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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."
...of these tech cases, and we might just see some legislative reform!
FLR
Firstly, IANAL also, but the way I've read this ruling, I see a potentially useful application of it.
/.-ing of various smaller sites, could lead to (hopefully) /. mirroring news stories if they feel the server could go down.
If it is not a breach of copyright to re-publish electronically such as on CD, then that could be taken to mean that mirrors of sites would not be subject to copyright issues - which here, considering the
Only problem I see is that National Geographic had paid copyrights for all of the images once alredy, whereas nothing of the sort will have happened if this appliation...
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
"Well, good luck finding a judge that doesn't run a bestiality site."
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.
I'm a third generation photographer. I do mostly art photography in B&W, but my mother is a travel photographer who specializes in just the sort of cutural/anthroplogical images that are likely to appear in NG (although that's one place she hasn't actually been published).
I think this a good ruling. New technologies don't inherently create new copywrite issues at law. A CD republication is just a republication and the current trend to get all weird about it being a digital republication is a bit daft.
We like taking pictures. We sell them. We're perfectly willing to make more money by selling new photographs. The right to publish and republish is the thing the magazine publishers gives us money for. It's a fair deal.
And the added profits obtainable by republication makes the purchase of such photographs more of a viable commercial venture for the publisher in the first place.
On the whole I think a client base with loose purse strings is preferable to one who resents opening it up.
Not to mention the fact that it makes a better deal for the consumer as well, which can only help everyone in the long run.
KFG
They should have published the Magazine on CD in the first place. Most magazines have back issues on CD.
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.
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.
Well, "owed" is a bit strong a term. For example, if you own one copy of a magazine, you're not owed a second copy -- whether or not it's in a different format (on a CD).
It would be an interesting legal question on whether or not you could legally make your own COPY of a friend's CD, if you already own the original print version. I'd like to see NGS try to argue both sides of something like that.
Why are you letting these clowns ruin our country?
US District Judge Lewis A. Kaplan also presided over the 2600 magazine DMCA case, where he famously (and ridiculously) ruled that 2600 could not published the DeCSS code or even link to it.
Anyone seeing a pattern hear (read: "Hi I am Lewis Kaplan and I love big corporations.")
I own the work in question. My wonderful wife bought it for me a few Christmases back. It is basically just a set of jpgs, one per page, with an electronic index and table of contents thrown over the top.
The cake is a pie
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.
Not at all. Suppose NG were to publish their magazine in paperback and hardback format every month: I find it hard to believe someone could argue that the hardback format counted as a new work, yet clearly your subscription to one format of the magazine wouldn't entitle you to free copies of the other format. In the same way, why should your subscription to the existing dead-tree format magazine entitle you to the CD version? For my money, so long as the content (editiorials, articles, photos) is the same then it's the same magazine. Just because they bundle a swiss-army knife with one version or some search tools with another version shouldn't suddenly make the two versions new publications.
"'I pass the test,' she said. 'I will diminish, and go into the West, and remain Galadriel.'"
- JRR Tolkien.
I agree with the article's comment that a Supreme Court appeal is almost inevitable, given the apparent contradiction between this decision and New York Times v. Tasini. The judge made some effort to create space between his ruling and Tasini, but I just don't really see it -- and I especially don't see any way of formulating a consistent policy which is capable of distinguishing between the two different rulings on any kind of general basis.
I think that this one's going straight to the Supreme Court, and I think it's likely that Tasini will prevail, and that this decision will be overturned.
On the other hand, as time goes by, this will make less and less of a difference: In the wake of Tasini (indeed, even before Tasini), publishers have been changing their freelance contract terms to specifically include inclusion in future media collections. The main impact of these decisions, one way or the other, will continue to be on publications with considerable libraries of back issues which have some potential commercial value -- like National Geographic and The New York Times, of course, but also Sports Illustrated, Playboy, Time and Life, The New Yorker, and a few others (some of which may already have had freelance contracts structured in a sufficiently different way to leave them already in the clear, of course).
