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Court Ruling Limits Copyright Claims 115

Posted by Zonk
from the put-your-cap-back-on dept.
Spamicles writes "A federal appellate panel in Atlanta has reversed its circuit's 6-year-old opinion in a major copyright case, declaring the ruling's mandate on behalf of freelance photographers to be "moot." Until now, publishers could be forced to share with freelancers whenever they reproduce and sell those freelancers' previously published works in merchandise designed for computer access. The new ruling says that reproduction on a CD or other media is not a new use of formerly published issues. The full court decision (pdf) is available online, and Law.com has an analysis of the ruling's repercussions."
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Court Ruling Limits Copyright Claims

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  • What about audio CDs of previously performed concerts?
    • by HTH NE1 (675604)
      What about audio CDs of previously performed concerts?

      Or just non-reedited episodes of "WKRP in Cincinnati" on DVD?
    • by MojoRilla (591502) on Friday June 22, 2007 @11:35AM (#19609019)

      What about audio CDs of previously performed concerts?
      This is very different. This is a case there the photographer already got paid for distribution rights by National Geographic, and his work was being distributed in magazine format. He sued because they started distributing the magazines in digital format. This ruling says that the photographer isn't entitled to additional royalties. So this appears to say format shifting for publishers is OK.

      In the case of CDs of previously performed concerts, the musician was never paid for distribution of the material. You can argue that he was paid for the live performance, but live performace of a work and distributing that work in recorded format seem totally different. This is much closer to a record company distributing a bands work on a CD, and later on a memory stick. This would argue that the same contract applies, because it is the same work.
      • by IcyNeko (891749)
        The publishers sign a single-use license, so reprinting in digital form doesn't count. Single use. Key word: single.
        • Re: (Score:3, Interesting)

          by Retric (704075)
          Hmm, this still brings up other issues. If the format is not an issue you should be able to rip CD's to MP3's without issue.

          AKA I have a CD and I want an MP3. The fact that I need to copy it as part of the change is ok because the goal is OK.
          • by IcyNeko (891749)
            Just pay the photographer. >:| Cheap corporations.
          • No, because you do not have the copyright, or an agreement with the copyright holder which would allow you to legally make copies.

            It is true that format is not the legal issue here: you still don't have the legal right to make copies, regardless of the format.
      • by Boogaroo (604901)
        Of course, now the contracts and pricing are going to include terms and royalties for usage such as CDs and the like. However, those under old contracts are out of luck.
      • Scenario:
        I buy a CD to play on my CD player in my living room and any one who visits my living room can listen to it.
        Later I play these (not allow download but just stream) on my web-page and anyone visiting can listen.


        I see a very fine line here. And in this case I definitely sympathize with the photographer. His work is now at a higher risk of unauthorized copying and distribution which ofcourse he was not compensated for in the intial royalty offer.
      • Re: (Score:3, Insightful)

        by Intron (870560)
        I would have sided with National Geo. if it had just been publishing the exact magazine contents, because that's what the Supreme Court decided in its case. However:

        Sixty-four of Greenberg's photos had appeared in issues of the National Geographic. One of those published photos also was included in an animated photo montage designed exclusively for the CD-ROM.

        Greenberg sued over the new use, which NG had no rights to. The Supremes said that including an unchanged work in a different context was infringing

      • About concerts, has there been a ruling on that already? That as an issue must have been addressed in every standard contract, like, who keeps the rights to the recordings, and that depends on the legal status of the contract too, like if there is some clause so exploitive it is illegal and the contract is voided in court, then, who keeps the rights to the (band-authorized or not) recordings of concerts they've done under said contract? Before and after the court decision? Can the court force the label to g
  • Er, contracts? (Score:3, Insightful)

    by Fishbulb (32296) on Friday June 22, 2007 @11:29AM (#19608933)
    Well, it should depend strictly on the contract the freelancer signs with the publisher, period.

    However, in general if the publisher gets paid, the freelancer (regardless of the work done) ought to get paid as well.

    Lesson: get it in writing!

    • Re:Er, contracts? (Score:4, Informative)

      by Lockejaw (955650) on Friday June 22, 2007 @11:48AM (#19609203)

      Well, it should depend strictly on the contract the freelancer signs with the publisher, period.
      I haven't read the decision yet, but it seems the contract says the publisher gets the right to use it in magazines. The question being disputed here (and answered in the ruling) is whether CD-ROM versions of magazines are still magazines (as opposed to being a separate medium). The court ruled that they are still magazines, and so the publisher owes no new royalties.
      • Re: (Score:3, Informative)

        by winomonkey (983062)
        I read the Law.com summary, and it sounds like the issue is not just a digital re-distribution, but redistribution in a new, separately copyrighted format. Really, it looks like there were two parts to this: 1) National Geographic created new, copyrighted software and embedded both reproductions of the original issues within it. 2) National Geographic utilized content from the original issues (images) and repurposed them within the copyrighted software.

