NATIONAL GEOGRAPHIC MAGAZINEWILLIAM L. ALLEN. Editor

Associate EditorsELIZABETH A.MOlZE. ROBERT M. POOLE

SENIOR ASSISTANT EDITORS

ROBERT BOOTH. Production' WILLIAM T.DOUTHITT.SpecialProjectsRICKGORE.Science' DAVID JEFFERY, Legends

THOMAS R. KENNEDY, Photography' PETER MILLER. ExpeditionsJOHN G. MITCHELL. Environment· BERNARD OHANIAN. International Editions

OLIVER PAYNE. Manuscripts • CONSTANCE H. PHELPS. Layoutand DesignLESLEY B. ROGERS, Research • W. ALLAN ROYCE, Illustrations

CHRISTOPHER P. SLOAN, Art· GEORGE E.STUART. Archaeology

EDITORIAL

Assistant Editors: Don Belt, Judith Brown. Mike Edwards, Alice J. Hall, Joel L. Swerdlow, Jane Vessels. SeniorWriters: John L. Eliot. Cathy Newman. Priit J. Vesilind. Senior Editorial Staff: Larry Kohl, Usa Moore LaRoe,Carol B. Lutvk. Alan Mairson, William R. Newcott, Thomas O'Neill, Katherine Ozment, Peter L. Porteous, JenniferReek. Cliff Tarpy, Meg Nottingham Walsh, Boris Weintraub. A. R. Williams. Margaret G. Zackowitz. Production:John L. Mcintosh. Editorial Staff: Cassandra Franklin-Barbajosa, Glenn Deland, Kerri Westenberg. Research:Michaeline A. Sweeney, Assoc. Director; Senior Researchers: Carolyn H. Anderson, Judith F. Bell, Kathy B.Maher, Barbara W. McConnell, Jeanne E. Peters, Abigail A. Tipton. Researchers: Eva P. Dasher, Alice J. Dunn,Christopher Scaptura.:Legends:Victoria C. Ducheneaux. Planning Council: Mary McPeak, David W. Wooddell

ILLUSTRATIONSPhotography: Kent J. Kobersteen, Assoc. Director; Susan A. Smith, Asst. Dir.;Sam Abell, William Albert Allard,Jodi Cobb, Chris Johns, Michael Nichols. Illustrations Editors: Dennis R. Dimick, Asst. Dir.; John A. Echave,Research Grant Projects; Elizabeth Cheng Krist. Bruce A. McElfresh, Kathy Moran, Kurt F. Mutchler, RichardOlsenius,Susan Welchman. Layout and Design: Usa Lytton-Smith, William H. Marr; Typography: Betty Clayman.DeAtley, Kay Kobor Hankins, Douglas M. McKenney. Art: Christopher A. Klein, Artist; Darcy J. BelJido de Luna,Hillel J. Hoffmann, Research. Engraving and Printing: Janet C. Evans, Director;Judy L. Garvey, Randal G. Sluss

EDITORIAL SERVICESAdministration: Neva L. Folk, Asst. to tne Editor; Maria-Teresa Lawrence, Business Manager; Brian E. Strauss,Electronic Publishing; Sara L. Anderson, Sandra M. Dane. Marisa Dcmevko. Artemis S. Lampathakis, RebeccaMartin, Karen Dufort Sligh, Charlene S. Valeri. Control Center: Carol L. Dumont, Director; Alicia M. Schaner.Travel: Ann C. Judge, Director. Audiovisual: Ronald S. Altemus. Director. Communications: Mary JeanneJacobsen, Asst. Vice President, Public Affairs; Barbara H. Fallon, Barbara S. Moffet. Information Services:Carolyn F. Clewell, Asst. Vice President; Correspondence: Joseph M. Blanton, Jr., Director;John A. Rutter. ImageColfection: Maura A. Mulvihill, Asst. Vice President and Director; William D. Perry, Image Sales; Carolyn J,Harrison, Library and Indexing: Susan Fifer Canby, Director; Ann C. Benson. Ellen D, Briscoe, Barbara PenfoldFerry, Carolyn Locke. Records: Mary Anne McMillen. Director; Ann E. Hubbs. Translations: Kathryn A Bazo,Director. Lectures and Public Programs: P. Andrew van Duvrn. Director; Scott A. Brader, Gregory A. McGruder

ADMINISTRATIONAsst, Vice Presidents: Christina C. Alberghini, Joseph S. Fowler, Angelo M. Grima, Douplas E. Hill. Robert E.Howell, Robert V. Koenig. Carol E, Lang, Jennifer Moseley, Stephen R.Vick. Asst. Treasurer: Barbara J.Constantz. Asst. to the Chairman: Karen S. Marsh. Asst. to the President: Marilyn J, Williams. Accounting:Michael J. Cole, Asst. Vice President; Chia-Chvi Cheng, Larry E, Dowdy, Barbara A. Finn, Janet C. Yates,Administration: Mary L. Blanton, Delores J, Granberg, Carolyn W. Jones, Myra A. Mel.ellen. Kristin S. Scott,Barbara A. Williams. Kathy Williamson, Circulation: Kathleen A. Gallagher, Asst. Vice President; Elizabeth M,Safford, Development Office: Margaret Sears, Director; Betsy Ellison, April M, Robbins. Educational Services:Robert L. Graham. Explorers Hall: Susan S. Norton, Director; Nancy W. Beers, Susan A. Bellinger, RichardMcWalters. Geography Education: Robert E. Dulli. Asst. Vice President and Director; Mary Lee Elden, J. JoeFerguson, Karen E, Gibbs, Roger B. Hirschland, Kimberly H. Hulse. Human Resources: Barbara Duckworth Case.Information Systems: Scott Bolden, George F. Hubbs. International Publications: RobertW. Hernandez, Asst.Vice President. Promotion: Joan M. Anderson, James V. Bullard. Robert L. Feige, Charles F. Herrmann Ill.Deborah A. Jones

PRODUCTION SERVICESHans H. Wegner, Asst. Vice President. Imaging Services: Robert E. Allnutt. Manufacturing: George V, White,Director; John T. Dunn, Assoc. Director. Pre-Press: Geoffrey T. McConnell, Director; Martin G, Anderson, JamesC. Pflieger, Phillip E, Plude, Bernard G. Ouarrick. Printing: Joseph M. Anderson, Sherrie S, Harrison, Diana L.Yates. Quality: Bill M. Aldridge, Director; Peg M. Crawford. Administration: Joan S. Simms

ADVERTISING

Andrea Vaughan. NationalSales Manager; Ron Bottorff. Western Manager; Laurie L. Kutsche, Chicago Manager;Sherburne F. Naulty, Eastern Manager; John Patten, Southeast Manager; Philip G, Reynolds, Midwest Manager;Michel Siegfried, Internationaf Director, 90 Charnps-Elvsees, 75008 Paris; David D.Woodruff, Detroit Manager.Washington: Sarita L. Moffat, Asst. Vice President, Operations; Pandora B. Todd, Director, Marketing Services; GailM. Jackson, Production Manager

