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!

Re:Er, contracts?

[Lockejaw]

Well, it should depend strictly on the contract the freelancer signs with the publisher, period.

I haven't read the decision yet, but it seems the contract says the publisher gets the right to use it in magazines. The question being disputed here (and answered in the ruling) is whether CD-ROM versions of magazines are still magazines (as opposed to being a separate medium). The court ruled that they are still magazines, and so the publisher owes no new royalties.

Re:Er, contracts?

[winomonkey]

I read the Law.com summary, and it sounds like the issue is not just a digital re-distribution, but redistribution in a new, separately copyrighted format. Really, it looks like there were two parts to this: 1) National Geographic created new, copyrighted software and embedded both reproductions of the original issues within it. 2) National Geographic utilized content from the original issues (images) and repurposed them within the copyrighted software.

Issue 1 is fairly obviously okay - a digital redistribution of content in a new format but identical context. The images and articles were in the same layout as they were in print format. This is where the microfilm argument and comparison makes sense.

Issue 2 is, to me, more of a problem. NG had copyrights for the photos in a single use agreement. They paid the photographer for use of the photo in an issue of National Geographic. By taking the image out of context and adding it to a product that someone else is claiming copyright for, they are definitely crossing some bounds.

To me, digital distribution is great. It makes sense. No big deal. What I dislike, however, is this use of "digital distribution" as an umbrella for allowing a company to reuse images in a format and context not included in the original contract.

As a beginning freelance photographer and writer, this sends up red flags all over the place. I will have to be ever so vigilant in reading the fine print of my contracts in the future.

One more nail...

[mcmonkey]

...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.

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?

[Aladrin]

Have you ever been to Jamaica? I doubt it, because you didn't use them as another example for your theory.

On most of those islands, there are indeeds traffic lights and whatnot, but only where absolutely necessary. In most places where roads meet, they rely on courtesy to know goes when. You'll be in a taxi and he'll just stop at a crossing with no sign to do so, simply because it's courteous and they do it that way there.

On top of that, they drive like madmen. There are no speed limits and they cut in and out like crazy. And yet they have very very few accidents. Why? The same reason as your parking lot theory: They have to be more aware of what's going on.

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?

[The Angry Mick]

They have to be more aware of what's going on.

Whereas we, on the other hand, are making some very important calls.

Seriously, the best way to avoid an accident is to pay attention to what you're doing, and realize that life itself does not revolve around your schedule. Courtesy makes the driving experience more enjoyable for everyone, but caution will keep you from getting squished.

When I was learning to drive, my Dad beat me over the head with detailed questions. What color is the car behind you? How close is it? If the woman in front of you, the one applying mascara and reading the latest Stephen King, were to drop the book, could you stop in time when she slams on the brakes? Are turn signals optional equipment? [usually accompanied by a smack to the head] He taught me to constantly scan the road and look at everything that was going on around me. The end result was I learned to be patient - not driving like there's a NASCAR ranking on the line - and cautious - better able to react to the selfish gits who could care less about the safety of their fellow man.

Re:Less Laws, More Justice?

[quanticle]

The reason there are fewer traffic accidents in Jamaica is because there are fewer cars.

If fewer signs and regulations mean fewer deaths, then why do poorly regulated countries have a higher death rate (fatalities per 100,000) as compared with highly regulated countries?

Southeast Asia had the highest number of traffic deaths in 2000, with 435,000. Africa and the Middle East had the highest rates per 100,000 people.

Source: Associated Press

Re:Less Laws, More Justice?

[Coward Anonymous]

I love anecdotal stories like yours because they are so often just plain wrong even though they sound very appealing.
In this case, Jamaica has far more (~900%) road deaths per licensed vehicle than the good ol' US and they are close to equivalent, with the U.S. a bit higher (14%) in road deaths per capita...

http://www.transport-links.org/transport_links/fil earea/publications/1_771_Pa3568.pdf

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.

Re:Title is Misleading

[poot_rootbeer]

"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."

That sounds to me like it might be a misinterpretation of the ruling. I read it as "Taking content that was originally bought for distribution in a (paper) magazine and then distributing it online, still in the magazine context, does not necessarily qualify as 're-purposing'."

Re:Title is Misleading

[UnknowingFool]

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 don't read the ruling as granting the publisher more rights automatically as they are defining republishing rights in a very narrow context. If the photographer and publisher have an agreement that permits republishing in an archive like microfilm, then a medium like a CD falls into this category.

This is somewhat similar to the US Supreme Court decision Tasini v. New York Times. In that case writers of articles were not paid when their publishers put the articles into databases like LEXIS-NEXIS. Since the original contracts did not specify the databases specifically, the writers were entitled to royalties. Since then all new contracts have a provision for these databases.

The photographer and publisher did have an agreement to cover archiving. The question really is whether a CD-ROM as archiving or re-publication. The court so far has decided it is archiving. A higher court may decide differently.

