An 11-year saga of Greenberg v. National Geographic has concluded with the Supreme Court refusing to hear photographer Jerry Greenberg’s latest appeal. The two rulings that now set the legal precedent for reproducing copyrighted freelancer content will be the July 2008 decision of the 11th U.S. Circuit Court of Appeals and an earlier Supreme Court decision in Tasini v. The New York Times.
At the core of both decisions is whether or not the reuse of a previously commissioned freelancer-produced work—be it an image or a textual product—is whether or not the original work is reproduced in the same or different context.
“The Complete National Geographic: 108 Years of National Geographic Magazine,” a CD compilation that included 1,200 past issues of National Geographic, reproduced over 60 Greenberg’s photographs. The Florida court of appeals viewed it as the equivalent of a reprint, since the images were presented in their original context, exactly as they first appeared in the print magazine—and for which Greenberg has been paid. In the Tasini case, where the Supreme Court sided with freelancers, The New York Times took print articles and republished them online, making them available outside of their original context. (This previous Selling Stock article has further details.)
Though the Greenberg battle may be over, the legal decisions have not been unanimous. The National Geographic Society finally won by a narrow margin of 7 to 5 votes, and two dissenting opinions were published. Chief among the judges’ objections was the notion of fairness: if a publisher is earning new revenue from a product that uses a freelancer’s work, the freelancer should share in the proceeds irrespective of the work’s context.
Still, this opinion remains in the minority and has no legal standing. 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.