Greenberg Ruling Sets New Precedent, Misses Mark

Posted on 7/15/2008 by Julia Dudnik Stern | Printable Version | Comments (0)

For the second time, the 11th U.S. Circuit Court of Appeals has sided with the National Geographic Society in Greenberg v. NGS, in which photographer Jerry Greenberg claimed that the publisher violated his copyright by reproducing images shot for the print magazine in a CD compilation. The court found that the product presented on the CD retained "contextual fidelity" because it compiled previous issues of National Geographic exactly as they appeared in print, adding only an introduction and functional elements.

While the decision addresses the issue of violating the author's copyright in a specific photograph, it fails to deal with the underlying financial concerns.

Greenberg v. NGS has endured 10 years of litigation and several conflicting rulings, and some of the images in dispute date to the 1960s. In 1998, the Georgia federal district court ruled in favor of NGS, citing a 1997 decision in Tasini v. New York Times Co., which determined that reusing freelancer-owned work in databases and CDs did not constitute copyright infringement, even without obtaining each author's permission.

The 11th Circuit Court of Appeals reversed the initial ruling in 2001, characterizing the NGS CD as a new product in a new medium for a new market. The case was then remanded to trial court, where a jury determined that the infringement was willful and awarded Greenberg $400,000 in damages.

Since these decisions relied on the rulings in the preceding, precedent-setting Tasini case, they were re-examined after Tasini v. New York Times was examined at the highest judicial level. The Supreme Court sided with freelancers, but it drew an important distinction between revisions and new works. In Tasini, articles authored by freelancers were presented online, outside of their original in-print context, enabling a new audience to use them independently of previous issues of the newspaper. NGS uses this distinction to suggests this was not the case with CD compilation. Subsequently, the jury award of damages was vacated in June 2007.

Now, the Atlanta appellate court also vacated the verdict of willful infringement. In a decision handed down in late June, the court said it sees the NGS product as a revision, not a new product that infringes on the copyrights of the photographers whose works are included. The decision references the Supreme Court ruling in the Tasini case: "Under the Tasini framework, the relevant question is whether the original context of the collective work has been preserved in the revision. Clearly, [the NGS CD compilation] preserves the original context of the magazines, because it comprises the exact images of each page of the original magazines ... is transparent to the viewer and does not alter the original context of the magazine contents."

While these decisions are in line with U.S. copyright law, it appears contrary to the underlying purpose of the law: That of preventing others from financially benefiting from your intellectual property. The NGS CD compilation was for-sale product, and all the revenues it generated went to the publisher. Aside from the concepts of infringement, willfulness and other complex legal issues, there is only one inescapable reality: People buy National Geographic for the pictures. The CD compilation offers NGS a new way to monetize the pictures it does not own and has already sold once as part of the magazine. It does not seem fair that the publisher is keeping all the secondary revenue.

Fairness is not a legal concept, but even the Atlanta appellate judges who rendered the latest verdict were divided in a 7 to 5 vote. Two dissenting opinions were published as part of an unusually long decision document. Judge Stanley Birch, who specializes in intellectual property, wrote: "The authors, artists, and creators should share in the publisher's profits and... the arguments, both legal and policy, by the publishers are bereft of logic, legal merit, and are totally disingenuous."

Birch's opinion remains in the minority. Greenberg's last remaining option is to appeal at the Supreme Court level. Despite the economic arguments made and won in the Tasini case, publishers can use technological advancements to reproduce images licensed for print in electronic media, without seeking their owners' permission, sharing the proceeds or risking legal consequences.

Copyright © 2008 Julia Dudnik Stern. 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 301-461-7627, e-mail: wvz@fpcubgbf.pbz


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