Publishers lost another copyright case and freelance writers hailed another victory after the Supreme Court declined to review an appellate decision in Greenberg v. National Geographic, which held that a CD-ROM collection of photographs infringed the copyrights of the photographers who took the original pictures.

In this case and Tasini v. The New York Times, publishers have argued that under a disputed section of the 1976 Copyright Act, they have a right to publish revised electronic editions of publications that use the copyrighted work of freelancers without seeking new permissions from the freelancers and paying them for that use. The Supreme Court ruled against the publishers in Tasini v. The New York Times last summer (News, July 2). A few months before the Tasini decision, the 11th Circuit Court of Appeals ruled against National Geographic.

Allen Adler, v-p of legal and governmental affairs for the Association of American Publishers, which filed a brief in support of National Geographic's request for a review of the case, called the court's refusal to review the decision "a puzzlement in light of its decision in Tasini."

Jonathan Tasini, president of the National Writers Union and lead plaintiff in the Tasini suit, said, "Once again, the legal system has come down in favor of the individual creator's rights in the digital age." Tasini told PW, "Everywhere you look, the law supports creators. By denying review, they have expanded their initial ruling in Tasini v. The New York Times." Indeed, Adler noted that in the Tasini case the court ruled that electronic reprinting was allowed if the copyrighted material was presented in the same context in which it appeared in the original publication. The high court had noted that microfiche reproduction, for instance, was permissible.

However, Adler continued, in the National Geographic case, the CD-ROMs were exact reproductions of the original print material, but with new introductions. "This is confusing. This case met the criteria set by the Supreme Court in Tasini," said Adler. "Now even adding a preface or introduction disqualifies the work. This is a concern for publishers and writers. Publishers will be careful about issuing new collective works, or adding new material, because they will have to seek out all previous freelancer contributors to get permissions."

"The court doesn't see any distinction between the two cases," said Tasini. "This covers a very broad spectrum. It's a tremendous victory. We can only hope that media companies will now see that it is time to end their legal delays and sit down to negotiate meaningful solutions to the widespread infringement they are guilty of."