Photogs Lose Appeal Over National Geographic CD

The 2nd Circuit Court of Appeals has affirmed a lower court ruling that the Complete National Geographic on CD does not violate photographers' copyrights because it is a revision of an existing National Geographic Society work rather than a new product.

Under U.S. copyright law, publishers can create revisions of existing works without permission from freelance contributors.

The ruling conflicts with a separate 11th Circuit ruling from 2001 holding that the CD is a new product and therefore violated photographer Jerry Greenberg's copyrights.

"They [the 2nd Circuit] made a mistake," says Fred Ward, one of the photographers involved in the case. "We have two courts with opposite rulings, so it has to be resolved." He and other plaintiffs say they will appeal.

The conflicting rulings stem from different interpretations of what constitutes a revision under copyright law.

The 11th Circuit in Atlanta concluded that because the CD had a search engine and other features the printed magazines did not have, it was "a new product ('an original work of authorship'), in a new medium, for a new market" and therefore not a revision.

But the 2nd Circuit said that the important issue was how the content of the CD looked to users. And since the CD displays exact replicas of NGS magazines page by page like microform, it amounted to a revision.

The 2nd Circuit based that conclusion on its own Tasini v. New York Times ruling that databases are infringing (i.e., not revisions) if they strip printed articles out of their original context.

In affirming the Tasini ruling in 2001, the Supreme Court contrasted the infringing databases to microform that "represent a mere conversion of intact periodicals (or revisions of periodicals) from one medium to another."

The 11th Circuit ruled on Greenberg before the Supreme Court weighed in on Tasini.

NGS spokesperson MJ Jacobsen expressed her pleasure with the court ruling: "The CD ROM includes every page of every issue of National Geographic magazine as it appeared in the original print version, and the Second Circuit Court of Appeals decision provides clarity to all parties involved."

Exempt from the decision were seven of about 250 photographs by Louis Psihoyos because he had explicitly denied NGS any electronic rights to those images in writing. "I think it was a big victory. I think we're looking at a million dollars in damages" for unauthorized use of the seven images, he estimates. He says he intends to appeal the ruling with regard to the rest of his images, however.