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.
Note that § 201(c) is stated in restrictive form; that is, the default condition is "no rights, unless it fits these exceptions," not "has the right for these circumstances unless explicitly denied". Cf. Tasini, 533 U.S. at 497 ("It would scarcely preserve the author[']s copyright in a contribution as contemplated by Congress if a newspaper or magazine publisher were permitted to reproduce or distribute copies of the authors contribution in isolation or within new collective works.") (internal citation omitted); id. at 497–98 n.6.
The Second Circuit believes that the NG CD is "like" microfilm and microform, which it construes Tasini as approving. Faulkner, slip op. at 16–17, but fails to note that the Supreme Court disapproved the rather similar New York Times Online. The distinction—although this is far from entirely explicit—is that one of the databases (the NG CD) is page images that preserve layout, and so on, while the NYTO is a textual conversion that loses page layout.
If the subject matter of Faulkner concerned article text, this would be a much closer case. But it does not. It concerns photographs, not articles, and was brought by photographers, not writers—just as was Greenberg. What is truly startling about Faulkner is that it does not once cite VARA (17 U.S.C. § 106A), which provides somewhat greater rights to visual arts than to textual or audio works. Neither does Faulkner note that Tasini concerned textual materials, and Justice Ginsburg's opinion in Tasini depends rather explicitly on the "media neutrality" of text. Then there's the question of whether the Second Circuit has properly characterized the requirements for collateral estoppel in this matter. Not having read the record below in Faulkner, I can't really say for certain whether it was correct to deny collateral estoppel, as there may have been waivers of arguments and issues and/or concessions of fact that distinguish the two matters. Nonetheless, the Second Circuit's characterization of the rules for collateral estoppel differs from the law in the Eleventh Circuit, which itself raises an interesting, renvoi-like choice-of-law problem. Collateral estoppel is different from most "procedural" rules because it is, in reality, a mixed question of law and fact. So, then, should the Second Circuit have applied its own collateral estoppel law, since Faulkner arose there, or the Eleventh Circuit's collateral estoppel law, since the Eleventh Circuit is the place where the party to be bound by collateral estoppel got its adverse result?
This case, then, probably should be reviewed by the Supreme Court. It has both an implicit and an explicit circuit split; and it has the additional attraction of an "absolute conflict," because the matter arises from the identical (not just operatively identical) set of underlying facts.