The U.S. Court of Appeals for the Eleventh Circuit, in a case destined to be widely cited, held that copyrighted work can be reproduced in a collective work if it is a work that collectively uses material originally published with permission it and uses the identical selection, coordination and arrangement of the work as in the original work. Greenberg v. National Geographic Society, 2008 U.S. App. LEXIS 13832 (June 30, 2008).

Appellant National Geographic Society is a nonprofit scientific and educational organization that has published a monthly magazine since 1888. Appellee Jerry Greenberg is a freelance photographer, some of whose photographs were published in four issues of the National Geographic Magazine, specifically the January 1962, February 1968, May 1971 and July 1990 issues. Greenberg regained, after publication, ownership of the copyrights he originally assigned to National Geographic.

In 1997, National Geographic produced The Complete National Geographic (CNG), a 30-disc CD-ROM set containing each monthly issue of the National Geographic Magazine—roughly 1,200 issues of the publication. In addition, the CNG includes a short opening montage and a computer program that allows users to search the CNG, zoom into particular pages and print. 

Greenberg sued National Geographic for including his four copyrighted images. The district court granted summary judgment to National Geographic, holding that because the CNG constituted a “revision” of the print issues of the magazine, the reproduction of Greenberg’s photographs in the CNG was privileged under 17 U.S.C. § 201(c) of the Copyright Act. However, an Eleventh Circuit panel reversed and remanded, and a jury held National Geographic liable for $400,000 in damages. The Eleventh Circuit again reversed, citing the intervening decision of the U.S. Supreme Court in New York Times Co. v. Tasini. The Eleventh Circuit then granted a rehearing en banc.

On rehearing, the Court concluded that Congress added § 201(c) to the Copyright Act in order to protect both the copyrights of freelance authors in their individual contributions to a collective work as well as the copyright of the publisher in the collective work itself. A magazine publisher is privileged to reproduce or distribute an article—or photographs—contributed by a freelancer, “absent a contract otherwise providing, only ‘as part of’ any (or all) of three categories of collective works: (a) ‘that collective work’ to which the author contributed her work, (b) ‘any revision of that collective work,’ or (c) ‘any later collective work in the same series.’”

Based on Tasini's definition of “revision,” the Eleventh Circuit concluded that the CNG is a “revision” of the original “collective works” under the second prong of § 201(c). Similar to the microfilm or microfiche at issue in Tasini, the CNG uses the identical selection, coordination and arrangement of the underlying individual contributions as used in the original collective works. An author’s contribution is viewed within its original context, with each page containing the articles, photographs and/or advertisements as they originally appeared in the National Geographic Magazine’s print versions.

Thus, the court reversed and remanded, dismissing Greenberg’s arguments that the CNG’s additional functionality rendered it non-privileged, stating “[t]he CNG’s additional elements—such as its search function, its indexes, its zoom function, and the introductory sequence—do not deprive National Geographic of its § 201(c) privilege in that they do not destroy the original context of the collective work in which Greenberg’s photographs appear.”