New York Times Co. v. Tasini

Respondent freelance authors (Authors) wrote articles (Articles) for
newspapers and a magazine published by petitioners New York
Times Company (Times), Newsday, Inc. (Newsday), and Time, Inc.
(Time). The Times, Newsday, and Time (Print Publishers) engaged
the Authors as independent contractors under contracts that in no
instance secured an Author’ s consent to placement of an Article in an
electronic database. The Print Publishers each licensed rights to
copy and sell articles to petitioner LEXIS/NEXIS, owner and operator
of NEXIS. NEXIS is a computerized database containing articles in
text-only format from hundreds of periodicals spanning many years.
Subscribers access NEXIS through a computer, may search for arti-cles
using criteria such as author and subject, and may view, print, or
download each article yielded by the search. An article’ s display
identifies its original print publication, date, section, initial page
number, title, and author, but each article appears in isolation—
without visible link to other stories originally published in the same
periodical edition. NEXIS does not reproduce the print publication’ s
formatting features such as headline size and page placement. The
Times also has licensing agreements with petitioner University Mi-crofilms
International (UMI), authorizing reproduction of Times ma-terials
on two CD–ROM products. One, the New York Times OnDisc
(NYTO), is a text-only database containing Times articles presented
in essentially the same way they appear in LEXIS/NEXIS. The
other, General Periodicals OnDisc (GPO), is an image-based system
that reproduces the Times’ Sunday Book Review and Magazine ex-actly
as they appeared on the printed pages, complete with photo-graphs,
captions, advertisements, and other surrounding materials.
The two CD–ROM products are searchable in much LEXIS/NEXIS; in both, articles retrieved by users provide no links to
other articles appearing in the original print publications.

The Authors filed this suit, alleging that their copyrights were in-fringed
when, as permitted and facilitated by the Print Publishers,
LEXIS/NEXIS and UMI (Electronic Publishers) placed the Articles in
NEXIS, NYTO, and GPO (Databases). The Authors sought declara-tory
and injunctive relief, and damages. In response to the Authors’
complaint, the Print and Electronic Publishers raised the privilege
accorded collective work copyright owners by §201(c) of the Copyright
Act. That provision, pivotal in this case, reads: “Copyright in each
separate contribution to a collective work is distinct from copyright in
the collective work as a whole, and vests initially in the author of the
contribution. In the absence of an express transfer of the copyright
or of any rights under it, the owner of copyright in the collective work
is presumed to have acquired only the privilege of reproducing and
distributing the contribution as part of that particular collective
work, any revision of that collective work, and any later collective
work in the same series.” The District Court granted the Publishers
summary judgment, holding, inter alia, that the Databases repro-duced
and distributed the Authors’ works, in §201(c)’ s words, “as part
of . . . [a] revision of that collective work” to which the Authors had
first contributed. The Second Circuit reversed, granting the Authors
summary judgment on the ground that the Databases were not
among the collective works covered by §201(c), and specifically, were
not “revisions” of the periodicals in which the Articles first appeared.

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Click the case caption above for the full text of the Court's opinion.

Section 201(c) does not authorize the copying at issue here. The
Publishers are not sheltered by §201(c) because the Databases repro-duce
and distribute articles standing alone and not in context, not “as
part of that particular collective work” to which the author contrib-uted,
“as part of . . . any revision” thereof, or “as part of . . . any later
collective work in the same series.” Pp. 8–21.

(a) Where, as here, a freelance author has contributed an article to
a collective work, copyright in the contribution vests initially in its
author. §201(c). Copyright in the collective work vests in the collec-tive
author (here, the Print Publisher) and extends only to the crea-tive
material contributed by that author, not to “the preexisting ma-terial
employed in the work,” §103(b). Congress enacted the
provisions of the 1976 revision of the Copyright Act at issue to ad-dress
the unfair situation under prior law, whereby authors risked
losing their rights when they placed an article in a collective work.
The 1976 Act recast the copyright as a bundle of discrete “exclusive
rights,” §106, each of which “may be transferred . . . and owned sepa-rately,”
§201(d)(2). The Act also provided, in §404(a), that “a single
notice applicable to the collective work as a whole is sufficient” to protect the rights of freelance contributors. Together, §404(a) and
§201(c) preserve the author’ s copyright in a contribution to a collec-tive
work. Under §201(c)’ s terms, a publisher could reprint a contri-bution
from one issue in a later issue of its magazine, and could re-print
an article from one edition of an encyclopedia in a later revision
of it, but could not revise the contribution itself or include it in a new
anthology or an entirely different collective work. Essentially,
§201(c) adjusts a publisher’ s copyright in its collective work to ac-commodate
a freelancer’ s copyright in her contribution. If there is
demand for a freelance article standing alone or in a new collection,
the Copyright Act allows the freelancer to benefit from that demand;
after authorizing initial publication, the freelancer may also sell the
article to others. Cf. Stewart v. Abend, 495 U. S. 207, 229, 230. It
would scarcely preserve the author’ s copyright in a contribution as
contemplated by Congress if a print publisher, without the author’ s
permission, could reproduce or distribute discrete copies of the con-tribution
in isolation or within new collective works. Pp. 8–12.

