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Court Rules Against Photographers in Copyright Suit
An anonymous reader writes "Photo District News Online reports a Federal District Court in NY says that republishing Magazine content on a CD is the same as republishing the magazine itself. Photographers claim they should recieve additional compensation for images published on the CD that were published in the orginal magazine articles. IANAL but there is some additional interesting case history in the article as well."
To me it's pretty obvious that publishing something on CD is the same as publishing it on dead trees. I'm happy for the photographers.
Martin
Greenberg won that award after the 11th Circuit Court of Appeals in Atlanta ruled in March, 2001 that the CD was not a revision, but a "new product, in a new medium, for a new market" since it contained a search engine and other features the magazines do not have.
... are all the same work. The fact that the paper release has numbered pages and a summary, that the CD has a search engine (which isn't more than another way to search for a photo quickly, like a summary and page numbers), or a viewing box with scrolling knobs, has nothing to do with the originality of the work.
Copyright law allows publishers to issue revisions of published works without permission from contributors, but not new works. The distinction is at the heart of all the lawsuits.
So, to resume, if the CD had been just a dumb directory full of jpegs from the NG, the publisher would have been in the clear. But instead, he tried to add a search engine, and as a result the CD qualifies as a "new work".
New work? wtf?
A search engine is a feature that I would expect from a multimedia CD. But it should be considered an ancillary function, something that's expected on such a medium, that's not the core of the product. The core stays the pictures.
Similarly, suppose the publisher could release 3D versions of the NG photos, in the form of a 3D viewing box : wouldn't you expect knobs to turn the photo around left and right, and up and down, on the viewing box? should that be considered a new work just because the 3D versions of the same photos have knobs? I don't think so, the core of the work is still the original photos, the viewing knobs are just accessories that should be expected given the type of medium the photos are on.
The basic idea is that photos released on paper, CDs, microfiles,
Therefore, the only thing I have to say is, this "new product" decision is grotesque. Another shining example of why copyright laws aren't adequate for modern media (it's called being multimediocre) and should be revised.
"A door is what a dog is perpetually on the wrong side of" - Ogden Nash
This is a case where I can see both points of view. As a consumer, I very much like the availability of complete collections of periodicals in electronic form. (I have the complete Mad Magazine CD-ROM set, for instance.) A ruling that freelance contributors have to give permission and get royalties on such a republication would make it nearly impossible to publish such a thing for magazines that go back many decades unless their contents were entirely "work for hire" owned by the publisher; even if they could afford all the royalties (which would make the collections exorbitantly expensive), the recordkeeping would be a nightmare, and they probably don't even know how to get in contact with freelancers or their heirs from long ago (but due to the copyright term extension, things stay copyrighted as long as 95 years or more now).
On the other hand, if I were a creator of material published on such a magazine, I'd want to be properly compensated if it became part of a lucratively-marketed collected work; I'd probably have been paid a relatively small amount in the first place based on its use being ephemeral (in the context of a periodical) rather than the larger amount I'd expect for permanent rights to something that would remain in print.
This issue is really one which needs to be addressed via contract, and it probably is for new freelance material these days now that publishers have such uses in mind and probably have a clause specifically about them. This, however, doesn't settle the issues regarding past material created before either the creator or the publisher had any idea of modern electronic uses, hence all the litigation. Similar issues occur with DVD collections of TV series, where it's often in doubt who requires permission and compensation for everything from actors' residuals to music rights.
--Dan
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Whether it's printed on Dead Trees(tm) or pitted into polycarbonate discs, as long as it's the same content, then they're just publishing the magazine.
So, as long as it is:
- same content
- same publisher (ie the one who's already paid for the right to publish)
The fact that it's purely a different physical medium is totally irrelevant.--------
So back to your point about mirroring websites.... Well, this all centers around an existing right-to-publish. Do you have that? If so , then sure, mirror the website. If not, they you're in flagrant breach of copyright, and should be prosecuted to the full extent of the law.
Visit CryptoGnome in his home.
As much as I thought Kaplan was a raging idiot for his DVD reasoning, this one is not so clear cut. The 11th District appeals court decision that adding a search engine on a DVD collection targets a new product at a new market rather than just being a revision is shakey.
The same people who would order the collection in printed form with a printed searchable index would probably prefer to have the collection in electronic form with an electronically searchable index. To me that is the same market.
