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. Tyler Ross says:

    Good for you. It is just about doing the right thing and sadly the geographic is not. You have my support, as a photographer and artist, and I wish you the very best.

  2. Ziv says:

    While I don’t approve of National Geographic’s douchebaggery, I have little sympathy for anyone who complains about infringement yet fails to register their images. Registering your images is the first line of defense in protecting your copyright. Registration is your ticket to fight in Federal court and, most likely, win.

  3. YouKnowIt says:

    Similar exploitation happened to friends of mine.They were sub-sub contractors for a National Geographic Project that was very poorly managed. It’s obvious that National Geographic does not care about fairly compensating people for their labor and does all it can to externalize harm in their production process.

    Good luck getting the word out about this; National Geographic definitely does not deserve the respect they generally receive and should get called on how they exploit people.

  4. James Smith says:

    I am sad to find out that National Geographic acts as dirty as an insurance company (as per your reference concerning having your car stolen, or run into and ruined, then having to negotiate the value of your car) or a gossip rag making millions off of lies it has printed, then settling with the injured party for a fraction of the profits. National Geographic appears to be dirty and I will not look at them in the same way again.

  5. RoughAcres says:

    I am sharing your story on Facebook, and I am urging the members of various groups in which I participate – including several photography groups – to disseminate this information as widely as possible, in order to bring transparency to the actions of yet another corporation which is more interested in its own profits than in treating people fairly… and to its “stacking the deck” legally to ensure they can get away with it.

    It would appear they have taken “Atlas Shrugged” to mean corporations are free to take the blood, sweat, and tears of human beings without giving them ample recompense or recognition of their work. Shame on those who support this ridiculous, slaveholder mentality.

    Good luck in your legal attempt, Barrett. I, among many, wish you well. <3 R

  6. Ken Miller says:

    “Based on the obstacles and costs you would face…” I’m no attorney, but that sounds like undue influence, usury or at least a mild threat. I think you’re doing the best thing possible here. Sounding the “Troll Alert” on public forums. Unfortunately for you, most people don’t have a clue that intellectual product is just that, a product. One that is just as legitimate “property” as a person’s car, shelf product, or any other tangible inventory that is sold.
    Good luck, I’ll repost.
    K

  7. For a successful company, I’m shocked to hear about this. Sad

  8. I have been made aware of your issue with NG via a post on LinkedIn “On Copyright Infrigement” by Paul Heck in the “Photography and Business Marketing” forum. It has started to spread and I hope you don’t give up. Register your copyright as soon as you can with the Copyright Office on http://www.copyright.gov/. You have published the photograph long before this in the Discovery Magazine and in a New York museum so it should be no issue to prove it is your work. Good luck!

  9. Greg says:

    I know this sucks, and particularly that the ‘big guy’ is dumping on the little guy. Also, using the ‘system’ against you. There is no doubt they did it with full knowledge and forethought. However, have you ever sung happy birthday? All those songs on your mp3 play licensed?

    Yeah I know it’s not exactly the same, but maybe this is corporate America’s response to piracy in all it’s forms.

    If we can’t have open source, then apparently we’ll have open source.

    Sorry for your troubles,
    Greg

  10. Kenneth says:

    shameful

  11. Marcus says:

    From this posting it seems like the NatGeo folks credited someone else by mistake and when you notified them offered you more than the 300 dollars you ask for on your site. I think it’s quite terrible f NatGeo would steal, but we don’t have both sides of the story. Could you share what you sent over to them? Maybe there was some miscommunication or strong enough language that they bristled up. If it’s a form letter thats even worse. Look forward it.

  12. Mike says:

    I will never buy another magazine.
    Fucking dickheads !!!

  13. Johann Rissik says:

    That’s how these swine work,use their low-life douchebag lawyers to bully the small guy.Phuckem.

  14. Daren says:

    You should contact Carolyn Write at PhotoAttorney.com. She’s the best in the business. https://twitter.com/PhotoAttorney/status/514806417505525761

  15. Michelle says:

    If they credited someone else with your work, they must have asked that person permission or that person must have put themselves out there as the creator of the work. Sue them for causing you to be defrauded of a licensing fee… Unless you have proof that they mistakenly credited that person, in which case that person can file a cross-claim on NG for damaging their reputation.

    Might now work, but worth running by an attorney.

    There must be an attorney who’s dealt with them before who can take your case.

  16. Michelle says:

    Sorry, I think I misread that they credited someone else with your work.

