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WARD v. NATIONAL GEOGRAPHIC SOC.

July 13, 2002

FRED WARD, PLAINTIFF,
V.
THE NATIONAL GEOGRAPHIC SOCIETY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kaplan, District Judge.

MEMORANDUM OPINION

Facts

Fred Ward

Fred Ward was hired by NGS as an independent contractor to write and photograph numerous stories published in the Magazine between 1964 and 1978. Text and/or photographs from 10 stories are at issue on this motion. They include (1) "Costa Rica," published in July 1965, (2) "Singing Birds," published in October 1965, (3) "National Parks/Parkscape USA,"*fn1 published in July 1966, (4) "Leeward Islands," published in October 1966, (5) "The Living White House," published in November 1966, (6) "Sharks," published in February 1968, (7) "Rhode Island," published in September 1968, (8) "Everglades," published in January 1972, (9) "Those Successful Japanese," published in March 1974, and (10) "Cree Indians," published in April 1975.*fn2

Plaintiff did not independently register any of these works during their initial copyright terms. He did, however, obtain renewal registrations for all the Pre-1978 Works except those associated with the Those Successful Japanese and Cree Indians stories, which still are in their initial terms. The Copyright Office denied Mr. Ward's applications for initial registration of the works associated with the two latter stories on July 10, 2000.

Defendants

NGS is the world's largest nonprofit scientific and educational organization, with approximately ten million members worldwide. In 1995, NGS placed its television and, subsequently, its interactive and a portion of its cartography divisions into a wholly-owned taxable subsidiary named National Geographic Ventures, Inc. ("NGV"). NGV in turn owns NGE, among the divisions of which is National Geographic Interactive ("NGI").*fn3

The Magazine is the monthly official journal of NGS, published in print format since 1888. In December 1996, NGS granted NGV the nonexclusive right to use photographs and text included in the archive of the Magazine ("in archival form only, without manipulation or alteration") for the development and distribution of various multimedia products.*fn4

Dataware, now known as LeadingSide, Inc., is a developer of interactive software for the purpose of information retrieval and electronic publishing applications. In August 1996, Ledge Multimedia, then a division of Dataware, entered into an agreement with NGS.*fn8 The purpose of the agreement was for Dataware to manage the development of The Complete National Geographic archive. It required Dataware to develop a custom CD-ROM template, including integration of a custom set of interfaces to display magazine pages, a search engine and JPEG*fn9 images of the scanned magazine pages. After completing this process, Dataware shipped the prototype CD-ROMs to Mindscape at its California offices for reproduction and mass distribution.*fn10

The Complete National Geographic

In 1996, NGS developed a proposal to reproduce all issues of the Magazine published between 1888 and 1996 in CD-ROM format. The product was produced in significant part through a process of digital scanning. Each issue of the Magazine published between 1888 and 1996 was scanned, page by page, into a computer system. The scanning process created an exact image of each page as it appeared in the Magazine.*fn11 The issues of the Magazine appear chronologically, from the earliest at the beginning of the first disc to the latest at the end of the thirtieth disc.

"The Complete National Geographic: 108 Years of National Geographic Magazine on CD-ROM" ("CD-ROM 108"), which was introduced to the marketplace in 1997, has three components. The first is a multimedia sequence that displays NGS's logo, followed by a promotional message for Kodak and a sequence depicting the covers of ten issues of the Magazine that transition digitally from one into another. The multimedia sequence plays the first time a user boots up CD-ROM 108 and at the beginning of each subsequent session. In subsequent sessions, however, the user can skip the sequence by clicking on the logo once. The second component consists of the digital reproduction of the issues of the Magazine. The third is the computer program that serves as the storage repository and retrieval system for the Magazine images.

The parties dispute exactly what Complete National Geographic products other than CD-ROM 108 have reached the market. At the very least, however, defendants have admitted to release of the following products: (a) "The Complete National Geographic: 109 Years of National Geographic Magazine on CD-ROM" ("CD-ROM 109"), published in 1998; (b) "The Complete National Geographic: 109 Years of National Geographic Magazine on DVD" ("DVD 109"), published in 1998; (c) "The Complete National Geographic: 110 Years of National Geographic Magazine on CD-ROM" ("CD-ROM 110"), published in 1999; and (d) "The Complete National Geographic: 110 Years of National Geographic Magazine on DVD" ("DVD 110"), published in 1999.*fn12 Mindscape has distributed also "decade sets" of The Complete National Geographic, which contained, in CD-ROM format, issues of the Magazine from various decades in history.*fn13

Each of the Complete National Geographic products displays a copyright notice in the name of NGS. The notice appears on the product packaging as well as on any pages that are printed out from the product.*fn14 The consumer licensing agreement accompanying CD-ROM 108 advised end-users that "Mindscape and its suppliers grant you the right to use one copy of the Program for your personal use only" and that "[y]ou must treat the [p]rogram and associated materials and any elements thereof like any other copyrighted material."*fn15 The CD-ROM 108 packaging informed the consumer that he or she may "[p]rint any article or photograph in color or black and white."*fn16

The Professional Relationship Between Ward and NGS

Mr. Ward worked as a freelance photographer and writer for NGS during the 1960's and 1970's. In some instances, the terms of his assignments were memorialized in writing.*fn17 In his Rule 56.1 Statement, plaintiff admitted the following facts for purposes of this motion: (1) plaintiff created the photographs and/or texts for the Costa Rica, Sharks, National Parks/Parkscape USA, Leeward Islands, Rhode Island, Everglades, and Those Successful Japanese stories pursuant to assignments from NGS, (2) NGS paid Ward a minimum guarantee for his contributions to all of these stories, and (3) NGS paid Ward's expenses for the Costa Rica, Sharks, National Parks/Parkscape USA, Rhode Island, and Those Successful Japanese stories.*fn18

Nor can it seriously be disputed that plaintiff created the photographs and text for the Cree Indians story pursuant to an assignment from NGS, and that NGS paid him a minimum guarantee and expenses for his contributions to this story.*fn19 The letter contract for this story, which was written by Robert Gilka and dated June 13, 1973, clearly provided that NGS "will retain all rights to the photographs [NGS] publish[es] in the Cree Indians article" and "return . . . all photographs in which [NGS] ha[s] no further interest."*fn20

Finally, defendants admit for purposes of this motion that Ward's photograph of John F. Kennedy in the Oval Office, published in The Living White House story, was not created as a work for hire.*fn21 As will be discussed in greater detail below, the remaining contours of the Ward-NGS relationship during the relevant time period remain subject to dispute.

Discussion

I. Summary Judgment

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.*fn22 While the burden rests on the moving party to demonstrate the absence of a genuine issue of material fact,*fn23 and the Court must view the facts in the light most favorable to the nonmoving party,*fn24 a defendant may prevail if it can demonstrate that the plaintiff cannot establish an essential element of its claim.*fn25 Where, as here, the burden of proof at trial lies with the nonmoving party, it ordinarily is sufficient for the moving party to point to a lack of evidence on an issue sufficient to go to the ...


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