|Short story: They throw lawyers on you and threaten you to take almost nothing in return, because as a starving artist, you’ll be unable to pursue them legally and the maximum damages are so low that it’s not worth pursuing.|
National Geographic used my Internet image (opte.org) on the cover of its bookazine, 100 Scientific Discoveries that Changed the World, and in the book, The Big Idea, without my permission or respecting the Creative Commons license that allows it to be used for non-commercial purposes for free. I charge a nominal fee for the license which can be obtained on www.opte.org in minutes. The license helps covers costs and furthers development of the project. They couldn’t be bothered.
They responded to me acknowledging my claim, agreeing that they had infringed on my work (several times in the magazine). If the infringement is ‘willful infringement’, the settlement range is typically $150,000. But they will fight you until you (and they) have spent far more that. Apparently, infringement happens often with National Geographic, and they are willing to spend more money on legal costs than they would have given to the artist in the first place.
Several other artists have already run into this same situation with National Geographic. Many have come forward with a lot of rage as they went through the same, frustrating and unsuccessful process.
The apology from National Geographic’s lawyer included the following explanation on why they would be paying me (and other artists) nothing compared to the damages caused by willful infringement:
“After further investigation, I must respectfully disagree with the implication set forth in your reply email that statutory damages for willful infringement in the range of $150,000 per work are applicable to this situation. National Geographic stands firm in its position that it was not aware and had no reason to believe that the image it used was your and not an image by the individual whom National Geographic credited. In this situation there were no facts that could put National Geographic on notice or would lead it to reasonably conclude ownership of the copyright to the image was in question.
As this situation is a mistake and inadvertent infringement, the maximum amount of statutory damages you may claim under Section 504(c) of Title 17 of the United States Copyright Act. Statutory damages are based on your ability to prove the following: (1) that the image in question was copyrighted within ninety (90) days of first publication and that (2) National Geographic acted in bad faith. The burden of proof is on you to prove both elements. If you filed with the U.S. Copyright Office, you should have a dated certificate documenting your registration. You would certainly need to provide this documentation to confirm that you had met the first requirement to be eligible for statutory damages. National Geographic can document that it made a mistake; therefore, there is no support for a claim that it acted in bad faith. For this reason, National Geographic would be deemed an “innocent infringer” under U.S. Copyright law. Under such a determination, the statutory damages could be reduced to $200.
National Geographic considers the appropriate measure of damages in this case is the license fee for the uses of the image a total of $1,380 ($750 bookazine for use on the front cover and one interior placement; $630 book for use on a portion of front cover, a spot on the back cover, and one interior placement), which amount National Geographic is willing to increase to $2,760 to resolve this matter amicably. National Geographic would also correct the credits on subsequent editions of the publications.
Based on the obstacles and costs you would face to bring this to trial, resolving the issue through negotiation seems the most cost effective way to settle the matter. This correspondence is solely for settlement discussions and may be used for no other purpose. Thank you for your patience, I look forward to moving this matter to a mutually satisfactory conclusion.”
I agreed to take a lower license fee if they would publish a correction and use their twitter account to tweet an apology.
This was their response:
“I have checked thoroughly, and I regret that National Geographic will not accommodate your request for “published correction and a tweet from the natgeo twitter account apologizing about the situation[.]” The works are already published; National Geographic publishes corrections in its magazines only that relate to the specific magazine. Book corrections are done for any reprints or new editions. I will have National Geographic Society records updated so that all references to the image in subsequent reprinting or new editions of the works will be correctly credited, consistent with the requirements on your website or the Commercial License granted from your website. National Geographic Society operates no twitter account for corrections, and the accounts it operates are for coverage topics only.
I can, however, produce the Settlement Agreement that will be necessary to process the payment to you. In addition to correcting references to the image in any reprints or new editions of the works in which it currently appears, National Geographic will correct its files to ensure that any inquires about the image are referred to your website. It will help me if you could answer the question I posed below regarding how the Commercial License granted from your website actually read; if there is any more than the language stating the grant on the website.”
It appears that when they willfully infringe on an artist they use an institutionalized policy of ripping off artists. They used my work in a way I am not comfortable with. It’s like having someone steal your car and then after they’ve driven it for a few days they give it back and decide how much to pay you for the rent. There is no price that is acceptable in these conditions.
An institution such as National Geographic only exists because of the amazing minds behind it, the people that go to the ends of the earth to take photos in dangerous areas, the people that give their craft to make the institution work. When National Geographic defends itself when it knows it’s been wrong… It just harms their brand, overall creditability, and integrity.
In a age where anything can be copied, one would think that National Geographic would be very careful about what new licensing arrangements exist such as Creative Commons.
At this point, I think I am going to push my legal options… Not just for me, but for the rights of all the people they have ripped off.
Shame on you National Geographic.