11th Circuit Sides With National Geographic in Copyright Case

["David P. Dillard" <jwne@temple.edu>]

Date: Wed, 2 Jul 2008 02:21:16 -0700 (PDT)
From: Sue Fraser <xcschild@yahoo.com>
To: Net-Gold <Net-Gold@yahoogroups.com>
Subject: 11th Circuit Sides With National Geographic in Copyright Case

R. Robin McDonald
07-02-2008
Law.com

Back-to-back rulings by federal appellate courts in Atlanta and 
New York favoring the National Geographic Society will allow 
magazine and newspaper publishers to transfer their published 
archives to computer discs and sell them commercially without 
infringing on freelance contributors' copyrights.

National Geographic won its dual victories after more than a 
decade of litigation in two federal circuits. The publisher of 
National Geographic has battled freelance writers and 
photographers over whether it must pay them additional royalties 
associated with the sale of "The Complete National Geographic" -- 
a digital version of the magazine's published archive.

On Monday, Judge Rosemary Barkett, writing the majority opinion for a
sharply divided en banc court of the 11th U.S. Circuit Court of Appeals
rejected the claims of a freelance Florida photographer whose work has
been published in National Geographic.

Barkett was joined in the majority by fellow circuit judges Joel 
F. Dubina, Susan H. Black, Edward E. Carnes, Stanley Marcus, 
William H. Pryor Jr. and Senior U.S. Circuit Judge Phyllis A. 
Kravitch. Judge Frank M. Hull recused.

The ruling turned on the extent to which publishers may reprint 
and distribute previously published photos without infringing on 
individual photographers' copyrights. Central to that ruling is 
the definition of a "collective work" to which a freelancer has 
contributed.

A publisher, according to the en banc majority, may reproduce a 
freelance photographer's work in a reprint of the original 
collective work (such as a magazine, newspaper or encyclopedia) 
to which that photographer contributed; or a revision of that 
collective work; or a later collective work "in the same series." 
Reproduction of copyrighted photos in a new work without 
permission would constitute copyright infringement.

The ruling turns on what constitutes an acceptable revision and 
what constitutes a new work in light of a 2001 landmark copyright 
ruling by the U.S. Supreme Court. In that ruling, New York Times 
v. Tasini, the high court determined reprinting freelance 
writers' articles without permission in large computer databases 
such as Lexis-Nexis infringed freelancers' copyrights.

This week, the 11th Circuit relied on the language of that ruling 
in deciding that although photographs could not be reprinted in 
computer databases without permission, they could be republished 
on CD-ROM or DVD in a reprint of the original work, (in this 
case, issues of National Geographic) without infringing freelance 
contributors' copyrights.

<http://www.law.com/jsp/article.jsp?id=3D1202422703800>

The entire article can be read at the above URL

[REQUIRES FREE SUBSCRIPTION]

Sincerely,
Sue Fraser
xcschild@yahoo.com