New York Times Co. v. Tasini (2001): Case Brief, Holding & Video

In New York Times Co. v. Tasini, 533 U.S. 483 (2001), the Supreme Court held that newspaper and magazine publishers infringed freelance writers' copyrights when they licensed the writers' articles to electronic databases without permission. The Copyright Act lets a publisher reuse a freelancer's contribution as part of the original collective work or a “revision” of it, but the databases showed each article on its own, stripped of the issue it appeared in. That is not a revision of the newspaper, so the publishers' privilege did not cover it.

Six freelance writers — Jonathan Tasini, Mary Kay Blakely, Barbara Garson, Margot Mifflin, Sonia Jaffe Robbins, and David S. Whitford — wrote 21 articles between 1990 and 1993. Twelve ran in The New York Times, eight in Newsday, and one in Sports Illustrated (published by Time).

The writers worked as independent contractors. None of their contracts gave the publishers permission to put the articles into an electronic database.

The publishers licensed the articles anyway. LEXIS/NEXIS carried them in the NEXIS text database, and University Microfilms International put them on two CD-ROM products: the New York Times OnDisc (a text-only CD-ROM) and General Periodicals OnDisc (an image-based CD-ROM). A user could search these databases and pull up an individual article without the rest of the issue it originally ran in.

The writers sued the publishers and the database companies for copyright infringement.

The District Court for the Southern District of New York granted summary judgment for the publishers, 972 F. Supp. 804 (1997). It reasoned that the databases preserved the publishers' selection of articles, so the reproductions fell within § 201(c).

The Second Circuit reversed and granted summary judgment for the writers, holding that the databases were not revisions of the original collective works. The Supreme Court granted certiorari and affirmed.

A newspaper edition is a “collective work”: a compilation of separate contributions. Under the 1976 Copyright Act, the copyright in each contribution stays with its author unless the author transfers it. The publisher owns the copyright in the collective work as a whole.

Section 201(c) sets a default rule for what the publisher gets when there is no express transfer. The publisher is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of three things: that particular collective work, any revision of that collective work, and any later collective work in the same series.

The publishers argued that the databases were revisions of the original newspapers and magazines. So the question was: does § 201(c) let a publisher license a freelancer's article to an electronic database that presents it apart from the original issue?

No. Section 201(c) does not authorize the copying at issue. The publishers and the database companies infringed the authors' copyrights, and the Second Circuit's judgment for the authors was affirmed, 7–2.

Justice Stevens argued that the database files for a single newspaper edition, taken together, were a permissible revision of that edition. Converting the files to text did not destroy what mattered most: the publisher's editorial selection of which articles to run.

He relied on media neutrality from the publishers' side. Braille, foreign-language, and microform versions count as revisions, he reasoned, so an electronic version reflecting the same editorial content should too.

He also argued that the majority's rule would hurt the public by reducing the completeness of electronic archives relied on by researchers and historians, while offering authors little real benefit.

Tasini did not hold that every digital archive infringes. It turns on context. In Faulkner v. National Geographic Enterprises, 409 F.3d 26 (2d Cir. 2005), the Second Circuit held that The Complete National Geographic CD-ROM set was a privileged revision. It reproduced each magazine page by page, so the original context of the magazines was “omnipresent,” much like microfilm.

The practical lesson for exams: when a publisher reuses a contribution, ask whether the new product presents it as part of the original collective work (privileged) or on its own (outside § 201(c)).

Spot it whenever a fact pattern involves a freelancer, a collective work (a newspaper, magazine, anthology, or encyclopedia), and a later reuse the contract doesn't address.

Work through it in order. First, is there an express transfer of rights in the contract? If so, the contract controls. If not, apply the § 201(c) default: the publisher may reproduce the contribution only as part of that collective work, a revision of it, or a later work in the same series.

Then apply the Tasini test: look at the new product from the user's point of view. Is the contribution shown in the context of the original issue, with the surrounding articles and layout (like microfilm or a page-image archive), or is it shown on its own (like a searchable article database)?

Finally, remember that finding infringement does not automatically mean an injunction. The Court expressly left remedies open.

The video at the top of this page walks through Tasini in five steps — hook, facts, issue, holding, and reasoning — with animated diagrams of who sued whom and why the database result differs from microfilm. It's built for a quick review before class or an exam.