        Issue 1 is fairly obviously okay - a digital redis
  • One more nail... (Score:5, Informative)

    by mcmonkey (96054) on Friday June 22, 2007 @11:32AM (#19608965) Homepage
    ...in the coffin for the argument that these laws and regulations protect creators and innovators.

    We've seen it with RIAA and MPAA cases, and here it is again. The system is being rigged in favor of large corporate distributors and against the people who actually create the content.
    • LOL (Score:4, Insightful)

      by Colin Smith (2679) on Friday June 22, 2007 @12:06PM (#19609465)

      ...in the coffin for the argument that these laws and regulations protect creators and innovators.
      Any laws. All laws are there for the benefit of the people who buy them.

       
      • by Elemenope (905108)

        Tell me, if you would, how much money was the Civil Rights Act of 1964 sold for? How about the Bill of Rights? The Twenty-Seventh Amendment? What was the price in dollars for getting the Clean Air Act passed? Tell me what wealthy interest outspent the tobacco industry to be behind the banning of smoking in public places? I'm curious who pockets all the money from DUI laws.

        Fact is a great deal of legislation does happen for honest public-policy ends. Not all values are bought and paid for. Politicians st

        • Re: (Score:3, Insightful)

          by pngwen (72492)
          Those are "old school" laws. The bill of rights was written by people who genuinely wanted to do good. The Civil Rights Act falls into the same category, but it was tempered with circumstances. Really, the Civil Rights Act was paid for by votes, fear of rioting, and international pressure. It was passed at a time where government was starting to tip towards being bought.

          I'd wager that no law in the past 20-30 years has been passed without a large sum of money changing hands.

          Don't like it? Pick out the g
          • Re:LOL (Score:4, Interesting)

            by Elemenope (905108) on Friday June 22, 2007 @01:07PM (#19610395)

            The last two examples I gave occurred in the last twenty years (DUI laws and Smoking Bans). And while, being basically a Libertarian at heart I don't care much for bans of that nature, it is very hard to argue that these laws were bought and paid for by their beneficiaries. "Old-school" romanticizes what is basically an unromantic past, filled with politicans serving either themselves or monied interests. Remember the Alien and Sedition Acts, the Dawes Act, Taft-Hartley, and a panoply of Railroad and Industry legislation at the turn of the nineteenth whole basic purpose was to put money in owners' pockets, these were all laws passed in the "old-school" days to which you unduly grant adulation. The overall truth, which is as true today as it was a hundred years ago, is that much legislation is bought and paid for, but there are always significant and life-changing exceptions in every period, with real statesmen approaching issues of public concern and prevailing on the public's behalf.

            I agree on Ron Paul, he is a breath of fresh air. Obama is similar on the other side; a fresh message, actual optimism, and not governing straight from opinion polls. The rest of both fields leave me with a bitter, bored taste, and if neither of them is on the final ballot I will probably just cast my quadriennial protest vote for whoever the LP puts up.

            • Re: (Score:2, Informative)

              by Drgnkght (449916)

              The last two examples I gave occurred in the last twenty years (DUI laws and Smoking Bans). And while, being basically a Libertarian at heart I don't care much for bans of that nature, it is very hard to argue that these laws were bought and paid for by their beneficiaries.

              You are very much mistaken. Those laws aren't for our, that is to say private citizens, benefit. It isn't hard to argue these two at all. I have two words for you: Insurance Companies.

              That said, I don't think the so called "old-school" days were any better.

    • The laws are there to protect the copyright holder. If the original holder sold it away, that's not a problem with the law, that's a problem with the original holder's reading and understanding of the contract. If the photographer had a contract that stated he/she would be imbursed any time the magazine sold a copy, he/she would have a leg to stand on.
    • >> One more nail ...in the coffin for the argument that these laws and regulations protect creators and innovators.

      This ruling actually very strongly promotes technological innovation in distribution of works.

      If the ruling holds up, copyright holders (regardless of whether they are creators or publishers) will not be able to demand renegociation of fees or royalties simply because a work was reissued in a different form.

      Given that new forms of media or new methods of download appear continually as par
  • this may sound off topic at first, but I think I have a relevant observation - please bear with me.

    I was in a parking lot at a local shopping center the other day. I saw a person come speeding out of a lane and almost hit another car. There was screeching brakes, blaring horns and unfriendly exchanges between drivers, but there was no collision.

    This got me thinking: have I ever seen a collision in a parking lot? Of course they happen, but neither my wife nor I could recall having ever seen one. I would propose that collisions are more common (statistically) on the road.

    One could assume that because parking lots are slow-driving zones that drivers have more time to react to situations. I would propose, however, that it is the lack of explicit (imo overwhelming) signage and laws which allow (force) people to take responsibility for themselves. People need to negotiate between each other without the ability to hide behind a stop sign or a no-u-turn sign.

    My point is that I think laws are good to a point: after that point laws will become burdens to the very safety they were created to protect.

