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Court Ruling Limits Copyright Claims

Zonk posted more than 6 years ago | from the put-your-cap-back-on dept.

Media 115

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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115 comments

What about Live Audio CDs (1)

ralatalo (673742) | more than 6 years ago | (#19608815)

What about audio CDs of previously performed concerts?

Re:What about Live Audio CDs (1)

HTH NE1 (675604) | more than 6 years ago | (#19609001)

What about audio CDs of previously performed concerts?

Or just non-reedited episodes of "WKRP in Cincinnati" on DVD?

Re:What about Live Audio CDs (5, Informative)

MojoRilla (591502) | more than 6 years ago | (#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.

Re:What about Live Audio CDs (1)

IcyNeko (891749) | more than 6 years ago | (#19609387)

The publishers sign a single-use license, so reprinting in digital form doesn't count. Single use. Key word: single.

Re:What about Live Audio CDs (2, Interesting)

Retric (704075) | more than 6 years ago | (#19611347)

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.

Re:What about Live Audio CDs (1)

Boogaroo (604901) | more than 6 years ago | (#19609389)

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.

Re:What about Live Audio CDs (1)

nsundeepreddy (624059) | more than 6 years ago | (#19610939)

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:What about Live Audio CDs (0)

Anonymous Coward | more than 6 years ago | (#19611081)

Okay, ignore concerts for a minute. The courts ruling would effectively allow publishers to re-distribute items in different media formats without having to pay the copyright holders but once. If we are going to afford this sort of luxury to publishers, then shouldn't end users be allows to shift their media, DMCA be damned? Hell, we are not even trying to re-distribute the work for money, we just want to be able to enjoy our movies on our laptops and iPods without having to lug a library of DVDs around and make back-up copies for the day when those DVDs become unreadable due to natural wear.

This is the problem with copyright. It isn't about protecting the holders of copyright but protecting the publishers/distributors. There is a large disparity here that current copyright law has placed us into where studios, publishers, and distributors are making large sums of money on artists (who get a lot of money too but to say they are fairly treated is a bit of a joke) and end-users who want to be able to listen to their music how they want and when they want without having to buy it 10 times over for each device they own.

FP! (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#19608841)

FP BITCHEZ

Re:FP! (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#19608953)

The press claims more than it should sometimes on the grounds of freedom of the press. Freedom of the press does not allow them to infringe upon the rights of others. The freedom of the press is that the government will not interfere with the press or censor it because it is making statments that are negative to the government. If the press makes false allegations against an individual with no proof at all they would still be held liable if freedom of press is interpreted properly.

Re:FP! (0)

Anonymous Coward | more than 6 years ago | (#19608963)

Why did you respond to a troll post?

Durn that new fangled Inturnet (0)

Anonymous Coward | more than 6 years ago | (#19608893)

If you have content that is in the visual medium, the odds are that somebody will want to put it on the Internet and that as part of any contract you sign to do work should have clauses dealing with this. Better gets some clauses for cell phones too while your at it...

Er, contracts? (3, Insightful)

Fishbulb (32296) | more than 6 years ago | (#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? (3, Informative)

Lockejaw (955650) | more than 6 years ago | (#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:Er, contracts? (3, Informative)

winomonkey (983062) | more than 6 years ago | (#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.

One more nail... (4, Informative)

mcmonkey (96054) | more than 6 years ago | (#19608965)

...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 (3, Insightful)

Colin Smith (2679) | more than 6 years ago | (#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.

 

Re:LOL (1)

Elemenope (905108) | more than 6 years ago | (#19609695)

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 still occassionally have the capacity to demonstrate their membership in the human race.

Re:LOL (2, Insightful)

pngwen (72492) | more than 6 years ago | (#19609989)

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 good politians. Ron Paul comes close, but of course corporations are silencing him.

Re:LOL (3, Interesting)

Elemenope (905108) | more than 6 years ago | (#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:One more nail... (1)

Oligonicella (659917) | more than 6 years ago | (#19610535)

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.

Re:One more nail... (0)

Anonymous Coward | more than 6 years ago | (#19610863)

Well, you guys hate the concept of copyright anyway, right? So you should be in favor of corporations doing whatever they want with any media they come across. If a "starving artist" paints a great picture and it gets displayed in a museum, a large poster manufactuer should be free to take a photo of the painting and sell posters of it for millions without giving the artist a second thought, right?

