          In this action, the Court is called upon to determine 
whether publishers are entitled to place the contents of their 
periodicals into electronic data bases and onto CD-ROMs without 
first securing the permission of the freelance writers whose 
contributions are included in those periodicals.  According to 
the Complaint, filed by a group of freelance journalists, this 
practice infringes the copyright that each writer holds in his or 
her individual articles.  The defendant publishers and electronic 
service providers respond by invoking the "revision" privilege of 
the "collective works" provision of the Copyright Act of 1976, 17 
U.S.C.  201(c).  Defendants maintain that they have not 
improperly exploited plaintiffs' individual contributions, but 
that they have permissibly reproduced plaintiffs' articles as 
part of electronic revisions of the newspapers and magazines in 

which those articles first appeared.  For the reasons to be 
discussed, the Court agrees with defendants, and grants summary 
judgment in their favor.

BACKGROUND                         

          Plaintiffs are six freelance writers who have sold 
articles for publication in a variety of popular newspapers and 
magazines, including The New York Times, Newsday, and Sports 
Illustrated.  The first two of these periodicals, published 
respectively by defendants The New York Times Company and 
Newsday, Inc., are daily newspapers widely circulated to 
subscribers and newsstands.  Sports Illustrated, published by the 
defendant Time, Inc. ("Time"), is a weekly magazine featuring 
articles and commentary of particular interest to sports 
enthusiasts.  In addition to circulating hard copy versions of 
their periodicals, the defendant publishers sell the contents of 
their publications to the remaining defendants -- University 
Microfilms Inc. (now called UMI Company ("UMI")) and The MEAD 
Corporation (now called LEXIS/NEXIS ("MEAD")) -- for inclusion in 
assorted electronic data bases. 

          MEAD owns and operates NEXIS, an on-line, electronic, 
computer assisted text retrieval system in which articles from a 
number of leading newspapers, newsletters, magazines, and wire 
services -- including The New York Times, Newsday, and Sports 
Illustrated -- are displayed or printed in response to search 
requests from subscribers.  (Pl.s' Mot. Summ. J. Ex. 49 at 
M01464.)  UMI produces and distributes two CD-ROM products 
identified by plaintiffs in their Amended Complaint.  One of 
these products, "The New York Times OnDisc," operates in much the 
same manner as NEXIS, and is made up of the articles appearing in 
each issue of The New York Times.  The remaining CD-ROM, "General 
Periodicals OnDisc," provides a full image-based reproduction of 
The New York Times Book Review and Sunday Magazine.  

          Plaintiffs move for summary judgment on their claims of 
copyright infringement contending that the electronic 
reproductions of their articles are improper under the Copyright 
Act.  Defendants Time and Newsday move for summary judgment on 
the ground that plaintiffs entered into contracts authorizing 
these publishers to sell plaintiffs' articles to the electronic 
defendants.  All of the defendants argue that, even in the 
absence of such agreements, dismissal of this action is warranted 
because the publisher defendants properly exercised their right, 
under the Copyright Act, to produce revised versions of their 
publications.           

     A. The Parties' Relationship 

          The six plaintiffs claim that defendants infringed 
their copyrights in a total of 21 articles sold for publication 
between 1990 and 1993.  Twelve of these articles, written by 
plaintiffs Tasini, Mifflin, and Blakely, appeared in The New York 
Times.  Another eight of the articles, by plaintiffs Tasini, 
Garson, Whitford, and Robbins, were featured in Newsday.  The 
remaining article, a piece entitled "Glory Amid Grief" by 
plaintiff Whitford, appeared in an issue of Sports Illustrated.  
All of the plaintiffs wrote their articles on a freelance basis, 
and not as employees of the defendant publishers.

          1.   The New York Times

          As of the time this action was commenced, freelance 
assignments for The New York Times were typically undertaken 
pursuant to verbal agreements reached between the newspaper and 

the contributing journalists.  A New York Times editor and a 
selected freelance writer ordinarily agreed upon such matters as 
the topic and length of a particular piece, the deadline for 
submission, and the fee to be paid.  (Keller Dec. Ex. B7.)  These 
discussions seldom extended into negotiations over rights in the 
commissioned articles.  Indeed, there were no such negotiations 
between The New York Times and any of the plaintiffs, all of whom 
submitted their articles for publication by The New York Times 
without any written agreements.  Id.

          2.   Newsday

          Prior to this action, Newsday solicited its freelance 
contributions in much the same manner as did The New York Times.  
Freelance assignments for Newsday were most often undertaken 
pursuant to discussions between editors and writers and without 
any written agreements.  (Keller Dec. Ex. B2.)  However, the 
checks with which Newsday paid freelance writers for their 
contributions, including those checks sent to plaintiffs 
following the publication of their articles, included the 
following endorsement:

     Signature required. Check void if this endorsement 
     altered. This check accepted as full payment for 
     first-time publication rights (or all rights, if 
     agreement is for all rights) to material described 
     on face of check in all editions published by 
     Newsday and for the right to include such material 
     in electronic library archives.

(Pl.s' Mot. Summ. J. Ex. 47.)  Plaintiff Tasini crossed out this 
notation prior to cashing those checks paying him for his two 
disputed submissions to Newsday.  Those plaintiffs who wrote the 
remaining six Newsday articles cashed their checks with the 
notation intact.

