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En banc Eleventh Circuit reaffirms digital compilation of magazine archives a privileged revision

By McKee, Voorhees & Sease, P.L.C.

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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Full post as published by FileWrapper on July 09, 2008 (boomark / email).