TASINI REVERSED ON APPEAL

By Joel Hecker

ADVANCE NOTES: The electronic age of publishing has produced an ownership fight between photo suppliers and photobuyers. Additional payment for electronic use is at the heart of the contest. "Tasini" is that battle. We may see yet another appeal.

In my July 1998 column in PhotoStockNotes, I reported that the plaintiffs had appealed a U.S. District Court decision in New York, in which the Court held that publishers, who had published articles (and by extension, photographs) in hard copies (newspapers and magazines) with the consent of the copyright owners, could republish the copyrighted material electronically (without consent) and permit a database to do so.

The District Court had determined that electronic use was a collective work under section 201 (c) of the U.S. Copyright Act. At the same time, the Court did recognize that its decision would deprive creators of important economic benefits.

That decision has now been overturned on appeal. The appeal panel, in a unanimous decision, held in substance, "that the privilege afforded authors of collective works...does not permit the Publishers to license individually copyrighted works for inclusion in the electronic databases."

The Court reasoned that the relevant Section of the Copyright Act 201 (c), has three clauses, which must be read in harmony. The first clause sets the floor, permitting the Publisher to reproduce and distribute individual contributions as part of "that particular collective work" - which would be that issue of the newspaper or magazine. The third clause sets the ceiling - permitting reproduction and distribution as part of a "later collective work in the same services," such as a new edition of a dictionary or encyclopedia.

The second clause, which was at issue in the case, must, the Court reasoned, fall between, and not expand beyond, the first and third clauses. Therefore it defines a "revision" of "that collective work" to be a later edition, such as a daily newspaper, which is somewhat altered but not in any ordinary sense a "later" work in the "same series."

Putting articles from a collective work into an electronic database, the court held, is an infringement of the author (or photographer's) copyright, since the collective work no longer exists as a collective work, when mixed into hundreds or thousands of other collective works.

The decision shows, once again, that the Copyright Act can properly protect rights of photographers in this new electronic age.

Attorney Joel L. Hecker lectures and writes extensively on issues of
concern to the photography industry. His office is located at Russo & Burke,
600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. Email: Heckeresq@aol.com.