The New York Times Co., Time Inc. and Newsweek Inc., among a dozen of the nation's largest publishers, have banded together with university presses, academic journals and national library associations to oppose a Florida freelance photographer whose 10-year battle to collect royalties from National Geographic could redefine the limits of copyright protection.
The publishers -- which also include Forbes, Martha Stewart Living Omnimedia, The Washington Post, The Chicago Tribune Co., Playboy Enterprises Inc., Hearst Corp., the Gannett Co. Inc., Duke University Press, Johns Hopkins University Press and the online legal archive JSTOR -- have petitioned the 11th U.S. Circuit Court of Appeals in Atlanta for permission to file amicus, or friend-of-the-court, briefs supporting The National Geographic Society, publisher of the 119-year-old magazine, National Geographic.
The publishers' attorneys argue that the U.S. Supreme Court's 2001 landmark copyright ruling, New York Times v. Tasini, 533 U.S. 483, allows the publishers to place entire publication libraries on CD-ROM and then sell them without seeking permission from -- or paying additional royalties to -- the freelance authors and photographers whose works are reproduced in those collections.
Tasini was a win for freelance writers against publishers who wanted to sell their articles to online databases without paying the writers additional fees.
But National Geographic and its publisher supporters have seized on language in Justice Ruth Bader Ginsburg's majority opinion in Tasini they say allows them to sell CD-ROMs and other products without violating the copyrights of freelance photographers.
A 2001 decision by the 11th Circuit, handed down three months before Tasini was issued, came down squarely in favor of Florida freelance photographer Jerry Greenberg, finding that National Geographic's CD magazine library was a "new product ... in a new medium for a new market." That case is called Greenberg I, No. 00-10510 (11th U.S. Cir.).
But this past June, a separate 11th Circuit panel looked at the Greenberg case again and, citing Ginsburg's language in the Tasini decision, reversed the 2001 panel and ruled for National Geographic. That case is Greenberg II, No. 05-16964 (11th U.S. Cir.).
The full 11th Circuit then vacated Greenberg II and agreed to hear the case en banc. The case has been scheduled for oral argument the week of Feb. 25.
Critical to Greenberg v. National Geographic Society is the U.S. Supreme Court's 2001 Tasini opinion and how it should be interpreted.
Dozens of publishers, libraries and universities now seeking to submit their views of the case to the 11th Circuit have signaled that the financial stakes stemming from Greenberg are significant.
After the 11th Circuit found in Greenberg I that National Geographic had infringed Greenberg's copyright by failing to secure his permission for the digital use of four of his photos, a Florida jury in 2004 awarded Greenberg $400,000. National Geographic had priced its CD library product at $119.99. Following Greenberg I, National Geographic had pulled the CD library from the market.