Tasini Case Final Decision: Authors Win

Article excerpt

The U.S. Supreme Court has ruled on the issue of freelance writers' rights to separate compensation for electronic copies of their work. The opinion in New York Times Co., Inc., et al. v. Tasini et al., 2001 WL(00-201, June 25, 2001) decided in favor of the authors. (Read the entire opinion at http://www.supremecourtus.gov/opinions/opinions.html.) The seven-justice majority opinion penned by Justice Ginsburg found that "[b]oth the print publishers and the electronic publishers ... have infringed the copyrights of the freelance authors." In the end, the court concluded "that the Electronic Publishers infringed the Authors' copyrights by reproducing and distributing the Articles in a manner not authorized by the Authors and not privileged by sec. 201(c). We further conclude that the Print Publishers infringed the Authors' copyrights by authorizing the Electronic Publishers to place the Articles in the Databases and by aiding the Electronic Publishers in that endeavor."

The freelance authors in the case are six individuals who contributed articles to two print newspapers (The New York Times and Newsday) and one magazine (Sports Illustrated, owned by Time). The authors argued that their contracts with the publishers did not concede their rights to retain copyright in the articles nor did they include permission for the electronic reproduction of their works in any kind of database with or without compensation.

The print publishers in the Tasini case included the New York Times Co.; Newsday, Inc.; and Time, Inc. The electronic publishers were LexisNexis, with its Nexis database of individual articles from the print publishers, and University Microfilms International (UMI; now ProQuest Information and Learning), which produces two CD-ROM database products (New York Times OnDisc and General Periodicals OnDisc). All of the database products reproduce each author's entire article and are searchable on the individual article level. All of the database products provide only the article(s) retrieved in a search, not the entire issue (of the newspaper or magazine). So, unlike archival microform or the original issue, one cannot "flip" to surrounding pages.

At no time did the print publishers or the electronic database publishers seek the consent of the authors, nor did either compensate the authors for the reproductions.

The issue before the court was "whether the copying of the Authors' Articles in the Databases is privileged by 17 U.S.C. section 201(c)," a section covering collective works. The court "conclude[d] that the databases do not reproduce and distribute the Articles as part of a collective work privileged by section 201(c)." This section permits publishers, without consent of or compensation to the holders of the copyright in individual articles (e.g., chapters, or pieces of a whole work or issue) to revise the whole issue, book, etc. Under Section 201, the publisher can also reproduce and distribute the author's contribution to the whole (an article, etc.) for a later collective work in the same series.

The court noted that if "there is demand for a freelance article standing alone or in a new collection, the Copyright Act allows the freelancer to benefit from that demand; after authorizing the initial publication, the freelancer may also sell the article to others.... 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 author's contribution in isolation or within new collective works." The courtreferred to the belief that "freelance authors have experienced significant econornic loss" due to a "digital revolution that has given publishers [new] opportunities to exploit authors' works." The court went on to note that the "Databases' reproduction and distribution of individual Articles-simply as individual articles-would invade the core of the Authors' exclusive rights. …