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Supreme Court of the United States
January 5, 2001
No. 00-201
I
N
T
HE
Supreme Court of the United States
T
HE
N
EW
Y
ORK
T
IMES
C
OMPANY
, I
NC
., N
EWSDAY
, I
NC
.,
T
HE
T
IME
I
NCORPORATED
M
AGAZINE
C
OMPANY
,
L
EXIS
/N
EXIS
,
AND
U
NIVERSITY
M
ICROFILMS
I
NTERNATIONAL
,
Petitioners,
v.
J
ONATHAN
T
ASINI
, M
AY
K
AY
B
LAKELY
,
B
ARBARA
G
ARSON
, M
ARGOT
M
IFFLIN
,
S
ONIA
J
AFFE
R
OBBINS
,
AND
D
AVID
S. W
HITFORD
,
Respondents.
On Writ of Certiorari to the United States Court of Appeals
for the Second Circuit
BRIEF OF AMICUS CURIAE
THE NATIONAL GEOGRAPHIC SOCIETY
IN SUPPORT OF PETITIONERS
T
ERRENCE
B. A
DAMSON
A
NGELO
M. G
RIMA
K
AREN
K. S
CHWARTZ
N
ATIONAL
G
EOGRAPHIC
S
OCIETY
1145 Seventeenth Street, N.W.
Washington, D.C. 20036
R
OBERT
G. S
UGARMAN
N
AOMI
J
ANE
G
RAY
W
EIL
, G
OTSHAL
& M
ANGES
LLP
767 Fifth Avenue
New York, NY 10153
K
ENNETH
W. S
TARR
Counsel of Record
C
HRISTOPHER
L
ANDAU
M
ATTHEW
W
ILD
K
IRKLAND
& E
LLIS
655 Fifteenth Street, N.W.
Washington, D.C. 20005
(202) 879-5000 2
QUESTION PRESENTED
Whether a publishers reproduction and distribution of its
entire periodical not only in print, but also electronically, is
privileged under the Copyright Act or instead infringes upon
the copyrights held by contributing freelance authors.
TABLE OF CONTENTS
Page
QUESTION PRESENTED .................................................... i
TABLE OF AUTHORITIES ................................................ iii
INTEREST OF THE AMICUS.............................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT .... 3
ARGUMENT ........................................................................ 4
THE SECOND CIRCUIT ERRED IN INTERPRETING
AND APPLYING SECTION 201(C). .............................. 4
A.
That Particular Collective Work ............................ 7
B.
Any Revision of That Collective Work ............... 11
C.
Any Later Collective Work in the Same Series ... 13
CONCLUSION ................................................................... 15 3
TABLE OF AUTHORITIES
Page
Cases
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) 7
Bailey v. United States, ...........................516 U.S. 137 (1995)
6
Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp.,
474 U.S. 361 (1986
Citizens Bank of La. v. Parker, ...............192 U.S. 73 (1904)
11
Faulkner (Douglas) v. National Geographic Socy, No. 97 Civ. 9361 (S.D.N.Y.) 2
Faulkner (Sally) v. National Geographic Socy, No. 99 Civ. 12488 (S.D.N.Y.)
