Whose Copyrights?

Article excerpt

There's a lot more activity over intellectual property rights than disputes over trademarks or domain names on the Internet. Friction has been increasing between freelancers and publishers about copyrights, licenses, reuse and electronic reproduction of freelance works.

A milestone in the long-standing disagreent was the decision last August in the case of Tasini vs. New York Times. U.S. District Judge Sonia Sotomayor ruled that publishers of a newspaper or magazine are allowed to reuse contributions in "any revision of that collective work."

The decision threw out freelance writer Jonathan Tasini's complaint that the Times had infringed his copyrights by reusing published material in online databases and CD-ROMs without his permission or additional compensation.

Even though Tasini's attorneys are likely to reargue the case in the federal trial court in New York City, an appeal was expected because it was among the first cases to address copyrights in new media.

Unfortunately, the ruling, largely limited to distributing archival material in other media, has been interpreted to be more broad than it was, said Dan Carlinsky, vice president of contracts for the American Society of Journalist and Authors.

"It was a decision by the lowest court in one district and has no binding precedent elsewhere," said Carlinsky, a freelance writer based in Connecticut. But it has muddied already murky waters, churned by market forces in the publishing industry.

Newspapers and magazines are profoundly interested in publishing online, and as media companies get larger, the individual publication is apt to be part of a chain. For now, publishers generate little money from online operations but are investing heavily in the new medium with an eye toward the future.

"The struggle going on between publishers and freelancers is an understandable struggle," Carlinsky said."New markets have opened up, and the issue is, who controls the content? It's not strictly because of electronic publishing, but that was a catalyst."

For decades, publishers displayed little interest in freelance copyrights because they lacked value.

"Oh, there were reprints, and things like that but that was like lightning striking. Now the system sees content and its reuse has value and the promise of more value," Carlinsky said.

Publishers may not be making money off Web pages, but they are licensing material to online data-bases such as Nexus, he said, comparing the situation in periodicals to what happened in film and TV, where few movies or programs make money initially but many become profitable in secondary markets: home video, foreign distribution and syndication.

For the stakes emerging, Tribune Co. and others are attempting to address up front what will be done with content, said Dale M. Cohen, a senior counsel for the Chicago-based media company. The Tasini decision clarified certain things, but has not changed how Tribune Co. deals with freelancers, he said. All freelancers sign contracts, but terms may be different.

He doesn't think the relationship between publishers and freelancers is in a state of flux, and neither does Lee Wilson, a Nashville, Tenn.-based intellectual property attorney who recently wrote The Copyright Guide: A Friendly Handbook for Protecting and Profiting from Copyrights, published by Allworth Press. …