When Jerry Greenberg agreed to allow the National Geographic to publish his photographs, he didn't think his collection of more than 40 images would be republished in a 30-disc CD-ROM set without his permission or further payment.
Greenberg took the Geographic to court. Now, three years after he filed suit and only months after an appeals court victory, his case may be the next battle over e-rights to hit the Supreme Court.
Recently, the Supreme Court ruled in Tasini et al v. The New York Times et al that publishers who republish freelance articles without permission or further compensation violate freelancers' copyrights.
The Tasini case could weigh heavily on the Greenberg case. But this time the battle is over images, not just words.
But whether words or images are the source of contention, "It all depends on how it's packaged," said Norm Davis, Greenberg's attorney.
Earlier this year, a U.S. Court of Appeals for the 11th Circuit ruled that the National Geographic Society violated the copyrights of freelance photographer Jerry Greenberg by republishing his photos on a CD-ROM set without his permission.
The appeals court ruled that the CD-ROM set was not merely a revision of a prior collective work, but instead constituted an entirely new collective work in a new medium for a new market.
Now, in the wake of Tasini, National Geographic is taking that ruling to a higher court. The same day the court delivered the Tasini ruling, the magazine issued a statement saying that it intended to petition the Supreme Court regarding the Greenberg case.
"Although the court ruled in favor of the freelance plaintiffs in (the Tasini) case, its reasoning bolsters National Geographic's position in the pending litigation," said Terry Adamson, executive vice president of the National Geographic Society in a statement.
The justices in the Tasini case argued that image-based reproductions of periodicals, such as microfilm and microfiche, are permissible under the Copyright Act because the articles appear in the exact position in which they appeared in print.
The National Geographic says that its CD-ROM is such a digital replica. So users can retrieve an article only in the context in which it appeared originally.
"Like microfilm and microfiche, an image of every page of every issue is shown just as it was in the print version," Adamson said.
But Greenberg's attorney disagrees.
"The Tasini decision doesn't enhance the Geographic's case in the slightest," said Greenberg's attorney, Norman Davis. "In our case, the question is completely different."
"The issue (in Greenberg) has been, is this a new, collective work or not," Davis said. "I don't think anything undermines the 11th Circuit's conclusion that this CD ROM product amounts to a new collective work.
The only commonality, Davis says, is that "both cases have to do with the evolving nature of publishing in an electronic era."
Whether the Supreme Court will accept the Geographic's request remains to be seen. It could take months for the court to decide whether it will review the case.
In the meantime, publishers are wary of the potential outcome.
"The impact of the Tasini ruling will be broader," Davis said. "But the same publishers who opposed Tasini are opposing us."