Or is it only when an individual wants to "share" works of a "rich" singer (or game developer, or software maker, or movie maker, etc) that you're against copyright?

Well it's about time you guys got it through your thick heads that weakening copyright doesn't just hurt the rich guys and allow individuals to "share" rich guys' works, it also hurts that small guys and allows corporations to "share" the small guys' works.

This case is exactly what you guys have been calling for. Oh, I forgont, you only want copyright weakened to make piracy legal?

This ruling reduces new-tech money-grabbing (1)

Morgaine (4316) | more than 6 years ago | (#19611133)

>> 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 part of progress, this should reduce the chilling effect of opportunistic litigation by money-grabbing parties of either kind.

Of course it will be challanged, because money-grabbers are everywhere. In principle though, it places the onus on creators to find a suitable fee structure JUST ONCE, and then be bound to that regardless of what progress holds in store.

Less Laws, More Justice? (5, Insightful)

TheLazySci-FiAuthor (1089561) | more than 6 years ago | (#19608981)

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.

Re:Less Laws, More Justice? (1)

MontyApollo (849862) | more than 6 years ago | (#19609165)

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 and don't see each other. I don't know how this relates to your point, but I thought I would point it out in case it does. It's Friday!

Re:Less Laws, More Justice? (1)

jedidiah (1196) | more than 6 years ago | (#19609891)

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.

Re:Less Laws, More Justice? (1)

slugstone (307678) | more than 6 years ago | (#19610601)

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.

Re:Less Laws, More Justice? (4, Interesting)

Aladrin (926209) | more than 6 years ago | (#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.

Re:Less Laws, More Justice? (4, Interesting)

The Angry Mick (632931) | more than 6 years ago | (#19610091)

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:Less Laws, More Justice? (1, Interesting)

Anonymous Coward | more than 6 years ago | (#19611165)

"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.

Re:Less Laws, More Justice? (1)

Takichi (1053302) | more than 6 years ago | (#19610131)

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?

Re:Less Laws, More Justice? (1)

Aladrin (926209) | more than 6 years ago | (#19610585)

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 things look very bad indeed for the USA.

Re:Less Laws, More Justice? (2, Informative)

quanticle (843097) | more than 6 years ago | (#19610427)

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:Less Laws, More Justice? (2, Interesting)

Coward Anonymous (110649) | more than 6 years ago | (#19611483)

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:Less Laws, More Justice? (2, Insightful)

yada21 (1042762) | more than 6 years ago | (#19609179)

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 cars are driven occurs on roads. But I might be wrong.

Re:Less Laws, More Justice? (0)

Anonymous Coward | more than 6 years ago | (#19609191)

Not to directly belay your point, but I've seen 2 in my life....
Granted, both were in a High School lot, so it figures into the "Personal Responsibility" part of your post.

Re:Less Laws, More Justice? (0)

Anonymous Coward | more than 6 years ago | (#19609239)

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.

Decisions in court cases do not reduce the number of laws.

Re:Less Laws, More Justice? (1)

Lockejaw (955650) | more than 6 years ago | (#19609315)

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 seems to be less about copyright law and more about what counts as separate media; it is saying that a CD-ROM distribution of a magazine is not a separate medium from the printed magazine (previous rulings said that it was).

Re:Less Laws, More Justice? (3, Insightful)

mcmonkey (96054) | more than 6 years ago | (#19609363)

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:Less Laws, More Justice? (1, Insightful)

Anonymous Coward | more than 6 years ago | (#19610265)

*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, but then the record label says no.

Overly simplified (obviously, both songs got made), but it still is an example of both extremes.

Any Brits about? (1)

spun (1352) | more than 6 years ago | (#19609519)

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

Re:Less Laws, More Justice? (1)

Irvu (248207) | more than 6 years ago | (#19609749)

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 them to hit someone if they speed. As such they take more care. Conversely most of the things you see on highways are other cars that are moving according to the rules, the same rules as in most parking lots. However due to the speed of said travel parking-lot-acceptable things (e.g. passing on the left) is not always appropriate because of the high speed of oncoming traffic.

When it comes to laws I agree that more is not necessarily better, nor is less necessarily better. When dealing with the laws most people actually obey more rules that they think about and many of those are negotiated all of them should be (not necessarily are) representative of public will. What is best in most cases is the appropriate laws, what that level is, however, is debateable.

