ATLANTA (CN) – A freelance photographer lost his copyright infringement claim against National Geographic in the 11th Circuit. The court ruled 7-5 that the magazine had the right to republish four of Jerry Greenberg’s photographs in a 30-disc set of “The Complete National Geographic,” covering 1,200 issues over 108 years.
After the Supreme Court decision in New York Times Co. v. Tasini, the National Geographic Society sought to reverse a $400,000 jury verdict for Greenberg for copyright violations.
Copyright law protects individual contributions to a collective work, but allows a magazine publisher to reproduce individual contributions in the same magazine issue, a revision of the issue, or a later issue in the same series.
While Greenberg claims the CD-ROM should be considered a new collective work exempt from publisher privilege, the appellate court characterized it as a revision of a collective work, because the print issues remain in context in the digital format. New elements contained on the CD-ROM, such as an introductory sequence, which includes Greenberg’s 1962 cover photograph, a zoom feature and a search function, do not destroy the original context of Greenberg’s work, the court ruled.
Judge Barkett said the CD-ROM format is “analogous” to microform, in that the image-based reproduction keeps the original layout, so that Greenberg’s photographs are “firmly positioned” within their original context, complete with advertisements. A user can digitally flip through the pages of each issue, Barkett noted. The CD-ROM is a permissible collection of 1,200 magazines in their original context, the court ruled.
The 7-5 majority reversed and remanded the district court’s decision for Greenberg.
Judge Birch dissented, claiming the case is about “who gets the money.” National Geographic commercially exploits Greenberg’s work and dilutes its marketplace value by reproducing it without sharing profits, Birch said. Birch called the CD-ROM a new work, akin to placing “old wine in a new bottle,” and not a revision, because it is combined with copyrightable computer programs to which National Geographic transferred privilege in return for royalties. The addition of search engine and compression programs creates a marketable product that constitutes an “other collective work,” which fails to fall under privilege, he wrote. Also, Birch found that a user could extract a photograph from scanned page, removing it from its original context with a simple right-click, and he objected to the public display of copyrighted materials on a computer screen.
In a second dissenting opinion, Judge Anderson pointed out that publisher privilege does not include reproduction in a new anthology or different magazine, such as “The Complete National Geographic,” which is a new product targeting a new market. Copyright law allows National Geographic to distribute Greenberg’s photographs only as part of a single magazine issue, Anderson wrote.