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."

Comments

Er, contracts?

[Fishbulb]

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!

Less Laws, More Justice?

[TheLazySci-FiAuthor]

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.

Re:Less Laws, More Justice?

[yada21]

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.

It could also be that (unless you live somewhere with a lot of very large parking lots in very close proximity to each other) the vast majority of miles that cars are driven occurs on roads. But I might be wrong.

Re:Less Laws, More Justice?

[mcmonkey]

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.

I don't think the analogy holds in this case. The presumption for most traffic laws is no one wants to hit another car or purposely hit a pedestrian. Traffics laws are instructive to help us all get along on the road.

In this case, the corporation doesn't mind hitting the freelancer. In fact, it will hit him, throw the thing into reverse, and do it again, if it is to its advantage. The law should be protective, not instructive.

In the case of a freelance photographer and National Geographic, I agree transfer between mediums shouldn't be an issue. If the magazine wants to sell a collections of issues on CD-ROM, the original agreement should hold. But the issue for the photographer in this case was not a simple transfer of the original photographs from print to CD, but a change from the context of the magazine to a special presentation produced exclusively for the CD-ROM.

Here is a better analogy: music sampling. I sample someone's song on my CD. Should I get an OK from the copyright holder on the song or from the record company that did the distribution? (These may be the same entity, but in this case let's assume not.)

The ruling in this case says I only need to go to the distributor. Although the original intent may have been to only release these sounds in the context of the song as a unit, the distributor can now change the context of the distribution. The photographer may have intended to release his pictures in the context of the magazine, the distributor is now free to change that context in any manner.

This ruling just reinforces that fact that the current copyright system heavily favors distributors (such as publishers and record companies) to the determent of the content producers (writers, photographers, musicians).

(BTW, I have seen, and been involved in, several parking lot collisions. But I agree with your general premise on why there aren't more collisions in parking lots.)

Re:Less Laws, More Justice?

[Anonymous Coward]

*shrug* As long as there are these middlemen, the confusion as to rights and to creator are going to continue. Weird Al is an easy example, if you accept his self-imposed rule that he doesn't want to make a parody without permission.

Case 1: Amish Paradise.
Al asks Coolio's label, the label says go for it. Later, Coolio claims he never gave permission.

Case 2: You're Pitiful.
In response to case 1, Al starts asking artists themselves instead of just the labels. James Blunt gives permission to parody his song, but then the record label says no.

Overly simplified (obviously, both songs got made), but it still is an example of both extremes.

Title is Misleading

[asphaltjesus]

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.

I support this

[crow]

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).

I don't get it

[Anonymous Coward]

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.

LOL

[Colin Smith]

...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.

Re:LOL

[pngwen]

Those are "old school" laws. The bill of rights was written by people who genuinely wanted to do good. The Civil Rights Act falls into the same category, but it was tempered with circumstances. Really, the Civil Rights Act was paid for by votes, fear of rioting, and international pressure. It was passed at a time where government was starting to tip towards being bought.

I'd wager that no law in the past 20-30 years has been passed without a large sum of money changing hands.

Don't like it? Pick out the good politians. Ron Paul comes close, but of course corporations are silencing him.

Re:Hold off the Knee Jerk reactions...

[semiotec]

originally I had similar thoughts to your post. However, there are some differences:

- consumers who purchase movie DVDs or music CDs do not intent to distribute and sell them. They are indeed the "end"-users. Not so for the media companies. And I seriously doubt that their intent here is for "greater freedom of information", and more likely is just to lower their costs. However, that doesn't mean that they cannot also manage to do some (unintentional?) good in the process anyway.

- I am not conversant with laws regarding fair use, however, again, it seems unlikely that fair use applies when you intend to make money from distribution.

although I have to say that, so far, I am fairly neutral about this case, since I have yet to understand both the details of the case and the implications from it.

Re:Hold off the Knee Jerk reactions...

[Christoph]

I would compare it to cable versus broadcast TV, whose usage rights are negotiated separately. I licensed a photo for use on cable TV only for a smaller fee that I would charge for use on national broadcast TV.

The print publication of National Geographic may have a circulation of one million copies, sell a few thousand back issues, and sell a few hundred microfiche archives, and the original licensing agreements were based on this understanding. Neither party envisioned a medium which would multiply circulation by ten-fold (the CD-ROM/DVD format). Nobody expected a new medium to end up generating more revenue than the original print edition itself.

The law was not designed to resolve this fairly, and neither were the licensing agreements. In fairness, photographers should share in a financial boon reaped by NG based on massive, unanticipated additional circulation of the photographer's work.

In the future the standard agreement might have to be based on per-unit royalties (like is common for a music CD) instead of a flat licensing fee based upon the current medium/audience of a publication. That may remedy what appears to be a shortcoming in the industry-standard licensing, a shortcoming that NG is trying to exploit.

Re:Hold off the Knee Jerk reactions...

[LihTox]

The losers in *this* case are the "little guys", but if this ruling serves as a *consistent* precedent (applied for everyone, not just for rich corporations) then the little guys will ultimately benefit, I think. Copyright negotiations have gotten so complicated ("Can I show this picture I've bought in my documentary? Yes but only on Tuesdays in March." etc) that only the big players can afford the lawyers needed to negotiate rights properly. If we can strip away some of these unnecessary distinctions (paper vs CD, etc) and make copyright easier to understand for the layperson, that would be a win for small-time artists. See, for example, the recent rate hikes for Internet Radio.

Yeah, the photographers might lose out here because of the new possibilities opened up by computers, but that's hardly a new story. How many inventors have sold off their rights to something they created because they thought it was worthless, only to have it catch on and become enormously successful? Do they get to renegotiate the sale just because the world has changed?

Re:What about Live Audio CDs

[Intron]

I would have sided with National Geo. if it had just been publishing the exact magazine contents, because that's what the Supreme Court decided in its case. However:

Sixty-four of Greenberg's photos had appeared in issues of the National Geographic. One of those published photos also was included in an animated photo montage designed exclusively for the CD-ROM.

Greenberg sued over the new use, which NG had no rights to. The Supremes said that including an unchanged work in a different context was infringing (putting it in a database). So creating a brand new work - the photo montage - should have counted as infringing.