Keep in mind that the goal of stating laws in advance is to avoid disputes. If you don't spell out what is acceptable or unacceptable in advance then we end up figting later and that is capricous and random. So one decent yardstick is to figure out what conflicts will arise and then state in advance how to avoid them. That however is difficult because, as with appropriate, likely conflicts is a challenge.

Re:Less Laws, More Justice? (1)

markbt73 (1032962) | more than 6 years ago | (#19609839)

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.

Re:Less Laws, More Justice? (1)

drinkypoo (153816) | more than 6 years ago | (#19610569)

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 driving, though. I was with my friend the paranormal hamster (his old BBS handle anyway) and we were in an '85 thunderbird, leaving one of the TAP plastics stores in the silicon valley area. A woman in a honda was fucking with something and not looking where she was going. We stopped at about three carlengths as she drifted into our path, and honked at two, because it was so disorienting to have it happen at all. She looked up at one, took no action whatsoever, and her car dove under our bumper and she lost a headlight at zero. She scraped some of the black paint off the ford's bumper, leaving a yellow mark, which was the extent of the damage. As crap as ford is, 80s hondas were ultra-crap in any kind of collision. (They're horribly unsafe in a real collision, which this wasn't. This was a 5 mph jobber.)

Re:Less Laws, More Justice? (1)

Hatta (162192) | more than 6 years ago | (#19611419)

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 scarier. I dunno if this was normalized for time spent in parking lots vs on the road though. Their point was, never let your guard down when driving, even in a parking lot.

That said, you're right. Generally adding more laws just creates more criminals.

Title is Misleading (4, Insightful)

asphaltjesus (978804) | more than 6 years ago | (#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:Title is Misleading (2, Informative)

poot_rootbeer (188613) | more than 6 years ago | (#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'."

Re:Title is Misleading (1)

mcmonkey (96054) | more than 6 years ago | (#19609463)

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 court to the publisher archiving magazines by transfer to microfilm or microfiche. (Wasn't a similar issue addressed for freelance writers when, if memory servers, the New Yorker put out a CD-ROM collection of their entire run?)

Anyway, specifically addressed here is a case of the publisher creating a new presentation of the work, not just putting the original magazine in a new format.

Re:Title is Misleading (1)

cei (107343) | more than 6 years ago | (#19609939)

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, so I don't expect back issues to be in high demand, and it won't stay in print long...) 20 years from now when Bar: The Complete Foo Collection is released, my quarter page of one issue in the context of all the pages of all the issues isn't very much. But maybe there's a higher demand for the collection than just the subscriber base, or maybe that's increased over the years, or their distribution has increased. The point is, they're selling a new product and receiving new income for repackaging their work. Shouldn't I as a contributor to that work receive some proportional fraction of that new endeavor? If nothing else, it's certainly beyond the scope of my original contract with Baz Publications.

Interesting... (1)

asphaltjesus (978804) | more than 6 years ago | (#19610313)

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.

Re:Interesting... (1)

cei (107343) | more than 6 years ago | (#19610855)

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 usually doesn't amount to much.

In a lot of ways photography is much more straightforward. The production of my photos is not subsidized by a larger corporation. The IP that I own is clear, so long as an explicit work-for-hire contract wasn't signed.

Re:Title is Misleading (2, Informative)

UnknowingFool (672806) | more than 6 years ago | (#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.

RTFA (1)

mcmonkey (96054) | more than 6 years ago | (#19609587)

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 this issue is not addressed in the discussion of archiving.

Re:RTFA (1)

UnknowingFool (672806) | more than 6 years ago | (#19611223)

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 entries in the encyclopedia, the Sequence in no way alters the context in which the original photographs (as well as the articles and advertisements) were presented.

From my interpretation, if there was no revision, it is considered archiving which the defendant argued.

This seems wrong to me (4, Interesting)

hey! (33014) | more than 6 years ago | (#19609023)

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

Re:This seems wrong to me (4, Interesting)

Maxo-Texas (864189) | more than 6 years ago | (#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.

Re:This seems wrong to me (1)

ceejayoz (567949) | more than 6 years ago | (#19610169)

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?

