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Court Ruling Limits Copyright Claims
Spamicles writes "A federal appellate panel in Atlanta has reversed its circuit's 6-year-old opinion in a major copyright case, declaring the ruling's mandate on behalf of freelance photographers to be "moot." Until now, publishers could be forced to share with freelancers whenever they reproduce and sell those freelancers' previously published works in merchandise designed for computer access. The new ruling says that reproduction on a CD or other media is not a new use of formerly published issues. The full court decision (pdf) is available online, and Law.com has an analysis of the ruling's repercussions."
What about audio CDs of previously performed concerts?
If you have content that is in the visual medium, the odds are that somebody will want to put it on the Internet and that as part of any contract you sign to do work should have clauses dealing with this. Better gets some clauses for cell phones too while your at it...
Well, it should depend strictly on the contract the freelancer signs with the publisher, period.
However, in general if the publisher gets paid, the freelancer (regardless of the work done) ought to get paid as well.
Lesson: get it in writing!
Why did you respond to a troll post?
...in the coffin for the argument that these laws and regulations protect creators and innovators.
We've seen it with RIAA and MPAA cases, and here it is again. The system is being rigged in favor of large corporate distributors and against the people who actually create the content.
this may sound off topic at first, but I think I have a relevant observation - please bear with me.
I was in a parking lot at a local shopping center the other day. I saw a person come speeding out of a lane and almost hit another car. There was screeching brakes, blaring horns and unfriendly exchanges between drivers, but there was no collision.
This got me thinking: have I ever seen a collision in a parking lot? Of course they happen, but neither my wife nor I could recall having ever seen one. I would propose that collisions are more common (statistically) on the road.
One could assume that because parking lots are slow-driving zones that drivers have more time to react to situations. I would propose, however, that it is the lack of explicit (imo overwhelming) signage and laws which allow (force) people to take responsibility for themselves. People need to negotiate between each other without the ability to hide behind a stop sign or a no-u-turn sign.
My point is that I think laws are good to a point: after that point laws will become burdens to the very safety they were created to protect.
I applaud any action which intends to help the current nutty copyright situation, however I think adding more laws ("signs") would only cause more collisions, ultimately.
In this case a ruling is overturned (if I'm not totally off, it was essentially done-away-with) which would seem to result in less law. As per my above observation, I think this is good.
Read my Very Short "Stories"
They are "limiting" copyright in what, to me looks pretty harmful to the photographer.
Media conglomerate acquires an image from a photographer. Specific rights are normally spelled out in the contract for the image. I have personally seen contracts that forbid re-purposing. With this ruling the media conglomerate is granted all rights automagically.
I'd like to hear from some pro photographers though.
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Common sense says that making a photograph part of a database or even electronic montage is creating a new derivative work.
You should no more be allowed to reproduce a freelancer's photograph in a CD collection than you should be allowed to reproduce a writer's story in an anthology.
Of course, the problem probably doesn't exist because I can't imagine anybody not covering this in the contracts of sale.
With respect to National Geographic's problem of being able to control their archives, the answer is much simpler than abusing copyright holder's rights. Copyright should have a reasonable term limitation, say seventeen years. Within a few years, all the stuff not covered under modern contracts
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Seems everything now adays that is considered "property" whether physical or intellectual has many different stages of licensing. Look at the yahoo deal with the singer. They licensed the right to use it for X and Y, but used it for Z. So he sued. When you license something to someone, it takes an attorney to figure out what you really received. You just can't assume, hey I paid him for that picture to put it on a shirt, but now I want to put it on coffee mugs, posters, etc.
This is a rather silly case if I'm understanding the article correctly, but IANAL. It seems that the photographers are being screwed over by the court interpreting a Supreme Court Decision from 2001 (which GAVE more rights to freelance newspaper writers) in such a manner as to now prohibit the photographers from pursuing claims related to the "repurposing" of their content into anthologies etc.
In the 2001 decision the Supreme Court rejected the idea that paper/printed material being put onto microfilm was a valid analaogy to online databases of the same data that were indexed and searchable or CDs etc. Now the photographers are being told that the National Geographic can use their content however the heck they want even though it wasn't spelled out in the original contract and also doesn't count as a "revision" or "re-publish" of an issue?!?
I think the court is off their rocker, hopefully Greenburg will appeal to the Supreme Court to clarify this issue once and for all.
