NEWS MEDIA UPDATE · ELEVENTH CIRCUIT · Copyright/Intellectual Property · June 15, 2007
Photos can be reprinted if context remains the same
June 15, 2007 · A federal appeals court in Atlanta (11th Cir.) ruled Wednesday that federal copyright law allows publishers to reprint the works of individual contributors and copyright holders, so long as the republication retains the context of the original publication.
At issue was a 30-disc CD-ROM set published by the National Geographic Society containing reproductions of each monthly issue of National Geographic magazine from 1888 until the late 1990s. Freelance photographer Jerry Greenberg sued the society when four of his copyrighted photos that were published in the magazine in the 1960s, 1970s and 1990s appeared in the CD-ROM without his permission.
The appeals court first heard this case in 2001 and held that the CD-ROM reproductions violated Greenberg’s copyrights. It sent the case back to the lower court, where a jury awarded Greenberg $400,000 for willful copyright infringement.
While these lower court proceedings were taking place, the U.S. Supreme Court heard a similar case and held that federal copyright laws include a privilege that allows publishers like National Geographic to republish their old publications in new media without violating the copyrights of individual contributors.
The Supreme Court indicated that as long as the individual contribution appears in the context of the original collective work, it is a permissible use under federal copyright law.
By the time the case was before the federal appeals court in Atlanta for a second time, the court had this new Supreme Court decision to apply, and this time the court ruled for National Geographic. Wednesday’s decision held that since the CD-ROM includes the exact images of each page of the original magazines, the copyrighted photographs are presented in their original context and are therefore a privileged use under federal law.
This ruling also follows a 2005 decision from a federal appeals court in New York (2nd Cir.), which ruled in favor of National Geographic on a similar claim from another photographer.
(Greenberg v. Nat’l Geographic Soc’y, Greenberg’s Counsel: Norman Davis, Squire Sanders & Dempsey LLP, Miami; National Geographic Society’s Counsel: Kenneth W. Starr, Kirkland & Ellis LLP, Washington, D.C.) — JB