In a decision last week, the Eleventh Circuit en banc addressed the application of New York Times v. Tasini in the context of a comprehensive CD archive encompassing all National Geographic magazines from 1888 to 1996, called the Complete National Geographic. In a previous decision, a panel of the Eleventh Circuit held the CNG was a privileged revision under 17 U.S.C. § 201(c), and as a result, the owners of various copyrighted photographs were not entitled to additional compensation based on the use of the works in the CNG.  Our discussion of the panel decision may be found in this post.  The court granted rehearing en banc to further discuss the application of Tasini.

The en banc court also found the CNG to be a privileged revision of the magazines. Unlike the databases at issue in Tasini, the CNG kept the entire layout of the original issues, just adding an introduction and search function. As a result, the original context of the articles was preserved. The Court instead focused on whether the compilation was a "revision of the collective work" or if it constituted an entirely new work. The court concluded that the compilation was a revision, meaning that National Geographic had a "privilege" to use the original articles without paying further royalties to the freelance authors and photographers who had contributed to the original magazines.

More on Greenberg v. Nat'l Geographic Soc'y after the jump.

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In a decision today, the Eleventh Circuit held that the National Geographic Society, by its publication of "The Complete National Geographic," had not infringed the copyrights of a photographer whose photos appear in the various individual issues of National Geographic.  The court held that the change from print to digital media was a "revision" as contemplated by 17 U.S.C. § 201(c), and therefore National Geographic had the privilege to reproduce it in that form. 

This is the opposite result of a previous decision by the Eleventh Circuit in the same case from 2001, and the court came to the opposite result based on an intervening Supreme Court case, New York Times Co. v. Tasini, which set forth the proper test for determining whether material was privileged under § 201(c).  As a result of the intervening case, the photographer's copyright claims against National Geographic based on the reproduction of magazine issues failed.  However, the court did remand one issue regarding use of a photograph in the introductory animation of The Complete National Geographic, explicitly finding that this use was outside the privilege of § 201(c), but not determining whether this use constituted copyright infringement.

More details of Greenburg v. Nat'l Geographic Soc'y after the jump.

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