Like the significance to Sherlock Holmes of the dog that didn't bark, it is what the high court did not do that was key here. Last October 9th the justices refused without comment to hear an appeal by National Geographic magazine of a U.S. Appeals Court finding that the magazine had unlawfully included on its new CD-ROM compilation pictures that freelance shooter Jerry Greenberg had made for the magazine on assignment over the course of three decades and which the magazine had produced in printed form during that time. [The 30-set CD-ROM, which NatGeo retailed for $99.95 each, archives 1,200 issues of the yellow-bordered magazine, covering the years 1888 to 1996. Greenberg, now 74, had pictures published in four of those issues, including the cover of the magazine for January 1962.]
By refusing to intervene the high court in effect gave its blessing to and ended all possible appeals of this important copyright case. Greenberg now must be paid for the additional usage of his work and a lower court now will determine how much that will be.
This was the second victory in the dawning computer age for freelance journalists. Last June in a case against the New York Times, the high court held that freelance writers must be compensated when their previously printed work is reproduced in new, electronic form for the Internet.
Though these two cases likely will have little direct impact on amateur photographers right now, the mindset that prompted these David vs. Goliath cases is important to everyone who ever sells or who hopes to sell his or her work product in the marketplace.
It boils down to copyright and a related issue called "work for hire." And, with the lucrative new potential presented by the Internet and the computer age by the millions in additional profits that media giants like National Geo, the New York Times and others can derive from comparatively easy electronic repackaging "creatives" (the catch-all term for those who work by the creative process) should be wary of surrendering too many rights too soon to too many of the people who hire them.
Copyright literally means the right to copy, and the concept goes back centuries in English law. While it is impossible to copyright an idea, the manifestation of that idea be it a photograph, a book, an article, a poem, a painting, a sculpture, anything can be copyrighted. In fact, so basic is this concept that federal courts here have held that copyright belongs to the creator of a work unless and until he or she formally surrenders it in a contract.
It is important to note, though, that employees of a company, hired to produce creative work such as photography or writing, usually surrender copyright to their work as a condition of employment. But in return, the company usually provides a number of important ancillary benefits, not least of which is a regular paycheck. Other benefits often include unemployment insurance, health insurance, pension and profit-sharing, sick leave, paid vacation, paid travel to work sites or locations, office space, accounting services, promotion even in some cases equipment and materials.
That always struck me as a pretty fair deal. For example, when I was a political writer for the New York Daily News, it didn't bother me at all that the paper owned everything I wrote. After all, it sent me all over the country and to various parts of the world to write the proverbial "first draft of history."
It was fascinating; it was fun. In truth I'd've paid them to do it. And, let's not forget: I had all those benefits.
But, in 1983, when I was approached by an outside publisher to write the biography of former astronaut and then-presidential candidate John Glenn, I took an unpaid leave of absence from the paper, lived off the advance from my publisher, and ultimately shared the copyright to that work. In fact, the Daily News had to pay my publisher and me for the right to excerpt my book in its pages.
When I shifted to commercial and documentary photography, it was not unusual for commercial clients to ask for all rights to my work, or a "total buyout." In other areas nowadays, notably big advertising accounts, and especially with movie and related show business promotional photography, flacks and account reps seem to think it a mark of honor to alpha-male (or alpha-female) their way to grabbing as many of these rights as possible.
All of which is fine with me as long as I am paid a ton of additional money in return. The exponential increase in my fee reflects the fact that I will get no additional income from future sales of these photos as well as the fact that, since I am now being treated as a hired employee (hence the term "work for hire") I deserve compensation for all the benefits I am not getting from my "employer" and which I have to pay for out of my own pocket.
Sweet reason would seem to dictate that a client only should buy those rights he or she needs it's a hell of a lot cheaper that way. But I can't tell you how many clients these days seem to think of "total buyout" as their natural birthright.
In photojournalism, or editorial photography, the kind of rights-grabbing I'm describing was seldom an issue until recently. Freelance photojournalists routinely would regain copyright to their images after first-time use by their clients. This reversion of rights so that photographers could re-sell their images as stock, for example was one reason newspapers and magazines kept their day rates to freelance shooters so low. (Absurdly low, but that's another story.)
Now, however, everyone from big papers and magazines to the wire services is demanding a total buyout of rights from freelance photographers. And with fewer and fewer media outlets, and with more and more hungry photographers in the job pool willing to do anything for a paycheck, these companies are calling the tune.
In a fair world, especially one in which there is money to be made by all, you'd think an accommodation could be made. But, in the face of court rulings that freelances have to be paid for new and previously unknown uses of their works, big media not only are demanding all print rights from prospective freelances (i.e., no additional stock photo income for freelance shooters), they also are demanding all electronic rights (i.e., no additional Internet income).
And what about all the photographers and writers who already are in the electronic archives and who now must be compensated? No problem for the Times, at least. Rather than pay up, the so-called newspaper of record simply is purging their work from its files and complaining loudly that it is being forced by these heartless freelance writers and photographers into truncating the historic and archival record.
All of which only calls to my mind the story of the man who murders his parents then begs mercy from the court because he's an orphan.
Frank Van Riper is a Washington-based commercial and documentary photographer and author. His latest book is Down East Maine/A World Apart (Down East Books). He can be reached at firstname.lastname@example.org.