National Geographic Renews Legal War Over Digital Archive

Lawyers for National Geographic were in the 11th Circuit Court of Appeals in Atlanta late last week to argue what they have been arguing for years: that the Complete National Geographic, a pioneering CD-ROM project the magazine released in 1997, does not violate the intellectual property rights of freelance photographers whose work first appeared in print.

“It’s the archive that’s at stake,” Angelo Grima, senior vice president and deputy general counsel for the National Geographic Society, said during a panel on digital rights at the Magazine Publishers of America’s Magazines 24/7 conference at the Hearst Tower Thursday. “We’ll go to the Supreme Court if we have to, because our archive is that important to us.”

The litigation, now entering its 11th year, has seen more twists than a John Grisham novel. The 11th Circuit first ruled in 2001 in favor of Jerry Greenberg, a freelance photographer whose work had appeared in National Geographic (in 1962, 1968 and 1971) and then on CD. Subsequent cases in the 2nd Circuit ruled in favor of National Geographic. In 2004, a Florida judge awarded Greenburg $400,000 in damages; National Geographic appealed. Last year, a three-judge panel of the 11th Circuit overruled the 2001 decision in favor of National Geographic, but Greenburg asked for—and was granted—a full court review.

National Geographic was forced to pull the 30-disc CD-ROM set off the market five years ago. Grima anticipates the court will take three to five months to come to a decision.

The New Yorker Looks On

It’s a case that the New Yorker is watching very carefully. Condé Nast released the magazine’s complete digital archive on DVD (“The Complete New Yorker”) in 2005. Playboy and Rolling Stone released DVD versions of their own archives last year.

“There’s always been this tension between what we get and what contributors retain,” said Edward Klaris, Condé Nast’s vice president of editorial assets and rights. Klaris pointed to columnists whose New Yorker pieces are turned into books or films. “The balance is [writers] get to exploit their work, and we do too.”

“We went ahead with the New Yorker project knowing some risk,” Klaris admitted. “The magazine has some very deep-pocketed contributors,” but largely received their support, he said.

Grima told FOLIO: that if National Geographic was to win the latest case—and assured the ruling would hold—the company would likely update the archive to put it back on the market.

The case also has implications for other potential platforms for magazine archives—namely, the Internet. If the court rules against National Geographic in Atlanta, Klaris said, magazines would be hard-pressed to distribute their archives on DVDs in that region or, technically, over the Web—where Klaris sees digital archived versions of magazines going.

Going forward, both executives said, digital rights are clearly defined in their contracts with freelancers.

The Greenberg case bears a striking resemblance to Tasini v. the New York Times, a landmark 2001 Supreme Court decision that ruled in favor of freelance writers seeking digital rights. Greenberg’s attorneys have argued that the precedent set by the Supreme Court in the Tasini case should support their client’s copyright claims against National Geographic.

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Digital Editions aka "Digital Magazines" watch with interest

Submitted by Cimarron Buser (Texterity) on Tue, 03/04/2008 - 18:54.

Any publishers currently doing a digital edition should be watching this case with interest. The best policy is to get rights cleared for all content, especially photography, which mention a "digital replica" on physical media or the web. In lieu of that, publishers who have relied on the somewhat incomplete Faulkner and Tasini case should support National Geographic's efforts.

Not a copyright question, but a familiar corporate strategy.

Submitted by Mark Miller on Wed, 03/05/2008 - 11:38.

This is not about copyright, but media corporations doing what they increasingly do -- wage all-out legal war against their content suppliers to maximize profit at the expense of the creative and journalistic communities on whom they depend. The National Geographic Society's management black-listed all the photographers and writers who sought legal redress after the Society published its CD-ROM archive and declared that photographers and writers would not share it the revenues (which were in the many tens of millions of dollars). I was one of those writers. Our share, significant to some of us, but important to all in principle, would have been a drop in the bucket for the National Geographic Society. But the neo-cons of corporate conservatism, who now rule the Society as well, went against the advice of their in-house counsel and trustees to grab that last drop. The policy is a textbook case study in small-thinking management.

National Geographic Archive - Tasini Decision Relevance

Submitted by Greg Spira on Wed, 03/05/2008 - 11:49.

The problem is that the Greenberg case is not similar to the Tasini case very much, and in fact the Tasini case is exactly why National Geographic will ultimately prevail in this case unless the Supreme Court chooses to overrule itself, which is extraordinarily unlikely. In the Tasini case, the court made clear that publisher could not use freelance work in a form that was totally different from the original where the work was not seen in a way that was similar to its original context, as in a Nexis database. However, the court also clearly stated in the Tasini case that reproducing the images within a reproduction of the entire publication - as has been commonly done for many decades on microfilm - was permissible. This latter point is the very basis on which National Geographic won its appeal, and it is highly unlikely that any major point of the current ruling will be overturned. (It is possible that National Geographic will lose on some specific points of the original software that were created before the Tasini decision made clear distinctions, but those could easily be altered in a new edition). The addition of a search capability to a reproduction of the original creation does not alter the nature of that creation unless the creation is then shown out of its original context - as a stand-alone object

Lawyer: ‘We’ll go to the Supreme Court if we have to.’

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