What happens when National Geographic steals your art?

September 23rd, 2014 by Barrett Lyon
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.

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127 Responses to “What happens when National Geographic steals your art?”

  1. Jim Akin says:

    I hope you get the credit and financial rewards you deserve for your work.

    The lawyer’s letter indicates that they credited your photos to someone else. Did that “individual” fraudulently pass off their work as yours? Is that person involved in these legal maneuvers?

  2. Ed Maruyama says:

    Good morning,
    Glad to hear you are sharing this story with the rest of the world.

    It is not ok that big corporations might try to take advantage of small artists and businesses who fear they cannot afford legal fees if the parties want to dispute the matter in the court system.

    Maybe a crowd funding campaign might be able to help gather such money and a fair decision can be achieved where both parties are happy.


  3. Jerico says:

    I have always thought that Nat Geo is one of the few U.S “brands” that don’t
    act like big corporate a holes, considering what they represent. I guess I

    I wish you all the best regarding the lawsuit, and above all strength for
    upcoming endeavour.

  4. Carolyn says:

    I cannot read this article because your panel of all the social media sites runs over the printed copy. Don’t you have people on staff to make sure the website works properly?

  5. D. Brower says:

    Sorry, but what do you expect when a million exposure hungry amateur camera owners practically trip over each other to be the next web sensation thinking it actually means something? I mean…creative commons, really…? You did this to your self amateurs….you are aspiring to be part of something you are killing off, your chance to “break in”. Meanwhile, true pros have now taken to refined and well thought measures to not only protect the basis for what it means to be a “photographer”, read, making a full time living but we are doing it in innovative ways that in of it self, pull in more work because we have self worth, self respect and generally speaking, a boatload more talent than the amateur camera owners.

    Put a TV out on the curb and put “Creative Commons” on and it and guess what might happen…..

  6. John Kaplan says:

    When I’ve had situations similar to this come up with my work, triple the usage rate has been a standard compensation for the infringement, and not difficult to negotiate. If you want to push hard, I suggest a top flight copyright attorney. In my case, I haven’t wanted the hassle of a protracted legal fight and have felt a treble rate to be fair. In this case if you negotiated $4,140 I think it would be an acceptable resolution. Now, having said that, a very well known photographer friend of mine has negotiated several LARGE settlements for copyright infringement. Best of luck!

  7. Paul says:

    This is a shame, and I’m genuinely surprised.

    I used to hold NG in the highest esteem. You would imagine that with their ethos and pedigree, such behavior and disrespect would be the antithesis.

    I wish you the best in the fight, Barrett. Keep us posted when you can.

  8. The attorneys for NatGeo probably made a mistake by acknowledging that the situation happened at all, even if they spin it as a mistake and “inadvertent infringement”, which is not even a legal defense.
    The legal system requires expensive litigation to recover damages, expenses that you may recover on top of damages if the Judge agrees; so it is bias towards highly capitalized copyright owners. Nevertheless, it would be a case that a serious law firm could take on contingency as your complaint could encompass trademark damages (false designation of origin, likelihood of confusion, lost sales) and unjust infringement (state) claims, aside from the copyright claims.

  9. Kyle says:

    I was looking to purchase a Nat Geo subscription and came upon this. I’ve decided not to get the subscription. Good luck!

  10. Tim says:

    Here’s what you should do:

    Register your work immediately. Then, notify Nat Geo that you have registered the work and will accept their settlement under the condition that Nat Geo never publishes the infringing work again. Nat Geo will not accept that; it always republishes things or at least sells new copies. Don’t accept the settlement.

    Wait a little while and find something that you can prove was published after you communicated with Nat Geo’s lawyers. At that point, you have undeniable proof that Nat Geo published your work with full knowledge that you created the work and did not give it permission. Hell, registration isn’t even important at this point. You have evidence that Nat Geo knew the work belonged to you and you denied a license.

  11. Scott Kirk says:

    If NatGeo had gone through proper channels, how much would your compensation have been? If less than their proposed settlement offer, then it seems like they are trying to be fair.

    I read their legal explanation as almost an education to keep artist-types (who might be naive in the ways of corporate law) from getting bamboozled by their own lawyers tilting at windmills.

    If NatGeo paid SOMEBODY for the rights, it sounds like they were trying to be legit and got hosed by some interloper. Said interloper is the real villain. Sorry to go against the grain, but IF they are trying to fair with you based on what they would have paid you in the first place, with a little extra coin for your trouble, that sounds like decency that should be met with decency in return by you.

    However, if their settlement is less than you would have made in advance, and they’re trying to play hardball negotiation after-the-fact, then to hell with ’em! I’d be surprised, though, because their entire success seem to be built around respect for great photographers and photography.

  12. George says:

    Canceled our subscription after reading this. Screw publications who abuse independent professionals.

  13. Houston says:

    Is there a way I can contribute to your legal fund (and only to your legal fund?) Perhaps you should do a kickstarter campaign or something similar to get the funds to sue. I would like to see you be able to remove cost as an obstacle for pursuing this case. I can help in some small part if I can be assured that anything I contribute would be used for a legal case.

    Good luck!

  14. toonzday says:

    Wow, sucks majorly.
    Not sure if anybody has said this but what about teaming up with the other wronged artists for some class action stuff?

  15. Seth says:

    Did you follow up on the seller of the photograph?