    I applaud any action which intends to help the current nutty copyright situation, however I think adding more laws ("signs") would only cause more collisions, ultimately.

    In this case a ruling is overturned (if I'm not totally off, it was essentially done-away-with) which would seem to result in less law. As per my above observation, I think this is good.

    • I have actually seen more accidents *occur* in parking lots than on the road. The aftermath is usually pretty minor, and unless you saw it happen you would not have even realized it occurred. On the highway, the aftermath is pretty dramatic, and it is pretty obvious that an accident happened. But seeing it occur, not the aftermath, I have seen a lot more parking lot accidents. Usually a car backs out and doesn't see another car coming, or two cars back out at once from opposite directions but at an angle an
      • by jedidiah (1196)
        It depends. An accident can happen on the highway and nothing more than a bent license plate occurs. Not all accidents on the open road are 10 car pileups. Those are just the ones that are most visible. Even many visible accidents on the open road are nothing more than a bent license plate. Seeing one of these interfere with traffic is rather frustrating.
      • by slugstone (307678)
        Well the parent is correct. Accident are when people get hurt and incident is where nobody got hurt. But I do have to agree with you. More body work is done in parking lots.
    • by Aladrin (926209) on Friday June 22, 2007 @11:46AM (#19609173)
      Have you ever been to Jamaica? I doubt it, because you didn't use them as another example for your theory.

      On most of those islands, there are indeeds traffic lights and whatnot, but only where absolutely necessary. In most places where roads meet, they rely on courtesy to know goes when. You'll be in a taxi and he'll just stop at a crossing with no sign to do so, simply because it's courteous and they do it that way there.

      On top of that, they drive like madmen. There are no speed limits and they cut in and out like crazy. And yet they have very very few accidents. Why? The same reason as your parking lot theory: They have to be more aware of what's going on.
      • by The Angry Mick (632931) on Friday June 22, 2007 @12:48PM (#19610091) Homepage

        They have to be more aware of what's going on.

        Whereas we, on the other hand, are making some very important calls.

        Seriously, the best way to avoid an accident is to pay attention to what you're doing, and realize that life itself does not revolve around your schedule. Courtesy makes the driving experience more enjoyable for everyone, but caution will keep you from getting squished.

        When I was learning to drive, my Dad beat me over the head with detailed questions. What color is the car behind you? How close is it? If the woman in front of you, the one applying mascara and reading the latest Stephen King, were to drop the book, could you stop in time when she slams on the brakes? Are turn signals optional equipment? [usually accompanied by a smack to the head] He taught me to constantly scan the road and look at everything that was going on around me. The end result was I learned to be patient - not driving like there's a NASCAR ranking on the line - and cautious - better able to react to the selfish gits who could care less about the safety of their fellow man.

        • Re: (Score:1, Interesting)

          by Anonymous Coward
          "The end result was I learned to be patient - not driving like there's a NASCAR ranking on the line"

          If everyone drove on the highways and what not with the attention and concentration (not speed of course) that the average NASCAR driver does during competition I suspect the accident rate would drop to near zero.
      • by Takichi (1053302)
        According to this, the per capita death rate of the US and Jamaica are the same for vehicular accidents. There are some flaws in the statistics, which are commented on under the table. But this shows there is some evidence that would disprove your assertion about lack of road laws in Jamaica creates a safer environment. International Road Fatality Statistics [driveandstayalive.com] Anyone able to find any actual studies about traffic laws and road safety?
        • by Aladrin (926209)
          Unfortunately, I don't have any stats to back up my claim, but I was talking accidents, not fatalities. It's quite possible to have the same percentage of fatalities but many fewer accidents. (They DO drive like maniacs, so any accidents they have are not likely to be fender-bumpers.)

          I have been unable to find any statistics at all (for or against my statements), after quite a bit of searching. It's apparently more useful to report deaths than accidents. I have to wonder if that statistic would make thi
      • Re: (Score:3, Informative)

        by quanticle (843097)

        The reason there are fewer traffic accidents in Jamaica is because there are fewer cars.

        If fewer signs and regulations mean fewer deaths, then why do poorly regulated countries have a higher death rate (fatalities per 100,000) as compared with highly regulated countries?

        Southeast Asia had the highest number of traffic deaths in 2000, with 435,000. Africa and the Middle East had the highest rates per 100,000 people.

        Source: Associated Press [findarticles.com]

      • Re: (Score:3, Interesting)

        I love anecdotal stories like yours because they are so often just plain wrong even though they sound very appealing.
        In this case, Jamaica has far more (~900%) road deaths per licensed vehicle than the good ol' US and they are close to equivalent, with the U.S. a bit higher (14%) in road deaths per capita...

        http://www.transport-links.org/transport_links/fil earea/publications/1_771_Pa3568.pdf [transport-links.org]
    • Re: (Score:2, Insightful)

      by yada21 (1042762)

      I would propose that collisions are more common (statistically) on the road. One could assume that because parking lots are slow-driving zones that drivers have more time to react to situations. I would propose, however, that it is the lack of explicit (imo overwhelming) signage and laws which allow (force) people to take responsibility for themselves.