EDUCATIONAL SERVICES OF THE SOCIETY

Book Division: Charles Kogod, Asst. Director; Barbara A. Payne, Editorial Director; Barbara Lalicki, Children'sBooks; Elizabeth L. Newhouse, Travel; David Griffin. Design; John G. Agnone, Leah Bendavid-Val, BarbaraBrownell, Kevin Mulroy, Senior Editors. Traveler: Richard Busch, Editor; Paul Martin, Managing Editor. World:Susan Mondshein Tejada, Editor; Scott S, Stuckey. Managing Editor. Education Products: David Beacom,Director. Administration: Suzanne R.·McDowell, Asst. Vice President

NATIONAL GEOGRAPHIC VENTURESNational Geographic Television: limothy T. Kelly, President; Todd Berman, Marketing/Distr.; Susan Barke,Business Affairs; Lowell Soffer. CFO; Andrew Wilk. Programming/Production; Patricia Gang, Film Library;NicolasNoxon, Exec. Producer, Specials; Michael Rosenfeld. Exec, Producer. Explorer; Kathleen F. Teter. PublicRelations

National Geographic Enterprises: Interactive: Lawrence R. Lux, Managing Dir.; Dave Beveridge, BusinessDevelopment; Online: Mark R. Holmes, Editor; Chris Ward. Die: CD-ROM: Robert W. Madden, Editor;Thomas J,Stanton, Dir. Maps: Allen Carroll, ManagingOir.;Kevin P. Allen, Map Services;Steven D. Lownds, Finance; DanielJ. Ortiz, Map Ventures; John F. Shupe. Geographic Standards; Richard Bullington, Martin Golden, Juan Valdes,Project Managers

Administration: Frances A. Marshall, Vice President, Finance

Copyright © '997 NationalGeographic Society. All rights reserved. NATIONAL GEOGRAPHIC and Yellow Border: RegisteredTrademarks ® MarcasRegistradas. NATIONAL GEOGRAPHIC assumes no responsibility for unsolicited materials.

NATIONAL GEOGRAPHIC SOCIETY"For the increase and diffusion

ofgeographic knowledge."THE NATIONAL GEOGRAPHIC SOCIETY is chartered in

Washington.D.C.•as a nonprofit scientificand educationalorganization. Since 1888 the Societyhas supported more

than 6,000 explorations and research projects, addingto knowledge of earth. sea. and sky.

REG MURPHY. President and CEO

JOHN M. FAHEY. JR.,Executive Vice President and COO

SeniorVice PresidentsGENE FERRONE. SANDRA H. GILL. NINA HOFFMAN

DALE A.PETROSKEY. ROBERT B.SIMS

Vice PresidentsSUZANNE DUPRE. Secretary and Counsel

H. GREGORY PLATTS. TreasurerJOHN D. BLODGER. KITTY CARROLL COLBERT

J.SCOTTCRYSTAL, WILLIAM R. GRAYDONNAL. HASSLINGER. JAMES P. KELLY

CHRISTOPHER A. LIEDEL. GEORGE E.NEWSTEDTJIMMIE D. PRIDEMORE. EDWARD A.RENO,JR.

BOARD OF TRUSTEESGILBERT M. GROSVENOR. Chairman

JOE I.. ALLBRITTONChairman, Riggs Bank N.A.

WILLIAM L. ALLEN

THOMASE. BOLGERChairman, Executive Committee, BellAtlantic

FRANK BORMANChairman and CEO. Patlex Corporation

LEWIS M. BRANSCOMBKennedy School of Government, Harvard University

J.CARTER BROWNDirector Emeritus. National Gallery ofArt

MARTHA E.CHURCHPresident Emerita, HoodCollege

MICHAEL COLLINSPresident. Michael Collins Associates

JOHN M. FAHEY, JR.A. LEON HIGGINBOTHAM, JR.. Former ChiefJudge

for the Third Circuit. U.S. CourtofAppealsNINAHOFFMAN

JOHN JAY ISELINPresident, The Cooper Union

JAMES C. KAUTZLimitedPartner. Goldman. Sachs & Co.

J.WILLARD MARRIOTT, JR.Chairmanand CEO, Marriott International

FLORETTA DUKES McKENZIEFormer Superintendentof Schools. Districtof Columbia

REGMURPHY

PATRICK F. NOONANChairman, The Conservation Fund

NATHANIEL P. REEDBusinessman-Environmentalist

WILLIAM K.REILLYFormer Administrator, Environmental Protection Agency

ROZANNE L. RIDGWAYFormer AssistantSecretary of State

B.FRANCIS SAUL IIChairmanand President, B. F. Saul Company

ROBERT B. SIMS

TRUSTEES EMERITUSOwen R. Anderson, Robert L. Breeden, Lloyd H. Elliott.

George M. Elsey, William Graves, Caryl P. Haskins.Mrs. Lyndon B, Johnson, Wm. McChesney Martin, Jr.,

Laurance S. Rockefeller, Robert C. Seamans, Jr.,Frederick G. Vosburgh

RESEARCH AND EXPLORATION COMMITTEEGeorge E. Stuart. Vice Presidentand Chairman;

RichardS. Williams, Jr., Vice Chairman; Steven S. Stettes,Secretary; H. J. de Blij, Linda Manzanilla.

Bernard Q. Nietschmann, David Pimentel, Peter H. Raven,Robert C. Seamans, Jr.. Charles H, Southwick, John H. Steele,

Hans-Dieter Sues, George E.Watson, Henry T. Wright

EDUCATION FOUNDATIONLanny M. Proffer, ExecutiveDirector

r ," File Edit Format Go To Mail Members Window Thu 11:28 I

Database Name: OF/ElS -- NGS LiomyCatalogSearch Request: Keyword =Wondrous AND World AND Fishes

Search Results: Displaying 1 through 2 of 2 entries.

-----------------_...._.._._._--_ ..__._-----------_._------ ---- -_.._-

File Edit Format Go To Mail Members Window Thu 11: 19 I

Thu 11:141

Database Name: ORBIS -- NOS Library Catalog

Seuch Request: Keyword =Undersea AND Treesures

Seuch Results: Displaying 1 through 4 of 4 entries..: :..,

.[.. '~~=··T= _=···:::::~~~!iae ..::~ ==~::[[. ,[ T=,=:.::·~u~.r.,.,=:. ::,:::~:r···~·~PUb-~au: D 1 IUnder;sea trea3ures I ,'Fiore, Peter M,i [J'Z_· iundersea~treMuresT··~' ~~~··~'·~~······-·FiOre~·Pe~r;f····- ..,..,..;Cr:3" ·~iuildei:Seatre·asill~3T··~· .,~ ,., .., IFiOre:-P;terMI·'~···-'~ "., " i--'i ·t8f4"":[indeiS~ea-treasures i iireiiared bY-the 'Sp.eciar·1NatiOil8fGeograp'hiC·Socie:ti~·r·-"~··~'~ .,~-

.IPublications Division, NationalOeograp.hic I<t!.~ )~p'ecial Publications :1974SOCle!y-,- ID1'llSlOn. I

