Slashdot Mirror
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."
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
Web Tips
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.
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.
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.