      It could also be that (unless you live somewhere with a lot of very large parking lots in very close proximity to each other) the vast majority of miles that

    • by Lockejaw (955650)

      In this case a ruling is overturned (if I'm not totally off, it was essentially done-away-with) which would seem to result in less law. As per my above observation, I think this is good.

      I would say that works only to the same extent that changing from 0xdeadbeef to 0xdeadbee8 takes one bit off the number. Copyright law gives certain rights to the copyright holder and certain rights to the general public. Moving a right from one to the other doesn't seem to constitute "less law."
      In any case, this ruling se

    • by mcmonkey (96054) on Friday June 22, 2007 @11:58AM (#19609363) Homepage

      In this case a ruling is overturned (if I'm not totally off, it was essentially done-away-with) which would seem to result in less law. As per my above observation, I think this is good.

      I don't think the analogy holds in this case. The presumption for most traffic laws is no one wants to hit another car or purposely hit a pedestrian. Traffics laws are instructive to help us all get along on the road.

      In this case, the corporation doesn't mind hitting the freelancer. In fact, it will hit him, throw the thing into reverse, and do it again, if it is to its advantage. The law should be protective, not instructive.

      In the case of a freelance photographer and National Geographic, I agree transfer between mediums shouldn't be an issue. If the magazine wants to sell a collections of issues on CD-ROM, the original agreement should hold. But the issue for the photographer in this case was not a simple transfer of the original photographs from print to CD, but a change from the context of the magazine to a special presentation produced exclusively for the CD-ROM.

      Here is a better analogy: music sampling. I sample someone's song on my CD. Should I get an OK from the copyright holder on the song or from the record company that did the distribution? (These may be the same entity, but in this case let's assume not.)

      The ruling in this case says I only need to go to the distributor. Although the original intent may have been to only release these sounds in the context of the song as a unit, the distributor can now change the context of the distribution. The photographer may have intended to release his pictures in the context of the magazine, the distributor is now free to change that context in any manner.

      This ruling just reinforces that fact that the current copyright system heavily favors distributors (such as publishers and record companies) to the determent of the content producers (writers, photographers, musicians).

      (BTW, I have seen, and been involved in, several parking lot collisions. But I agree with your general premise on why there aren't more collisions in parking lots.)

      • Re: (Score:1, Insightful)

        by Anonymous Coward
        *shrug* As long as there are these middlemen, the confusion as to rights and to creator are going to continue. Weird Al is an easy example, if you accept his self-imposed rule that he doesn't want to make a parody without permission.

        Case 1: Amish Paradise.
        Al asks Coolio's label, the label says go for it. Later, Coolio claims he never gave permission.

        Case 2: You're Pitiful.
        In response to case 1, Al starts asking artists themselves instead of just the labels. James Blunt gives permission to parody his song, b
    • I heard that you folks were taking down some street signs and erasing some lane markers for this very reason. Parts of London, maybe? I can't recall. But I read that this was a new trend in traffic management in Europe. It seems TLSFA is right, people drive more carefully when they have to take more responsibility
    • by Irvu (248207)
      Yes and no. While I agree with you that simply adding more laws is often counterproductive I think that your parking lot analogy is a little flawed. It is not the lack of laws that makes people take responsibility. Indeed many if not most of the same laws that apply on the road apply there but we are moving (per posted signs) at a much lower rate. Additionally the high frequency of pedestrians, and drivers awareness of this fact makes all but the dumbest realize that the (intuitive odds) are high for th
    • by markbt73 (1032962)

      The trouble is that corporations have no sense of respect or common decency. They're only interested in grabbing as much as they can.

      They're like an untrainable dog; if you have to have them in your living room, you'd be wise to keep a leash and muzzle on them, and keep newspaper under their ass.

    • by drinkypoo (153816)

      This got me thinking: have I ever seen a collision in a parking lot? Of course they happen, but neither my wife nor I could recall having ever seen one. I would propose that collisions are more common (statistically) on the road.

      I agree, but only if you don't count the hit-and-runs that happen constantly in parking lots; someone bumps your car, puts a dent in it, and then drives off so they don't have to deal with insurance etc.

      Also, anecdotally, I've been in an accident in a parking lot. I wasn't drivin

    • by Hatta (162192)
      This got me thinking: have I ever seen a collision in a parking lot? Of course they happen, but neither my wife nor I could recall having ever seen one. I would propose that collisions are more common (statistically) on the road.

      I was specifically told during traffic school (when I was 17) that more accidents happen in parking lots than anywhere else. I assume they had statistics to back it up, they'd be pretty easy to get from insurance companies and if they were going to fear monger they'd pick something
    • by martyros (588782)

      One could assume that because parking lots are slow-driving zones that drivers have more time to react to situations.

      I would have modded this "interesting", but hardly "insightful". People drive slowly because parking lots are a little bit of anarchy and you never know when someone is going to do something stupid.

