What Is the Value of Copyright?

Posted on 12/15/2008 by Jim Pickerell | Printable Version | Comments (1)

The grim outcome of Greenberg vs. The National Geographic Society should be of deep concern to every photographer who believes copyright offers legal protection. Rather, this case teaches us two things: the law is not always fair or equitable, and those who have deeper pockets tend to win.

I disagree with my colleague who argued, “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.” In my opinion, there is nothing whatsoever photographers can do to protect themselves from being exploited in this way.

If there was ever a photographer who dotted all the Is and crossed all the Ts in executing a contract for photographic work, it was Jerry Greenberg. His written agreement with the National Geographic Society said that for the fee he was paid he was licensing only the rights to publish his work in a single edition of the printed magazine. If NGS wanted to use his work in any other way, it would be necessary to compensate him for that use.

Greenberg also had letters from NGS transferring the copyright back to him. It should be noted that these images were used by NGS before the passage of the 1976 Copyright Act. At that time, copyright rested with the organization paying for the work and not the creator. as it does today. Thus, the formal transfer of copyright back to Greenberg was extremely important.

Greenberg had the images registered with the Copyright Office years before “The Complete National Geographic: 108 Years of National Geographic Magazine” CD-ROM discs were created. Robert Gilka, retired NGS director of photography and the man who hired Greenberg to do the work, testified that it was his intention to use the images only in the magazine and pay an additional fee for any other use.

The discovery process revealed that the discs containing Greenberg’s pictures—and the pictures of every other photographer who had ever had images published by National Geographic—generated over $70 million in revenues for the publisher.

In the 1960s and early 1970s, the idea of such a thing as a CD-ROM disc that could hold images was inconceivable, as was the idea of delivering images online. Stock photographers cannot anticipate and spell out all possible future uses of their images 30, 40 or 50 years down the road. All they can do if carefully define exactly the rights that are being licensed at the moment and stipulate that all other rights are reserved.

Rumor has it that pursuing this case has cost Greenberg over $200,000 in legal fees. Greenberg’s attorney Norman Davis, the senior counsel of Squire, Sauders & Dempsey, said that his client did this not only for himself but to look after the interests of other creatives. “In pursuing this cause, he has exhausted virtually all of his means,” Davis added.

Photographers owe Greenberg a tremendous debt of thanks. Hopefully, they will take the lessons of this case to heart. If the infringer is a small organization without a lot of resources to pursue legal action, and the photographer has the copyright registered, he may get an out-of-court settlement, or at least keep legal costs to a minimum. Infringers with deep pockets will eventually get their way, even if it takes 11 years, regardless of what might be fair or equitable.

Copyright © 2008 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 301-461-7627, 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.  


  • Rio Helmi Posted Dec 15, 2008

    Just curious why you say an unambiguous contract is not any protection - is it because it doesn't hold up to the letter of the law/not binding or because the courts are not just? In my opinion the court made a very bad judgement given all the evidence, and though I am no legal expert, but a contract that is as specific as you outline should be upheld by the law.

Post Comment

Please log in or create an account to post comments.

Stay Connected

Sign up to receive email notification when new stories are posted.

Follow Us

Free Stuff

Stock Photo Pricing: The Future
In the last two years I have written a lot about stock photo pricing and its downward slide. If you have time over the holidays you may want to review some of these stories as you plan your strategy ...
Read More
Future Of Stock Photography
If you’re a photographer that counts on the licensing of stock images to provide a portion of your annual income the following are a few stories you should read. In the past decade stock photography ...
Read More
Blockchain Stories
The opening session at this year’s CEPIC Congress in Berlin on May 30, 2018 is entitled “Can Blockchain be applied to the Photo Industry?” For those who would like to know more about the existing blo...
Read More
2017 Stories Worth Reviewing
The following are links to some 2017 and early 2018 stories that might be worth reviewing as we move into the new year.
Read More
Stories Related To Stock Photo Pricing
The following are links to stories that deal with stock photo pricing trends. Probably the biggest problem the industry has faced in recent years has been the steady decline in prices for the use of ...
Read More
Stock Photo Prices: The Future
This story is FREE. Feel free to pass it along to anyone interested in licensing their work as stock photography. On October 23rd at the DMLA 2017 Conference in New York there will be a panel discuss...
Read More
Important Stock Photo Industry Issues
Here are links to recent stories that deal with three major issues for the stock photo industry – Revenue Growth Potential, Setting Bottom Line On Pricing and Future Production Sources.
Read More
Recent Stories – Summer 2016
If you’ve been shooting all summer and haven’t had time to keep up with your reading here are links to a few stories you might want to check out as we move into the fall. To begin, be sure to complet...
Read More
Corbis Acquisition by VCG/Getty Images
This story provides links to several stories that relate to the Visual China Group (VCG) acquisition of Corbis and the role Getty Images has been assigned in the transfer of Corbis assets to the Gett...
Read More
Finding The Right Image
Many think search will be solved with better Metadata. While metadata is important, there are limits to how far it can take the customer toward finding the right piece of content. This story provides...
Read More

More from Free Stuff