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Media Government The Courts News Your Rights Online

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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  • One more nail... (Score:5, Informative)

    by mcmonkey (96054) on Friday June 22, 2007 @10:32AM (#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.
  • by MojoRilla (591502) on Friday June 22, 2007 @10:35AM (#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 ironwill96 (736883) on Friday June 22, 2007 @10:37AM (#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.
  • by CaptainPatent (1087643) on Friday June 22, 2007 @10:43AM (#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.
  • Re:Er, contracts? (Score:4, Informative)

    by Lockejaw (955650) on Friday June 22, 2007 @10:48AM (#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.
  • by poot_rootbeer (188613) on Friday June 22, 2007 @10:51AM (#19609267)
    "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 UnknowingFool (672806) on Friday June 22, 2007 @10:57AM (#19609361)

    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.

    This is somewhat similar to the US Supreme Court decision Tasini v. New York Times. In that case writers of articles were not paid when their publishers put the articles into databases like LEXIS-NEXIS. Since the original contracts did not specify the databases specifically, the writers were entitled to royalties. Since then all new contracts have a provision for these databases.

    The photographer and publisher did have an agreement to cover archiving. The question really is whether a CD-ROM as archiving or re-publication. The court so far has decided it is archiving. A higher court may decide differently.

  • Re:I support this (Score:2, Informative)

    by michaelmateyko (979292) on Friday June 22, 2007 @11:04AM (#19609431) Homepage
    very often there are clauses in contracts for designers, photographers etc. that specify reproduction rights for 'all media not yet created'.
  • by quanticle (843097) on Friday June 22, 2007 @12:09PM (#19610427) Homepage

    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:Er, contracts? (Score:3, Informative)

    by winomonkey (983062) on Friday June 22, 2007 @12:53PM (#19611065)
    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 redistribution of content in a new format but identical context. The images and articles were in the same layout as they were in print format. This is where the microfilm argument and comparison makes sense.

    Issue 2 is, to me, more of a problem. NG had copyrights for the photos in a single use agreement. They paid the photographer for use of the photo in an issue of National Geographic. By taking the image out of context and adding it to a product that someone else is claiming copyright for, they are definitely crossing some bounds.

    To me, digital distribution is great. It makes sense. No big deal. What I dislike, however, is this use of "digital distribution" as an umbrella for allowing a company to reuse images in a format and context not included in the original contract.

    As a beginning freelance photographer and writer, this sends up red flags all over the place. I will have to be ever so vigilant in reading the fine print of my contracts in the future.
  • Re:What about use? (Score:2, Informative)

    by ptr2004 (695756) on Friday June 22, 2007 @01:02PM (#19611229)
    There is no such thing as fair use in distribution
  • Re:LOL (Score:2, Informative)

    by Drgnkght (449916) on Friday June 22, 2007 @04:59PM (#19614457)

    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.

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