A Victory For Publishers Over Freelance Journalists

Posted by Eriq Gardner

The 11th Circuit Court of Appeals has upheld the reversal of a decision that awarded $400,000 to freelance photographer Jeffrey Greenberg, who claimed that National Geographic magazine had violated his copyright after publishing photos he took for the magazine between 1962 and 1990 in a 30-disc CD-ROM anthology.

The case has been one of the longest-running copyright disputes in the media industry. Greenberg originally sued the magazine in 1997 and when he won, it was hailed as a victory for freelancer rights everywhere. A few years later in 2001, the Supreme Court handed freelancers another victory in New York Times v. Tasini, that stated that publishers need an author's consent before publishing their articles in an electronic database.

But the decision had adverse consequences for Greenberg, as the publishers then argued that the decision should be vacated as Tasini had noted an exception in copyright law for a "collected work." Greenberg's lawyers argued that the anthology was a "new collected work" with revisions and thus did not enjoy copyright privilege.

Last June, a three-judge appellate panel agreed with the publisher, and Greenberg appealed. In oral arguments, Kenneth Star, who represented National Geographic, said, "The entire publishing industry is awaiting the court's decision."

The 11th Circuit has now given media publishers what they wanted, saying they could not find enough new elements to classify the anthology as a "revision." Thus, the media wins a potentially big step-back from Tasini.