Faulkner v. National Geographic Society
| Decision Date | 11 December 2003 |
| Docket Number | No. 97 Civ. 9361(LAK), 99 Civ. 12385(LAK), 99 Civ. 12488(LAK), 02 Civ. 6623(LAK).,97 Civ. 9361(LAK), 99 Civ. 12385(LAK), 99 Civ. 12488(LAK), 02 Civ. 6623(LAK). |
| Citation | 294 F.Supp.2d 523 |
| Parties | Douglas FAULKNER, et al., Plaintiffs, v. NATIONAL GEOGRAPHIC SOCIETY, et al., Defendants. Fred Ward, et ano., Plaintiffs, v. The National Geographic Society, et al., Defendants. David Hiser, et al., Plaintiffs, v. National Geographic Society, et al., Defendants. Louis Psihoyos, et al., Plaintiffs, v. The National Geographic Society, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Andrew Berger, Tannenbaum, Helpern, Syracuse & Hirschtritt, LLP, for Plaintiffs in No. 99 Civ. 12385.
Richard F. Schaden, David Katzman, Danial Alan Nelson, Schaden, Katzman, Lampert & McClune, for Plaintiffs Psihoyos, Rickman, Austen and Matrix Int'l, Inc., in No. 97 Civ. 9361 and for Plaintiffs in No. 02 Civ. 6623.
Stephen A. Weingrad, Kimberly C. Turina, Weingrad & Weingrad, LLP, for Plaintiff Douglas Faulkner in No. 97 Civ. 9361 and for Plaintiffs in No. 99 Civ. 12488.
Robert G. Sugarman, Naomi Jane Gray, Pierre M. Davis, Weil, Gotshal & Manges LLP, for Defendants.
Terrence B. Adamson, National Geographic Society, for Defendants National Geographic Society, National Geographic Holdings, and National Geographic Enterprises, Inc.
The digital revolution has caused substantial growing pains in the law of copyright as the law has sought to adapt to the demands of a new age. This case is yet another example.
Plaintiffs here are freelance photographers or writers who created images or text that originally appeared in the print version of the National Geographic Magazine (the "Magazine"). While the ownership of the copyrights in their creations in many cases is disputed, all agree that defendant National Geographic Society ("NGS") had the right to publish their works in the Magazine regardless of who owns the copyrights.
In the late 1990's, defendants produced and began to market various editions of "The Complete National Geographic" (the "CNG"), a digital archive of all past issues of the Magazine on CD-ROM and DVD. Plaintiffs here claim that the production and sale of the CNG infringed their copyrights in and otherwise violated their rights with respect to their contributions to the Magazine. The fundamental questions, common to all of the cases, are whether the NGS, as owner of the copyrights in the individual issues of the Magazine, is privileged by Section 201(c) of the Copyright Act of 1976 (the "1976 Act")1 to market the CNG on the theory that it is a reproduction or revision of the Magazine and whether NGS is foreclosed from reliance on Section 201(c) by a previous adverse decision in the Eleventh Circuit.
The matter now is before the Court on defendants' motions for partial summary judgment dismissing the copyright infringement and certain other claims and motions by many of the plaintiffs for partial summary judgment determining that defendants are liable for copyright infringement under the 1976 Act.2
All of the plaintiffs save two3 are freelance photographers or writers who created images or wrote text that appeared in the Magazine.
