Eleventh Circuit Revises “Revisionist” Opinion on Copyright Infringement
 
July 16, 2007
 
Carla Christina Calcagno - Washington

Six years after handing a freelance photographer a victory in a copyright appeal against National Geographic, the U.S. Eleventh Circuit Court of Appeals reversed course. The court has held that a 25-second CD-ROM photo montage of magazine covers, added as an introductory sequence to a 30-disk National Geographic anthology, did not constitute a new work that infringed on the freelancer’s copyrights in the original photographs.

At issue was Section 201(c) of the Copyright Act and specifically what constitutes a “revision” of a collective work. Section 201(c) provides that the copyright owner of a collective work is presumed to acquire the privilege of copying and distributing a contribution to that work only as part of the collective work, “or any revision of the collective work.”

In 1997, National Geographic released a CD-ROM containing an exact image of every issue the magazine had published from 1888 through 1996. The CD-Rom comprised 30 disks, and every page of every issue appeared exactly as it had in the original paper version. The photographs of plaintiff Jerry Greenberg had appeared in several of the magazines over the years.

In 2001, the Eleventh Circuit held that a CD-ROM containing exact images of the magazines did not infringe Greenberg’s rights to the copyrights in the individual photos under Section 201(c). The court held, however, that by adding a 25-second photo montage, containing one of Greenberg’s photographs, National Geographic had in essence created a new work, extinguishing the privilege of 201(c). The court viewed the entire CD-ROM as a new product “in a new medium, for a new market that far transcends any privilege of revision or other mere reproduction envisioned in Section 201(c).” On remand, a jury found that National Geographic had willfully infringed Greenberg’s rights and awarded Greenberg damages of $400,000.

Everything was fine for Greenberg until a separate group of freelance photographers, whose work National Geographic also used in the CD-ROM, filed suit in a federal court in New York. There, on very similar facts, the Second Circuit Court of Appeals held that an intervening decision by the United States Supreme Court effectively overruled the Eleventh Circuit’s decision in Greenberg’s case. In the Supreme Court case, New York Times v. Tasini, the Court held that whether or not a work is a privileged “revision” under Section 201(c) depends on two issues: (1) whether, as perceived by the viewer, the context of the original collective work has been preserved; and (2) whether adding material to the original work so alters its character as to destroy its original context.

In its recent, fresh look at Greenberg’s case after the jury verdict, the Eleventh Circuit found that because the National Geographic CD-ROM copied exact images of each page of the original magazines, the CD-ROM clearly preserved the original work’s context. As to the second question, the Eleventh Circuit held that adding 25 seconds of new material to 1,200 intact issues of the magazine did not extinguish the original work’s character. Analogizing to the world of hard copy, the Court stated that “just as the addition of 400 pages of prose to a sonnet does not constitute a ‘revision’ of the sonnet, the addition of a preface to a 400 page anthology wouldn’t transform the book into a different collective work.” The court reversed and remanded the case for a new trial.

For more information, email Carla C. Calcagno at carla.calcagno@hklaw.com or call toll free, 1-888-688-8500.