Monday, December 15, 2008

Jerry Greenberg - Friend and Mentor and Champion of Photographer's Rights

It is a story I like to tell about a man who has become a very close friend over the years. The year was 1980 and I had just begun to get published in dive magazines when I got a call from Jerry Greenberg saying that he and Rick Frehsee would like to take me to dinner.

Now, this was a big deal for a kid in Key Largo, for I had been highly inspired by the work Rick had been doing with underwater models in Skin Diver and the original Sport Diver magazines, and Jerry was my go-to guy for books and education on underwater photography. When I was living in Kona, fresh out of graduate school and trying to figure out how to make my first underwater photos work, Jerry's post cards showed me what artful application of artificial light should look like.

I wore through the pages of my first copy of MANFISH WITH A CAMERA with years of perusal, never imagining that I would end up living and diving in the marine wilderness Jerry first brought to national attention with his many publications about Key Largo and John Pennekamp Coral Reef State Park. (Fortunately in 2005 Jerry gave me a fresh copy, this one inscribed "To Steve: With best wishes and thanks for all your help these many years. Jerry Greenberg")

But, back to that night at dinner with Rick and Jerry. The point was that I was getting published and they thought maybe I had legs in this business, and as such, maybe I should learn some of the rules, for my own protection and for the betterment of the photo industry. They were incredibly generous that night, explaining the principles of copyrighting one's images (slides, in those days), meeting deadlines, and as Jerry put it, always avoiding the peril of "believing in your own press releases". They also told me to never judge another photographer by their work you see published, as that is as much about design and art direction and the politics of advertising as it is about someone's own personal vision. There were a lot of other nuggets of wisdom that night, things I never forgot. Just as I never forgot their unselfish willingness to share with me.

Thinking of Jerry's early and unswerving belief in the power of copyright and his belief in the legal system, I am greatly saddened to see the final outcome of his long (11 year) battle with National Geographic. It all went back to a CD-ROM collection of all of the back issues of National Geographic called The Complete National Geographic: 108 Years of National Geographic Magazine. National Geographic used new technologies never imagined when Jerry shot his first photos for them, and they created a product that had terrific sales potential. The one issue was that they didn't necessarily own the rights to all the work contained within those 108 years of published pages, and the copyrights to Jerry's in particular were clearly registered to him.

Jim Pickerell, the author of a highly respected newsletter on subjects of interest to stock photographers said it very well in a post today. In his words, "The grim outcome of Greenberg vs. The National Geographic Society should be of deep concern to every photographer who believes copyright offers legal protection. Rather, this case teaches us two things: the law is not always fair or equitable, and those who have deeper pockets tend to win ...

"If there was ever a photographer who dotted all the Is and crossed all the Ts in executing a contract for photographic work, it was Jerry Greenberg. His written agreement with the National Geographic Society said that for the fee he was paid he was licensing only the rights to publish his work in a single edition of the printed magazine. If NGS wanted to use his work in any other way, it would be necessary to compensate him for that use.

"Greenberg also had letters from NGS transferring the copyright back to him. It should be noted that these images were used by NGS before the passage of the 1976 Copyright Act. At that time, copyright rested with the organization paying for the work and not the creator. as it does today. Thus, the formal transfer of copyright back to Greenberg was extremely important.

"Greenberg had the images registered with the Copyright Office years before The Complete National Geographic: 108 Years of National Geographic Magazine CD-ROM discs were created."

Ultimately that was the issue. Jerry owned the copyright to these images and it was up to him to choose how or if they were to be used, and at what rate of compensation. You'd think.

Jerry stops into my studio frequently, an honored guest I am always eager to see. He updates me often about his new photographic missions, now exploring digital imaging in collaboration with his brilliant son Michael. He shows me the beautiful artwork his wife Idaz creates for their series of books and waterproof marine ID cards. He also has kept me updated about the National Geographic saga all these years.

It was challenging and expensive and probably more than a little intimidating to be one man going against the corporate might of the National Geographic Society. But, he persevered because he believed in copyright, the validity of contractual law, and the honor of a deal made in good faith. He never wanted to be enemies with National Geographic. The work he did for them was the proudest achievements of his career. Actually, he has never wanted to fight with anyone who misappropriated his work over the years, and there have been many. He just wanted to not be taken advantage of and fairly compensated for his work. A simple enough request from a man of honor.

In this case Jerry carried it all the way to the steps of the US Supreme Court. He won a few rounds in court. National Geographic won a few more. But, these are huge issues of law to every visual artist that were being debated in this particular case, and Jerry felt it had merit to be heard by the highest court in the land. Most in the photographic community shared his belief. I definitely did. But, in the end only about 5% of the cases set before the Supreme Court are actually heard, and Jerry's was not. That was the final shot. Now it is over for Greenberg vs. National Geographic.

It's not over for Jerry Greenberg, of course. He'll walk away from that chapter of his life and move on with taking more digital photos, enjoying life with his family, and of course scuba diving in these familiar waters off Key Largo. Yet, what he's done will long reverberate in legal and professional circles.

Pickerell closes with these chilling words: "Photographers owe Greenberg a tremendous debt of thanks. Hopefully, they will take the lessons of this case to heart. If the infringer is a small organization without a lot of resources to pursue legal action, and the photographer has the copyright registered, he may get an out-of-court settlement, or at least keep legal costs to a minimum. Infringers with deep pockets will eventually get their way, even if it takes 11 years, regardless of what might be fair or equitable."

I'd like to be less pessimistic. But, no one does copyright registration and contracts better than Jerry Greenberg. Clearly, being right does not always guarantee victory.


Eugene said...

My grandfather and Jerry's father were long time friends. He spent time with me in the late 50's. One day near government cut Miami when he was teaching about diving a small plane crashed on the near island. I wanted to swim over but, he thought that was not a good idea for a kid. I later met his son and we did a video for my friend that held many world records for underwater swims. I wsa just thinking about Jerry and visited your site.

Hsiaoshuang said...

As a journalist for 30 years, I have the highest regards for publishers of newspapers and magazines, particularly National Geographic. I am surprised and saddened to read that National Geographic behaves, not as a compassionate organisation that cares for individuals, but no differently from other profit-driven, profit-only corporations.