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Federal court hears argument in freelancers’ copyright case

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    NMU         ELEVEN

    NMU         ELEVENTH CIRCUIT         Copyrights & Trademarks         Oct 5, 2000    

Federal court hears argument in freelancers’ copyright case

  • A federal court of appeals in Atlanta will decide whether publishers must pay photographers when photos are used as part of commercial CD-ROM collections

A panel of judges for the U.S. Court of Appeals in Atlanta (11th Cir.) heard arguments on Oct. 3 in a copyright infringement case that could significantly effect how publications store and reuse the work of freelance journalists. A ruling in favor of the plaintiff-photographer could push publishers to pay freelancers whenever the publication reproduces and sells the published works in merchandise designed for computer access.

In the case, Jerry Greenberg sued the National Geographic Society for its use of his copyrighted photographs in a 1997 CD-ROM collection archiving 108 years of the magazine. The collection included Greenberg’s photos. National Geographic also created a visual image of various covers of the magazine which included a Greenberg photo.

Greenberg argued the CD-ROM set was “a new derivative work” protected by copyright law. National Geographic contends, however, the CD-ROM library was equivalent to The National Geographic bound volumes or copies on microfilm, which are not new works.

A federal trial judge in Florida ruled last year that the National Geographic Society infringed some of Greenberg’s photo copyrights by using illustrations based on the photos in a game. The parties later settled on those claims in lieu of an appeal. The use of Greenberg’s photos in the CD-ROM collection, however, did not infringe the photographer’s copyright, Judge Joan Lenard ruled. As a result of the split ruling, Greenberg filed the current appeal.

The Greenberg case is similar to one in which a petition for certiorari is pending before the U.S. Supreme Court. In Tasini v. New York Times, a federal appeals court in New York (2nd Cir.) ruled publishers may not send freelancers’ copyrighted works to news databases, such as NEXIS, without a license or an express transfer of rights from the freelancers.

(Greenberg v. Nat’l Geographic; Media Counsel: Norman Davis, Steel Hector & Davis, Miami; Robert Sugarman, Weil Gotshal & Manges, New York) DB

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