National Geographic archive.
I can say on the front end that copyright law is one of those necessary evils for the publishing industry. Necessary — it gives writers, artists and others the financial incentive to create works, allowing them the rights to the money made from their writing, their photographs, their illustrations. An evil — it’s complex, and most freelancers and publishers would likely agree that Congress ignores copyright law for years on end, then addresses it from a less informed viewpoint than most of us would prefer.
Copyright law is one of those issues that really makes me wish for a benevolent dictator, despite my love otherwise for our imperfect democracy. In my opinion, far too much copyright law is decided in the courtroom, admittedly for lack of any reasonable alternative.
(Fair warning: I’ll still be talking about copyright law after the jump….)
Yet copyright law supports our work here at Hammock Inc. every day. Smart freelancers, publishers and clients in the custom publishing industry ensure they have clear, detailed contracts on the front end. These legal documents can often guide us where the law cannot.
Many of us in the digital media industry have been watching the case involving National Geographic and its full-archive CD series for 11 years now. Yes, it’s been in court since 1997. That year, National Geographic created a CD set offering the full archive of all issues the magazine had published to date. The publication was sued by several freelancers, claiming they were due additional payment for the re-use of their photos in such a compilation.
We’re still waiting for the outcome. Part of the details of the case involve whether the law views the CD archive as a new creation, or as simply a re-issuing of the original publication, albeit in a new format. Those are the kinds of arcane issues that govern our business decisions every day.
While I would have told you a number of years ago that cases like this are critical to our industry, I think to a large measure, they may have already served their purpose. The rapid explosion of digital media in the past 15 years caught many in our industry by surprise. Today, you should be working with the benefit of 20/20 hindsight.
What publishers have learned from cases like Greenberg v. National Geographic and Tasini v. New York Times (where freelancers won additional payments from the Times for use of their work in an online archive): Spell out in enormous, clear detail how you might use the work you’re buying from a writer or photographer. “First time North American print rights” is no longer enough for, well, almost anyone. Include some clauses about future use and digital formats not yet invented.
What freelancers and photographers have learned: Going to court is a bad way to get the money you are due. Demand a specific contract detailing future use of your work and the payment you believe is fair, on the front end.
Nonetheless, I’m still anxious to see the eventual outcome of the National Geographic case. It may have implications for emerging technologies we’re using — but hopefully it will simply reinforce what we have already learned from many years of operating in the digital world.