Greenberg v. National Geographic, in which photographers seek royalties for the inclusion of their works in the CD-ROM version of the National Geographic Magazine, is a case with legs, that’s for sure. First filed ten years ago, it has been argued at the circuit court level three times, with several trips back to the trial court and at least one petition for certiorari to the U.S. Supreme Court. Only a few weeks after the first Eleventh Circuit court ruling in the case, the U.S. Supreme Court rendered its opinion in New York Times Co. v. Tasini, 533 U.S. 483 (2001), finding that freelance writers of newspaper articles are entitled to royalties for the inclusion of their works in an electronic database. Subsequent proceedings in Greenberg have sought to grapple with the applicability of the Tasini ruling that the disaggregation of the articles in an electronic database was outside the privilege provided in § 201(c) of the Copyright Act for a “revision” of a collective work under.

 In the latest opinion in Greenberg, the en banc ruling on June 30, the majority held that the CD-ROM version of the National Geographic Magazine is a privileged “revision” under § 201(c) because the CD-ROM presentation, unlike the electronic database in Tasini, replicated the “contextual fidelity” of the original collective work. That means, of course, that the plaintiff photographers whose works were included in the original, print version of the magazine, unlike the freelance writers in Tasini, are not entitled to royalties for the inclusion of their works in the CD-ROM version. There are two vigorous dissents.

Supporting their respective legal analyses, the opining judges expressed diametrically opposed philosophical approaches to the resolution of “old wine, new bottles” issues.

Judge Barkett’s majority opinion suggests a presumption in favor of reproduction in new media:

With publications continuously being reproduced in new mediums, courts should not disapprove of the reproduction or distribution of collective works in those mediums without evaluating whether the publisher has violated the contextual fidelity of the original collective work or revised the individual contribution itself. Courts must determine whether the addition of new materials to the reproduction creates an “entirely different” collective work which falls outside § 201(c)’s privilege, not whether the medium itself presumptively creates a “new collective work.” Greenberg’s copyrights in his individual contributions to the National Geographic Magazine issues and National Geographic’s copyrights in the collective works—and National Geographic’s privilege of reproducing and distributing the collective works—were not determined thirty years ago based on the medium in which they were produced, and they should not be determined on that basis today.

Judge Birch’s dissenting opinion argued that the circuit’s pre-Tasini ruling should be reaffirmed, for three reasons: that the CD-ROM version of the magazine was a new and entirely different work; that the National Geographic could not transfer its privilege under § 201(c) to another party; and that display of the plaintiffs’ works on a computer screen was not privileged under § 201(c). The dissent also focused on the respective economic positions of the parties, i.e., authors and photographers versus publishers:

Putting aside the legal analysis or rationales in play in this case, the reader should understand the pecuniary or commercial positions of the parties and their constituencies in this dispute. On one side there are the artists, authors, and other creators of copyrightable works who argue that their creative contributions to collective works already exploited by publishers should not be further exploited by those publishers without sharing the profits realized by that further commercial exploitation. These authors, artists, and other creators contend that the publishers now want to ignore the economic compromise — the balancing of equities — that is reflected in 17 U.S.C. § 201(c) of the 1976 Copyright Act. ***

On the opposite side, the publishers are seeking to generate new revenues by repackaging an old product — the “old wine in new bottles” paradigm; updated in this instance with an easier access twist-off metal cap rather than a cork. Here the new packaging of the old content, replicated but unrevised, in electronic medium is both cost-efficient, profitable, and attractive to a new, computer-savvy generation of consumers. Moreover, the profits are enhanced exponentially when the publisher can exclude the contributing artists, authors, and creators of the content from sharing in those profits. At the end of the day this case is not about education, access by the masses, or efficient storage and preservation — it is about who gets the money. The legal arguments and non-legal arguments on both sides, not surprisingly in a free enterprise society, reduced to these essentials are all about who is paid for their contributions and efforts.

Considering the strong positions taken in the respective opinions and the fact that the en banc court split 7-5, it will be interesting to see how future panels in the Eleventh Circuit deal with “new media” issues in cases that are not controlled by this ruling.