Greenberg v. National Geographic Comes To An End; Supreme Court Refuses To Hear Appeal

WASHINGTON, DC – Photographer Jerry Greenberg's long legal battle against the National Geographic Society and a series of appellate court rulings has finally come to an end.

The United States Supreme Court has denied to hear an appeal by Greenberg in which he asked the justices to reverse a lower court's landmark copyright decision in his 11-year-old case against National Geographic.

The Supreme Court denied Greenberg's petition for a writ of certiorari on Monday, which lets stand the 11th U.S. Circuit Court of Appeals decision from July holding that the National Geographic Society – and by extension, other publishers – have the right to reproduce their magazines' archive in digital format without paying any additional royalties to freelance photographers.

"The decision by the Supreme Court to let stand the ruling in Greenberg is extremely disappointing," NPPA's general legal counsel Mickey H. Osterreicher said today from Buffalo, NY.

"In these terrible economic times it will now allow publishers to create and sell electronic archives of their previously published works without infringing on the copyrights of the contributors to those works. This creates a terrible burden on the ability of photographers to earn a living.”

“It will now be imperative for photographers, authors, artists, and creators to be aware of this decision as they negotiate for the use of their work and make sure that any contract that they agree to clearly delineate those rights and limitations," Osterreicher said.

In November the National Press Photographers Association joined other groups who are concerned about protecting the copyrights and incomes of freelance photographers in filing an amici curiae (friends of the court) brief supporting Greenberg in his appeal.

Greenberg's writ of certiorari asked the Supreme Court to determine whether federal appellate courts in New York and Georgia had reached a correct decision in Jerry Greenberg v. National Geographic Society, suggesting that the 11th Circuit (and the 2nd Circuit in a nearly identical case) had misinterpreted the Supreme Court's 2001 landmark copyright ruling, Tasini v. New York Times.

National Geographic responded to Greenberg's Supreme Court appeal with a brief of their own opposing it. Represented by former Independent Counsel Kenneth W. Starr, Geographic's brief argued that there was no reason for the Supreme Court to hear Greenberg's appeal and to revisit the court's decision in Tasini because the 11th Circuit's ruling had resolved any conflict between the 11th and 2nd Circuits over copyright protections for freelance photographers, and therefore there was no reason for the Supreme Court to intervene, or to "reverse the course of now-settled law", because of the lower courts' "now harmonious interpretation" of Tasini.

So by refusing to hear Greenberg's appeal the Supreme Court sided with Geographic and affirmed the circuit courts' July finding, which also lets stand the Tasini decision.

Legal scholars have said that reopening Tasini would have implications for thousands of freelance photographers, writers, and illustrators in a long-standing disagreement with publishers over copyright and the use of published works.

Greenberg's case against Geographic stemmed from the National Geographic Society reusing more than 60 of Greenberg's photographs in a 30-disc CD-ROM compilation called "The Complete National Geographic." The digital product included 1,200 past issues of National Geographic magazine.

National Geographic pulled the product off the market in 2003 after Greenberg was awarded damages by a Florida district court. But as the lawsuit dragged on through the appeals process, the final three rulings by the 11th Circuit Court of Appeals were all in the magazine's favor.