Magazines and newspapers, because of their inherent nature as somewhat emphemeral collections of the works of dozens, or even hundreds, of contributors, works to somewhat different commercial standards than other print media, such as books by a single ( or a few ) contributors.
.
The key factor is that it is the magazine that owns the copyright to the finished publicly distributed work. The collection. Everyone knows the rules to the game here. No one objects. It works. It's profitable. For everybody. You sell a photo or an article to the New York Times, you get your check. If they reprint the story you don't get more money.
If they print a new story and wish to use your photograph to illustrate it they need to pay you again because that is a new overall work for which they must establish their own new copyright.
The photographers in this case were trying to argue that publication to the CD established the need for a new publishers copyright. Frankly, they just wanted more money for work they were already legitimately payed for.
The argument, as the court confirms, is flawed. The publisher has already established the right to copy the original article. It doesn't matter if they Xerox it, photo engrave it, carve it to a rock or trace it in crayon. The inclusion of an index (or searchability) doesn't imply the orginal work has been altered and neither does the mere media of publication.
So long as it remains an obvious copy of the orginal work they have the right to make that copy, and sell it.
Just as in the old days (when you had to actually register to be granted a copyright) you didn't have to file seperate copyright applications for a sound recording that was released on tape and vinyl. One copyright on the work covered all the various media.
Copyright covers the work as a logical construct, not the physical means of transmiting that work.
You want to know what really scares the piss out of professional print photographers though?
Right click-Save Image as. .
KFG
The way that the photographers could get around this is to license their works -- pull what the music and software industry does. Then, NGS and other magizines that get a wild hair and want to do something like put the articles on a CD-Rom would not have rights to use the photos but a license. Then the photographers would have to include a provision saying that the photos are licensed for printing on paper only with express language stating that CD-Rom's and online libraries are not allowed with out another license.
Now, whether or not the people using the photos will agree is another story. But the main thing is that it would chill such behavior.
Doesn't the photographers have some sort of Gild that protects their intrests in cases like this? I am not saying that I agree with their position; I could actually care less. But it seems like a little creative laywering could stop cases like this from ever reaching the courts.
The views expressed are mine own and do not express the views of my employer.
First, think of the information that is "gone" from the normal person. How long does a library keep a magazine?
When a student can go to a primary source of information, like a news report of a historical event (with pictures), it is much more valuable than a liberal/conservation/sanitized/biased textbook.
Technically speaking, it is quite fun for electronic students to find Nuts and Volts, Popular Electronics, etc. It primes their brains for innovation.
Let knowledge be free! If you sign a new contract, make sure your lawyers are getting you what you deserve!
It occurred to me while reading this article that this isn't all that different (conceptually) from the RIAA stink over streaming media on the internet.
The medium is different, but the content is the same. Why should a radio station pay AGAIN and MORE to retransmit the same content on a different media? Why should the rates be higher over the wire vs. over the air? Conceptually, you could intercept the stream and record it straight to disk. So what? I did that as a kid with my portable stereo in my bedroom.
IANAL, but it looks like the exact same concept. I am inclined to agree with the ruling. BUT - as an earlier poster mentioned, the courts do seem to have a nasty habit of siding with the corporations on these issues.
As a semi-professional photographer, I'm still working up to getting things published repeatedly. But in those few cases where I have been published (Billboard, Boston Globe, among others), I'm getting tired of 1. my photos not being credited and 2. having my credit actually photoshopped out of the picture! The worst part is that when I do get credited properly, the photo is printed like ass.
It's my opinion that the publications are definitely doing all they can to screw the working photographers, from little guys like me to the titans like Nachtwey and McCurry.
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.
The estate of the guy that composed the music in Disney's Jungle Book sued Disney for not paying out royalties on the VHS, DVDs, CDs, etc, which were put out with that music. Disney's stance is that, since the contract did not specify VHS, DVD, CDs, etc, they are not obligated to pay royalties on anything but the film itself.
Somebody can score some easy karma by providing a link- Im to lazy to use google at the moment.
Manipulate the moderator system! Mod someone as "overrated" today.
