National Geographic Potpourri

161

July 30, 1998

From the phone calls I have been receiving lately it appears that National

Geographic Interactive is working on several CD-ROM projects. Several people

have been receiving requests for re-use of previously published

images in a CD-ROM Trip Planner. The rights requested are: Non-exclusive,

for 5 years, worldwide, English language with the following media definitions.

NGI may use the Materials solely in the Program and Versions of the Program

in any manner and in all electronic media, their successors or replacements,

currently known or subsequently devised including without limitation CD-ROM, DVD

and commercial online electronic transmission (the "Media"). Supplier grants to

NGI the right to duplicate the Materials, incorporate the Materials into the

Program and Versions of the Program, and exploit and distribute the Program and

Version of the Program with the included Materials in the Territory during the

Term. NGI shall have the right solely in connection with the Program or Versions

thereof to adapt, rearrange, add to, or subtract from the Materials, and to

combine them with other materials, music or recording, and Supplier on behalf of

the owner of such right waives any right of "droit moral" or similar right,

except that NGI shall not digitally alter the Materials (except to crop or color

correct.)

A few points to consider:

• They start out by saying "solely in the Program and Versions of the Program,"

  but then they go on to say "and in all electronic media." Is this license only

  for these specific programs, or is it for any electronic media use that National

  Geographic has in mind? Given the "and" it could be interpreted to mean all

  electronic media and these two particular program.

  One thing you can be sure, based on past experience, you can depend on them

  to interpret the language in the broadest possible way, and you will have to

  take them to court if you want to challenge their interpretation.

• Clearly, on-line use is eventually intended.
• They don't say whether they are going to make electronic duplicates, film

  duplicates, or both. Both are possible.

• In some agreements NGI is also claiming the right to use the materials for

  promotional purposes without additional compensation.

For these uses they are offering to pay $100. Photographers and agents who are

receiving these offers appear to be taking three courses of action:

• They are rejecting the offer outright as the money offered is way too low for

  the rights requested.

• They are trying to negotiate for lesser rights. It appears from everyone I

  have talked to that NGI is unwilling to make any modification of the rights. I

  would be interested in hearing from anyone who has been successful in narrowing

  the types or term of use.

• They are asking for a much higher fee for this conglomeration of uses. Some

  report that on past CD-ROM projects when the offer has been $100, and they have

  sent an invoice for significantly more than double the offer, they have been paid

  for the use with no question. Maybe NGI expects everyone to ask for more money.

  We don't know of anyone who has been paid more than the $100 for

  this particular project, but it may be worth asking for a higher fee before

  rejecting the use out of hand.

One photographer reports that he was called about the use, before receiving any

paperwork. The lady at NGI said they wanted to use one his images for a CD-ROM

and that they were offering $100 for the use.

Photographer: "What are the rights your asking for?"

NGI: (She laughs) and then explains the rights.

Photographer: "Send me that in writing and I'll get back to you."

It would appear that they may have been getting the question about rights a lot, and

they know that anyone who asks the question is not likely to accept their offer.

NGI is planning to also offer the "108 Years of National Geographic" on DVD in

the near future. Many photographers and stock agents think this is another new use,

and that another fee should be paid for this use.

Of course two times $0 is still $0.

As reported in March, Jerry and Idaz Greenberg have filed suit in federal court in

Miami against National Geographic for copyright infringement in connection with

the use of their images on the 108 years CD-ROM project, as well as a previous

infringement by National Geographic.

There are 4 counts to the Greenberg's case -- 2 in connection with the 108 years

and 2 with the other infringement. In a preliminary hearing the judge issued a

partial summary judgement on the two counts that were connected with the 108

years project ruling that Tasini vs. NY Times was controlling on these

issues and that copying as a revision of each issue of the magazine is permitted

under Tasini's interpretation of 201(c) of the Copyright Act.

ASMP has told their members that they will supply an amicus brief to the Appeals

Court, if requested, and that "ASMP feels this is an important issue

with far reaching consequences."

Photo Resource Hawaii recently received a settlement from National Geographic of

between $750 and $1500 per image for the loss of 43 transparencies.

Tami Dawson reports that she had submitted 43 images at the request of National

Geographic Traveler magazine. Traveler's records show that the package arrived

in the building, but from that point on no one can remember seeing the images.

When Traveler magazine finally acknowledged that the images were lost they turned

the matter over to their insurance company. Initially, the insurance company

contacted Dawson with a very low and unacceptable offer. At that point Dawson

called the National Geographic legal department. She suggested that their

insurance company might not really understand the value of transparencies. She

pointed out, in a friendly way, that she really didn't want to take the matter to

court, but she would if she couldn't get a better offer.

Within 48 hours she had a new offer from the insurance company "that got the ball

rolling." Within a couple weeks negotiations were complete. Photo Resource Hawaii was paid between $750

and $1500 per transparency, depending on the perceived value of each image.

All this was taken care of without the necessity of Dawson hiring a lawyer.

For those who might experience similar problems with insurance adjusters it

should be noted that Photo District News has published a number of stories in the

past decade, or so, on settlements for lost or damaged transparencies. PDN will provide

photo copies of these stories for a fee. Sending such copies to an insurance

adjuster might help justify your request for higher fees than the company's

initial offer. If you need more information on this contact SELLING STOCK or PDN.