Re:This seems wrong to me (1)

Maxo-Texas (864189) | more than 6 years ago | (#19610645)

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 $1 and agree to play it only on iPod's since i sold it to you for a lower price.
Or you can pay a rental fee of $.01 and get to play the song for one month on a playback device.

You decide the level you pay and the amount of rights you get. If you do not want to pay the price for full rights, then you shouldn't bitch about limits on cheaper versions. You had the choice and chose the cheaper license.

Re:This seems wrong to me (1)

TheRaven64 (641858) | more than 6 years ago | (#19611213)

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 amount for. If I'd been paid a royalty, then I would have got more for the popular ones and less for the unpopular ones, and in this case having them distribute large additional numbers of copies would have irritated me if they hadn't paid me for them.

I don't think it's fair to expect to have it both ways. If I turned around to my publisher and said 'wait, that article had loads more readers than my usual stuff, pay me more!' then I would expect no sympathy. They've paid for distribution rights, and they are free to distribute as many copies as they can. If they distribute a lot more, then they can afford to pay me more for my next article...

Re:This seems wrong to me (1)

jsdcnet (724314) | more than 6 years ago | (#19610413)

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 the original magazine." NG's position is "This is the same as the original magazine, it's just on a CDROM." Interesting distinction.

Re:This seems wrong to me (1)

MobyDisk (75490) | more than 6 years ago | (#19610465)

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 example is interesting - if the photograph were published in a coffee table book, now that sounds like a case for re-licensing. But format shifting shouldn't require relicensing.

Hypocritical (1)

jshriverWVU (810740) | more than 6 years ago | (#19609029)

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.

Re:Hypocritical (1)

michaelmateyko (979292) | more than 6 years ago | (#19609373)

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.

One case where Copyright would be good (4, Informative)

ironwill96 (736883) | more than 6 years ago | (#19609041)

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'm confused (0, Flamebait)

yada21 (1042762) | more than 6 years ago | (#19609043)

Do we think this ruling is good, because coprights are teh suX0rz eleventyone?

Or is it bad, because corporations are teh suX0rz oh noeess?

(Just wanting to see whih way the wind blows, so I don't say something against the consensus and get modbombed)

Re:I'm confused (1)

spun (1352) | more than 6 years ago | (#19609583)

Don't worry about moderation. Just say what you are going to say without being a dick about it. If you have half a brain, two cogent thoughts to rub together, and aren't a complete ass-hat, you'll do alright here.

Re:I'm confused (1)

Miseph (979059) | more than 6 years ago | (#19609857)

Yeah, it always confuses me when people get all uptight about staying with the consensus. I've really only run into modbomb problems once for saying something contrary to dominant Slashdot culture, and I tend to say such things quite a bit. Not only that, but in spite of all the things I say that should put my karma through the floor, I'm at "Excellent" and have been for a fairly long time.

The groupthink here really isn't quite so bad as everyone seems to think.

Re:I'm confused (1)

spun (1352) | more than 6 years ago | (#19609953)

They think if they mention the unfairness of the mod system, they will get off scot free. That worked up to about five years ago. Now most of the mods have caught on, and mentioning possible moderation in your post is more likely to get you modded down than up.

Re:I'm confused (1)

TheRaven64 (641858) | more than 6 years ago | (#19611295)

Of course, by claiming the moderation system works and doesn't encourage groupthink, you are agreeing with the groupthink, and so will be moderated up.

I, of course, will be moderated down for pointing this out.

Except I said I will be moderated up, because I said I would be moderated down, and so am a karma-martyr sticking it to The Man.

Except now I've mentioned that, I will be moderated down for excess cynicism.

Excuse me while I disappear in a puff of logic.

The groupthink here really isn't quite so bad as everyone seems to think.

I want that on a t-shirt.

Re:I'm confused (1)

Elemenope (905108) | more than 6 years ago | (#19609931)

You should be fine so long as you avoid the following topics: Microsoft, Apple, Google, Linux, IPv6, Religion, Politics, Creationism, Evolution, Copyrights, Copylefts, Corporations, Class Warfare, Taxation, Intellectual Property, Economics, Metaphysics, Epistemology, Ethics, Blogs, Open-Source Software, Science Fiction, Hacking, Cracking, the United States of America, Hats of ANY Color, and the Weather.

