Freelancer wins significant copyright case

March 23, 2001 - In a judgment against the National Geographic Society the Eleventh Circuit judges concluded that the publisher had infringed the copyrights of freelance photographer Jerry Greenberg when it republished his photos on a CD-ROM.

The case is almost identical to the US Supreme Court case Tasini v. The New York Times Company, where freelance writers argue that three publishers and two database companies broke the copyright law when they reprinted articles in an electronic database without compensating the writers. The Tasini case is to be argued in front of the court in less than a week.

As in the National Geographic case, the critical issue is whether CD-ROMs or electronic databases are "revisions" of a "collective work".

A "collective work", such as a magazine or newspaper, can be copyrighted by its publisher as it reflects editorial decisions as to the content and order of articles, photos, graphics and ads. Freelance contributors, however, own the copyright to their individual work and can use it for other purposes, unless they have signed over their rights. None of the freelancers in these cases have done so. In fact, Jerry Greenberg had several times clarified in writing with the society's attorneys that he still owned the copyright to his photographs.

When Congress in 1976 updated the US copyright rules, it allowed publishers the right to reuse individually copyrighted work in a "revision" of the magazine or newspaper. Examples mentioned at the time were an evening edition of a morning newspaper or a revised edition of an encyclopedia. Also generally accepted was microfiche or microfilm formats.

The publishers argue in both the National Geographic and Tasini cases that the CD-ROM and the electronic database are such "revisions."

The Eleventh Circuit court did not agree, however. It argued that the CD-ROM was a separate product since the publisher had added a sophisticated search engine and an introductory photo montage (containing one of Jerry Greenberg's photos) and was therefore a different product."in a new medium, for a new market that far transcends any privilege of revision envisioned."

The ruling is especially ominous for the publishers in the Tasini case as their electronic database, which they claim is a legal revision, is made up of thousands of magazines and newspapers, not just one.

The advent of electronic publishing has brought quite a few legal cases, many of which have been consolidated into class action suits in federal court and have been stayed pending resolution of the Tasini case by the U.S. Supreme Court. Therefore, anyone who has written freelance articles should pay close attention to the outcome of that case.