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ASMP Urges High Court Review of Faulkner Case

In the more than 60 years since ASMP was founded to protect the interests of professional photographers who make photographs for publication, we have supported a variety of legal cases in a number of ways. One of those is the pending petition to the U.S. Supreme Court to hear the appeal by the photographers in the case of Faulkner et al. v. National Geographic et al. The case arose when National Geographic scanned the back issues of its print magazines covering more than 100 years, added new multimedia elements and altered material, and sold this new product in various CD-ROM collections (“CNG”) without permission from a number of the contributing freelance photographers. Here is ASMP’s position on the case.

Update: On December 13, 2005, the High Court decided not to hear Faulkner's appeal.

The U.S. Court of Appeals for the Second Circuit ruled that the publisher had the privilege to do that under Section 201(c) of the Copyright Act of 1976. Section 201(c) says that, unless there has been an express transfer of the copyright or any rights under it, publishers of collective works, such as magazines, “… have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.”

That Section of the 1976 Copyright Act was enacted to safeguard the rights of freelance authors, artists and photographers (collectively “freelancers”) in their contributions to collective works. That fundamental purpose has now been eradicated by the Second Circuit’s decision in the Faulkner case. By adopting an overbroad and unprincipled interpretation of the narrow “privilege” given to publishers to reproduce and distribute authors’ contributions under Section 201(c), the Second Circuit’s decision transforms this section into a windfall for publishers. This result will deprive thousands of ASMP members and other freelancers of much of the value of their copyrights.

The CNG is not a “revision” of the issues of the National Geographic Magazine (the “Magazine”) in which the freelance authors’ contributions were originally published. Rather, this electronic database is a new and very different collection — indeed an anthology — of the collective works in which the contributions were first published. Neither the language nor the legislative history of Section 201(c) compels or permits a statutory interpretation equating these combinations of multiple collective works with the “revisions” of particular collective works authorized by the Section 201(c) privilege.

If the decision in Faulkner is upheld, the value of freelance authors’ copyrights in their contributions to many thousands of collective works published after January 1, 1978, will be severely impaired and in many cases effectively destroyed. It is doubtful, for example, whether famous photographs first published in Sports Illustrated will command the same, or in fact any, license fee if they are widely available to the public through electronic media. Once the valuable works of freelance authors enter the world of electronic commerce without their consent and without any payment to them, the licensing value of those works is irretrievably lost.

The vast majority of ASMP members retain the copyrights to their creative works because preserving and exploiting the economic value of those copyrights are essential to their economic survival. Our members rely heavily on their copyrights for their livelihoods and, in many cases, for their retirements. In fact, it is precisely the creative talents of freelancers such as the members of ASMP that the copyright laws are intended to nurture and sustain. The U.S. Court of Appeals for the Eleventh Circuit wisely recognized this in upholding the rights of ASMP member Jerry Greenberg in a very similar case against National Geographic.

The decision in Faulkner, if allowed to stand, grants publishers the right to reuse freelancers’ valuable copyrighted works without permission or payment. Publishers are therefore free under the Second Circuit’s decision to dump thousands of creative works owned by freelance authors into CD-ROMS, distribute and sell access to such works throughout the world, and collect all of the resulting profits. Publishers now have the green light under Faulkner to exploit new markets for their own exclusive benefit and thereby eviscerate whatever residual market that may be left for photographers to explore. Freelancers get nothing in return.

ASMP therefore urges the U.S. Supreme Court to grant certiorari in the Faulkner case so that the Court may restore the protections given freelance photographers by §201(c) and taken away by the Second Circuit and eliminate the confusion caused by the conflict between the Faulkner and Greenberg decisions.

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