2
FDA v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291 (2000)
15
Greenberg v. National Geographic Socy, No. 97-3924-CIV, U.S. Dist. LEXIS 18060
(S.D
Jones v. United States, ............................526 U.S. 227 (1999)
15
M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421 (4th Cir. 1986)
7
Matthew Bender & Co. v. West Publg Co., 158 F.3d 693 (2d Cir. 1998)
7, 8
Rodriguez v. United States, ....................480 U.S. 522 (1987)
6
Ward v. National Geographic Socy, No. 99 Civ. 12385 (S.D.N.Y.)2
Constitutions, Statutes, and Rules
17 U.S.C. § 101 ..................................................................... 5
17 U.S.C. § 102(a)................................................................. 7
17 U.S.C. § 102(b)................................................................. 5
17 U.S.C. § 201(c)........................................................ passim
18 U.S.C. § 2 ......................................................................... 5
29 U.S.C. § 1144(d)............................................................... 5
S. Ct. R. 37.3 ......................................................................... 1
S. Ct. R. 37.6 ......................................................................... 1 4
U.S. Const. art. II, § 8, cl. 8 ................................................. 15
Other Authorities
H.R. Rep. No. 1476, ................... 94th Cong., 2d Sess. (1976)
6, 7, 10, 13, 14
Websters Third New Intl Dictionary (1976) ............... 11, 13
INTEREST OF THE AMICUS
1
The National Geographic Society is the worlds largest
nonprofit scientific and educational organization, with
approximately ten million members worldwide. Since its
founding in 1888, the Societys mission has been to increase
and diffuse geographic knowledge in the broadest sense. The
Society pursues that mission in a variety of ways, including
creating a $100 million foundation to promote geographic
education; issuing grants for scientific research and
exploration; maintaining an acclaimed Explorers-in-Residence
program; conducting national and international geography bees
with millions of student participants annually; launching
initiatives to increase public awareness and knowledge of
geography; and producing and distributing a wide variety of
mission-related products, including periodicals, television
programs, books, maps and atlases, and classroom products. In
recent years, pursuant to a letter ruling sought and obtained
from the Internal Revenue Service, the Society has placed

1
Pursuant to this Courts Rule 37.6, amicus states that no counsel for any
party authored this brief in whole or in part, and that no person or entity
other than amicus, its counsel, or its insurer made a monetary contribution
to the preparation or submission of this brief. The parties have consented
to the filing of this brief, and letters evidencing such consent have been filed
with the Clerk of this Court, pursuant to S. Ct. R. 37.3. 5
several divisions into wholly-owned taxable subsidiaries. All
parts of the organization, including these divisions, promote the
Societys historic educational and scientific mission, and any
and all revenues are used to further that mission.
The Society has a strong interest in this case in its capacity
as the publisher of a monthly official journal, National
Geographic magazine. For many years, the Society has
reproduced back issues of the magazine in bound volumes,
microfiche, and microfilm. With the advent of CD-ROM
technology in recent years, the Society in 1997 produced The
Complete National Geographic, a thirty-disc CD-ROM set
containing each monthly issue of the magazine for the 108
years from 1888 through 1996. The issues appear
chronologically, from the earliest at the beginning of the first
disc to the latest at the end of the thirtieth disc. There are no
changes to the content, format, or appearance of any issue
reproduced in the CD-ROM set. Every page of every issue
remains as it was in the original print version, including all
page arrangements, articles, photographs, graphics, advertising,
and attributions. A search engine allows the user to search the
index electronically, just as users have long been able to search
the magazines traditional paperbound index.
Recently, the Society has become the target of several
lawsuits by freelance authors and photographers who contend
that the Society infringed their copyrights by reproducing their
contributions to the magazine in the CD-ROM set, even though
the plaintiffs authorized the use of their contributions in the
magazine and the set reproduces each issue of the magazine
exactly as it originally appeared in print. See Greenberg v.
National Geographic Socy, No. 97-3924-CIV, 1998 U.S. Dist.
LEXIS 18060 (S.D. Fla. May 14, 1998), appeal pending, No.
00-10510-C (11th Cir.) (argued Oct. 3, 2000); Faulkner (Sally)
v. National Geographic Socy, No. 99 Civ. 12488 (S.D.N.Y.);
Ward v. National Geographic Socy, No. 99 Civ. 12385
(S.D.N.Y.); Faulkner (Douglas) v. National Geographic Socy, 6
No. 97 Civ. 9361 (S.D.N.Y.). The Society has defended these
lawsuits on the ground, among others, that 17 U.S.C. § 201(c),
the statutory provision at issue here, confers a privilege upon
the publishers of collective works to reproduce and distribute
an individual freelance contribution to a collective work as
part of that particular collective work, any revision of that
collective work, and any later collective work in the same
series. Because the Second Circuit dramatically and
erroneously narrowed the scope of that statutory privilege, and
because most of the pending cases have been filed in that
Circuit, the Society respectfully urges this Court to reverse the
judgment. 7
INTRODUCTION AND SUMMARY OF ARGUMENT
The Copyright Act of 1976 strikes a fundamental balance
between the interests of freelance authors, on the one hand, and
publishers of collective works, on the other: the author owns
the copyright in his individual contribution, while the publisher
owns the copyright in the overall collective work. The decision
below upsets that balance by drastically curtailing the
publishers statutory privilege to reproduce and distribute its
collective work in new media, including electronic databases
and CD-ROM. The decision thereby violates the bedrock
principle that the Copyright Act is medium neutral: it applies
regardless of the medium (or combination of media) in which
a work is expressed. The publisher of a printed newspaper like
The New York Times, a paperbound journal like National
Geographic magazine, an online magazine like Slate or Salon,
or any other collective work is entitled to r