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A PUBLICATION OF THE AMERICAN BAR ASSOCIATION SECTION OF IN~TELLECTUAL PROPEPlY LAW
VOLUME 20, NUMBER I
Fall 2001
Case Summary
New York Times Co. v. Tasini
BY JAMES L. VANA
In a landmark decision, the United
Staes Suprmne Court determined by a
7-2 majority that publishers violated
U.S. copyright law by taking articles
originally submitted for publication in
printed collective works and republish-
ing die articles in electronic fom with-
out the consent of the authors of the
James L Vana articles.,
Bcukground. Jonathan Tashi and several other freclance
authors submitted articles to different publications, including
the New York Tunes and Sports !1(ostnted. For each submis-
sion, the authors signed a contract granting the publishers the
right to use the submission in print. However, none of the con-
tracts expressly permitted die publishers to use the submission
in an electronic database.
The print publishers hired different electronic publishers to
include these works in three separate databases. The first,
Nexis, takes each article, codes it with searchable information,
and deposits the article in a central database containing articles
from various authors and publishers. The second, New York
Times OnDisc (NYTO), covers only New York 'lnies issues
and also codes each article, which is then placed in a central
database. NYTO also contains an article index. Finally,
General Periodicals OnDisc (GPO) contains articles from
numerous publicatitms, which are actually burned onto a CD-
ROM. Each article appears exactly as it did in the original print
version, with the same advertisements, pagination, and other
elements, although apart from other articles in the publication.
Tasini and the other authors sued the New York 7Tnes,
Sports Illustrated and the other publishers for copyright
infringement, claiming that the original print license did not
give the publishers the right to republish the contributed works
in electronic fom. The district court ruled in favor of the pub-
lishers, finding that Lexis, NY'LO and GPO were sinply revi-
siois of the earlier works (the newspaper or magazine issues),
and thus covered by the publishers' rights in the orighl print
publication. 2 The court also found that the print publishers'
rights in the original collective work were transferable to the
electronic publishers. The Court of Appeals for the Second
Circuit disagreed, and reversed the decision, holding that
lames *aa is rhair qf the Section's Commirtee 204-State
Trademark Rights and Statutes.
Lexis, NYTO and GPO wen not revisions, but instead were
distinct and different new creations not within the scope of the
publishers' print publications.4 The Second Circuit did not
address the issue of transferability. The publishers appealed
the Second Circuit's decision.
The CopyrightAct. Under federal copyright law, the author
of a work owns the copyright fights in the work, absent a writ-
ten agreement assigning the work? Where separate works are
combined to create a collective work (such as a magazine or
newspaper), the publisher of the collective work owns the
copyright rights in the collective work.' However, those rights
relate only t, the selection and arrangement of contributions, as
Well as any elements added by the publisher.? Copyright own-
ership in the contributions remains with the original authors.'
The section of the Copyright Act covering collective works
provides that the publisher's rights in the collective work
extend to any reproduction or distribution of the work, any
revision of the collective work, or any later collective work in
the same series.4
The Decklon. The publishers in the Tasini case argued that
Lexis, NYTD and GPO am simply exercises of the statutory
right to reproduce and distribute the contributions of the
authors as revisions of a particular collective work.0 The
Supreme Court disagreed, focusing on the manner in which
users of the separate databases perceive the authors' contribu-
tions. Specifically, the. Court found that Nexis and NYTO pre-
sent each individual article as a separate item, without the
graphics, formatting, or other articles that appeared in the origi-
nal print publication. The GPO database, while presenting
(continued on page 4)
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