The principal defendants are NGS and two of its subsidiaries, National Geographic Ventures, Inc. ("NGV"), and National Geographic Enterprises, Inc. ("NGE"), now known as National Geographic Holdings, Inc. NGS is the world's largest nonprofit scientific and educational organization, with approximately ten million members worldwide. In 1995, NGS placed its television and, subsequently, its interactive and a portion of its cartography divisions into NGV, a wholly-owned taxable subsidiary. NGV in turn wholly owns NGE, among the divisions of which is National Geographic Interactive ("NGI").4
The Magazine is the monthly official journal of NGS, published in print format since 1888. In December 1996, NGS granted NGV the nonexclusive right to use photographs and text included in the archive of the Magazine ("in archival form only, without manipulation or alteration") for the development and distribution of various multimedia products.5
Defendant Mindscape, Inc. is a computer software publisher and distributor. In September 1996, it entered into an agreement with NGE through its division, NGI, whereby Mindscape would manufacture, market, and distribute CD-ROM products created by NGS, including the CNG.6 The agreement granted Mindscape the sole and exclusive right to manufacture, reproduce, and distribute certain multimedia products, including the CNG, based on an archive of the Magazine.7 In return, Mindscape granted NGI the right to receive royalties on its sales of the CNG and other related multimedia products.8
Defendant Dataware Technologies, Inc., now known as LeadingSide, Inc. ("Dataware"),9 is a developer of interactive software for the purpose of information retrieval and electronic publishing applications. In August 1996, Ledge Multimedia, then a division of Dataware, entered into an agreement with NGS, the purpose of which was for Dataware to manage the development of the CNG archive.10 The agreement required Dataware to develop a custom CD-ROM template, including integration of a custom set of interfaces to display magazine pages, a search engine and JPEG11 images of the scanned magazine pages. After completing this process, Dataware shipped the prototype CD-ROMs to Mindscape at its California offices for reproduction and mass distribution.12
In October 1997, defendant Eastman Kodak Company ("Kodak")13 entered into a co-sponsorship agreement with NGI, Mindscape and Dataware pursuant to which Kodak would pay a fee to NGI for placement of a Kodak promotional message at the beginning of CNG CD-ROMs and advertising on the product package. It received 5,000 complimentary units of the first of the CNG collections, received no revenue or other remuneration from the CNG products, had no right to control their content, and did not participate in their marketing or distribution save for whatever disposition it made of the 5,000 copies it received.14
In 1996, NGS developed a proposal to reproduce all issues of the Magazine published between 1888 and 1996 in CD-ROM format. The product, now known as the CNG, was produced in significant part through a process of digital scanning. Each issue of the Magazine published between 1888 and 1996 was scanned, page by page, into a computer system. The pages were scanned two at a time, so that a user of CNG is presented with the exact same visual experience as if reading from the print version of the Magazine.15 Defendants assert that the scanning process created an "exact image-based reproduction" of each page as it appeared in the Magazine.16
For reasons that will become apparent, some of the plaintiffs contend that the CNG is not a precise digital image of the Magazine. Several contend that they compared some print issues of the Magazine with the CNG version and found differences with respect to some advertisements.17 Plaintiffs in No. 02 Civ. 6623 and plaintiffs Psihoyos, Rickman, Austen and Matrix (the "Psihoyos Plaintiffs") in Nos. 97 Civ. 9361 and 99 Civ. 12488 claim also that certain special editions of the Magazine are missing from one of the CD-ROM products and that certain of their images were blacked out in later versions of the CNG.18 None of these contentions, however, is sufficient to raise a genuine issue of material fact as to the proposition that the CNG in fact is a virtually exact image-based reproduction of the pages of the Magazine19 in which the issues of the Magazine appear chronologically, from the earliest at the beginning of the first disk to the latest at the end of the thirtieth disk.
"The Complete National Geographic: 108 Years of National Geographic Magazine on CD-ROM" ("CD-ROM 108"), which was introduced to the marketplace in 1997, has three components. The first is a multimedia sequence that displays NGS's logo followed by a promotional message for Kodak and a sequence depicting the covers of ten issues of the Magazine that transition from one into another (the "Moving Cover Sequence"). The multimedia sequence plays on the first time a user boots up CD-ROM 108 and at the beginning of each subsequent session. In subsequent sessions, however, the user can skip the sequence by clicking on the logo once. The second component, referred to in this opinion as the Replica, consists of the digital reproduction of the pages and issues of the Magazine. The third is the computer software that serves as the storage repository and retrieval system for the Magazine images.20
Since 1997, the NGS has published additional CNG products, principally CD-ROMs and DVDs for the first 109, 110, 111 and 112 years of the Magazine.21 These products have varied slightly from the first with respect to the introductory sequences, which display the NGS's logo, and the Kodak promotional message. Only the 108 and 109 year CD-ROMs contained the Moving Cover Sequence. Beginning with the 110 year product, each version has contained a very short summary of each article that appears on the list of "hits" generated by the search engine in response to user queries.22 Capabilities have been added to the software.23 All, however, contain a Replica section.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.24 Where the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim.25 In that event, the nonmoving party must come forward with admissible evidence26 sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.27
A court faced with cross-motions for summary judgment need not "grant judgment as a matter of law for one...
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