·""M.,~_,._~·;';;:;';;;';;;;:::;;;:'::;';:':',';;;;;;;;;;';=::;==;';;;';;;;;;".:,. __;;; ,:'::;';n·.;"';;;_:":;::;-;';;::':; ;';::;.•.::::;;;;: .•. :;;_:;;;:;;;::':;m;;;_~=-:';:;~w~~ __wm_n_"_MMn_MM~ ~_w w __ n,,~m~_mm~ ~_~~_m.m~_,.w_W__'_'._'S'._M'M__M~~~n~

File Edit Format Go To Mail Members Window-=---

Thu 11:26 I

1I

.·_M_'·.W._,·.·.,,~·M~~.~_'·M_'~·M~~~~~~~~_~~~~~~ ~__~ ~~~_~ ~ ~~~~~w __~_~www~__ ww_'r ~_~__~__~~__~~__ M_.~_M-••_.__ w __.•""'~~w· ~~:t~ ~~ ~__~__~

• I Title . .. .I! . Author.L PubDati;c................_.__.[~--~~.--.--~~.~.~.~--~-.----.-~ __~~.... ~~ .__ r-: __~__ ~__~__ .~_~.~_. . . __.__ ..... [" ....c_._. .c.__~~~~! D 1 i!Atlas of shipwrecks & treasure : the histoa.,_ 1 H

'1 I!localion, and treasures of ships lostat sea I by_ ! ickford, Njgel. :11994.. '~I'!lj 2 .. "]Hidd~~Ctre~C~;~f the se; I ... -----------~---cc=ll,fatiOn8IcGe;()g~p.~s~~~;~ccT==;c==c==c=c=II<U.S.)~peci.alPublicalions h9881 IDivision.rc.c.c.ccccccc ccc.c.cc.cc.:~~t%~~::e:=. tiie-(){thi-pacifF-I~~~~~-~~;:~~~6~~---~----~-~-~-;~;-; .= .-------

.~---~-~~.~~~.~._..~_._-_._----- - ... ~._-----_.._...~~--_ .._.- ["~------~------_. ~---~_._----~----- ..~'1 Sc~:e~_~~~:~ze:~~~:~_~:_IVIcc;l~:;_~_~__ iMcC~, _~~~e~IV!~ __ ~._~__ !19~7 _~____ _~Schatze auf dem MeeresgruItd I Robert M. ! 1 R b M h977

.McCIJ1!!g.;_ IMcC J1!!g, 0 ert '1__!~=-.:!:::;-c.. '.3 .~..c ·..~ ~~= m. - .. -.....••--. i .-----~-.---..--..- .---.~~ -~ .-- ~--_;_._. --~.~--- .i~ 6 c_~~ros:_~~c~~~~b~~.IVI .~cc;~~:;: ~ ~CC1~_:.~_o~e_~ IV!: .._. .. ....l:=?~ ; ~.==__

I t8J 71Treasures in the sea,Jly. Robert M. McCIJ1!!g~ IMcClu;ng, Robert M. J1972.1-. ~-----~ i:;:;-.--~ ~. m ---. ~-.~--~. -~~----- -. • --------••~ •••-.-.--~~.~.I D 8 iExplo!IDg and understandj;ng oceano ean, Anabel. ! 1970r-Er9·c·~Udemtei archM()l()gY.;tre;;Su.rei-beneaththe··(;~ ...... -. ~c_=c.c..._. -...

File Edit Format Go To Mail Members Window~-=~~

..

~------------ .._--_.-

File Edit Format Go To Mail Members Window

Database Name: ORBIS -- NOS LibraIY CatalogSearch Request: Keyword = Vacationland

Search Results: Displaying 1 through 3 of 3 entries. ~i iI'"

Thu 11:09 I

~

"ft> + 1,1

f0~ P:NLAR{J7?O ff'J/TIOAJ (r96Cf )

UJo~ D«oa~ WORU) O~ RSHES \.f~

1I g, QJ~~<; CA-RP 1-' -« 1l/4-1

li{J.,l

R~I$eD 8OIT/ON (tq=r~)

()J{!JRW 812}JGA1J.l TIfE "lOll- y"", •.LJ g.COtJ~G0S CARD NO. 'f1- 11'3 50S

lSg'f-e~O-~- 0 q.~-d.

UNOl;:R C;E'A TReASal?£s Qq-:j'l) ~0-3

l S BN 0 - 8 -::rOL/-lf- - 1lf-1- =f

f1C>UJ AllJIMA-LS HIDE: YfJf/N(J. srfJLtJ?l:rrS(t 1-:;. '3 ) Pr: \f G~M- ~

l?, Sf ~

TR£"4S()R£:~ IN ~ ~Ef1 (1989)0~~"rrl s{1

RSH F/LJ1IISrRtP Oq11)

V/1C4170ftJSL1JNOI U)A- (ICf1D) y~

[;~ALIFt= FUM C;rR Ip (I q1- s)

Confidential to Norman Davis and David AronbergReply to Defendants' Motion to Dismiss

The facts of this case are even more compelling than those in Tasini. In

Tasini, some of the reproductions eliminated advertisements and photographs and changed

layout and like elements. For example, the NEXIS service immersed all of the articles in a

database including articles from other publications, thus eliminating the sequence and

organization of the original articles. Tasini, 974 F. Supp at 823-4. In addition, NEXIS did

not reproduce the photographs, captions and layouts of the original publications. !!L. at 824.

By contrast. CD-ROM 108 displays an image of each page of the Magazine exactly as it

appeared in hard copy. including all articles. photographs. graphics, advertising. notices of-copyright. and attributions. Stanton Decl. at 'I 5. CD-ROM 108 thus retains all of the

elements of the original Magazine.

The House Report summarized the compromise as follows:

The magazine contributors, while strongly supporting the basic presumption intheir favor. suggested that the last clause be deleted as unduly restrictive.However, the committee considers this clause, under which the privilege ofrepublishing the contribution under certain limited circumstances would bepresumed. as an essential counterpart of the basic presumption. Under thelanguage which has been retained a publisher could reprint a contribution fromone issue in a later issue of his magazine, or could reprint an article from a1970 edition of an encyclopedia in a 1980 revision of it; he could not revisei!le contribution itself or include it in a new anthology or an enurely different

magazine or oilier collective work.

H.R. Rep. No. 2237, 89th Cong.• 2d Sess 117 (1966) Gater summarized in the final report on

the 1976 Act, H.R. Rep. No. 1476. 94th Cong.• 2d Sess. 122-23 (1976)).

~ 'eN\.s \0r ft.-\'i:- c tl "Ii:-r' {> hc~G ra...~ '" '-=" Co\l~

b'( tiA I Sf>)" r-o..s ~ -""1i1«-y c.. 2H) r"\ b"t' tI. e it. 1).,~ t'Y\ ~c!.

a.. ;'U"(\J'~;-I"i- t..UC!>r,b.. of J""6~ @ fhc:>--h>- ~aS5J'()~-w h~t:l-l 1'(") )"\~s- b~ ]VG,S)

~~ ~~C> jOl/1~ :SG" @ fh~ ,,8="ffl~<c.rt~~o -thez:.... sh'f fb..o-h. ~~ Ii ~~ ~t- ~Ci),.ncv'~ ~o+e avtu it. -:rG '1;W~ ~~ ~ f~rY1,.s;SIQ" -to J~ ;-t.