Please keep in mind that these are not just photos. The photos are part of magazine pages that are in turn part of issues of the magazine. The court compared the CD to bound copies of the various volumes of the magazine with added indexes, which process has been going on forever and no-one ever suggested they were in a new format. Neither has anyone ever suggested that microfilm copies of said magazines were in a new format. The disconnect is that most folks think of computers as a visual medium, like TV, rather than a print medium, like, well, printing. But microfilm is not a print medium either, it is a photographic medium. So the distinction being drawn by the photographers is between film and computer images, a rather thin line to try to define. Now if the CDs contained high quality TIFF images, there would be more of a distinction, in that the photos could actually be used to make new high quality printed images. This process might even run afoul of the DMCA (God forbid!).
Hic iacet Arthurus, rex quondam rexque futurus.
What about the case where Random House thought they had the rights to publsh works in electronic media (based upon older contracts which indicated the rights to publish books but didn't know about electronic ebooks) and thus sought to get an injunction to halt Rosetta Books ( an epublisher) from publishing ebooks of those same titles via rights Rosetta Books purchased from the authors. The court (in New York State) ruled in favour of the authors.
1 3
http://www.suite101.com/article.cfm/e-books/748
Interestingly, the injunction was denied because Random House failed to show how there would be irreparable harm, but also, the judge believed that they would fail on the merits of their case. In short, he ruled that the rights to the works in question were held by the authors and that only those specific rights given to Random House were those applying to 'books' i.e. paper-based books. Advances in technology which opened new media, caused new 'rights' to be held by the authors, and not the publishing company which had previously purchased the rights to those same works.
Random House argued it placed an unreasonable burden to have to go back over all those old contracts and renegotiate new contracts based upon new technologies as they developed, etc. but the judge was unsympathetic, indicating that the fact that Rosetta Books had pursued negotiations with the authors (or their estates) to purchase these rights, indicated the authors had asserted their authority over their own rights and works in question.
Also interesting, was that Kurt Vonnegut was involved incidentally as Rosetta Books had purchased rights to his books, even though he doesn't like ebooks.
This ruling was upheld upon appeal.
http://patenting-art.com/clients/entlawrp.htm
I realise that this case involved interpretation of an existing contract, and it only applies to Random House because other publishers' contracts may be defined differently (and most certainly the language of those contracts may have changed after this case) but what if any, implications would it have in this case?
(Sorry the URLs aren't links, but I'm a bastard and prefer plain text.)
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.
In fact, American Heritage used to do that very same thing! And you're exactly right, you could subscribe to one or the other, or both, if you wanted. I don't know, however, if there was any differentiation between the formats when it came to paying the authors, though.
Just because they bundle a swiss-army knife with one version or some search tools with another version shouldn't suddenly make the two versions new publications.
Besides, adding a search engine to a CD doesn't seem much different than publishing an annual index like many scholarly (and a few not-so-scholarly) periodicals do!
-h-
This was an interesting (and pretty short) read, referencing a few important cases. Bottom line: Is a CD of all National Geographic issues, with a search engine, a new product or is a a new version of an existing product?
The judge in this latest case compared it to a book of multiple issues of the magazine, with each page printed as it originally had been, and also containing an index in the back to make it easy to find things.
The fact that the content has been digitized, and the fact that this convenient format makes the magazines attractive to a much wider audience, were found to be irrelevant.
That's a very interesting point, and one that I think I agree with. My first impression would have probably been that this is a new product, but I can definitely see how it's a new version of a product they already produced, and that National Geographic should be allowed to do this type of thing with their content. Of course, if they had to pay all the photographers again, or even get their permission, the consumer would lose because they would never be able to do this type of thing.
RP
It's okay to digitally 're-publish' pictures (photographs) from an analog medium (paper) without paying copyright, yet at the same time it's NOT okay to 're-publish' sound (recordings or radio broadcasts) from an analog medium (a radio station) without paying copyright (TWICE!). If I recall, isn't this a 100% opposite decision from what the Copyright Tribunal ruled with regards to radio stations streaming on the web? You know - the decision that took 95% of them off the web a couple of years ago? Thuis sounds (pardon the pun) like one hand doesn't know what the other is doing, copyright wise.