      Ever drive straight through a green light? Why don't you slow down and make sure that no one else is going through the other way? Because of the rules. Get rid of stoplights, and all intersec

    • Wired ran a good article about this.

      "Several years ago, Monderman ripped out all the traditional instruments used by traffic engineers to influence driver behavior - traffic lights, road markings, and some pedestrian crossings - and in their place created a roundabout, or traffic circle. The circle is remarkable for what it doesn't contain: signs or signals telling drivers how fast to go, who has the right-of-way, or how to behave. There are no lane markers or curbs separating street and sidewalk, so it's

  • by asphaltjesus (978804) on Friday June 22, 2007 @11:33AM (#19608989)
    They are "limiting" copyright in what, to me looks pretty harmful to the photographer.

    Media conglomerate acquires an image from a photographer. Specific rights are normally spelled out in the contract for the image. I have personally seen contracts that forbid re-purposing. With this ruling the media conglomerate is granted all rights automagically.

    I'd like to hear from some pro photographers though.
    • Re: (Score:3, Informative)

      by poot_rootbeer (188613)
      "Specific rights are normally spelled out in the contract for the image. I have personally seen contracts that forbid re-purposing. With this ruling the media conglomerate is granted all rights automagically."

      That sounds to me like it might be a misinterpretation of the ruling. I read it as "Taking content that was originally bought for distribution in a (paper) magazine and then distributing it online, still in the magazine context, does not necessarily qualify as 're-purposing'."
      • by mcmonkey (96054)

        I read it as "Taking content that was originally bought for distribution in a (paper) magazine and then distributing it online, still in the magazine context, does not necessarily qualify as 're-purposing'."

        This case is certainly addressing re-purposing. The transfer of the magazine from print to CD-ROM may have been part of the original case, but explicitly mentioned as part of the appeal is a new presentation produced for the CD-ROM.

        Selling an archive of print magazines on CD-ROM was compared by the

      • by cei (107343)
        Say I sell a picture to a magazine. (In point of fact, I just sold three last week...) I base the price of my images on a number of factors including the size of their use on the page and the circulation of the publication that wants to use them. I expect Foo Magazine to sell to its 20,000 subscribers and I've got a quarter page photo in a 32 page monthly magazine, for instance. I may charge them $50 for one-time-use rights. (Not much, but editorial work really isn't paying well now days... It's a monthly,
        • As much as I dislike the RIAA member organizations they must have a similar way of protecting their content..

          In one case this set of beliefs is okay and we want photographers to win. In another context it's unambiguously wrong. That's life.
          • by cei (107343)
            Music gets tricky... The songwriter has unlimited rights to perform and record the music he has written. However, if a record label is paying for your studio time and releasing your album, they own the copyright to that recording of your song. You're free to record other takes on your own dime, and sell them to greatest hits collections or whatever, but if the original commercial recording owned by the record company is redistributed, they want their cut. The songwriter should get his cut too, but that usua
    • Re: (Score:3, Informative)

      by UnknowingFool (672806)

      Specific rights are normally spelled out in the contract for the image. I have personally seen contracts that forbid re-purposing. With this ruling the media conglomerate is granted all rights automagically.

      I don't read the ruling as granting the publisher more rights automatically as they are defining republishing rights in a very narrow context. If the photographer and publisher have an agreement that permits republishing in an archive like microfilm, then a medium like a CD falls into this category.

      Th

      • by mcmonkey (96054)

        If the photographer and publisher have an agreement that permits republishing in an archive like microfilm, then a medium like a CD falls into this category.

        While the case does address the issue of shifting (in this case) the magazine from print to CD-ROM, it is not simply a question of archiving.

        In this case, a new presentation was produced for the CD-ROM. The production of new derivative works using the freelance photographs may have been covered in the original contract with the photographer, but th

        • The issue of new material was addressed in the ruling. While there was some new material, the court determined it did not constitute a revision. From page 14 of the full decision:

          The question is whether the new material so alters the collective work as to destroy its original context. . . The Sequence is nothing more than a brief visual introduction to the Replica, which acts as a virtual cover for the collection of magazines. Just as a new cover on an encyclopedia set would not change the context of the

  • by hey! (33014) on Friday June 22, 2007 @11:35AM (#19609023) Homepage Journal
    Common sense says that making a photograph part of a database or even electronic montage is creating a new derivative work.

    You should no more be allowed to reproduce a freelancer's photograph in a CD collection than you should be allowed to reproduce a writer's story in an anthology.

    Of course, the problem probably doesn't exist because I can't imagine anybody not covering this in the contracts of sale.

    With respect to National Geographic's problem of being able to control their archives, the answer is much simpler than abusing copyright holder's rights. Copyright should have a reasonable term limitation, say seventeen years. Within a few years, all the stuff not covered under modern contracts
    • by Maxo-Texas (864189) on Friday June 22, 2007 @11:49AM (#19609219)
      It's a bit grayer for me.

