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

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?

[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.

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: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.

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?