## Facts

- Freelance photographers and writers (contributors) created photographs and text that were published in print issues of *National Geographic Magazine*.
- The parties agreed that National Geographic Society (NGS) had the right to publish the contributors’ works in the magazine at the time of original publication, regardless of who owned copyrights in the individual contributions.
- In the late 1990s, NGS and related entities produced and sold “The Complete National Geographic” (CNG), distributed on CD-ROM and DVD, containing every issue of the magazine up to that point.
- The core of CNG consisted of a digital image of each magazine page presented in issue order, reproducing the original layout, content, covers, and advertisements.
- CNG included a computer program that let users locate and view specific pages through search and related access functions.
- CNG also contained an introductory audiovisual “moving covers” sequence showing many magazine covers flipping rapidly across the screen before the user reached the page-image archive.
- Contributors sued in the Southern District of New York for copyright infringement, alleging CNG was a new work outside the publisher’s collective-work privilege.
- The actions were before the court on cross-motions for partial summary judgment addressing copyright liability and defenses, including the scope of 17 U.S.C. § 201(c) and the effect of the Eleventh Circuit’s prior decision in *Greenberg v. National Geographic Society* involving the same product.

## Issues

1. Whether NGS’s inclusion of contributors’ works in the CNG page-image archive was authorized under 17 U.S.C. § 201(c) as a reproduction or “revision” of the collective works (the magazine issues).
2. Whether *Greenberg v. National Geographic Society* barred NGS from asserting the § 201(c) privilege in this litigation (by collateral estoppel or otherwise).
3. Whether the CNG “moving covers” audiovisual introduction fell outside § 201(c) and therefore could support infringement liability.

## Decision

- The court held that the main CNG archive—digital photographs of each page of each issue in sequence, with search and related access software—qualified as a permissible “revision” of the magazine issues under § 201(c).
- The court concluded that *Greenberg* did not collaterally estop NGS and was not binding on the Southern District of New York; the court declined to follow *Greenberg*’s reading of § 201(c).
- The court held that the “moving covers” sequence was a separate audiovisual work and not a mere reproduction or revision of the magazine issues; § 201(c) did not privilege that use.
- The court granted defendants’ motion for partial summary judgment in substantial part as to infringement claims based on the page-image archive, and granted plaintiffs partial relief as to infringement based on the unprivileged “moving covers” component.
- The court also resolved or dismissed various non-copyright theories to the extent addressed in the partial summary judgment motions, while leaving remaining matters for later proceedings.

## Legal Principles

- 17 U.S.C. § 201(c) gives the copyright owner of a collective work, absent an express transfer of broader rights, a privilege to reproduce and distribute a contributor’s work “as part of” that collective work, “any revision” of it, and later collective works in the same series.
- A page-faithful reproduction of magazine issues in a different medium can constitute a § 201(c) “revision” when the contributor’s work remains presented in its original issue context rather than extracted and republished as a new anthology of standalone contributions.
- Software that functions as a tool to find and display particular pages does not, without more, convert a page-image archive of complete issues into a new collective work outside § 201(c).
- An audiovisual montage using magazine covers (or other contributions) in a new, time-sequenced presentation is not automatically a “revision” of the original magazine issues and may fall outside § 201(c).
- Collateral estoppel requires, among other elements, proper party alignment and identity of issues; an adverse decision in another circuit does not by itself preclude relitigation by different plaintiffs in a different court.

## Conclusion

Faulkner held that National Geographic’s Complete National Geographic page-image archive—reproducing each magazine issue page-for-page with search and related access functions—was privileged under § 201(c) as a revision of the collective works, so most freelancer infringement claims tied to the archive failed, but the separate “moving covers” audiovisual introduction was not covered by § 201(c) and could support infringement liability.


Faulkner v. National Geographic Society, 294 F. Supp. 2d 523 (2003)