      If they put out the exact magazine as it originally appeared - but on CD. Then I see it as being on the right side of the line.

      If they change the format in anyway then it's clearly new stuff.

      ---

      now to flip flop.

      OTH- the original sale was for say... 1.125 million copies of national geographic. If they are now selling another 7.2 million copies of the issues, it would seem some new compensation was due to the photographers.

      OTOOH- The CD is being sold for something like $35 bucks for thousands of dollars worth of magazines at the original price. So the additional profits are tiny and the new compensation should be pretty darn small- and might even be swamped by the cost of calculating who is owed what.
      • by ceejayoz (567949)
        If they change the format in anyway then it's clearly new stuff.

        So, you're saying I should have to pay for a separate iPod license to the songs I have on CDs?

        No? Then why is it so different for photographs?
        • You are not making a profit off of your use on CD and Ipod and are covered by "fair use".

          If you took the song I sold you on CD for your personal use and started selling copies of it to people to put on their iPod, or you started performing the CD and collecting lots of money from people, then you are not using it correctly with regards to the rights I sold it to you.

          ---
          Let's make a nasty example:
          You can buy a CD for $12 and have unlimited fair use on any device you personally own.
          Or you can buy one song for
      • As a freelance writer, it seems to me that there are two ways you can sell (or license) your work to a publisher. You can either get them to pay you a royalty, or you can get them to pay you a flat rate (or some hybrid). If they pay a flat rate, then they absorb the entire risk. I've had articles with first-week circulation numbers (the only figures I get) of 1,500 and 150,000 (OSNews and Digg pick up my work fairly often, Slashdot does sometimes), and anywhere in the middle that I got paid the same amou
      • by Reziac (43301) *
        It occurs to me that it's just timeshifting, as seen from the other side.

    • by jsdcnet (724314)
      I thought that too, at first. I myself have sold articles and music to companies using exactly these sorts of contracts and they all pretty much say "we can reuse what we've bought for pretty much anything. take it or leave it." However, if you read TFA, it says that the photographer actually re-acquired the copyright to his works after selling them to NG. So this is why there's a lawsuit. The photographer's position is "I own the copyright on these photos, you can't use them in something other than th
    • by MobyDisk (75490)

      Common sense says that making a photograph part of a database or even electronic montage is creating a new derivative work.

      I'm not sure that is always the case.

      Suppose that photograph was already licensed for inclusion in a 5-page article about dogs. That article is published in National Dog-o-graphic magazine. Now, I want to publish that same issue of National Dog-o-graphic on a different type of paper. New license? Okay, how about if I publish that same issue onto CD? New license? how about if I publish it into a slideshow on DVD? What if I reformat the article for newspaper? How about a web site?

      Your anthology examp

  • Seems everything now adays that is considered "property" whether physical or intellectual has many different stages of licensing. Look at the yahoo deal with the singer. They licensed the right to use it for X and Y, but used it for Z. So he sued. When you license something to someone, it takes an attorney to figure out what you really received. You just can't assume, hey I paid him for that picture to put it on a shirt, but now I want to put it on coffee mugs, posters, etc.
    • graphic designers, illustrators, and photographers spell out reproduction rights VERY EXPLICITLY in their contracts - if you get first production for a specific medium then you get no more, no less. if you don't agree, don't sign the dotted line.
  • by ironwill96 (736883) on Friday June 22, 2007 @11:37AM (#19609041) Homepage Journal
    This is a rather silly case if I'm understanding the article correctly, but IANAL. It seems that the photographers are being screwed over by the court interpreting a Supreme Court Decision from 2001 (which GAVE more rights to freelance newspaper writers) in such a manner as to now prohibit the photographers from pursuing claims related to the "repurposing" of their content into anthologies etc.

    In the 2001 decision the Supreme Court rejected the idea that paper/printed material being put onto microfilm was a valid analaogy to online databases of the same data that were indexed and searchable or CDs etc. Now the photographers are being told that the National Geographic can use their content however the heck they want even though it wasn't spelled out in the original contract and also doesn't count as a "revision" or "re-publish" of an issue?!?

    I think the court is off their rocker, hopefully Greenburg will appeal to the Supreme Court to clarify this issue once and for all.
  • I support this (Score:4, Insightful)

    by crow (16139) on Friday June 22, 2007 @11:42AM (#19609107) Homepage Journal
    If I understand this correctly, it means that, for example, a magazine publisher can put out an electronic archive of past issues without having to negotiate the rights with everyone who contributed material to the relevant issues. I've had a couple of magazine articles published, so this could impact me, but I still think it's a reasonable ruling. Similarly, they shouldn't have to renegotiate rights to music and such when putting out old TV shows on DVD. This is especially true with the new media didn't exist when the original work was produced (so they didn't think to include it in the contract to begin with).
    • Re: (Score:2, Informative)

      very often there are clauses in contracts for designers, photographers etc. that specify reproduction rights for 'all media not yet created'.
    • If I understand this correctly, it means that, for example, a magazine publisher can put out an electronic archive of past issues without having to negotiate the rights with everyone who contributed material to the relevant issues. I've had a couple of magazine articles published, so this could impact me, but I still think it's a reasonable ruling.