But seriously, I agree with you that we should not worry about how we are modded prior to commenting; only that one honestly feels that one has something worthwhile to say, and karma be damned. "Doing alright here" on the other hand, i.e. having enough karma to have one's comments peak above the morass of undifferentiated unnoticeables, is more touch-and-go. ;)

Re:I'm confused (0)

Anonymous Coward | more than 6 years ago | (#19609935)

You're confused?

I re-read your post three times. I'm confused!

What about use? (1)

WK2 (1072560) | more than 6 years ago | (#19609083)

This ruling seems to say that a publisher can republish something they have a license to on a different medium. Does that mean that we can listen/view something that we have a license to on a different medium? Can this case be used to defend listening to music on an mp3 player, or copying DVDs to a hard drive? Or even, dare I say, watch DVDs in linux?

Re:What about use? (1)

BoberFett (127537) | more than 6 years ago | (#19609183)

Sure, if you have the resources of a large corporation with which to defend yourself from lawsuits.

Re:What about use? (3, Interesting)

dwarfking (95773) | more than 6 years ago | (#19609911)

That should already be covered under the fair use provision. What you don't have is the right to distribute the work on another medium. You pay a for a licenses to use music or movies or software. A publisher pays for the right to publish a work in any media format.

IANAL, but the way I read this ruling was that if the contract does not directly address the media type, and the original work is not modified into something new, then the publisher has already paid for the right to publish the work.

As a related, though slightly off topic issue, I have a son that just graduated high school. All of his class pictures are represented as being "owned" by the photographer. They claim the copyright on all the kid's photos.

The photographer thought my son photographed well and asked permission to use his pictures in their sales brochures. My son and wife told the photographer they wanted me to review the paperwork.

Upon reading this "release" it basically stated that if we approved, the photographer would then own the copyright to my son's image, period. No details about "only for use in their advertising."

When I challenged them on that detail they indicated that was "standard practice" and they only meant for advertising. I offered a change to the release wording which they refused so I declined to allow it.

My point on this is that everyone is looking to get as much control as they can, whether it is the publisher looking to say they already have the right to reprint or the photographer claiming they own the copyright on the image, so all I see with these rulings is see-sawing back and forth as to who owns what.

In the end, the consumers are the ones that own nothing.

I support this (3, Insightful)

crow (16139) | more than 6 years ago | (#19609107)

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:I support this (2, Informative)

michaelmateyko (979292) | more than 6 years ago | (#19609431)

very often there are clauses in contracts for designers, photographers etc. that specify reproduction rights for 'all media not yet created'.

Re:I support this (1)

tinkerghost (944862) | more than 6 years ago | (#19609441)

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 upheld as falling under the rights granted when the article was first published. I think that that's valid - if they can reprint it on paper, microfiche, and microfilm, then excluding digital media makes no sense. Nor does claiming that the software used for presentation creates a derivative work. That particular argument could be interpreted as meaning that a work could only be reprinted if it used the same page-layout software to set up both print runs.

I think however, that the inclusion of his photo's in the montage would be considered a 'repurposed' use of his photos & he should still be able to claim infringement reguarding them, unless he has an advertising clause in his contract which would void even this.

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).

There is a vast difference between broadcast TV & DVD collections. Broadcast TV was not designed for home ownership - the shows were owned by a single entity & meant for broadcast under highly restricted licensing agreements. The people made these with the understanding that that's how it is and how it would be. Why would you include a clause in a contract to cover a situation that's 20 years away from being invented? Perhaps moreso, How would you include a clause like that?

Your argument holds in DVD v VHS distribution, but not broadcast v (DVD/VHS).

Summary because I think one is needed (4, Informative)

CaptainPatent (1087643) | more than 6 years ago | (#19609131)

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.

Doubtful that prices will go up, more likely not (0)

Anonymous Coward | more than 6 years ago | (#19609487)

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.

Prices depend on market demand as well as power of market participants.

In this case, photog faces:

a) competition from more photogs (ie cell phone users)
b) limited number of publishers that can walk away from photog

Your Summary is Incorrect. (1)

no haters (714135) | more than 6 years ago | (#19610887)

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 decision, the Supreme Court mentioned that online databases were dissimilar from microfiche archival copies (which have been allowed in the past). Now this is where it gets fuzzy: From what I can tell, a 2nd Circuit judge decided to take this *note* as "invalidating" the 11th Circuit decision (which disagreed with his own 2nd Circuit decision that he had made earlier) and he reopened it and reversed it, to bring the two appeals courts in line. The decision now says that making the work available on CD/DVD is just like putting it on microfiche, and thus allowed. It was somewhat shady, procedurally, and definitely unprecedented.