"To strive, to seek, to find, and not to yield." - Tennyson
Do we think this ruling is good, because coprights are teh suX0rz eleventyone?
Or is it bad, because corporations are teh suX0rz oh noeess?
(Just wanting to see whih way the wind blows, so I don't say something against the consensus and get modbombed)
I will have a sig when the market demands it.
This ruling seems to say that a publisher can republish something they have a license to on a different medium. Does that mean that we can listen/view something that we have a license to on a different medium? Can this case be used to defend listening to music on an mp3 player, or copying DVDs to a hard drive? Or even, dare I say, watch DVDs in linux?
Write your own Choose Your Own Adventure. http://www.freegameengines.org/gamebook-engine/
If I understand this correctly, it means that, for example, a magazine publisher can put out an electronic archive of past issues without having to negotiate the rights with everyone who contributed material to the relevant issues. I've had a couple of magazine articles published, so this could impact me, but I still think it's a reasonable ruling. Similarly, they shouldn't have to renegotiate rights to music and such when putting out old TV shows on DVD. This is especially true with the new media didn't exist when the original work was produced (so they didn't think to include it in the contract to begin with).
Long story short:
A long time ago (6 years) the supreme court ruled that if a company wishes to reproduce works done by freelance photographers, they should inform and pay them for royalties for the new use
Much more recently the supreme court changed its own decision and said that if the work was a freelance production that if the company decided to reproduce it for a similar cause they don't need to (inform/ask permission/pay) the photographer.
Essentially they redefined what is a similar use of a photograph. It used to be that if they wanted to do anything but reprint the old article or ad (or whatever the picture was involved in) they needed to make it crystal clear their new intention and give the photographer their due.
In a lot of senses, this is much like converting from DRM to non-DRM for the corperations that use freelance in that they don't have to induce a pay-per-use scheme and instead pay once for rights to the photo. While photographers may now be paid less frequently (probably once) for an individual work, they will probably be able to negotiate a higher price under the new scheme. So there is pro and con to this decision.
Well, back to rejecting software patent applications.
What? WHAT?
Oh wait. nevermind.
deleting the extra space after periods so i can stay relevant, yeah.
I totally fail to see how the court could consider the CD-specific montage to be a republication of the original magazine. I would also suggest to the court that if National Geographic considered the CD set to be sufficiently different enough to secure a separate copyright registration for it, then it should be considered a separate work for the purposes of author/photographer royalties.
I have read many comments where people are characterizing this as a battle between the big evil corporations and the individual. Not only is that not the case here, but in this fight it is the individual photographers who are most closely aligned with the RIAA/MPAA copyright goals.
National Geographic and the NYT are arguing that once they have purchased the rights to produce/distribute content, then it doesnt matter if this content is displayed on a piece of paper, a computer screen or a rock. They are making our argument, that just because they switch the physical medium upon which they transmit the content they should not be forced to purchase an additional license to that content. The freelance artists here would like to see separate royalties for each medium, and to have the content locked up as tightly as possible. I see strong parallels here to fair use.
Now the the freelancer's argument is that by changing the medium one has created a new and seperate product deserving of additional royalties. This seems entirely unreasonable to me. National Geographic didn't take the photographs and create a new book or movie, they reproduced 1 to 1 the magazine issues on a CD. The medium is no more relevant then going from tape to cd to dvd with audio.
Should filmmakers get additional royalties because a TV station switched to HD broadcasting?
The National Geographic and NYT are fighting for greater freedom of information. Who's side are you on?
...in the coffin for the argument that these laws and regulations protect creators and innovators. Any laws. All laws are there for the benefit of the people who buy them.Deleted
While photographers may now be paid less frequently (probably once) for an individual work, they will probably be able to negotiate a higher price under the new scheme.
Prices depend on market demand as well as power of market participants.
In this case, photog faces:
a) competition from more photogs (ie cell phone users)
b) limited number of publishers that can walk away from photog
I heard that you folks were taking down some street signs and erasing some lane markers for this very reason. Parts of London, maybe? I can't recall. But I read that this was a new trend in traffic management in Europe. It seems TLSFA is right, people drive more carefully when they have to take more responsibility
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
While the case does address the issue of shifting (in this case) the magazine from print to CD-ROM, it is not simply a question of archiving.
In this case, a new presentation was produced for the CD-ROM. The production of new derivative works using the freelance photographs may have been covered in the original contract with the photographer, but this issue is not addressed in the discussion of archiving.