      From the article on law.com, it does appear that the right to publish archives of complete collections - IE, with all advertising & context intact - is being

  • by CaptainPatent (1087643) on Friday June 22, 2007 @11:43AM (#19609131) Journal
    Long story short:

    A long time ago (6 years) the supreme court ruled that if a company wishes to reproduce works done by freelance photographers, they should inform and pay them for royalties for the new use

    Much more recently the supreme court changed its own decision and said that if the work was a freelance production that if the company decided to reproduce it for a similar cause they don't need to (inform/ask permission/pay) the photographer.

    Essentially they redefined what is a similar use of a photograph. It used to be that if they wanted to do anything but reprint the old article or ad (or whatever the picture was involved in) they needed to make it crystal clear their new intention and give the photographer their due.

    In a lot of senses, this is much like converting from DRM to non-DRM for the corperations that use freelance in that they don't have to induce a pay-per-use scheme and instead pay once for rights to the photo. While photographers may now be paid less frequently (probably once) for an individual work, they will probably be able to negotiate a higher price under the new scheme. So there is pro and con to this decision.
    • Your summary of the case is incorrect. 6 years ago the *11th Circuit Court of Appeals* ruled that if a company wished to reproduce works done by a freelance photographer on a CD with an executable computer program to access the works, they needed to inform/pay royalties for the new use.

      The US Supreme Court, in a separate decision (something like a week later), ruled that freelance writers had to be informed/paid if their work was made accessible in an online database.

      In the dicta (notes) of their dec
    • While photographers may now be paid less frequently (probably once) for an individual work, they will probably be able to negotiate a higher price under the new scheme. So there is pro and con to this decision.

      Except it doesn't work like that.

      The only effect of thus ruling will be to retroactively screw photographers who sold their work product PRIOR to electronic media becoming commonplace.

      Once digital distribution became commonplace - somewhere in the late '90s, all the boilerplate contracts that the big buyers of freelance work use started to include digital distribution rights from the get go. So, even without this ruling, all new sales ALREADY included the additional distribution rights and thus ALREADY in

  • What? WHAT?

    Oh wait. nevermind.
  • I don't get it (Score:1, Insightful)

    by Anonymous Coward
    I totally fail to see how the court could consider the CD-specific montage to be a republication of the original magazine. I would also suggest to the court that if National Geographic considered the CD set to be sufficiently different enough to secure a separate copyright registration for it, then it should be considered a separate work for the purposes of author/photographer royalties.
  • by Maudib (223520) on Friday June 22, 2007 @12:00PM (#19609391)
    I have read many comments where people are characterizing this as a battle between the big evil corporations and the individual. Not only is that not the case here, but in this fight it is the individual photographers who are most closely aligned with the RIAA/MPAA copyright goals.

    National Geographic and the NYT are arguing that once they have purchased the rights to produce/distribute content, then it doesnt matter if this content is displayed on a piece of paper, a computer screen or a rock. They are making our argument, that just because they switch the physical medium upon which they transmit the content they should not be forced to purchase an additional license to that content. The freelance artists here would like to see separate royalties for each medium, and to have the content locked up as tightly as possible. I see strong parallels here to fair use.

    Now the the freelancer's argument is that by changing the medium one has created a new and seperate product deserving of additional royalties. This seems entirely unreasonable to me. National Geographic didn't take the photographs and create a new book or movie, they reproduced 1 to 1 the magazine issues on a CD. The medium is no more relevant then going from tape to cd to dvd with audio.
     
      Should filmmakers get additional royalties because a TV station switched to HD broadcasting?
     
    The National Geographic and NYT are fighting for greater freedom of information. Who's side are you on?
    • by mythar (1085839)

      well, not only are they distributing the same product in a different medium, but they are also distributing a new product containing the photograph:

      "The Complete National Geographic" was powered by copyrighted software programs and included -- in addition to the magazine reproductions -- an animated montage of photos set to music and a Kodak commercial.

      and, incidentally, national geographic got to extend its own copyright protections:

      The National Geographic registered a separate, and new, copyright for the CD-ROM set in 1997.

      this ruling is a boon to corporations, and maybe even to consumers. but, it doesn't seem to be helping artists.

    • Re: (Score:2, Insightful)

      by semiotec (948062)
      originally I had similar thoughts to your post. However, there are some differences:

      - consumers who purchase movie DVDs or music CDs do not intent to distribute and sell them. They are indeed the "end"-users. Not so for the media companies. And I seriously doubt that their intent here is for "greater freedom of information", and more likely is just to lower their costs. However, that doesn't mean that they cannot also manage to do some (unintentional?) good in the process anyway.

      - I am not conversant with l
      • by yar (170650)
        Fair use can certainly apply in commercial uses. It is completely dependent on the circumstance.

