Date: Wed, 2 Jul 2008 02:21:16 -0700 (PDT)
From: Sue Fraser <xcschild@yahoo.com>
Reply-To: Net-Gold@yahoogroups.com
To: Net-Gold <Net-Gold@yahoogroups.com>
Subject: [Net-Gold] 11th Circuit Sides With National Geographic in Copyright
Case
11th Circuit Sides With National Geographic in Copyright Case
R. Robin McDonald
07-02-2008
Law.com
Back-to-back rulings by federal appellate courts in Atlanta and New York
favoring the National Geographic Society will allow magazine and newspaper
publishers to transfer their published archives to computer discs and sell
them commercially without infringing on freelance contributors'
copyrights.
National Geographic won its dual victories after more than a decade of
litigation in two federal circuits. The publisher of National Geographic
has battled freelance writers and photographers over whether it must pay
them additional royalties associated with the sale of "The Complete
National Geographic" -- a digital version of the magazine's published
archive.
On Monday, Judge Rosemary Barkett, writing the majority opinion for a
sharply divided en banc court of the 11th U.S. Circuit Court of Appeals
rejected the claims of a freelance Florida photographer whose work has
been published in National Geographic.
Barkett was joined in the majority by fellow circuit judges Joel F.
Dubina, Susan H. Black, Edward E. Carnes, Stanley Marcus, William H. Pryor
Jr. and Senior U.S. Circuit Judge Phyllis A. Kravitch. Judge Frank M. Hull
recused.
The ruling turned on the extent to which publishers may reprint and
distribute previously published photos without infringing on individual
photographers' copyrights. Central to that ruling is the definition of a
"collective work" to which a freelancer has contributed.
A publisher, according to the en banc majority, may reproduce a freelance
photographer's work in a reprint of the original collective work (such as
a magazine, newspaper or encyclopedia) to which that photographer
contributed; or a revision of that collective work; or a later collective
work "in the same series." Reproduction of copyrighted photos in a new
work without permission would constitute copyright infringement.
The ruling turns on what constitutes an acceptable revision and what
constitutes a new work in light of a 2001 landmark copyright ruling by the
U.S. Supreme Court. In that ruling, New York Times v. Tasini, the high
court determined reprinting freelance writers' articles without permission
in large computer databases such as Lexis-Nexis infringed freelancers'
copyrights.
This week, the 11th Circuit relied on the language of that ruling in
deciding that although photographs could not be reprinted in computer
databases without permission, they could be republished on CD-ROM or DVD
in a reprint of the original work, (in this case, issues of National
Geographic) without infringing freelance contributors' copyrights.
<http://www.law.com/jsp/article.jsp?id=1202422703800>
The entire article can be read at the above URL.
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Sincerely,
Sue Fraser
xcschild@yahoo.com
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