(b) The Publishers’ view that inclusion of the Articles in the Data-bases
lies within the “privilege of reproducing and distributing the
[Articles] as part of . . . [a] revision of that collective work,” §201(c), is
unacceptable. In determining whether the Articles have been repro-duced
and distributed “as part of” a “revision,” the Court focuses on
the Articles as presented to, and perceptible by, a Database user. See
§§102, 101. Here, the three Databases present articles to users clear
of the context provided either by the original periodical editions or by
any revision of those editions. The Databases first prompt users to
search the universe of their contents: thousands or millions of files
containing individual articles from thousands of collective works (i.e.,
editions), either in one series (the Times, in NYTO) or in scores of se-ries
(the sundry titles in NEXIS and GPO). When the user conducts
a search, each article appears as a separate item within the search
result. In NEXIS and NYTO, an article appears to a user without the
graphics, formatting, or other articles with which it was initially
published. In GPO, the article appears with the other materials
published on the same page or pages, but without any material pub-lished
on other pages of the original periodical. In either circum-stance,
the Database does not reproduce and distribute the article “as
part of” either the original edition or a “revision” of that edition. The
articles may be viewed as parts of a new compendium—namely, the
entirety of works in the Database. Each edition of each periodical,
however, represents only a miniscule fraction of the ever-expanding
Database. The massive whole of the Database is not recognizable as
a new version of its every small part. Furthermore, the Articles in
the Databases may be viewed “as part of” no larger work at all, but simply as individual articles presented individually. That each arti-cle
bears marks of its origin in a particular periodical suggests the
article was previously part of that periodical, not that the article is
currently reproduced or distributed as part of the periodical. The Da-tabases’
reproduction and distribution of individual Articles—simply
as individual Articles—would invade the core of the Authors’ exclu-sive
rights. The Publishers’ analogy between the Databases and mi-crofilm
and microfiche is wanting: In the Databases, unlike micro-film,
articles appear disconnected from their original context. Unlike
the conversion of newsprint to microfilm, the transfer of articles to
the Databases does not represent a mere conversion of intact periodi-cals
(or revisions of periodicals) from one medium to another. The
Databases offer users individual articles, not intact periodicals. The
concept of “media-neutrality” invoked by the Publishers should there-fore
protect the Authors’ rights, not the Publishers’ . The result is not
changed because users can manipulate the Databases to generate
search results consisting entirely of articles from a particular periodi-cal
edition. Under §201(c), the question is not whether a user can as-semble
a revision of a collective work from a database, but whether
the database itself perceptibly presents the author’ s contribution as
part of a revision of the collective work. That result is not accom-plished
by these Databases. Pp. 12–19.

(c) The Publishers’ warning that a ruling for the Authors will have
“devastating” consequences, punching gaping holes in the electronic
record of history, is unavailing. It hardly follows from this decision
that an injunction against the inclusion of these Articles in the Data-bases
(much less all freelance articles in any databases) must issue.
The Authors and Publishers may enter into an agreement allowing con-tinued
electronic reproduction of the Authors’ works; they, and if neces-sary
the courts and Congress, may draw on numerous models for dis-tributing
copyrighted works and remunerating authors for their
distribution. In any event, speculation about future harms is no basis
for this Court to shrink authorial rights created by Congress. The
Court leaves remedial issues open for initial airing and decision in the
District Court. Pp. 19–21.
206 F. 3d 161, affirmed.

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