... if when doing business with a freelancer, that they make it clear that the fees _INCLUDE_ the publisher's right to republish the material in any archives that the publisher might later choose to distribute, regardless of the final form of those archives? If the freelancer doesn't agree to those terms, then they don't their work to that publisher in the first place. That would pretty well solve the issue of them having to reobtain the copyright holder's permission when all they want to do is publish archives of previous material in a form that may not have been expected at the time, and it would also protect the interests of copyright holder because that doesn't potentially give the publisher carte blanche to do almost anything they wanted with the stuff they previously bought.
File under 'M' for 'Manic ranting'
Looks to me as if the main discussion in the ruling is about what is or is not "repurposing" of the content.
If the new item is "close enough" to the original then the publisher doesn't have to pay anything extra. If it is "too far" then they do. The discussion is about what is close enough.
I suspect that it comes down to how many bells and whistles are on the CD/DVD sets. If its just a series of scanned images, much like a digital form of microfiche then you could reasonably argue that its a reissue of the archival material. OTOH if you can do full text searches of the articles, cut and paste text and individual images or anything else that would make the content really nice, then its a new purpose and the copyright owner is entitled to renegotiate compensation.
Personally I think the whole argument of having to use software to access the data is a red herring. You have to use patented hardware to access micro film and fiche as a minimum. I'd be very surprised if there aren't micro form readers that have their own computer and software to make it easier to access the archived data. This doesn't magically make the micro form any different from what it was before the software/hardware appeared on the scene.
The main problem might be that its a lot easier to add "extras" to the digital format and the potential for distribution is much higher. Way more people own PCs with CD/DVD readers than microform readers. Its also a lot cheaper to reproduce and distribute digital format than micro form.
As much as I dislike the RIAA member organizations they must have a similar way of protecting their content..
In one case this set of beliefs is okay and we want photographers to win. In another context it's unambiguously wrong. That's life.
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If I paid for a DVD, then want to view it in another form, its not a new use?
Intron: the portion of DNA which expresses nothing useful.
Your summary of the case is incorrect. 6 years ago the *11th Circuit Court of Appeals* ruled that if a company wished to reproduce works done by a freelance photographer on a CD with an executable computer program to access the works, they needed to inform/pay royalties for the new use.
The US Supreme Court, in a separate decision (something like a week later), ruled that freelance writers had to be informed/paid if their work was made accessible in an online database.
In the dicta (notes) of their decision, the Supreme Court mentioned that online databases were dissimilar from microfiche archival copies (which have been allowed in the past). Now this is where it gets fuzzy: From what I can tell, a 2nd Circuit judge decided to take this *note* as "invalidating" the 11th Circuit decision (which disagreed with his own 2nd Circuit decision that he had made earlier) and he reopened it and reversed it, to bring the two appeals courts in line. The decision now says that making the work available on CD/DVD is just like putting it on microfiche, and thus allowed. It was somewhat shady, procedurally, and definitely unprecedented.
This reminds me of TSR/WOTC publishing the first 250 issues of Dragon magazine back in 1999. I remember a lot of discussion over why things like ads and whatnot were included. A WOTC rep at the time (perhaps Ryan Dancey?) stated that the reason why the magazines were fully converted to PDF and they didn't strip anything out was because they had the right to republish their work in whole but didn't necessarily have the right to republish freelance content in a different publication. When Dragon was first published in 1976, nobody on either side of the contract ever even considered the idea that in the future, it would be completely trivial and cheap to distribute works in an ala carte type fashion. The solution to getting an article was to just procure a backissue of the magazine.
Anyway... WOTC felt that they were simply reproducing the content of the magazine, albeit on a new medium, and as long as it was an identical reproduction, they were within their rights. This court ruling seems to agree with that. Some people were happy about it and some grumbled.
Somewhat offtopic but related since it involves a potential copyright grab by the same company in the same timeframe...
More disturbing to me at the time, was Ryan Dancey going around implying that all unique work (such as campaign settings, character classes, spells, etc created by you in your home and for your friends) used in [A]D&D games at the time was derivative of [A]D&D and thus, at least in part, controlled and/or owned by TSR/WOTC. I promptly pulled all of the info on the setting I created off my website and have never put it back up since. Ignoring that I didn't care for the rule changes of D&D3 to begin with, I didn't trust the motives of WOTC when they came out with the D20 license and the market pretty much lost me completely in terms of buying new material. I'm still working on collecting some rare AD&D1/2 stuff that I don't have but I haven't bought a new book from TSR since somewhere around 1999/2000. I also stopped development on a suite of tools I was making to make things easier for DMs. The flamewars between Dancey and various community members in rec.games.frp.dnd at the time (hey seebs, if you read this) made the recent week-long flamewar over the GPL3 on LKML look rather tame.