Re:What about Live Audio CDs

[MojoRilla]

What about audio CDs of previously performed concerts?

This is very different. This is a case there the photographer already got paid for distribution rights by National Geographic, and his work was being distributed in magazine format. He sued because they started distributing the magazines in digital format. This ruling says that the photographer isn't entitled to additional royalties. So this appears to say format shifting for publishers is OK.

In the case of CDs of previously performed concerts, the musician was never paid for distribution of the material. You can argue that he was paid for the live performance, but live performace of a work and distributing that work in recorded format seem totally different. This is much closer to a record company distributing a bands work on a CD, and later on a memory stick. This would argue that the same contract applies, because it is the same work.

This seems wrong to me

[hey!]

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

Re:This seems wrong to me

[Maxo-Texas]

It's a bit grayer for me.

If they put out the exact magazine as it originally appeared - but on CD. Then I see it as being on the right side of the line.

If they change the format in anyway then it's clearly new stuff.

---

now to flip flop.

OTH- the original sale was for say... 1.125 million copies of national geographic. If they are now selling another 7.2 million copies of the issues, it would seem some new compensation was due to the photographers.

OTOOH- The CD is being sold for something like $35 bucks for thousands of dollars worth of magazines at the original price. So the additional profits are tiny and the new compensation should be pretty darn small- and might even be swamped by the cost of calculating who is owed what.

One case where Copyright would be good

[ironwill96]

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.

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).

Re:I support this

[michaelmateyko]

very often there are clauses in contracts for designers, photographers etc. that specify reproduction rights for 'all media not yet created'.

Summary because I think one is needed

[CaptainPatent]

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.

Hold off the Knee Jerk reactions...

[Maudib]

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?

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?

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:LOL

[Elemenope]

The last two examples I gave occurred in the last twenty years (DUI laws and Smoking Bans). And while, being basically a Libertarian at heart I don't care much for bans of that nature, it is very hard to argue that these laws were bought and paid for by their beneficiaries. "Old-school" romanticizes what is basically an unromantic past, filled with politicans serving either themselves or monied interests. Remember the Alien and Sedition Acts, the Dawes Act, Taft-Hartley, and a panoply of Railroad and Industry legislation at the turn of the nineteenth whole basic purpose was to put money in owners' pockets, these were all laws passed in the "old-school" days to which you unduly grant adulation. The overall truth, which is as true today as it was a hundred years ago, is that much legislation is bought and paid for, but there are always significant and life-changing exceptions in every period, with real statesmen approaching issues of public concern and prevailing on the public's behalf.

I agree on Ron Paul, he is a breath of fresh air. Obama is similar on the other side; a fresh message, actual optimism, and not governing straight from opinion polls. The rest of both fields leave me with a bitter, bored taste, and if neither of them is on the final ballot I will probably just cast my quadriennial protest vote for whoever the LP puts up.

Re:LOL

[Drgnkght]

The last two examples I gave occurred in the last twenty years (DUI laws and Smoking Bans). And while, being basically a Libertarian at heart I don't care much for bans of that nature, it is very hard to argue that these laws were bought and paid for by their beneficiaries. You are very much mistaken. Those laws aren't for our, that is to say private citizens, benefit. It isn't hard to argue these two at all. I have two words for you: Insurance Companies.

That said, I don't think the so called "old-school" days were any better.

Re:What about use?

[dwarfking]

That should already be covered under the fair use provision. What you don't have is the right to distribute the work on another medium. You pay a for a licenses to use music or movies or software. A publisher pays for the right to publish a work in any media format.

IANAL, but the way I read this ruling was that if the contract does not directly address the media type, and the original work is not modified into something new, then the publisher has already paid for the right to publish the work.

As a related, though slightly off topic issue, I have a son that just graduated high school. All of his class pictures are represented as being "owned" by the photographer. They claim the copyright on all the kid's photos.

The photographer thought my son photographed well and asked permission to use his pictures in their sales brochures. My son and wife told the photographer they wanted me to review the paperwork.

Upon reading this "release" it basically stated that if we approved, the photographer would then own the copyright to my son's image, period. No details about "only for use in their advertising."

When I challenged them on that detail they indicated that was "standard practice" and they only meant for advertising. I offered a change to the release wording which they refused so I declined to allow it.

My point on this is that everyone is looking to get as much control as they can, whether it is the publisher looking to say they already have the right to reprint or the photographer claiming they own the copyright on the image, so all I see with these rulings is see-sawing back and forth as to who owns what.

In the end, the consumers are the ones that own nothing.

Dragon Magazine back in 1999

[phantomlord]

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.

Re:What about use?

[ptr2004]

There is no such thing as fair use in distribution

Re:What about Live Audio CDs

[Retric]

Hmm, this still brings up other issues. If the format is not an issue you should be able to rip CD's to MP3's without issue.

AKA I have a CD and I want an MP3. The fact that I need to copy it as part of the change is ok because the goal is OK.

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.