'il-~ ~ J('(?'tn~~Jy ~Tw\I\~~.'f<l\J <.,)1'\410+ .l:.f{/~

~~ {y~ 4-R-e. C-J'C Pf76,z..-"Jl]Jr

3

B Es

<C-2:~~~NAn~lIPL[f! ---- ..... i

~EOGONAL ~I·...·~,~HIC . nlf[llr~~)!f I"1ll.1lI\1 ~\n~\\tJ..""" .: '.',.C ,.,

1m NIKON' COMPACTZOOM BINOCULARS

.... Get closer to the natural world.The problem with most powerful binoculars

is that you can't use the strongest mngnificatiun

for long-the image is just too "jumpy."

The zoom feature 011 this powerful (x-rhrough­

20-power) viewing instrument remedies that:

You can fine-rune the image for the perfect

balance of maximum magnification andstability, Compact and lightweight. it's idell

for travel and features a rubber-coated

nonslip grip, and unsurpassed Nikon qunliry.Objective [ens measures 25 nun. Includes

dcmchable strap ami carrying case. 4Y."W x4X"Lx [){"D.7ilh.

#83009 $187,50 (Members 5168.95)

1m AFRICAN ELEPHANTWATER GLOBE

... Beautiful "ecosphere" j){dyS music too'Created for National Geographic, our

Water Globe depicts an accurately sc.ilcd ~111d

derailed rendition of the world's I:H!-:CSt li\'illg

land mammal. Able to live for lip to GO years

(1l0 years in captivity), the Savanna or Bush

elephant still roams wild through grasslands

and forests. Shake the glass sphere to set off

a spcctncular shower of iridescent glitter.

Plays the popular lion Killg song, "Circle

of Life." Resin figurine and wood base. 6~-;"11.

#83010 $37.00 (Members 533.50)

INDICATES A NATIONAL GEOGRAPHIC EXCLUSIVE.

~ 108 YEARS OF NATIONALGEOGRAPHIC ON CD-ROMEvery article, photo, and IIW!J-CUCIl classic ads! ~

The numbers alone .11T unmzing. more than

175,000 pages, 155,000 images, 7,500 articles ...

spanning 1I)SS-1996! Relive great explorations,

scientific discoveries, and world events. You can

easily search for articles, photographs, page

maps, and more by date, issue, topic, key word,

or title. Great for travel, general, or school reference.

For Macintosh" and Windows(~ 3.1 or 95.

#83201 $199.95 (Members 5179.95) AflOll WI"""l>...ci S-h II ~ 0

dl~c::I SOlI... /'Il~~'i.rs <~_"'_"'_"j"hah\ r0)QJS<O>f'~<"jl

c:b.--.ct ""~ 10 r" <

~r/~ c(- I ~'l.~"

INDICATES A NATIONAL GEOGRAPHIC EXCLUSIVE. 3

./

,.

1I

.0\'1nl[[~~I~~1

lln~/ 'j'...~ '~i;;J;J'$',~ ~~..'

:{; .-,g¥i'~.':'-.:If·" ,,,Iew ' ;,,~

ESTB

-----------NAIl! COIIIPLFIt

~9..~~

~ NIKON° COMPACTZOOM BINOCULARS

~~~~.-----.--------_.-

"III Gel closer to the natura! world.

The problem with most powerful bino..:ulars

is thar you G1I1'tuse the strongest magnification

fOI' long-the image is ;ust too "jumpy."

The ZOOI11 feature on this powerful (X-through­

20-power) viewing instrument remedies rhar:

You can fine-tune the image for the perk-a

balance of rnuximum rnagnifi ...'utiun nnd

srahiliry, Cotup.tcr and lighnVl'ight. iI's ick-ulfor travel and fcur urcs ,1 rubber-roared

nonslip grip, and unsurpassed Nikou lju'lliry.

Objective lells nu-nsurcs 25 mrn. Includes

detachable strap and carrying case. 4W'W x:

4X"L x ]X"D. ¥.Ib.

#83009 $187.50 (Members 5168.95)

~ AFRICAN ELEPHANTWATER GLOBE

"III Bealllijid "ccosp/;crcUf'!<1YS nmsic Irw:

Crcarcd for National Ocogr.u-hic. our

Water Globe depicts <111 accurately sc,lkd anddetailed rendition of the world's brgl'st li\'ing

laud nuuumnl. Able to live for lip to (,(l ye,lrs

(80 years ill captivity), the Savanna 01' Bush

elephant still roams wild through grasslands

and forests. Shnkc the glass sphere to set off

a spectacular shower of iriclcsccnt glilter.

Plays the popular lion King S{)ll~, "Cir(k

of Life." Resin figurine alld wopd l-ase. 6~;"J J.#83010 $37.00 (Members 53350)

f.~ON' S

5f-f:SEA SE

~ 108 YEARS OF NATIONAL'GEOGRAPHIC ON CD-ROM[('CIY unide. photo, and IIW!J-etJCII classicads! ..

The numbers alone urc amazing; more than

175,000 pages, 155,000 iutugcs, 7,500 articles.

spanning 1888-1996! Relive great explorations,

scientific discoveries, and world events. You can

easily search for articles, photographs, p;tgc

rnaps, and more by date, issue, topic, key word,

or title, Great for travel, general, or school reference.

For Macintosh" and Windows''> 3_1 or 95.

#83201 $199.95 (Members $179.95) Anon ","""b..a 5+111 ".dl~c;.i 5;>1.... /ll~~\.rs ·'c._

j"ha..t\ (Y)1r2dSC<1=>lo:d 'r'e-ct "rcllO r­

trlC-C 0+- , ~'l.9"

.......... --~~

I T H

'~

I}.-J\r :f

l

<0"

~~~

Confidential to Norman Davis and David AronbergReply to Defendants' Motion to Dismiss

De Minimus

These ten covers were chosen, from "1,200 plus issues" with covers spanning108 years, for their iconic value, "Vividly illustrating the broad range" etc.(Sugarman quotes)

They appear each time a CD is opened, on each of the 30 disks.

They are preceded by the NGS yellow-border logo and signal the beginning ofthe program.

It is possible to bypass each of the advertisement segments before thissequence by individually clicking on each section at a time. Viewers are lesslikely to bypass anything appearing after the NGS logo.:

The first time each disk is used, you cannot bypass any of the ads or thesequence, so each viewer must see the sequence each time a new disk isviewed. This constitutes 30 times per set.

No photographs other than these ten derivative works in the Moving Picturessequence have been taken out of context of the year or decade in which theyoriginally appeared.

No photographs other than these ten derivative works in the Moving Picturessequence have been used on each disk of the set.

No photographs other than these ten derivative works in the Moving Picturessequence have had derivative works made from them or been joined integrallyto other photos.

The importance of the © JG diver photo was recognized in its original use in theMagazine by being memorialized on the cover- indicating a major project.

Many of the legal examples cited by Sugarman deal with objects in thebackground or among many articles in a room. This derivative work fills theentire space allotted to it.

