Supreme Court Refuses to Hear Greenberg Appeal in National Geographic Case

Posted on 12/11/2008 by Julia Dudnik Stern | Printable Version | Comments (4)

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.

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


  • Fred Voetsch Posted Dec 11, 2008
    This certainly will not make me more popular in the industry but I agree with the ruling. Simply changing from print to elctronic media does not constitute a different context, IMO.

  • Rio Helmi Posted Dec 11, 2008
    Fred, I (along with probably a host of others) beg to differ. It is a very different context. The publisher is profiting in one way or another, plus the cost to the publisher is negligible to put something online (compared to print). However the grim reality is that most contracts/deals done more than a decade ago had no provision for electronic use so it falls into a gray area which is exploited. I've had similar cases (albeit on a much smaller scale) which I haven't even bothered to contest. But what I do now is include something about electronic media in the clause about usage, whether allowing it or disallowing it. That way both publisher/client and photog are clear.

  • Fred Voetsch Posted Dec 15, 2008
    Being objective will never win me a whole lot of friends in any industry but if we are going to sell a license to anyone for use in a magazine and then sue them for more money when they have the gaul to dislay that magazine in a manner we did not specify (what if they make a poster to advertise the magazine or run a TV or print ad?) then we deserve what we get when RF comes along and undercuts us.

    Greed is greed whether it is displayed by Wall Street fat cats, corporate CEO's or stock photographers. The court is objective and they agree with me so I guess that makes me right. That the photographer sued I don't have a problem with; that the court ruled and that photographers now complain about how the system is against them shows the lack of objectivity. Reminds me of the clueless on Judge Judy when she dresses them down; they are so sure that they were justified in their actions that they can never accept that they cheated, lied or stole.

    I always look for facts rather than emotion and self-interest and I see no objective arguement or facts in this case that justify being upset over the verdict...only greed.

  • Rio Helmi Posted Dec 15, 2008
    Fred, you're not being objective, you are siding with the defendant and the courts. Thats all. It wasn't an ad, it was a compilation and it was sold as such. NG made 70 million plus dollars on that compilation. That's an objective truth.

    Where's the greed?

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