Read Full-Text Amicus Brief

Brief Filed: 10/07
Court: US Court of Appeals for the 11th Circuit
Year of Decision: 2008

Issue: Addresses the rights of scholarly publishers to digitize their present and past works.

Index Topic: Copyright

Facts: The Plaintiff is a photographer and National Geographic had used some of his photographs in various issues of the magazine.  The court ruled that National Geographic could not rely upon Section 201(c) because the new product included an introductory sequence in which the photographs “danced” on the screen with accompanying music, as well as the replica of the pages of the magazine itself and software to make the entire resource searchable, it constituted a new work and was therefore outside the ambit of Section 201(c) revisions.  Thus National Geographic was held to have violated the photographers’ copyright interests in their works.  However, in light of the Supreme Court Tasini decision and the Second Circuit decision in Faulkner, the Eleventh Circuit decided to rehear the Greenberg case in 2007.  The Eleventh Circuit issued a decision similar to the Second Circuit decision in Faulkner and reversed its 2001 decision that had held National Geographic in violation of the law.  In a highly unusual move, the Eleventh Circuit vacated the 2007decision and agreed to have the case reheard by all twelve judges who are members of the Eleventh Circuit.

APA's Position: APA joined with other scholarly publishers in filing an amicus brief in the Eleventh Circuit. The point of the brief is to explain to the Court that in the area of scholarly publications there has been an enormous improvement in the availability, preservation and dissemination of scholarly works that has been made possible by the technology similar to that National Geographic has used to make its past issues more available. The use of digital technology has enabled scholarly publishers to make their present and past works far more available to students and scholars. The brief explains in detail how making years of past scholarly works available via computer greatly helps scholars and students. It also focuses on legislative history that supports the argument that publishers are free to make their publications available in this manner without obtaining new permissions. 

Result:  On June 30, 2008, the Eleventh Circuit issued its opinion ruling that National Geographic’s use was permissible under copyright law noting that “Greenberg’s photographs are preserved intact in the [reproduction] and can only be viewed as part of the original collective works in which they appeared.”