Faulkner v. National Geographic

Citation: Faulkner v. National Geographic Soc’y, 409 F.3d 26, 73 U.S.P.Q.2d (BNA) 1980 (2d Cir.), cert. denied, 546 U.S. 1076 (2005).

Factual Background
This copyright infringement lawsuit was filed by freelance photographers and journalists who contributed to National Geographic magazine over the years. The plaintiffs claimed that National Geographic did not have the right to republish their works on CD-ROMs and DVDs in “The Complete National Geographic: 108 Years of National Geographic Magazine” (the "CNG"). The lower court ruled in favor of the magazine.

Appellate Court Decision
The Court of Appeals affirmed the lower court, which had held that under Section 201 of the Copyright Act, the digital versions were a privileged “revision” of the printed issues of National Geographic Magazine.

Section 201 gives publishers of collective works a privilege to republish contributions to those works as part of any revision of those works. The court distinguished privileged revisions, like the CNG, from unprivileged revisions.

The court held that they were a revision of National Geographic magazine because “the original context of the magazine is omnipresent” in the digital versions. Judge Winter noted that the digital versions use an “almost” identical arrangement of the underlying work as was used in the original print version. On the other hand, an unprivileged revision “precludes the reader from viewing the underlying works in their original context.”

The journalist and photographers also argued that their contracts with National Geographic did not authorize digital republication of their works. However, Judge Winter believed that if the photographers and journalists intended to limit their grant to non-digital formats, they should have communicated their intent to National Geographic and negotiated for that specific contractual provision.