Faulkner v. National Geographic Society
294 F. Supp. 2d 523 (2003)
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Rule of Law:
Under Section 201(c) of the Copyright Act, a publisher is privileged to create a digital archive of its past collective works, as this constitutes a permissible 'revision' or 'reproduction', provided that the individual contributions are presented in the same context in which they originally appeared. The addition of new, independently copyrightable elements such as software features and introductory sequences does not defeat this privilege.
Facts:
- Plaintiffs are freelance photographers and writers whose individual works were originally published in the print edition of the National Geographic Magazine.
- Defendant National Geographic Society (NGS) owned the copyright in the collective works, which were the individual issues of the magazine.
- In the late 1990s, NGS, along with its subsidiaries and partners, developed and sold 'The Complete National Geographic' (CNG), a digital archive on CD-ROM and DVD.
- The CNG contained page-by-page digital scans of every issue of the magazine, presenting each page with the exact same visual layout, content, and advertisements as the original print version.
- In addition to the scanned magazine pages, the CNG product included new material not present in the print magazines, such as a multimedia introductory sequence, computer software for navigation, and a search engine.
- Later versions of the CNG added further enhancements, including article summaries and advanced software tools like bookmarking and printing capabilities.
Procedural Posture:
- Freelance photographers and writers filed multiple copyright infringement lawsuits against National Geographic Society (NGS) and its partners in the U.S. District Court for the Southern District of New York.
- The various lawsuits were consolidated for pretrial proceedings.
- The court previously decided motions related to claims arising under the Copyright Act of 1909 for works published before 1978.
- Both the plaintiffs and the defendants filed cross-motions for partial summary judgment on the copyright infringement claims arising under the Copyright Act of 1976.
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Issue:
Does a publisher's creation of a digital archive of its print magazines, which includes both exact page replicas and new software features, fall within the publisher's privilege to create a 'revision' or 'reproduction' of the collective work under Section 201(c) of the Copyright Act?
Opinions:
Majority - Kaplan, District Judge
Yes. The digital archive is a privileged 'revision' or 'reproduction' under Section 201(c) because it presents the freelance contributors' works in their original context. The court first declined to apply collateral estoppel based on the Eleventh Circuit's contrary holding in Greenberg v. National Geographic Society, finding that the Supreme Court's intervening decision in New York Times v. Tasini fundamentally changed the legal analysis. The court adopted the Tasini framework, which focuses on how the individual contributions are 'presented to, and perceptible by, the user.' Because the CNG reproduces the magazine pages exactly as they appeared in print, it preserves the original context of the collective work, much like the microfilm example approved of in Tasini. The court reasoned that the inclusion of new, copyrightable material (the software, search engine, and intro sequence) does not transform the CNG into an 'entirely different' work, analogizing these features to a traditional index or binding for a set of print volumes. These additions enhance usability but do not alter the fundamental presentation of the original collective works.
Analysis:
This decision established a critical precedent for publishers seeking to digitize their print archives, creating a circuit split with the Eleventh Circuit's decision in Greenberg. By prioritizing the 'context' test from Tasini over the 'new elements' test from Greenberg, the court provided publishers with a clearer path to create digital reproductions without renegotiating rights with thousands of freelance contributors. This ruling distinguishes between permissibly repackaging an entire collective work in a new medium and impermissibly disaggregating individual contributions for standalone use. It significantly influences how copyright law adapts to new technologies for distributing historical collections.