When NGS published a photo of the Great Pyramid and moved one of the otherpyramids over, there was a great hue and cry. They fessed up and apologized.The Moving Pictures sequence is certainly in the same category, violating theartist's rights to accept or reject changes to their work. We are working onfinding this business now. 1 ~

"on u:--k 10 ."1. I~w 0<> A'yh~t1 e'1h'h (a \' Prv+Aor'S (2..11 ).. 1:V

Confidential to Norman Davis and David AronbergReply to Defendants' Motion to Dismiss

6 • THE ART LAW PRIMER

THE EXCLUSIVE RIGHTS

The property rights of a copyright owner under the United States copy­right law actually consist of a group of five separate rights known asthe "exclusive rights." They are: 1) the right to reproduce copyrightedwork; 2) ~h~ right to creat~ derivative works.~llsed _on the copyrightedwork; .

The right to make derivative works, also known as the adaptationright, generally overlaps with the reproduction right. The copyright lawdefines a derivative work as one "based upon one or more pre-existingworks, such as translation, musical arrangement, dramatization, fic­tionalization, motion picture version, sound recording, art reproduction,abridgement, condensation, or any other form in which a work may be

recast, transformed or ~apted. " The possible forms which adaptationsof an artist's work may take are limited only by the imagination. Re­turning to the contemporary sculpture mentioned above, a second sculp­tor who attempts to produce his own original copy of the first sculptor'swork infringes both the reproduction and the adaptation rights. Thereproduction right is infringed because the copyright owner (the artist)did not give his permission for the work to be copied in any manner.The adaptation right is infringed because the copy is not an exact du­

plicate. . _ __Infringements of the adaptation right might also occur when a work

of art, or a portion of that work, is incorporated in any form into anotherwork. For example, a collage which incorporates original painting byan artist along with a copyrighted photograph by another artist very wellmay constitute an infringement of copyright where permission to utilizethe photograph has not been obtained. Even the incorporation of a well­known detail from one work of art into a second work of art withoutpermission may constitute an infringement.

THE ART LAW PRIME.R- ,~....--------

Electronic Publishing-ATroublesome Area

As more and more print publications, such as magazines andbooks, are reproduced and transmitted digitally in new elec­tronic media outlets such as on-line services, CD-ROM's, anddata bases, freelance illustrators, photographers, and graphicdesigners are demanding a share of the proceeds from thedigital use of their work. Work produced by employees of pub­lishers is exempt from these considerations because all rights tosuch work are owned by the publisher under the work for hireprovisions of the copyright law..

Not surprisingly, publishers have resisted these requestsvigorously. Some maintain that they already acquired the elec­tronic rights when they secured the standard "first North Ameri­can serial rights" (the exclusive domestic rights to publish).Others rely on agreements signed before the age of electronicpublishing (when "electronic media" were television arid radio)and claim that "electronic media" should be interpreted to in­clude the new digital/computer formats.

Seeking to avoid these problems with new projects, publish­ers are presenting freelancers with contracts that convey "allelectronic publishing rights in any type of media and technologywhether now known or hereafter developed" to them withoutcompensation other than the original fees or royalties paid forthe print rights. These contracts vary within the industry andfrom artist to artist. Some freelancers are able to strike theprovision while others accept a one-time fee per image that goeson-line. A number of publishers pay freelancers a percentage ofthe fees subscribers pay the publisher to transfer electronicmaterial from these on-line services or electronic data bases.Percentages of ten to twenty percent are not uncommon. Artistsshould insist on at least fifty to seventy percent of these userfees. There is little justification for less than seventy percent.Publishers' expenses are negligible-it costs very little, if any­thing, for a work to go on-line (the work has already been digi­tized for print purposes; inventory costs and overhead are insig­nificant and should not be factors).

Other Trouble Spots

Just as with traditional artwork assignments, contracts whichgrant the client or purchaser the right to digitize or preparederivative works of the image (adaptations or modification of apre-existing work) ought to be struck; or at a minimum requirethe artist's prior approval.

As an example, with work prepared for CD-ROM's or com­puter on-line use, artists should add language which limits theuser's right to make electronic alterations in the downloaded artor engage in color and image shifts, electronic retouching, imageenhancement, image flopping, electronic cutting and pasting, orcollagtng with other images. The contract also should providethat any such unauthorized alteration and manipulation shallconstitute additional uses of the artwork which the artist hasthe right to bill for accordingly.

r

Others rely on agreements signed before the age of electronicpublishing (when "electronic media" were television and radio)and claim that "electronic media" should be interpreted to in­clude the new digital/computer formats.

Seeking to avoid these problems with new projects, publish­ers are presenting freelancers with contracts that convey "allelectronic publishing rights in any type of media and technologywhether now known or hereafter developed" to them withoutcompensation other than the original fees or royalties paid forthe print rights. These contracts vary within the industry andfrom artist to artist. Some freelancers are able to strike theprovision while others accept a one-time fee per image that goeson-line. A number of publishers pay freelancers a percentage ofthe fees subscribers pay the publisher to transfer electronicmaterial from these on-line services or electronic data bases.Percentages of ten to twenty percent are not uncommon. Artistsshould insist on at le-ast fifty to seventy percent of these userfees. There is little justification for less than seventy percent.Publishers' expenses are negligible-it costs very little, if any­thing, for a work to go on-line (the work has already been digi­tized for print purposes; inventory costs and overhead are insig­nificant and should not be factors).

Other Trouble Spots

Just as with traditional artwork assignments, contracts whichgrant the client or purchaser the right to digitize or preparederivative works of the image (adaptations or modification of apre-existing work) ought to be struck; or at a minimum requirethe artist's prior approval.

As an example, with work prepared for CD-ROM's or com­puter on-line use, artists should add language which limits theuser's right to make electronic alterations in the downloaded artor engage in color and image shifts, electronic retouching, imageenhancement, image flopping, electronic cutting and pasting, orcollaglng with other images. The contract also should providethat any such unauthorized alteration and manipulation shallconstitute additional uses of the artwork which the artist hasthe right to bill for accordingly.

• 108 - UCENSING ARTAND DESIGN

term of the license. If this cannot be done. try to strike a com­promise by proposing an initial term of between two and fiveyears with consecutive renewal terms. Ask for a sliding scaleroyalty which will increase. between one-half and one percentup to a maximum percentage, either automatically during eachrenewal term or after a threshold number of products are sold.If the image proves to be popular for a long time. why not sharein its success by being compensated with a higher royalty?

Before agreeing to a royalty, evaluate whether the rate offeredand the formula on which the royalty will be based are appropriatefor each type of electronic rights conveyed. The merchandisingroyalty rate discussion in chapter 4 is a helpful starting point.In some multi-media projects like interactive television formatsor computer on-line services, royalties should be calculated on aper-use basis rather than a per-copy basis. A per-copy sold 'basis is appropriate for computer software and CD-ROM's. Arange of six to twelve percent of net revenues or net proceeds(with careful attention paid to the definition of "net revenue" or"net proceeds") is currently being used. (See discussion prefac­ing the sample agreement printed below.) Because standards inthe multi-media area are not yet developed fully, it will be diffi­cult to evaluate or propose rates and formulas. Each transac­tion will need to be examined closely with professional advice.

