National Geographic CD-ROM archive does not violate copyright law

• A computerized archive of 108 years of National Geographic magazine may legally include the work of freelancers, a New York federal appeals court ruled Friday, rejecting copyright violation claims by the freelancers.

March 7, 2005 — National Geographic did not violate the copyright of freelance photographers and authors when it used their work in a CD-ROM collection archiving 108 years of the magazine because the digital archive is akin to bound volumes or microfilm and not a new work, the U.S. Circuit Court of Appeals (2nd Cir.) ruled Friday.

In upholding a trial court’s summary judgment order in favor of National Geographic, a three-judge panel rejected the freelancers’ argument that their “contracts were intended to limit the publication rights to a non-digital format.”

“The argument is unpersuasive,” Judge Ralph K. Winter wrote for the New York court. “The transfer of work from one media to another generally does not alter its character for copyright purposes.”

The decision relied heavily on a 2000 ruling by the same court that electronic and CD-ROM databases that contain previously published articles from periodicals are not considered “revisions” under the federal Copyright Act. The Supreme Court upheld New York Times v. Tasini in 2001, ruling that copyright “extends only to the creative material contributed by that author, not to ‘the preexisting material employed in the work.'”

Friday’s ruling directly conflicts with a 2001 ruling by the U.S. Circuit Court of Appeals (11th Cir.) in which the court agreed with freelance photographer Jerry Greenberg that the 30 CD-ROM set was “a new derivative work” protected by copyright law. Three weeks after Greenberg won his case against National Geographic, the U.S. Supreme Court ruled in Tasini and subsequently declined to hear the Greenberg case.

After the 11th Circuit ruling, a federal jury in Florida awarded Greenberg $400,000 in 2003 for willful infringement of copyright law. Nearly two years ago, National Geographic asked the U.S. District Court to overturn the verdict and order a new trial. The court has yet to rule, and it is unclear how Friday’s Second Circuit ruling will affect the Greenberg case.

Andrew Berger, an attorney for Fred Ward, one of the freelancers who sued National Geographic, said Monday his client is “seriously considering” petitioning the U.S. Supreme Court to hear the case, given the conflicting rulings in the two federal circuits.

Ward and 17 other freelancers sued National Geographic, arguing that the magazine violated federal copyright law by including their work in the CD-ROM collection, which allows computer users to see exactly what they would see in the paper version of the magazine.

Friday’s ruling also found that seven photographs by two of the plaintiffs, Louis Psihoyos and Rick Rickman, “were identified as granting only limited use licenses to” National Geographic. Dismissal of claims regarding those photographs was premature, the court held, and must go back to the lower court for further action. The full CD-ROM set contains 180,000 images.

(Faulkner v. Mindscape Inc., National Geographic Enterprises Inc.; Media Counsel: Robert Sugarman, Weil, Gotshal & Manges, New York, N.Y.) — KM

Related stories:

• Supreme Court shies away from copyright suit (10/10/2001)

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