Re:Summary because I think one is needed (1)

Jah-Wren Ryel (80510) | more than 6 years ago | (#19611057)

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 included the opportunity for greater compensation. Thus, the only effect of this ruling is to expand the scope of contracts already written and signed without a corresponding increase in compensation for the photographer.

It's a screw job, plain and simple.

I don't get it (1, Insightful)

Anonymous Coward | more than 6 years ago | (#19609231)

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.

Re:I don't get it (0)

Anonymous Coward | more than 6 years ago | (#19610489)

What if it's in the same context as the original work? For example, if the CD is filled to the brim with PDFed versions of the mag, so each photo appears in the same context as it was originally licensed, then I could see the argument that this isn't a new work.

Now if each photo was pulled out of the text and put onto a CD which was just "The Images of National Geographic", I would say that is a new use and it should be paid for. As far as I know, photo contracts also tend to count the number of impressions (views, whatever) that you get under that contract, and if this CD puts them over that number of impressions I would say they have to pay as well. But format shifting, well, that's the same argument that everyone uses to say that ripping CDs or DVDs to your iPod is OK, or that Google Books is in the clear legally.

Hold off the Knee Jerk reactions... (5, Interesting)

Maudib (223520) | more than 6 years ago | (#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?

Re:Hold off the Knee Jerk reactions... (1)

mythar (1085839) | more than 6 years ago | (#19610197)

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:Hold off the Knee Jerk reactions... (0)

Anonymous Coward | more than 6 years ago | (#19610553)

Consumers and creators are arguing that once they have purchased the rights to produce/distribute/consume content, then it doesnt matter if this content is enjoyed/consumed on a piece of paper, a computer screen or a rock or an iPod or a TiVo or a backup CD.

I think that's the jerking around that's getting to some people's knees - if National Geographic gets to place-shift after paying the artist only once, why can't I?

Re:Hold off the Knee Jerk reactions... (2, Insightful)

semiotec (948062) | more than 6 years ago | (#19610857)

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 laws regarding fair use, however, again, it seems unlikely that fair use applies when you intend to make money from distribution.

although I have to say that, so far, I am fairly neutral about this case, since I have yet to understand both the details of the case and the implications from it.

Re:Hold off the Knee Jerk reactions... (1)

yar (170650) | more than 6 years ago | (#19611321)

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.

Re:Hold off the Knee Jerk reactions... (1)

rjstegbauer (845926) | more than 6 years ago | (#19611109)

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 NYT are fighting for greater freedom of information.
Somehow I don't think that National Geographic and NYT care one whit about "freedom of information". I think they care about MONEY!

Just my thoughts, and, oh yeah, IANAL.
Randy.

Re:Hold off the Knee Jerk reactions... (2, Insightful)

Christoph (17845) | more than 6 years ago | (#19611667)

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 circulation by ten-fold (the CD-ROM/DVD format). Nobody expected a new medium to end up generating more revenue than the original print edition itself.

The law was not designed to resolve this fairly, and neither were the licensing agreements. In fairness, photographers should share in a financial boon reaped by NG based on massive, unanticipated additional circulation of the photographer's work.

In the future the standard agreement might have to be based on per-unit royalties (like is common for a music CD) instead of a flat licensing fee based upon the current medium/audience of a publication. That may remedy what appears to be a shortcoming in the industry-standard licensing, a shortcoming that NG is trying to exploit.

Re:Hold off the Knee Jerk reactions... (2, Insightful)

LihTox (754597) | more than 6 years ago | (#19611975)

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 (paper vs CD, etc) and make copyright easier to understand for the layperson, that would be a win for small-time artists. See, for example, the recent rate hikes for Internet Radio.

Yeah, the photographers might lose out here because of the new possibilities opened up by computers, but that's hardly a new story. How many inventors have sold off their rights to something they created because they thought it was worthless, only to have it catch on and become enormously successful? Do they get to renegotiate the sale just because the world has changed?

