Professor of Law, William S. Boyd School of Law, University of Nevada Las Vegas
Like the Supreme Court’s decision in New York Times v. Tasini, 533 U.S. 483 (2001), Greenberg v. National Geographic Society, 2008 U.S. App. LEXIS 13832 (June 30, 2008) addressed the scope of § 201(c) of the Copyright Act, which gives the owner of a collective work copyright a limited right to reproduce and distribute the copyrighted contributions. In this commentary, Mary LaFrance, a William S. Boyd Professor of Law at the William S. Boyd School of Law, University of Nevada, Las Vegas, analyzes Greenberg and discusses the scope of § 201(c)’s privilege when multiple issues of collective works are combined in electronic publications. She writes:
Plaintiff Greenberg, a freelance photographer, assigned the copyrights in several of his photographs to the National Geographic Society between 1962 and 1990, but regained the copyrights after the initial publication of the photographs in the Society’s magazine. In 1997, the Society issued the CNG, a CD-ROM set containing every issue of the magazine from 1888-1996. The CNG reproduced each page of the magazine exactly as it appeared in the original paper version. It did not permit users to separate the photographs from their surrounding context, or to edit the pages in any way. The CNG also included a computer program which compressed and decompressed the images of the magazine pages and allowed users to search the CNG, zoom in on specific pages, and print. In addition, the opening sequence of the CNG displayed ten of the magazines cover photos, including one of Greenberg’s photos.
Greenberg filed an action against National Geographic, claiming the CNG infringed his copyrighted photographs. In a rehearing en banc, the Eleventh Circuit held that under § 201(c), the CNG was privileged as a revision of the original collective work.
The Eleventh Circuit based its analysis on the Supreme Court’s statement in Tasini that [u]nder § 201(c), the question is . . . whether the database itself perceptibly presents the author’s contribution as part of a revision of the collective work. Treating this question as the sole test for § 201(c) eligibility, the Eleventh Circuit held that the CNG qualified for the § 201(c) privilege because it presented Greenberg’s photographs in the same context as the original National Geographic issues in which they appeared.
Because the CNG presented an exact image of each magazine page, thus presenting each article and photograph in its original context, the Eleventh Circuit held that the CNG was analogous to the microforms which Tasini indicated would qualify for the § 201(c) privilege. Because the CNG preserved the context of the original collective work, the fact that the CNG aggregated many issues of the Society’s magazine into one compilation did not alter the analysis: Aggregating editions or issues of one magazine into a larger collective work of that same magazine is permissible under § 201(c) insofar as the individual contributions are presented and perceivable to viewers in their original context.
(citations omitted)