Don't leave your mind so open that your brain falls out. Don't close it so much that you cut off the blood.
>> One more nail ...in the coffin for the argument that these laws and regulations protect creators and innovators.
This ruling actually very strongly promotes technological innovation in distribution of works.
If the ruling holds up, copyright holders (regardless of whether they are creators or publishers) will not be able to demand renegociation of fees or royalties simply because a work was reissued in a different form.
Given that new forms of media or new methods of download appear continually as part of progress, this should reduce the chilling effect of opportunistic litigation by money-grabbing parties of either kind.
Of course it will be challanged, because money-grabbers are everywhere. In principle though, it places the onus on creators to find a suitable fee structure JUST ONCE, and then be bound to that regardless of what progress holds in store.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
As an aside, "mute" instead of "moot" is my favorite misused word in the English language. All too often I hear otherwise intelligent people say "the point it mute". Thanks for getting it right here.
BTW, "irregardless" instead of "regardless" is my second favorite misused word.
The most common option is what's known as a "work for hire". The company hires the individual as an employee. The company assumes all the risk in the endeavor - the individual will get paid regardless of whether or not the product succeeds. In exchange, the copyright belongs to the company, not the individual who created the work.
The second popular route is to purchase reproduction rights from a freelance copyright holder. The freelancer assumes the risk in the endeavor (he can't feed himself if he can't sell enough photos), but he retains the copyright. In these, the feelancer negotiates a fixed payment and sometimes royalties for each copy made. The important thing to note is that pricing varies depending on many factors, including size of the photo to be reproduced (full size back cover of the magazine is worth more than quarter panel buried in the back pages), where it will be reproduced (National Geographic is more prestigious than the National Enquirer), and approximately how many copies will be made. So yes, it really does matter in what media the photo will be reproduced. It's unusual but not unheard of for a company to be granted unlimited use, usually in the form of an exclusive license (e.g. Slesinger owns the marketing rights to Winnie the Pooh in the U.S. and Canada). But that's always done with the full knowledge of both parties that unlimited use is being granted. A more typical license grants reproduction not to exceed X number of copies. In the case of a periodical the number of copies is assumed based on the distribution of the periodical, and sometimes a limited number of reproductions. These contracts do not explicitly prohibit future reproduction because that's the whole point of copyright law - to prohibit reproduction unless the copyright holder agrees.
Without knowing the details of the case, it seems National Geographic wasn't very diligent in their contract negotiations. They should have foreseen the possibility of future anthologies and placed a term covering that in their contracts. The reason the "work for hire" exception to copyright was made was precisely to avoid this type of problem. Say I were making a game for the PC. I would hire coders, artists, marketers, maybe some play testers. In all I'm probably looking at 20-100 people involved in the project, all producing copyrightable work. The game gets finished, everyone goes their merry way. 2 years later, I decide to port the game to the Mac. I want to re-use as much of the code, art, and marketing materials as possible, so I need to secure new copyright releases for the new game. Now I'm faced with the daunting task of tracking down 20-100 different people who all hold copyright over the material who have had 2 years to disperse themselves among 6.5 billion people. Producing copyrightable materials under "work for hire" avoids this entire mess. Being a monthly publication with pre-assigned stories, NG should have employed photographers as "work for hire" or negotiated future anthologies in their contracts. (In fairness, the oversight could also be the fault of the freelancer, who did not specify that the photo could be reproduced in on the magazine and a limited number of republications.)
The situation with the New York Times is a bit different. News happens all over the place, and often the person there to take photographs is just some Joe who happened to be there with a camera, not a press photographer. So it's inevitable that they have to use freelance work. But even here they should've had the foresight to see republication or potential means of redistribution in the future and put it in the contract. It seems to me what's really going on here is that these media companies are, under the auspices of the impossibility of finding the tens or hundreds of thousands of copyright holders who have contributed to their product, asking the court for relief from having to pay the copyright holders they have found.
Paul/Obama ticket for '08 anyone? That would be a right stick in the eye :)