        This case isn't about fair use. It's about what constitutes a new work.

        In this case, the court decided that an exact replication of the original use, in whatever format, was not a new work.
        But using the same photograph in a newly created montage is probably a new work.

        The real impact this will have for the future are in how companies interpret existing contracts and in how contracts are handled.
    • While I don't necessarily disagree with you, I do have some bones to pick.

      Re: The medium is no more relevant then going from tape to cd to dvd with audio.
      The publishers frequently archived the magazines to microfilm. I think this would be a fair use. However, putting the magazines on a CD make the works much more widely available. I think the photographers/writers should be compensated for this. Is this different from me copying a DVD to my harddrive? I don't know.

      Re: The National Geographic and
    • Re: (Score:3, Insightful)

      by Christoph (17845)

      I would compare it to cable versus broadcast TV, whose usage rights are negotiated separately. I licensed a photo for use on cable TV only for a smaller fee that I would charge for use on national broadcast TV.

      The print publication of National Geographic may have a circulation of one million copies, sell a few thousand back issues, and sell a few hundred microfiche archives, and the original licensing agreements were based on this understanding. Neither party envisioned a medium which would multiply circu

    • Re: (Score:3, Insightful)

      by LihTox (754597)
      The losers in *this* case are the "little guys", but if this ruling serves as a *consistent* precedent (applied for everyone, not just for rich corporations) then the little guys will ultimately benefit, I think. Copyright negotiations have gotten so complicated ("Can I show this picture I've bought in my documentary? Yes but only on Tuesdays in March." etc) that only the big players can afford the lawyers needed to negotiate rights properly. If we can strip away some of these unnecessary distinctions (p
    • When a company decides to use someone's creative (copyrightable) work, they have several options.

      The most common option is what's known as a "work for hire" [wikipedia.org]. The company hires the individual as an employee. The company assumes all the risk in the endeavor - the individual will get paid regardless of whether or not the product succeeds. In exchange, the copyright belongs to the company, not the individual who created the work.

      The second popular route is to purchase reproduction rights from a freelance

  • ... if when doing business with a freelancer, that they make it clear that the fees _INCLUDE_ the publisher's right to republish the material in any archives that the publisher might later choose to distribute, regardless of the final form of those archives? If the freelancer doesn't agree to those terms, then they don't their work to that publisher in the first place. That would pretty well solve the issue of them having to reobtain the copyright holder's permission when all they want to do is publish ar
  • Looks to me as if the main discussion in the ruling is about what is or is not "repurposing" of the content.

    If the new item is "close enough" to the original then the publisher doesn't have to pay anything extra. If it is "too far" then they do. The discussion is about what is close enough.

    I suspect that it comes down to how many bells and whistles are on the CD/DVD sets. If its just a series of scanned images, much like a digital form of microfiche then you could reasonably argue that its a reissue o

  • If I paid for a DVD [slashdot.org], then want to view it in another form, its not a new use?
  • by phantomlord (38815) <slashdot AT krwtech DOT com> on Friday June 22, 2007 @01:44PM (#19610925) Journal
    This reminds me of TSR/WOTC publishing the first 250 issues of Dragon magazine back in 1999. I remember a lot of discussion over why things like ads and whatnot were included. A WOTC rep at the time (perhaps Ryan Dancey?) stated that the reason why the magazines were fully converted to PDF and they didn't strip anything out was because they had the right to republish their work in whole but didn't necessarily have the right to republish freelance content in a different publication. When Dragon was first published in 1976, nobody on either side of the contract ever even considered the idea that in the future, it would be completely trivial and cheap to distribute works in an ala carte type fashion. The solution to getting an article was to just procure a backissue of the magazine.

    Anyway... WOTC felt that they were simply reproducing the content of the magazine, albeit on a new medium, and as long as it was an identical reproduction, they were within their rights. This court ruling seems to agree with that. Some people were happy about it and some grumbled.

    Somewhat offtopic but related since it involves a potential copyright grab by the same company in the same timeframe...
    More disturbing to me at the time, was Ryan Dancey going around implying that all unique work (such as campaign settings, character classes, spells, etc created by you in your home and for your friends) used in [A]D&D games at the time was derivative of [A]D&D and thus, at least in part, controlled and/or owned by TSR/WOTC. I promptly pulled all of the info on the setting I created off my website and have never put it back up since. Ignoring that I didn't care for the rule changes of D&D3 to begin with, I didn't trust the motives of WOTC when they came out with the D20 license and the market pretty much lost me completely in terms of buying new material. I'm still working on collecting some rare AD&D1/2 stuff that I don't have but I haven't bought a new book from TSR since somewhere around 1999/2000. I also stopped development on a suite of tools I was making to make things easier for DMs. The flamewars between Dancey and various community members in rec.games.frp.dnd at the time (hey seebs, if you read this) made the recent week-long flamewar over the GPL3 on LKML look rather tame.

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