Photographer Jerry Greenberg sold his pictures to the magazine over a period spanning almost 40 years. According to the Miami Daily Business Review, his contract included a clauses stating that after publication, all rights to his photos reverted to him. He sued in 1997 when the magazine included four of his photographs in a 30-disc CD-ROM anthology of the 108-year-old publication.
Greenberg argued that the CD-ROM was not simply a reprint of his existing work. He lost in a Miami district court to the publishers’ argument that the CD-ROM was no different to a bound volume of magazines or copies on microfiche. However, the 11th Circuit Court of Appeals in Atlanta ruled in his favour, saying that the CD-ROM was not “merely a revision of the prior collective work, but instead constitutes a new collective work.”
Greenberg’s lawyer said after his client’s victory, “The [National Geographic] Society contended all along that the only thing it has done is just reprint a bunch of old magazines. If that’s all they would have done, they would have prevailed. The 11th Circuit said it was much more than that.” The court found that the collection was “a new product… in a new medium for a new market that far transcends any privilege” of revision or reproduction by publishers.”
OUT-LAW.COM’s Paul Sanderson, partner and head of intellectual property with law firm Masons, said:
“It is likely that this case would have been decided the same way in the UK. If a business commissions a photograph for use in its brochure or magazine, it does not automatically mean that the business can also use it on a CD-ROM or on its web site. It either needs to acquire the copyrights in the picture or obtain a licence to use the image in all media.”
For more information on copyright law, see our guide on Branding and Intellectual Property.