    If they’ve done this to other artists, see if there’s a way to bring a group of plaintiffs against NG. It looks a lot worse if a pattern of abuse is presented to the court.

  17. Mark O'Leary says:

    I would love to see you fight this. If they did it to you, I’ll bet they have done it to many others. What about crowd funding the legal effort? I would donate.

  18. R Barone says:

    Please let us know where we can donate to your legal fund. I think there are many of us who would like to support you. Best wishes in your fight!

  19. Theotis Pitts says:

    I’ve been looking for an excuse to cancel a gift subscription from them for some time now. The kids don’t bother with it anymore and I need reading glasses to read it (and I am currently resisting the idea of using the readers with needlessly tiny print, with the exception of work related materials and the funny pages.)

    I will keep the one copy that keeps my bar from wobbling, but the rest are history.

    Good luck in your endeavor to recover your deserved remuneration.

    – Theo

  20. Dejan Smaic says:

    A little info if you register your work ….” If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an
    award of actual damages and profits is available to the
    copyright owner.

  21. Matt says:

    Just out of curiosity, who is, an have you had contact with the photographer that was credited by Nat Geo? Is it possible that Nat Geo try to licence the photo through that person under the false pretense that they thought it was his photo to license?

    I agree with you that Nat Geo should be more scrupulous when they credit photos. Now if the other photog knowingly took credit for the image, I would have more issues with that person for falsely taking credit and monetary gain from illegally “licensing” your work.

    Either way, I hope you get this resolved in a timely manor and with as little out of pocket expense to you.

    -Matt

  22. Roger Grange says:

    Probably not worth your blood, sweat, tears, and treasure to fight those assholes. Pardon my french. They are not a very ethical organization and I doubt you can beat them in court. Take the money and do what you can to protect yourself in the future, is my advice. I proposed a number of TV docs to them back in the 80’s. Then they would produce them. In one case they hired me to be an assistant! In another case, I got nothing at all- the project was turned over to another producer after I edited (on film!) for an entire week, a tease reel. A lot of work for nothing. Did I say assholes?

  23. derek says:

    They steal american artists, they don´t dare crossing border.

  24. Stacey Cupples says:

    National Geographic I don’t care about your legal position. Stop stealing–it isn’t difficult or that costly to do it right the first time. I don’t need your magazine–or any other you are affiliated with if you are going to be a thief. In fact, I might just have to notice who your advertisers are too and start boycotting them too. You don’t get to be a corporate bully without consequences. I realize I am just one person but I am sure I am not the only one who thinks this way.

  25. Mrs. S. Daniels says:

    I feel outraged on your behalf. Have you considered starting a petition on change.org (I am in no way affiliated with them, but I do think this issue needs a very wide audience). Good luck with your pursuit for a well-deserved resolution. Their cavalier offers are insulting and diminish the harm they have done to you and other artists.

    Sincerely,
    Mrs. S. Daniels

  26. That sucks. But personally I would capitalize on and appreciate the awesome publicity…

  27. TerangBulan says:

    This coming from a reputable organization, and their reply doesn’t help either. Here we have NatGeo mind blowing photos but at the same time we also ‘borrow’ them. It’s just ironic.

  28. George Wedding says:

    The National Geographic art director who did this was wrong. Sadly art and design schools are the bigger problem here. They unabashedly teach graphic designers to steal photographer’s work if they can get away with it. Your beef is more with these art schools.

    National Geographic fairly supports photographers in many ways though even regular shooters have their run ins with the group over copyright. The company is offering a fair settlement at market rates and I’m sure punishing the infringing designer. It’s unfortunate, but less honest companies would laugh at you and force you to come after them with a lawsuit. It’s late, but National Geographic is trying to do the right thing here.

    If you did registered the image with the U.S. Copyright Office before the infringement, you may be able to get more money in court, but it will be damn expensive and if you lose, you’re responsible for your own court costs. If you did not pre-register your copyright, take the money and run. You’ll never recover compensatory punitive damages without pre-registration documents and no lawyer would take the case without pre-registrations.

    Anytime you can convert an infringer into a paying customer is a success – you want them comping back and purchasing again. Count your blessings and move on.

  29. J. Grizzard says:

    So maybe I missed it (though I did read the post twice), but what is your reason for thinking this *was* anything but innocent infringement? Did they say they got the image directly from your website, or that they knew it was CC licensed but thought they complied? That seems to be a pretty key piece of information here…

  30. Paul H says:

    I have posted a link to this blog post on a number of LinkedIn photography groups that I am a member of. It’s generating a fair bit of response, sympathy, and advice. Hope it gets resolved in a positive way for you. Best wishes.