Electronic Publishing-A Troublesome Area

As more and more print publications. such as magazines andbooks, are reproduced and transmitted digitally in new elec­tronic media outlets such as on-line services, CD-ROM's, anddata bases, freelance illustrators, photographers, and graphicdesigners are demanding a share of the proceeds from thedigital use of their work. Work produced by employees of pub­lishers is exempt from these considerations because all rights tosuch work are owned by the publisher under the work for hireprovisions of the copyright law..

Not surprisingly, publishers have resisted these requestsvigorously. Some maintain that they already acquired the elec­tronic rights when they secured the standard "first North Ameri­can serial rights" (the exclusive domestic rights to publish).

CHAPTER 7 - 107 •

Confidential to Norman Davis and David Aronberg ..Reply to Defendants' Motion to Dismiss

O)o"t10yt +0 d(~M'~f'. 1.9 The defendants do not contest that CD· ROM 108 is sold for a profit.

However, that fact does not affect the core educational purpose of the Society's mission to

further the diffu~n of geographic knowledge. The Society's primary motiv~tion in

republishing the Magazine in CD-ROM 108 was to bring the convenience of digital archiving

to educators, librarians, students and families. Stanton Dec1. at 'I 3 and Exh. B thereto. In

light of the significant educational value of the Magazine, the fact that CD-ROM 108 is

offered for sale carries little or no weight in the first factor analysis,

'""1/A.l:.~.t- fl)(~oSt:-> c.-u.\d hav,," .bi:~r'1 b~s€-rVE:c$ I (­

-Th'i.- SOc..I~ ~ .puT ouT~ Cj)~g,Clr'Y\ LC~ n-on'\~~I(" v'\O{\-frf)f1t bd~~' ~~ q...1 V'\ IJl. 01'\. M~1cc.N.s.t...'f

\S -a c:...C!::>t'1;-- Ma-r~~ c..o~po,G.ceJ c:)~ ~\.IcJO~)d)r.s.o~,

stveh.l\~ 4~tl($:>, ~~ fC"o&\l...:r U)O~)~ ~Co-<\ '>/d~.s.tr.("M/t"ld..sCQf'~J: ,;>.ALt.c\- D)\, p\6f,n ~ ';:)"z-f( -to- 4

Io--t Je,.,SS th~" '1'19.fY)I~'>~~ do~ YlP+- ho.v'i=- ~~ :::,~L

V\b-t"-pr- P'{"OfrYD)~UJ>-h~ ~/l"Vl"> as -tM >oc.r'C::f"I" fa.d/ f'lG I S> <f>~J 11f1j ft.,e. 5cer- fo r $/'17 CUl&M\/\d.s.c..-Qr~ ~J}I Shl-f It -In, 0"''1 ~1'1~-9~GwctraphlV I:' ~/~ "Sd JY!O!Z. ~~ /V)l~~£

W\','(1 s'i:liLJ .::L (~t-- a sub .s-ton-hal ~f'oft+-

Confidential to Norman Davis and David AronbergReply to Defendants' Motion to Dismiss

f. I) 3.

Mo1lo/\ +-0J , !>o >?'\ I~> .

The defendants do not exploit the Cover for commercial gainin the Moving Cover Sequence.

Ok ~~ lbv\ j~ V"'\ ic- CO\) 'i:KS( ~ '()~J ()-n+-\ '5 u>ccil Dn ~li:..- boy... 'd-r\S- ~f"

II+ucr~n:- VIet 0 n I '1 In. --t\~ c.)) j<.~ V>\ Jad'

-n\'~t:- ~ hC10 I? oF- 51 blu~ &yr.& ku rc\J.s.~

j~ 1"'1 WvaJin.r 'd ,u!..tl--uh Jh~W( 01") Ylee.-< h~.

__ .~_ D!.la~h ~el!.a~d ~e~ 1I~!s ~P£O~D-;"O' your ,ecord!ll. - - -,-Retumthis bottomportionwtth your paymeni - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ... - - - - - - - - - - - - -

Thank you for ordering your FREE, 10-day preview ofNational Geographic: The '90s! If youare not completely satisfied, simply call 1-800-888-9078 toarrange for tlie product to bereturned at our expense. Ifwe'Ve not heard from you by 10/15/97, your acceptance ofIhisproduct will be assumed, your credit card will be charged the amount indicated below andyou'll be sent the next decade in the series for another FREE, 10-day preview.

PS. Enjoy the Complete National Geographic 30CD-ROM set and save $69.10 right nowby ~eturning this form wtth one payment ofonly $149.95 plus S&H charges. And as With' allNational Geographic products, your satisfaction is100% guaranteed!

Account Number

Invoice 792299Customer 6740106Paymont Method

OVISA OMasterCard OAmerican Express

OOisoover OChecklMonev OrderPAYABLE TO HIHOSCAP[ DIRECT

JEROME GREENBERGSEAHAWK PRODUCTS6840 SW 92ND STMIAMI FL 33156

Check the box toindicate your purchase choice and payment amounl- Thank you!

===;:;;;-- 0 Here's my payment. P~asc send me Ihe next decade inthe Nalional Geographic series.

Expi'BUon Date OR

Signature (Tequlred forcredit cardpurchases)

For faster service simply cali '·800-888-9078or FAX thIs form to '-800-933-0571.

o YES, rush me all remaining decades of the Complele Nalional GeoQraphic 30CD-ROM sol!

Confidential to Norman Davis and David AronbergReply to Defendants' Motion to Dismiss

CD-ROM 108 makes "transformative" use of the Cover,which weighs in favor of fmding fair use.

The Supreme Court's most recent pronouncement on the fair use defense

emphasizes that the "central purpose" of the ftrst fair use factor is to determine whether the

new work merely replaces the original, or whether it makes "transformative" use of the

original by adding further creative expression or meaning to it.

6 • THE ART LAW PRIMER

THE EXCLUSIVE RIGHTS

The property rights of a copyright owner under the United States copy­right law actually consist of a group of five separate rights known asthe "exclusive rights." They are: I) the right to reproduce copyrightedwork; 2) the right to create derivative works based on the copyrightedwork;

The right to make derivative works, also known as the adaptationright, generally overlaps with the reproduction right. The copyright lawdefines a derivative work as one "based upon one or more pre-existingworks, such as translation, musical arrangement, dramatization, fic­tionalization, motion picture version, sound recording, art reproduction,abridgement, condensation, or any other form in which a work may be

recast, transformed or adapted. " The possible forms which adaptations-----of an artist's work may take are limited only by the imagination. Re-turning to the contemporary sculpture mentioned above, a second sculp­tor who attempts to produce his own original copy of the first sculptor'swork infringes both the reproduction and the adaptation rights. Thereproduction right is infringed because the copyright owner (the artist)did not give his permission for the work to be copied in any manner.The adaptation right is infringed because the copy is not an exact du-

'p~Infringements of the adaptation right might also occur when a work

of art, or a portion of that work, is incorporated in any form into anotherwork. For example, a collage which incorporates original painting byan artistalong with a copyrighted photograph by another artist very wellmay constitute an infringement of copyright where permission to utilizethe photograph has not been obtained. Even the incorporation of a well­known detail from one work of art into a second work of art withoutpermission nay constitute an infringement.