It's not that simple (1)

Solandri (704621) | more than 6 years ago | (#19611987)

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 copyright holder. The freelancer assumes the risk in the endeavor (he can't feed himself if he can't sell enough photos), but he retains the copyright. In these, the feelancer negotiates a fixed payment and sometimes royalties for each copy made. The important thing to note is that pricing varies depending on many factors, including size of the photo to be reproduced (full size back cover of the magazine is worth more than quarter panel buried in the back pages), where it will be reproduced (National Geographic is more prestigious than the National Enquirer), and approximately how many copies will be made. So yes, it really does matter in what media the photo will be reproduced. It's unusual but not unheard of for a company to be granted unlimited use, usually in the form of an exclusive license (e.g. Slesinger owns the marketing rights to Winnie the Pooh [wikipedia.org] in the U.S. and Canada). But that's always done with the full knowledge of both parties that unlimited use is being granted. A more typical license grants reproduction not to exceed X number of copies. In the case of a periodical the number of copies is assumed based on the distribution of the periodical, and sometimes a limited number of reproductions. These contracts do not explicitly prohibit future reproduction because that's the whole point of copyright law - to prohibit reproduction unless the copyright holder agrees.

Without knowing the details of the case, it seems National Geographic wasn't very diligent in their contract negotiations. They should have foreseen the possibility of future anthologies and placed a term covering that in their contracts. The reason the "work for hire" exception to copyright was made was precisely to avoid this type of problem. Say I were making a game for the PC. I would hire coders, artists, marketers, maybe some play testers. In all I'm probably looking at 20-100 people involved in the project, all producing copyrightable work. The game gets finished, everyone goes their merry way. 2 years later, I decide to port the game to the Mac. I want to re-use as much of the code, art, and marketing materials as possible, so I need to secure new copyright releases for the new game. Now I'm faced with the daunting task of tracking down 20-100 different people who all hold copyright over the material who have had 2 years to disperse themselves among 6.5 billion people. Producing copyrightable materials under "work for hire" avoids this entire mess. Being a monthly publication with pre-assigned stories, NG should have employed photographers as "work for hire" or negotiated future anthologies in their contracts. (In fairness, the oversight could also be the fault of the freelancer, who did not specify that the photo could be reproduced in on the magazine and a limited number of republications.)

The situation with the New York Times is a bit different. News happens all over the place, and often the person there to take photographs is just some Joe who happened to be there with a camera, not a press photographer. So it's inevitable that they have to use freelance work. But even here they should've had the foresight to see republication or potential means of redistribution in the future and put it in the contract. It seems to me what's really going on here is that these media companies are, under the auspices of the impossibility of finding the tens or hundreds of thousands of copyright holders who have contributed to their product, asking the court for relief from having to pay the copyright holders they have found.

Wouldn't it be preferable.... (1)

mark-t (151149) | more than 6 years ago | (#19609617)

... 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 archives of previous material in a form that may not have been expected at the time, and it would also protect the interests of copyright holder because that doesn't potentially give the publisher carte blanche to do almost anything they wanted with the stuff they previously bought.

Repurpose Drawing the Line (1)

Zygamorph (917923) | more than 6 years ago | (#19609889)

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 of the archival material. OTOH if you can do full text searches of the articles, cut and paste text and individual images or anything else that would make the content really nice, then its a new purpose and the copyright owner is entitled to renegotiate compensation.

Personally I think the whole argument of having to use software to access the data is a red herring. You have to use patented hardware to access micro film and fiche as a minimum. I'd be very surprised if there aren't micro form readers that have their own computer and software to make it easier to access the archived data. This doesn't magically make the micro form any different from what it was before the software/hardware appeared on the scene.

The main problem might be that its a lot easier to add "extras" to the digital format and the potential for distribution is much higher. Way more people own PCs with CD/DVD readers than microform readers. Its also a lot cheaper to reproduce and distribute digital format than micro form.

Dragon Magazine back in 1999 (2, Interesting)

phantomlord (38815) | more than 6 years ago | (#19610925)

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.

Irregardless, the point is mute. (0)

Anonymous Coward | more than 6 years ago | (#19611703)

As an aside, "mute" instead of "moot" is my favorite misused word in the English language. All too often I hear otherwise intelligent people say "the point it mute". Thanks for getting it right here.

BTW, "irregardless" instead of "regardless" is my second favorite misused word.
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