Supreme Court shies away from copyright suit

Reporter's Privilege | Feature | October 10, 2001

    NMU         U.S. SUPREME COURT         Confidentiality/Privilege         Oct 10, 2001    

Supreme Court shies away from copyright suit

  • The high court declined this week to review a case involving a copyright dispute over National Geographic's use of a photographer's work in a CD-ROM compilation.

The U.S. Supreme Court declined this week to review a case involving free-lance photographer Jerry Greenberg, who said the National Geographic Society infringed on copyright law by using his photographs as part of a 30 CD-ROM library without permission.

National Geographic appealed to the High Court after a decision in March from the U.S. Court of Appeals in Atlanta (11th Cir.) that ruled against the magazine.

The federal panel wrote last spring that the digital collection was a new work and not simply a revision of the original contents, declaring the publisher had no automatic rights to reproduce Greenberg's photos, even though they originally appeared in the magazine. Since the Supreme Court chose not to hear the case, the appellate court decision in Greenberg v. National Geographic will stand.

Greenberg sued the National Geographic Society for its use of his copyrighted photographs in a 1997 set of 30 CD-ROMs, which archived 108 years of its magazine. The magazine featured Greenberg's photographs in four issues from 1962 to 1990. "The Complete National Geographic" also included a 25-second animated introductory sequence of 10 magazine covers, including a Greenberg photo.

National Geographic argued that it had a right to produce and publish the CD-ROM under the Copyright Act, which declares publishers may use collective works from their publications without infringing on free-lancers' copyrights. Collective works generally include microfilm or bound versions of distinct works in chronological order.

Greenberg contended that the CD-ROM set was a new work and not covered under the revision section of the Copyright Act.

The Eleventh Circuit took a hard look at the technology used in the CD-ROM program. The software allows users to navigate through digital pages creating enough of a distinction, according to the court, for the content not to qualify as a collective work although the pages appear the same on disk as in print.

"Common-sense copyright analysis compels the conclusion that the Society . . . has created a new product in a new medium, for a new market, that far transcends any privilege or revision or other mere reproduction," the court ruled in its decision.

Greenberg's case is similar to Tasini v. New York Times, a copyright dispute where the Supreme Court ruled against media companies in June. The justices' ruling in Tasini means that The New York Times must either pay its freelance authors when redistributing their articles online or negotiate other conditions for republication.

(Greenberg v. National Geographic) -- GR

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