As an example, with work prepared for CD-ROM's or com­puter on-line use. artists should add language which limits theuser's right to make electronic alterations in the downloaded artor engage in color and image shifts, electronic retouching, imageenhancement, image flopping. electronic cutting and pasting, orcollagmg with other images. The contract also should providethat any such unauthorized alteration and manipulation shallconstitute additional uses of the artwork which the artist hasthe right to bill for accordingly.

~.301)1) OTIo t\

-reJ(~MI~

Confidential to Norman Davis and David AronbergReply to Defendants' Motion to Dismiss

e : .phil' it Prior to the release of CD-ROM 108, the Society sent a letter to each

individual who had made a contribution to the Magazine. Stanton Decl. at 'I 10 and Exh. B

thereto. The letter notified the contributors of the pending release of CD~ROM 108 and

explained the Society's belief that its continuing copyrights in the Magazine entitled it to

publish CD-ROM 108 without making further payments for the use of individual

contributions. Stanton Dec!. at 'I 10 and Exh. B thereto.IJAll contributors thus had the-opportunity to come forward and claim any contractual rights to repayment which they may

have had. II

J. G. V\'c"1(:,(' ('Uji:...1 vcJ. ~J S \.I~ 1<;:,fu Ii:I-h:. ho d Nc:>( IY\~ Wn-n: ~ f.~"UW1()t.. tvk."Do\.()GI(a f\ AD,) I "2-> \"{C{} b~fo 0"c 'S~lOJ\S- 1\ ~itE

'\ / I

f';>~£'\'\ ,'(;:fVfr~ +a ~ bov'i:-- vJ as .s~-t +0 o+h-vCo n+r,l:IIrh>'0 ~t· M'2Vj "2- (, 1'1'17/ ~f-±V -t{cLl~tlcr+ Nlc.rpo(Jl~(I- S~~ b-0cuJ UIlc.or\i:.cV

The plaintiffs then contacted the Society, claiming that the Society had no right

to reproduce their photographs in CD· ROM 108 without their consent and that they did not

consent to such use. They did not, however, assert that they had entered into any contract

.with the Society limiting its rights in this regard.

Co't)-Toch0. .fh<c~ b~ rs- t{d.-+- d ~e..

I'l (> f"£.p Y W~.s. "n~ to-"1-o 0 \'\" l~ 50 '(V\\J cJr.--Gx- "kitl contClb u-\-oC7 --tt \J$ ~~~~ offo r-NY\i"t1-h. Cot) fI?'c f-eC1N~f~ d-f\.-& c\ all'\.1 cc::;h-t~ c't-ua) \" 'q h.ts

-k r- e. f''aA1l''11Vft -o h)J... it~yv'Yl~ It\cWcz.... h~:"

-

Statement of Material Facts

In 1997, the Society (through Enterprises) and Mindscape produced and began

to sell "The Complete National Geographic," a CD-ROM product containing all issues of the

Magazine published between 1888 and 1996 (hereinafter "CD-ROM 108") (attached as

Exhibit A to the Stanton Dec!.). Stanton Decl. at 'I 3. CD-ROM 108 reproduces each issue

of the Magazine exactly as it appeared in print. Id. at 'I 5. There are no changes to the-content, format or appearance of the Magazine in CD-ROM 108. Id. Each page of each

issue remains perfectly intact, including all articles, photographs, graphics, advertising, notices

of copyright, and attributions. Id.

Not intact. Map supplements referred to on Magcover when included are not on the CD rom. Nowavailable by purchase only.

At the beginning of each of the 30 disks in CD-ROM 108. there is a short

promotional message for Kodak, which participated in marketing the product, and a

multimedia sequence (the "Moving Cover Sequence"). Id. at 'I 6. This sequence displays a

series of images representing the covers of ten issues of me Magazine which transition from

one into another, vividly illustrating the broad range of topics and issues that CD-ROM 108-and the Magazine address. Id. at 'I 6. One of the images is the cover of the January 1962

f. issue. containing a photograph taken by the plaintiff Jerry Greenberg (the "Cover"). The

3 Cover appears in this sequence for less than one second. Id. at 'I 7.

These ten covers were chosen, from about 1,296 covers spanning 108 years,for their iconic value, "Vividly illustrating the broad range" etc.They appear each time a CD is opened, on each of the 30 disks. They arepreceded by the NGS yellow-border logo and denote the beginning of theprogram. It is possible to bypass each of the advertisements before thissequence by individually clicking on each section at a time. Less likely to bebypassed after the NGS logo.

y

The PartiesThe National Geographic Society is the world's largest nonprofit scientific

(It'and educational organization, with 9.5 million members, and is dedicated to the increase and

!

-- _..._---------

~,2 diffusion of geographic knowledge in its broadest-sense.' See Declaration of Thomas Stanton

at 'I 2 (hereinafter "Stanton Decl."). The Society and its subsidiaries produce periodicals,

television programs, maps and atlases, educational games, and like products. !Q... The

Society's flagship publication, National Geographic Magazine (the "Magazine"), is the

monthly journal of the Society containing articles and photographs which explore the cultural,

geographical and organic richness of the world around us.'

Maps moved over to NG Ventures for­profit division of NGS!

-rrolYl ib~lr M9S-th~ I

NATIONAL GEOGRAPHIC VENTU'National Geographic Enterprises: Interactive: LawrelDevelopment; Online: Mark R. Holmes. Editor; ChrisThomas J. Stanton, Director. Maps: Allen Carroll, MarLcwnds, Finance; Daniel J. Ortiz, Map Ventures; John F.G]lden, Juan Valdes, Project Managers

;)1fi\"">.I~... ...N' "National Geographic Isn't non-

.prollt - It's simply nontaxpaying,"

.says Dean Hammond, chairman and·chle'l executive 01 Hammond Maps.which lor decades has considered

National Geographic a competitor."As a smalilamlly-owned business,we have paid thousands 01 times tiletaxes they have ever paid. and yetthey have this sell·pollshed halo andthe reputation of being gOod guys."

The changes at Natlonal Geo­graphic started slowly but arc now In

~:\ overdrive. First came the switchI" :, , lrom nct-Ior-protlt status to a partly~r;; 'taxable Instltutlon in 1994, when the '

N~' society created National GeographicVentures, the tor-prom arm that In~eludes Its television, on-line and map- ~~'--_

making businesses. Society execu-tlves set up the dual structure to 'avoid Jeopardizing National Geo-graphic's tax-exempt status as It

, competed In other media. Except (orthe lIagshlp magazine, which Is sentmonthly to anyone who'pays the $27annual membership lee, Just about·anything that becomes a' high-vol­ume business or Is sold In commer­clal venues- where It vies with prod­ucts lrom tax-paying competitorscan lall under the lor-prollt division.

term of the license. If this cannot be done, try to strike a com­promise by proposing an initial term of between two and fiveyears with consecutive renewal terms. Ask for a sliding scaleroyalty which will increase, between one-half and one percentup to a maximum percentage, either automatically during eachrenewal term or after a threshold number of products are sold.If the image proves to be popular for a long time, why not sharein its success by being compensated with a higher royalty?