Since adding a printed searchable index to an existing publication is considered a revision, and not a new product, and a CD collection that retains the exact same context as its original printed version is also considered to be a mere revision, then I have to agree with Kaplan that adding an electronically searchable index to a CD collection that retains the same context as the original printed version is also just a mere revision.
I don't think NGS did any wrong in this case.
If they had merely PDF'd the magazine, and the stuck that on a CD, it would be "the same product".
Any time you modify anything about an existing product, it's "a New Product" (at least, in the marketing sense). How many times have you seen ads for "New and Improved" something-or-other in which the "new" thing is essentially (ie to anyone but a marketing droid) trivial. (can anyone say "concentrated" dishwashing detergent - geez people "we put less water in it, QUICK spin up the marketing machine")
If that's the attitude pushed by product managers, and swallowed by the general population on a daily basis, why should it not apply in this case?
Visit CryptoGnome in his home.
Similarly, suppose the publisher could release 3D versions of the NG photos, in the form of a 3D viewing box : wouldn't you expect knobs to turn the photo around left and right, and up and down, on the viewing box? should that be considered a new work just because the 3D versions of the same photos have knobs? I don't think so, the core of the work is still the original photos, the viewing knobs are just accessories that should be expected given the type of medium the photos are on.
IANAL... Creating 3D version of existing photo would be considered a new work. You are taking the work of somebody and creating a derivation of it.
So, to resume, if the CD had been just a dumb directory full of jpegs from the NG, the publisher would have been in the clear. But instead, he tried to add a search engine, and as a result the CD qualifies as a "new work". A search engine is a feature that I would expect from a multimedia CD. But it should be considered an ancillary function, something that's expected on such a medium, that's not the core of the product. The core stays the pictures.
... are all the same work.
... are all the same work.
(snip)
The basic idea is that photos released on paper, CDs, microfiles,
That the photos are the same is not what is at issue here - the freelance photographers sold the right to use them in NG magazine, and only the magazine. If the NGS wants to use them in a different work than the magazine, then they need to pay for that right. The photographer, not NGS, owns the rights to the photograph.
The basic idea is that photos released on paper, CDs, microfiles,
What is at issue here is not wether the phot is a new work, but wether a CD compilation of a magazine is - no one is claiming the photo is a new work, rather taht publishing them in a different medium with new capabilities is a new work. Now, whether a compilation on CD is a new work is a point on which the courts obviously disagree, and is one that should be resolved because it clarifies what is a new work.
Arguing that the CD is the same as the magazine is akin to saying since my subscription entitles me to all issues of the magazine for a certain period, I am owed the CD because it is no different than the magazine and contains the issues that covers my subscription - something I think NGS would disagree with and point out the Cd is a different beast.
I'm a consultant - I convert gibberish into cash-flow.
They should have published the Magazine on CD in the first place. Most magazines have back issues on CD.
...
Oh yes, just imagine if they had published all their issues on CD since 1888
Seriously though, NGM doesn't have much interest in creating NG photo CDs for 2 reasons:
- They're an old publication, therefore more likely to get away with sticking to dead tree publications
- They print high quality photo, so it's understandable that they're not so excited about digital copies, since it would take a full CD per photo to equal the quality of a good paper print
"A door is what a dog is perpetually on the wrong side of" - Ogden Nash
For most photographers press run is definately factored into delivering a price quote for the client.
In the long run, no one wins in this pissing match between photographers and publishers. Regardless of how this issue ultimately is settled by the courts, the real outcome is that both publishers and photographers will have to spend more time and more resources on bookkeeping, recordkeeping, contract negotiation, and other energy-sapping details of business that have nothing to do with the making of great photography and great publications.
The photographers are trying to take advantage of the historically loose business relationship with their customers (the publishers). For a long time, many newspapers and magazines bought freelance content without any sort of formal contract. This messy situation wasn't a problem until new media started dangling (mostly imaginary) riches in front of the freelancers, who responded by launching a series of legal maneuvers aimed at their customers (the publishers). No rights to republish on CD? Oops, gotcha. But playing oops-gotcha with your customers is no way to build a healthy business.
The fighting over residual rights that has emerged in the last couple of decades has had only one real, long-term effect: most publishers now require signed contracts that specifically grant open-ended rights to future/to-be-invented media so this ugly situation doesn't occur again.
But there are costs, for lawyers, for recordkeeping systems, for tracking down authors and photographers and negotiating new agreements, and not one cent of that money makes for better photography or better publications. It's a massive inefficiency and it's energy lost forever.
