WASHINGTON, DC (November 4, 2008) – The National Press Photographers Association, along with several other groups who are concerned with protecting the copyrights and incomes of freelance photographers, today filed an amici curiae (friends of the court) brief with the United States Supreme Court supporting the petitioner in the case of Jerry Greenberg v. National Geographic Society.
The petitioner Jerry Greenberg, a Florida-based underwater photographer, is appealing to the Supreme Court and asking them to revisit a landmark copyright decision to determine whether federal appellate courts in New York and Georgia have reached a correct decision.
In filing the amicus brief in Greenberg's case, NPPA joined the American Society of Media Photographers, the Graphic Artists Guild, the North American Nature Photography Association, the Stock Artists Alliance, the Advertising Photographers of America, and the Picture Archive Council of America.
Greenberg's case against National Geographic, now in its eleventh year, stems from National Geographic’s re-use of his photographs in a CD-ROM compilation that included every published issue of National Geographic magazine.
In July 2008, the full 11th U.S. Circuit Court of Appeals in Atlanta - along with the 2nd Circuit in New York - handed down rulings in favor of National Geographic, allowing magazine and newspaper publishers to create and sell electronic archives of their previously published works without infringing on the copyrights of the contributors to those works.
"The decisions in Greenberg v. National Geographic allowing magazine and newspaper publishers to create and sell electronic archives of their previously published works without infringing on the copyrights of the contributors to those works creates a presumptively heavy burden on the livelihood of photojournalists," NPPA's general legal counsel Mickey H. Osterreicher said today from Buffalo, NY.
"By permitting a publisher to create revisions of existing works and/or to reproduce a collective work in a new format, even if some new material has been added to the product, without permission by ... and compensation to ... freelance photographers who created the original work allows those publishers to profit at the expense of their contributors," he added.
Osterreicher said, "The Supreme Court decision in Tasini v. The New York Times Co. that the Copyright Act did not authorize the copying, reproduction and distribution of ‘articles standing alone and not in context’ or ‘as part of that particular collective work to which the author (originally) contributed’ or ‘as part of … any revision’ thereof, or ‘as part of … any later collective work in the same series’ was a sound one. For contributors that decision meant that in the absence of a written contract, freelancers automatically retain the electronic rights to their printed work under the Copyright Act of 1976. Any change in that decision will have a have a harsh negative impact on NPPA members’ ability to continue to earn a living."
A photojournalist for more than 30 years before becoming a lawyer who specializes in press freedom and First Amendment issues, Osterreicher believes the current ruling by the federal appellate courts "undermines the copyright protection that NPPA members once had to seek additional recompense for the additional use of their work."
"NPPA believes that photographers should share in the publishers’ profits," Osterreicher said.
"We also hope that the Court will reject the publishers economic argument that if required to re-negotiate rights and payment questions with contributors to the original work – that they will be held up for ransom or otherwise have to redact the new compilation so as not to be in violation if they do not come to an agreement. This is just not so."
"NPPA also believes that creators of copyrightable works that are subsequently used in collective works are already being exploited by publishers and should not be further taken advantage of by those publishers by being denied their rightful share of the profits from those works."
Osterreicher said he agrees with the dissenting judge that Greenberg is not about “education, access by the masses, or efficient storage and preservation – it is about who gets the money.”
"NPPA believes that publishers should not be able to reproduce and distribute such works without properly compensating the individual contributors to the original publication just because they can maintain the 'contextual fidelity' of the original print publication. Allowing publishers to do so will adversely affect the economic interests of NPPA members."
An Acrobat .PDF file of the entire amici curiae brief is online here.
Osterreicher is a long-time NPPA member and has done significant First Amendment legal work for the organization on a pro-bono basis. A member of the United States Supreme Court Bar Association, in 2006 he was awarded NPPA’s Kenneth P. McLaughlin Award of Merit and the Presidential Medal.
