Tasini v. New York Times Co.

206 F.3d 161
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 24, 1999
DocketDocket Nos. 97-9181, 97-9650
StatusPublished
Cited by19 cases

This text of 206 F.3d 161 (Tasini v. New York Times Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tasini v. New York Times Co., 206 F.3d 161 (2d Cir. 1999).

Opinion

WINTER, Chief Judge:

Six freelance writers appeal from a grant of summary judgment dismissing their complaint. The complaint alleged that appellees had infringed appellants’ various copyrights by putting individual articles previously published in periodicals on electronic databases available to the public. On cross motions for summary judgment, the United States District Court for the Southern District of New York held that appellees’ use of the articles was protected by the “privilege” afforded to publishers of “collective works” under Section 201(c) of the Copyright Act of 1976 (“Act” or “1976 Act”), 17 U.S.C. § 201(c). We reverse and remand with instructions to enter judgment for appellants.

BACKGROUND

Appellants are freelance writers (individually, “Author” and collectively, “Authors”) who write articles for publication in periodicals. Their complaint alleged that certain articles were original works written for first publication by one of the appellee publishers between 1990 and 1993. None of the articles was written at a time when its Author was employed by the particular periodical; nor was any such article written pursuant to a work-for-hire contract. The Authors registered a copyright in each of the articles.

The appellee newspaper and magazine publishers (collectively, “Publishers”) are [164]*164periodical publishers who regularly create “collective works,” see 17 U.S.C. § 101, that contain articles by free lance authors as well as works created for-hire or by employees. With respect to the free lance articles pertinent to this appeal, the Publishers’ general practice was to negotiate due-dates, word counts, subject matter and price; no express transfer of rights under the Author’s copyright was sought.1 As to one article alleged in the complaint, however, authored by appellant David S. Whit-ford for Sports Illustrated, a publication of appellee The Time Incorporated Magazine Company (“Time”), a written contract expressly addressed republication rights. We address Whitford’s claim separately below.

Appellee Mead Data Central Corp. owns and operates the NEXIS electronic database. NEXIS is a massive database that includes the full texts of articles appearing in literally hundreds of newspapers and periodicals spanning many years. Mead has entered into licensing agreements with each of the Publishers. Pursuant to these agreements, the Publishers provide Mead with much of the content of their periodicals, in digital form, for inclusion in NEXIS. Subscribers to NEXIS are able to access an almost infinite combination of articles from one or more publishers by using the database’s advanced search engine. The articles may be retrieved individually or, for example, together with others on like topics. Such retrieval makes the article available without any material from the rest of the periodical in which it first appeared.

We briefly describe the process by which an issue of a periodical is made available to Mead for inclusion in NEXIS. First, an individual issue of the paper is stripped, electronically, into separate files representing individual articles. In the process, a substantial portion of what appears in that particular issue of the periodical is not made part of a file transmitted to Mead, including, among other things, formatting decisions, pictures, maps and tables, and obituaries. Moreover, although the individual articles are “tagged” with data indicating the section and page on which the article initially appeared, certain information relating to the initial page layout is lost, such as placement above or below the fold in the case of The New York Times. After Mead further codes the individual files, the pieces are incorporated into the NEXIS database.

Appellee University Microfilms International (“UMI”) markets, inter alia, CD-ROM database products. Pursuant to an agreement with The New York Times and Mead, UMI produces and markets the “NY Times OnDisc” (“NYTO”) CD-ROM, which contains the full texts of articles from The New York Times. It also produces and markets a “General Periodicals OnDisc” (“GPO”) CD-ROM, which contains selected New York Times articles and thousands of other articles. Pursuant to its agreement with Mead and The New York Times, UMI incorporates the files containing Times articles into its NYTO database. UMI uses a somewhat different methodology to incorporate articles from the N.Y. Times Sunday book-review and magazine sections onto its GPO CD-ROM. As to these pieces, UMI scans them directly onto “image-based” files. The image-based flies are also abstracted and included on the text-based CD-ROM; the abstracts facilitate access to the image-based disk.

The gist of the Authors’ claim is that the copyright each owns in his or her individu[165]*165al articles was infringed when the Publishers provided them to the electronic databases. Appellees do not dispute that the Authors own the copyright in their individual works. Rather, they argue that the Publishers own the copyright in the “collective works” that they produce and are afforded the privilege, under Section 201(c) of the Act, of “reproducing and distributing” the individual works in “any revision of that collective work.” 17 U.S.C. § 201(c). The crux of the dispute is, therefore, whether one or more of the pertinent electronic databases may be considered a “revision” of the individual periodical issues from which the articles were taken. The district court held that making the articles available on the databases constitutes a revision of the individual periodicals and that appellees’ licensing arrangements were protected under Section 201(c). See Tasini v. New York Times Co., 972 F.Supp. 804 (S.D.N.Y.1997) [“Ta-sini I”]. It therefore granted appellees’ motion for summary judgment. After a motion for reconsideration was denied, see Tasini v. New York Times Co., 981 F.Supp. 841 (S.D.N.Y.1997) [“Tasini II”], appellants brought this appeal.

DISCUSSION

We review de novo the grant or denial of summary judgment and view the evidence in the light most favorable to the non-moving party. See Turner v. General Motors Acceptance Corp., 180 F.3d 451, 453-54 (2d Cir.1999). Summary judgment is appropriate only if the pleadings and evi-dentiary submissions demonstrate the absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See id. at 453.

The unauthorized reproduction and distribution of a copyrighted work generally infringes the copyright unless such use is specifically protected by the Act. To reiterate, each Author owns the copyright in an individual work and, save for Whit-ford, see infra, has neither licensed nor otherwise transferred any rights under it to a Publisher or electronic database. These works were published with the Authors’ consent, however, in particular editions of the periodicals owned by the Publishers. The Publishers then licensed much of the content of these periodicals, including the Authors’ works, to one or more of the electronic database providers.

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Tasini v. The New York Times Company, Inc.
206 F.3d 161 (Second Circuit, 2000)

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