Before agreeing to a royalty, evaluate whether the rate offeredand the formula on which the royalty will be based are appropriatefor each type of electronic rights conveyed. The merchandisingroyalty rate discussion in chapter 4 is a helpful starting point.In some multi-media projects like interactive television formatsor computer on-line services, royalties should be calculated on aper-use basis rather than a per-copy basis. A per-copy soldbasis is appropriate for computer software and CD-ROM's. Arange of six to twelve percent of net revenues or net proceeds(with careful attention paid to the definition of "net revenue" or"net proceeds") is currently being used. (See discussion prefac­ing the sample agreement printed below.) Because standards inthe multi-media area are not yet developed fully, it will be diffi­cult to evaluate or propose rates and formulas. Each transac­tion will need to be examined closely with professional advice.

Electronic PUblishing-A Troublesome Area

As more and more print publications, such as magazines andbooks, are reproduced and transmitted digitally in new elec­tronic media outlets such as on-line services, CD-ROM's, anddata bases, freelance illustrators, photographers, and graphicdesigners are demanding a share of the proceeds from thedigital use of their work. Work produced by employees of pub­lishers is exempt from these considerations because all lights tosuch work are owned by the publisher under the work for hireprovisions of the copyright law..

Not surprisingly, publishers have resisted these requestsvigorously. Some maintain that they already acquired the elec­tronic rights when they secured the standard "first North Ameri­can serial rights" (the exclusive domestic rights to publish).

CHAPTER 7 - 107 •

Others rely on agreements signed before the age of electronicpublishing (when "electronic media" were television and radio)and claim that "electronic media" should be interpreted to in­clude the new digital/computer formats.

Seeking to avoid these problems with new projects, publish­ers are presenting freelancers with contracts that convey "allelectronic publishing rights in any type of media and technologywhether now known or hereafter developed" to them withoutcompensation other than the original fees or royalties paid forthe print rights. These contracts vary within the industry andfrom artist to artist. Some freelancers are able to strike theprovision while others accept a one-time fee per image that goeson-line. A number of publishers pay freelancers a percentage ofthe fees subscribers pay the publisher to transfer electronicmaterial from these on-line services or electronic data bases.Percentages of ten to twenty percent are not uncommon. Artistsshould insist on at least fifty to seventy percent of these userfees. There is little justification for less than seventy percent.Publishers' expenses are negligible-it costs very little. if any­thing, for a work to go on-line (the work has already been digi­tized for print purposes; inventory costs and overhead are insig­nificant and should not be factors).

OtherTrouble Spots

Just as with traditional artwork assignments, contracts whichgrant the client or purchaser the right to digitize or preparederivative works of the image (adaptations or modification of apre-existing work) ought to be struck; or at a minimum requirethe artist's prior approval.

As an example. with work prepared for CD-ROM's or com­puter on-line use, artists should add language which limits theuser's right to make electronic alterations in the downloaded artor engage in color and image shifts, electronic retouching, imageenhancement, image flopping, electronic cutting and pasting, orcollaging with other images. The contract also should providethat any such unauthorized alteration and manipulation shallconstitute additional uses of the artwork which the artist hasthe right to bill for accordingly.

• 108 - UCENSING ARTAND DESIGN

THE ART LAW PRIMI>R

Electronic Publishing-A Troublesome Area

As more and more print publications, such as magazines andbooks, are reproduced and transmitted digitally in new elec­tronic media outlets such as on-line services, CD-ROM's, anddata bases, freelance illustrators, photographers, and graphicdesigners are demanding a share of the proceeds from thedigital use of their work. Work produced by employees of pub­lishers is exempt from these considerations because all rights tosuch work are owned by the publisher under the work for hireprovisions of the copyright law.

Not surprisingly, publishers have resisted these requestsvigorously. Some maintain that they already acquired the elec­tronic rights when they secured the standard "first North Ameri­can serial rights" (the exclusive domestic rights to publish).Others rely on agreements signed before the age of electronicpublishing (when "electronic media" were television arid radio)and claim that "electronic media" should be interpreted to in­clude the new digital/computer formats.

Seeking to avoid these problems with new projects, publish­ers are presenting freelancers with contracts that convey '''allelectronic publishing rights in any type of media and technologywhether now known or hereafter developed" to them withoutcompensation other than the original fees or royalties paid forthe print rights. These contracts vary within the industry andfrom artist to artist. Some freelancers are able to strike theprovision while others accept a one-time fee per image that goeson-line. A number of publishers pay freelancers a percentage ofthe fees subscribers pay the publisher to transfer electronicmaterial from these on-line services or electronic data bases.Percentages of ten to twenty percent are not uncommon. Artistsshould insist on at least fifty to seventy percent of these userfees. There is little justification for less than seventy percent.Publishers' expenses are negligible-it costs very little, if any­thing, for a work to go on-line (the work has already been digi­tized for print purposes: inventory costs and overhead are insig­nificant and should not be factors).

OtherTrouble spots

Just as with traditional artwork aSSignments, contracts whichgrant the client or purchaser the right to digitize or preparederivative works of the image (adaptations or modification of apre-existing work) ought to be struck; or at a minimum requirethe artist's prior approval.

As an example, with work prepared for CD-RaM's or com­puteron-line use, artists should add language which limits theuser's right to make electronic alterations in the downloaded artor engage in color and image shifts, electronic retouching, imageenhancement, image flopping. electronic cutting and pasting, orcollagtng with other images. The contract also should providethat any such unauthorized alteration and manipulation shallconstitute additional uses of the artwork which the artist hasthe right to bill for accordingly.

Confidential to Norman Davis and David AronbergReply to Defendants' Motion to Dismiss

6 • THE ART LAW PRIMER

THE EXCLUSIVE RIGHTS

The property rights of a copyright owner under the United States copy­right law actually consist of a group of five separate rights known asthe "exclusive rights." They are: 1) the right to reproduce copyrightedwork; 2) the right to create derivative works based on the copyrighted

work;-

The right to make derivative works, also known as the adaptationright, generally overlaps with the reproduction right. The copyright lawdefines a derivative work as one "based upon one or more pre-existingworks, such as translation, musical arrangement, dramatization, fic­tionalization, motion picture version, sound recording, art reproduction,abridgement, condensation, or any other form in which a work may be

recast, transformed or ~apted. " The possible forms which adaptationsof an artist's work may take are limited only by the imagination. Re­turning to the contemporary sculpture mentioned above, a second sculp­tor who attempts to produce his own original copy of the first sculptor'swork infringes both the reproduction and the adaptation rights. Thereproduction right is infringed because the copyright owner (the artist)did not give his permission for the work to be copied in any manner.The adaptation right is infringed because the copy is not an exact du­

plicate.Infringements of the adaptation right might also occur when a work

of art, or a portion of that work, is incorporated in any form into anotherwork. For example, a collage which incorporates original painting byan artist along with a copyrighted photograph by another artist very wellmay constitute an infringement of copyright where permission to utilizethe photograph has not been obtained. Even the incorporation of a well­known detail from one work of art into a second work of art withoutpermission may constitute an infringement.