          3.   Sports Illustrated

          Only plaintiff Whitford submitted an article for 
publication in Sports Illustrated.  The relationship between Time 
and Whitford was decidedly more formal than the arrangements 
routinely entered into between freelance writers and Newsday or 
The New York Times.  Whitford and Sports Illustrated entered into 
a written contract specifying the content and length of the 
purchased article, the date due, and the fee to be paid by the 
magazine.  The contract also provided Sports Illustrated "the 
following rights":

(a)   the exclusive right first to publish the Story in 
     the Magazine:
     (b)  the non-exclusive right to license the 
     republication of the Story whether in translation, 
     digest, or abridgement form or otherwise in other 
     publications, provided that the Magazine shall pay 
     to you fifty percent (50%) of all net proceeds it           
     receives for such republication: and
     (c)  the right to republish the Story or any 
     portions thereof in or in connection with the 
     Magazine or in other publications published by The 
     Time Inc. Magazine Company, its parent, 
     subsidiaries or affiliates, provided that you 
     shall be paid the then prevailing rates of the 
     publication in which the Story is republished. 

(Keller Dec. Ex. C7.)  Plaintiff Whitford claims that he did not 
intend, by this language, to grant Time electronic rights in his 

article.  (Pl.s' Mot. Summ. J. Ex. 14.) 

     B.   The Technological Reproductions 

          Beginning in the early 1980s, the defendant publishers 
entered into a series of agreements pursuant to which they sold 
the contents of their periodicals to the electronic defendants.  
NEXIS has carried the articles appearing in Sports Illustrated 
since 1982, The New York Times since 1983, and Newsday since 
1988.  (Keller Dec. Ex. B5 at PP 3,4,8.)  UMI has distributed 
"The New York Times OnDisc" since 1992, and The New York Times 
Magazine and Book Review have been available on the image-based 
CD-ROM since 1990.  (Keller Dec. Ex. B6 at PP 3, 8.)  

          1.   NEXIS 

          The defendant publishers deliver or electronically 
transmit to NEXIS the full text of all of the articles appearing 
in each daily or weekly edition of their periodicals.  The 
publishers provide NEXIS with a complete copy of computer text 
files which the publishers use during the process of producing 
the hard copy versions of their periodicals.  Coded instructions 
as to page lay out added to these files permit typesetters 
working for the publishers to produce "mechanicals" -- which 
resemble full pages as they will appear at publication -- copies 
of which are transmitted to printing facilities for mass 
production.  NEXIS does not use the electronic files to create 
"mechanicals" or to emulate the physical lay out of each 
periodical issue: such things as photographs, advertisements, and 
the column format of the newspapers are lost.  NEXIS instead uses 
the electronic files to input the contents of each article on-
line along with such information as the author's name, and the 
publication and page in which each article appeared.  The 
articles appearing in The New York Times and Newsday are 
available within twenty-four hours after they first appear in 
print, and the articles from an issue of Sports Illustrated 
appear on-line within forty-five days of the initial hard copy 
publication.  

          Customers enter NEXIS by using a telecommunications 
package that enables them to access NEXIS' mainframe computers.  
Once on-line, customers enter "libraries" consisting of the 
articles from particular publications, or groups of publications.  
Customers can then conduct a "Boolean search" by inputting 
desired search terms and connectors from which the system 
generates a number of "hits."  These "hits," the articles in the 
library corresponding to the selected search terms, can be 
reviewed either individually or within a citation list.  A 
citation list identifies each article by the publication in which 
it appeared, by number of words, and by author.  When a 
particular article is selected for full-text review, the entire 
content of the article appears on screen with a heading providing 
the same basic information reported within a citation list.  
Although articles are reviewed individually, it is possible for a 
user to input a search that will generate all of the articles -- 
and only those articles -- appearing in a particular periodical 
on a particular day.   

          2.   The New York Times OnDisc

          "The New York Times OnDisc," the text only CD-ROM 
product, is created from the same data furnished by The New York 
Times to NEXIS.  Indeed, at the end of each month, pursuant to a 
three-way agreement among The New York Times, NEXIS and UMI, 
NEXIS provides UMI with magnetic tapes containing this 
information.  UMI then transfers the content of these tapes to 

CD-ROM discs and codes the included articles to facilitate 
Boolean searching.  

          Not surprisingly, given that the two systems share 
data, the text-based CD-ROM operates much like NEXIS.  Users 
enter search terms prompting the system  to access all 
corresponding articles.  These articles are displayed with 
headings indicating the author, and the date and page of The New 
York Times issue in which the articles appeared.  As with NEXIS, 
an article selected for review appears alone; there are no 
photographs or captions or columns of text.  Moreover, a search 
typically retrieves articles which were published on different 
dates, though it is possible to conduct a search that will 
retrieve all of the articles making up a single issue of The New 
York Times. 

          3.   General Periodicals OnDisc

          "General Periodicals OnDisc," an image-based CD-ROM 
product, does not carry full issues of The New York Times, but 
only the Sunday Magazine and Book Review.  It includes numerous 
other periodicals, as well, although none of those involved in 
this litigation.  The image-based system differs from the other 
technologies presently at issue in that it is created by digital 
scanning.  Articles are not inputted into the system 
individually, but the entire Sunday Magazine and Book Review are 
photographed producing complete images of these periodicals.  
Articles appear precisely as they do in print, complete with 
photographs, captions, and advertisements.  

          "General Periodicals OnDisc" does not employ Boolean 
searching.  Image based discs are sold alongside text-based 
discs, which are searchable, and which provide abstracts of 
articles.  By searching these abstracts, users can identify 
articles that are of interest to them.  Users can then return to 
the image-based system in order to retrieve those articles.  
Drawing upon this interplay between discs, plaintiffs propose 
that the image-based CD-ROMs are better characterized as part-
text/part-image based CD-ROMs.
