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Court calls digital archive of magazine a 'new work'

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    NMU         ELEVENTH CIRCUIT         Copyrights & Trademarks         Mar 22, 2001    

Court calls digital archive of magazine a ‘new work’

  • Use of a photographer’s photos in a CD-ROM version of back issues of the National Geographic magazine violated the photographer’s copyright in his work, the appellate court held.

The National Geographic infringed the copyright of a freelancer by using his photographs as part of a 30 CD-ROM library, the U.S. Court of Appeals in Atlanta (11th Cir.) held on March 22. The court was not convinced that the digital library was only a “revision” of the original magazine.

In the case, Jerry Greenberg sued the National Geographic Society for its use of his copyrighted photographs in a 1997 CD-ROM collection archiving 108 years of the magazine. The collection included Greenberg’s photos. Part of “The Complete National Geographic” included an animated sequence of magazine covers, including a Greenberg photo.

Greenberg argued the CD-ROM set was “a new derivative work” and therefore the publisher’s right to use them in the magazine does not extend to this use. National Geographic contended, however, the CD-ROM library was equivalent to bound volumes or microfilm copies of the magazine, which are not new works.

The appeals court determined that technological measures in the CD-ROM program took the material out of a “collective work” definition. Although the magazine pages appear in the CD-ROM exactly as they did in print, the software program allows users to navigate through the digital pages of the CD-ROM. The software also plays an animated sequence that digitally “morphs” magazine covers on top of each other at one-second intervals.

“In layman’s terms, the instant product is in no sense a ‘revision,'” the court said.

The court also took note of the fact that when National Geographic applied for a copyright for “The Complete National Geographic,” it indicated that registration for the work or for an earlier version had not been made. Thus, the court reasoned, National Geographic was impliedly asserting the work was new.

“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 envisioned in” the revision section of the Copyright Act, the court said.

With regard to the animated morphing covers sequence, the court ruled that National Geographic violated Greenberg’s right to prepare derivative works based upon his copyrighted photographs.

The court did not accept National Geographic’s “fair use” defense.

“The resultant moving and morphing visual creation transcends a use that is fair within the context of” the Copyright Act’s fair use section, the court said.

A federal trial judge in Florida ruled in 1999 that the National Geographic Society infringed some of Greenberg’s photo copyrights by using illustrations based on the photos in a game. The parties later settled on those claims in lieu of an appeal. The use of Greenberg’s photos in the CD-ROM collection, however, did not infringe the photographer’s copyright, Judge Joan Lenard ruled. As a result of the split ruling, Greenberg filed the current appeal.

Under the Copyright Act, publishers may publish collective works of their publications without infringing on freelancers’ copyrights. Collective works generally include microfilm or bound versions of distinct works arranged in chronological order.

(Greenberg v. Nat’l Geographic; Media Counsel: Norman Davis, Steel Hector & Davis, Miami; Robert Sugarman, Weil Gotshal & Manges, New York) DB

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