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Greenberg v. National Geographic Society, USCA Eleventh Circuit

The U. S. Court of Appeals for the 11th Circuit vacated the June, 2007, decision by a three-judge panel of the 11th Circuit and ordered a rehearing en banc.

The case involves a freelance photographer’s claim of copyright infringement for photographs that originally appeared in National Geographic magazines and later were included in a CD-ROM collection of the magazines. The defendant moved to dismiss on the grounds that the CD-ROM version was merely a revision of the original collective work and that Section 201(c) of the Copyright Act provides owners of the copyright in a collective work a privilege to make revisions of the work. (If the CD-ROM version is considered a privileged collective work, National Geographic does not need to get permission from or make payments to photographers whose works originally appeared in the magazine.)

In 1998, a district court in Florida granted the defendant’s motion to dismiss the copyright infringement claim based on the 201(c) privilege. In March, 2001, a three-judge panel on the 11th Circuit reversed and remanded, holding that the CD-ROM version was not a privileged revision under Section 201(c). In June, 2001, the U.S. Supreme Court decided Tasini v. The New York Times Co., Inc., holding that newspapers and other periodicals in electronic databases were not privileged collective works under 201(c) because each individual work could be retrieved and viewed independently of its original context within the collective work.

In October, 2001, the U.S. Supreme Court denied certiorari in Greenberg v. National Geographic Society, and in June, 2007, a different three-judge panel on the 11th Circuit reconsidered the case and overruled the 2001 11th Circuit decision. The court held that Tasini created a new framework for analyzing the 201(c) privilege: “[u]nder the Tasini framework, the relevant question is whether the original context of the collective work has been preserved in the revision.” The court concluded that the CD-ROM version of the magazines was a privileged version under 201(c), vacated the jury verdict and damages award, and remanded the case back to the district court.

The decision issued on August 30, 2007, vacates the June, 2007, decision and allows the entire 11th Circuit to hear and rule on the case.