  16. Roger says:

    1. I think my response provided a lot of incite regarding copyrights and protecting our work…now it appears that before publishing a photo gallery online we should register it in washinton. I never knew about 90 period after publication requirement.

    My work is frequently stolen..my solution was mark up my images like a transit stop graffiti artist…social networks need to clearly state their photo usage policies clearly and up front…not buried in thousands of words of legal jargon

  17. I think George Wedding got it about right in his comment. In 30 years of working with National Geographic in various ways I’ve never had a problem with their payment for images used. I find it hard to believe this was anything other than a mistake. If organizations like National Geographic did this regularly they would soon find nobody working for them.

    Once you pointed out the error it looks to me like they totaled up the usages and then doubled it for good measure. Isn’t that substantially more than the modest fee you would have charged? Isn’t that money going to further your project, too, just like your other income from licensing? Am I missing something here?

    Look, I agree, constant scrutiny is always good in the copyright world. But in my experience (and the experience of hundreds of other photographers that I know) National Geographic pays their bills.

  18. KJ says:

    Why didn’t you pay for a consultation with your own lawyer before settling? That appears to be what you did and I mean that’s just stupid. Copyright laws vary from state to state but I see you’ve worked in California where I know they have particularly strong laws and the damages are quantified based on the number of infringements and “one magazine cover” does not equate to only one infringement as it’s distributed through multiple media formats and in multiple forums. This innocent infringer position is lovely, it allows THEM to claim over against the person who provided the image, it doesn’t absolve them of the copyright violation. Want an example to prove my point? Look at the MANY lawsuits against the NFL for music theft in broadcasts (which is done via a 3rd party production company), they settled and for a lot more than a small figure.

  19. KJ says:

    & btw that “150,000” is the maximum in California not a guaranteed # whether it was wilful or not. But who says you have to sue in California? Maybe it makes more sense to go after them in NY or even the UK, you are entitled to forum shop to where they have contributed the most harm for the copyright violation, it’s not dictated entirely based on where you live or their corporate hq is located.

  20. Barrett Lyon says:

    Should be fixed now.

  21. Melissa Noble says:

    It’s unethical business practices no matter how they choose to word it…. The cost to a photographer direct rather than legal steps and ping pong emails would show more integrity with all due respect.
    what #25 says

  22. B G says:

    I assume all the comments above suggesting that stealing artworks and then offering to pay standard rates when they are found out are all made by employees of National Geographic. The idea that a rogue artist stole this work and then managed to fraudulently sell it to NG is ridiculous. The art director nicked it. It is willful. It is dishonest.

  23. Lori Hoddinott says:

    http://www.photoattorney.com/ … they do stuff without upfront $ Don’t let them get away with this.

  24. Crescent says:

    For shame, National Geographic. I’m glad I read this before buying the gift subscription for my grand daughter!! You’re just another corporate bully. For shame!

  25. We note with considerable interest the author’s failure to mention whether or not he received independent legal advice. As an attorney who handles these type cases on a daily basis it appears that unaided by the advice of a competent attorney the author represented himself and was bullied by the attorneys for Nat Geo. The attorney’s job was to scare you off and apparently that goal was achieved. See thecopyrightzone.com and go to the article on “Head Fakes and other Lawyer Tricks”. The author simply accepted what the attorney wrote as Gospel. It is not. This tactic is utterly typical and any competent attorney would know how to deal with it.

    No infringer is just going to roll over and give you what you want for the mere asking. When you need a root canal you go to a dentist. When you are infringed consult with a lawyer.

    A copyright registration is not referenced. Reference is made to a Creative Commons license. Such a license may severely restrict the ability to prosecute a case fully. Additionally, since there is no reference a registration date it is impossible to determine whether or not you could seek statutory damages which start at $750 and can go to $150,000. Such damages need not be tethered to any actual damages nor typical licensing fees the author or any other photographer charges.

    Various assumptions being made in this space about the Copyright Law are simply inaccurate. Register all work, all of the time, no exceptions. Any time one of your works has been infringed bring your registration, a copy of your work and the infringing work(s) and consult with your own counsel who will advise you of your options. Copyright infringement is not a DIY affair.

  26. richard vallon jr says:

    I would suggest you take this column and reprint it on the Linked-In PPA section.
    (PPA- Professional Photographers of America.
    You may find people there with experiences similar to yours- and perhaps constructive ideas.
    Rarely ( if ever) is anyone awarded these maximum penalties. You may only get some multiple of the market value at most. And folks- BTW- with stock fees on the decline- market value is falling faster than
    a commercial jet hit by a rogue Russian missile….

  27. Josh Reiss says:


    I’m going to go with the other working photographers here and say… you’re being unreasonable.

    So let’s break down why…

    -National Geographic publishes an image and credits it to someone else. This sounds like NatGeo made an honest mistake.

    -When you contact them about their mistake, on an image you normally license for 150, not only are they willing to tell you their standard rate for publication (over $1300) they’re willing to double it and pay you $2700! enough to buy a really fantastic new camera, or amazing top of the line lens.

    -Then they were asked to publish a correction in an already published book. The book was published already. It’s not a monthly publication, or something there will necessarily be a second edition of, it’s already done, there’s nothing to correct it in.

    From the above account it actually sounds like they’re being really fair, and trying to not only correct a mistake, but pay you handsomely for their use.

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