  31. Andrew Waddington says:

    I for one will send you $5 towards costs. Let me know your PayPal address.

  32. Howard Davis says:

    will be dropping subscription tomorrow. Sorry for the corporate raiders.

  33. Howard Davis says:

    subscription dropped. Sorry for the corporate raiders.

  34. N Grimm says:

    Wow. I’m pretty surprised that a large publication that is that image oriented and dependent would be so indifferent when they knowingly have stolen someone elses work. I wonder if they apply the same ” Oh well… fuck it…” attitude when they see their own stuff used without compensation or credit. Having a National Geographic cover in your portfolio is a pretty solid achievement to prospective clients – but if they are unwilling to publish the correction then you loose even that. Whatever you end up deciding to do – I hope it goes your way, and thanks for taking the time to post about it.

  35. judi says:

    Shameful antics from a formerly respected journal.

  36. NotTellingYou says:

    You provide ZERO evidence the act was willful. You got a picture in a major publication and an offer for more than you would have requested. Instead of taking the windfall and moving on you wanted to show you have a bigger one and go for $150k? Really? Sorry I think you”re being ass.

  37. bonnie hipchen says:

    What a shame – bet if it were their prize photo being used by others they would fight to the death. Google any presidents they may have fought and won and use there own tactics against them. There’s got to be some hungry lawyer ready to take on a big dog and win!

  38. Robin Hedges says:

    Shame on you N.G. Have now cancelled subscription, urging theres to do the same. If you can’t get your own underpaid photographers to do the job, don’t go stealing other people’s. There was a time when you were good, now that to us long gone.

  39. PL Packer says:

    NatGeo, I used to think you were reputable. I am sorry to see you are just another rag that steals photos and steals the credit from struggling artists that do not have the advantage of being funded by a multi million dollar publishing empire. FYI, people don’t forget and karma can be a bitch.

  40. jessica capizzo says:

    Wow…had no idea a name like National Geographic would do something like this! I hope that you are able to get what is justly yours. The recognition and just recompense for your work, as well as an apology for the theft of your work, not just some mamby pamby wimpy remark about how National Geographic made a “mistake” which the obviously did not, as it happens often and to many different artists who have taken the risks and or joy of taking these photographs, that are capturing the art that our God has given us to enjoy. God bless your efforts.

  41. Ellen says:

    I say go for it! Use your legal options, Nat Geo should not bully ppl around. While they are one of my favorite channels on tv to watch, I have definitely lost some respect for them since reading your article. Have you thought about doing a piece on change.org (help me get the amount of money I am entitled from Nat Geo, so myself and other artists won’t go through this going forward?) or something along those lines?

  42. Nilesh says:

    It is really hard to believe for a trusted brand like National Geographic. With increasing commercialization I think this is only going to increase. They seems to have lost there vision with which they started.

  43. An appalling abuse and truly a further step in my loss of respect for their organization. I thank you for continuing your fight, because if we do not stick up for our own rights, no one is going to do it for us.

  44. Mat says:

    I’m dissappointed to read that this is how Nat Geo goes about finding images and paying the artists nothing. I’m simply a casual reader but agree that you deserve payment and credit for your work/art. If this is a common practice, could you not form a class action suit against Nat Geo?

  45. Phillip Longo says:

    Start a Kickstarter campaign for legal and media funds to drive them into the ground! Fight fire with fire!… I am personally canceling my daughters children edition subscriptions immediately! Oh hell no!

  46. DJ says:

    If you start an online petition, I’ll sign it and spread it around.
    I subscribe to their magazine – online and offline. I also have several gift subscriptions of NatGeo Kids that I send to my nieces and nephews.

    I’d be willing to stop them all if they refuse to settle this in a fair way, and I’ll sign a petition saying so!

  47. MB says:

    Go for it !!!

  48. stephen says:

    In the world of software development we have fsf.org who is dedicated to helping “the little guy” fight for what is right, is there an artists group that is similar does anybody know?

  49. Start a petitory at change.org or causes.org, you will collect millions of signt of all photography community around the world agains this abuse and preventing future cases.

  50. Jude Hawkens says:

    Hi Barrett,
    Sad but true situation that is happening much too often. We had a similar situation with a corporation and very successfully sued and settled out of court. Question: is this image registered correctly – and in the proper time frame with the US Copyright Office? The copyright attorney we used might be interested in hearing more from you – if this is the route you’d like to explore.
    Best,
    Jude

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