industry that stands to lose revenue, should the court side with the publisher, neither leading companies nor advocacy groups have gotten involved.