No, it's not daft, and a CD is not simply a republication. It is a republication that makes it much easier for people to steal (read: copy, and use without permission. And no, I don't agree with the RIAA's tactics either.) ;-P It's also not about "Oh boy, let's charge more because it's still new to people". It's about protecting yourself as best you can, and not giving your work away to everyone. And that's not unreasonable for someone who's primary (and sometimes, ONLY) source of income is the images that they capture.
Let's remember that photographers are people who's ability to capture a particular visual is often far greater than the average Joe with a digital camera. I'm an amateur photographer, but I use my photography in a professional capacity in my design work. I show up at a client's office, and shoot images using techniques that I learned because I studied. Thus, I get images that don't look like someone with a disposable camera and a light office-party buzz took them. I am likely to charge less for something used in print than I am something used in digital. Because of some arbitrary need to charge more for a "new" use? No. I might decide to charge more because the risk of my work being stolen becomes much greater if it is a digital file.
If I license a photograph to someone for use in a print advertisement or brochure, I know that's the only place that image will be used. If someone tried to scan it and reuse it, it would be difficult; there would be a moire pattern, due to the offset printing process. If I were to license it someone for use on the web, it's easier to copy, but again, it's low-res, and can't really be used for print. It could potentially be used on the web, so I might charge more for this higher risk, or I might not. It depends on the use, how much it is altered and reusable, etc. Most of the photos I take that get used on the web are placed within designs in such a way that reusing them would likely prove to be a frustrating and futile effort.
If my clients suddenly started distributing my images on a CD to their clients... this becomes a problem. I usually license the images to them for a single use, or for unlimited use for a specific purpose. If they give out the images to everyone, my copy protection and control over them ceases to exist. If my clients want the right to do this, that's fine, but they should probably expect to pay more than the standard fee for this. It's different if it's work for hire. But if I set up an visual that I like, and a client wants to use it, I want to make sure that I protect myself and my rights for the future. When that client passes out my work for just anyone to use... I've lost all of that.
Look, I don't want to sound old-fashioned or draconian. Honestly, I don't really mind if my clients get creative with the photos I give them. If they want to rework and reuse them in other advertisements, whatever. That's called good PR and client support. But if they start shelling out my work at no charge (or worse, for an additional charge), I have to take exception. These CDs are sure to generate more income for the magazine; I seriously doubt that they're going to distribute these things for free. And unless they're in some kind of proprietary format (and for the technically inclined, even if they do), people will have access to the raw image data. And yes, to whomever posted that comment, it WILL scare a bunch of photographers, who often count on the difficulty of taking matierals from printed works to protect them
In the 1930s, most magazine photography was work for hire. In 1947 a bunch of talented guys got together to form Magnum, one of the first photographer-owned agencies. Under their terms of business, the photographers owned the copyright to their own pictures. They were good, and Life, Picture Post, National Geographic, Paris Match etc had no objections. Up until the 1970s, things were good for photographers and agancies.
Then budget-cutting media owners realised that someone was making money when pictures were resold, and it wasn't them. Today, editorial rates of pay for photographers are around what they were in the mid 1980s. If you can get expenses out of anyone, you're doing well. Contracts are becoming more favourable to publishers, effectively taking copyright from photographers without either granting them better rates of pay, or better working conditions, insurance etc.
I got back from the Middle East last month, at times it was hairy, had 5 pages in a magazine, just recovered my costs. I can resell these pics overseas, as I'd done the story freelance rather than on comission (I took all the financial risk), but what's really paying my way now is corporate work. The deal is that some corporation pays top dollar for all rights. So if you see those pics in magazines, that's the corporation that's paying for the photography, not the magazine. I could say a few things here for editorial independence, but I won't. Bottom line is, the market is taking control out of the hands of photographers, in a few years time, the only people still working magazines will be those best adapted to say "yes sir!" to their bosses - either in the media or industry, there isn't that much difference. When was the last time you saw pictures coming out of Chechnya or Sierra Leone? In the 70s you could make a career out of being an honest reporter. Now the cash comes from people with their eye on the next great cost-cutting measure. Magnum are still going, mixing in hard news with corporate work like the rest of us.
As for this National Geographic case, while NG are one of the best bosses in the business, it's sad to see bean-counters taking steps against their own photographers. Without the bean-counters, there's chaos. But without the photographers there's no magazine. And like the website is making money. Photographers won this round, but I doubt they'll win the war.