By Anderson, Heidi V.
Editor & Publisher , Vol. 130, No. 18
Cana publisher legally use freelance pieces online in the absence of an agreement on electronic rights? Should freelancers sign work-for-hire contracts that give newspapers full control over electronic distribution of articles?
Is an online version of a newspaper just another publishing medium for the same product, or is it a different animal entirely?
And will the two sides -- publishers and freelancers -- ever agree on these issues?
Right now it appears as if the answer to the last question, at least, is a simple one: no.
From major media conglomerates to community weeklies, newspapers around the country are trying to find common ground with their freelancers on who does, who doesn't, and who should own content in the age of the World Wide Web.
Disagreements have led to protests, and in some cases lawsuits, while in others the sides are trying to resolve matters amicably.
Here's a look at where the issue of electronic rights for freelancers stands now and where it's headed.
The dispute came to a boil three years ago when a group of authors filed suit against the New York Times Co. and other publishers over the digital reuse of articles without express consent of, or payment to, the journalists.
In this still-active case -- both sides have moved for summary judgment -- the publishers argue they have the right to sell pieces to an online database such as Lexis-Nexis. The freelancers contend they sold only limited rights to publish their work -- excluding databases.
"The argument is that `we the news' have the right to take these articles and put them into our archival database," says Dan Carlinsky of the American Society of Journalists and Authors in New York. "When I create a piece as an individual contractor and not as an employee, it's mine and I may license it to others, not the newspaper."
The New York Times disagrees.
"This case is a very narrow issue," says Kenneth Richieri, assistant general counsel for the New York Times Co. "When no agreement exists, can a publisher include freelance pieces in an electronic version? The freelancers say no. We say that even if we've never talked about microfilm, we can put articles on microfilm. The same rule applies to CD-ROM, Lexis-Nexis and other media. This is not about broad electronic rights."
A federal judge is expected to decide the case later this year.
What that suit is limited in scope, a broader issue exists that affects newspapers everywhere, whether they have seven-digit circulations or only one staff writer. Three years ago, newspaper Web sites were almost non-existent. Today, 1,500 put their content on the Web. The sites carry everything from news and opinions to the comics, and there's hardly a newspaper in existence that doesn't use freelancers for some portion of its content -- and therefore wants to include their work on the Web. These days, when it comes to contracts, you can count on a mention of electronic rights.
The New York Times is in the spotlight for its treatment of this issue. In mid-1995, the paper sent a memo to editors with a formal agreement that required freelancers to sign away all future rights, reversing a tradition of licensing one-time, first publication rights.
The memo stated that writers who declined to sign all rights over to the Times would no longer be published in the paper. When news of the memo spread, famous writers, including Ken Follett, Garrison Keillor, Erica Jong, Alvin Toffler and Barbara Ehrenreich, publicly signed a statement urging the Times to rethink its position.
The Times later sent out an e-mail reiterating its stance, angering more freelance writers and writers' organizations such as the Writer's Workshop Review magazine and the National Writers Union. …