Eleventh Circuit Upholds National Geographic’s Right to Reproduce Photos First Published in its Magazine in CD-ROM Compilation

Holding:

The U.S. Court of Appeals for the Eleventh Circuit upheld the right of defendant-appellant National Geographic Society (the “Society”) to reproduce photographic works featured in National Geographic Magazine (“Magazine”) in CD-ROM digital compilation without additional permission. Plaintiff-respondent, photographer Jerry Greenberg (“Greenberg”), sued for copyright infringement after the Society reproduced and distributed his works that were previously published in the Magazine in CD-Rom. Citing Section 201(c) of the Copyright Act of 1976 and case law on the topic, the Eleventh Circuit rejected Greenberg’s argument that the CD-Rom digital compilation was an entirely new collective work, and that publication of his works in this new format constituted copyright infringement. On the contrary, the Eleventh Circuit declared, the CD-ROM compilation was a mere revision, or a new version, of the works found in the Magazine. The Court reasoned that the CD-ROM format should not deprive the Society of its reproduction right under Section 201(c) because it did not destroy the original context in which Greenberg’s photographs originally appeared. Therefore, the Court reversed the jury award of $400,000.00 in favor of Greenberg.

Detailed Summary:

Defendant-appellant Society is a nonprofit scientific and educational organization that has published its monthly print Magazine since 1888.  The Society also produces televised programs and computer software as well as other educational products through National Geographic Enterprises, a wholly-owned and for-profit subsidiary of the Society, and co-defendant-appellant in this case.  Plaintiff-respondent Greenberg is a freelance photographer, whose photographs were published in four issues of the Magazine.  In 1997, National Geographic produced “The Complete National Geographic” (“CNG”), a thirty-disc CD-ROM set containing each monthly issue of the Magazine, as it was originally published, for the 108 years from 1888 through 1996—roughly 1200…

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