An Atlanta appeals court ruled last Thursday that National
Geographic infringed a photographer’s copyright when it reproduced
on CD-ROM magazines that contained his work, having only obtained
his permission for publication in a print edition.
Photographer Jerry Greenberg sold his pictures to the magazine
over a period spanning almost 40 years. According to the Miami
Daily Business Review, his contract included a clauses stating that
after publication, all rights to his photos reverted to him. He
sued in 1997 when the magazine included four of his photographs in
a 30-disc CD-ROM anthology of the 108-year-old publication.
Greenberg argued that the CD-ROM was not simply a reprint of his
existing work. He lost in a Miami district court to the publishers’
argument that the CD-ROM was no different to a bound volume of
magazines or copies on microfiche. However, the 11th Circuit Court
of Appeals in Atlanta ruled in his favour, saying that the CD-ROM
was not “merely a revision of the prior collective work, but
instead constitutes a new collective work.”
Greenberg’s lawyer said after his client’s victory, “The
[National Geographic] Society contended all along that the only
thing it has done is just reprint a bunch of old magazines. If
that’s all they would have done, they would have prevailed. The
11th Circuit said it was much more than that.” The court found that
the collection was “a new product… in a new medium for a new market
that far transcends any privilege” of revision or reproduction by
publishers.”
OUT-LAW.COM’s Paul Sanderson, partner and head of intellectual
property with law firm Masons, said:
“It is likely that this case would have been
decided the same way in the UK. If a business commissions a
photograph for use in its brochure or magazine, it does not
automatically mean that the business can also use it on a CD-ROM or
on its web site. It either needs to acquire the copyrights in the
picture or obtain a licence to use the image in all media.”
For more information on copyright law, see our guide on Branding
and Intellectual Property.
