In my reports in this newsletter on Tasini v. The New York Times, I have said that, in my opinion, the outcome of this case will determine whether an editor can reuse photos (or text) for electronic use (digital delivery) without paying an additional fee. Reuse fees, of course, have historically been the norm in the stock photography industry. Throughout the internet came and somehow many publishers assumed that they did not have to pay additional fees when using a photo (from a previous use purchase or a previous independent assignment) on their website, in online databases, on CD-ROM, etc.
TO THE SUPREME COURT
The original trial court ruling in the Tasini case held that the electronic posting of a freelancer’s work was a permissible “review”. A three-judge panel of the Court of Appeals unanimously overturned that decision in September 1999, holding that The Times and other publishers (Newsday, Time Incorporated, and Lexis-Nexis) were infringing the copyrights of freelancers by publishing writings and pictures online. without permission of the self-employed. The Court of Appeals also declined to rehear a counter appeal from The New York Times et al. The editors then asked (and got) the Supreme Court to hear the case. So far, no date has been set for the hearing of the appeal.
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THE COPYRIGHT LAW IS NEXT TO THE PHOTOGRAPHER
The Copyright Law (Title 17 of the USC [United States Code], Sections 201-205) allows the creator of a work (photography, writing, painting, song, etc.) to control and license that work for financial gain. All rights belong to the original creator, unless the creator has entered into a written agreement assigning a particular right or rights. In other words, a client cannot hire a photographer to use a photo (or series of photos) for the purpose of publishing them in a magazine or book, for sole publishing rights, and then turn around and reuse those same images. on your website without offering the photographer additional compensation. This applies to photos licensed to the customer for one-time use in the past, as well as future photos.
Note: The law is always open to interpretation. You can expect to hear different nuances of the above, from the publishers’ attorneys, in this case.
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GREAT DAMAGE
Either party stands to lose a lot in this case, if they are the ones against whom the Court rules. Freelancers would lose not only payments for illegally reused photos in previous years, but also on future reuses. Publishers may be liable for past and current copyright infringements.
Most of the photographer and writer organizations have expressed confidence that they will see a positive outcome for this case. They predict that freelancers will prevail, who will now have been thwarted in their attempts to establish their reuse rights for electronically posted photos. -RE
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July 2001
Editor’s Note: It turned out that the photographers and writers prevailed.
The question was: “Do print and electronic publishers violate the copyrights of freelance authors (and photographers) when they include freelancers’ already published articles in computer databases without the author’s permission?
Yes. In a 7-2 opinion issued by Judge Ruth Bader Ginsburg, the Court held that section 201 (c) does not authorize the copying in question. “Publishers are not protected by [section 201(c)], we conclude, because the databases reproduce and distribute articles independently and not in context, not ‘as part of that particular collective work’ to which the author contributed, ‘as part of … any revision’ of it, or ‘as part of … any subsequent collective work in the same series. “Both print publishers and electronic publishers, we dictate, have infringed the copyrights of independent authors,” Judge Ginsburg wrote.
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Lawyer Joel L. Hecker he lectures and writes extensively on topics of interest to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Telephone: 1 212 557-9600. Email: [email protected]