Miller, Kate, Investigative Reporters and Editors, Inc. The IRE Journal
Freelancers win in landmark copyright case, but know contract negotiations are key
The latest ruling in a landmark case involving electronic reproduction rights of freelanced works resulted in a courtroom victory for freelance writes, but the impt of the nding on their work remains unclear.
On Sept. 24, the U.S. Court of Appeals for the Second Circuit unanimously ruled in Tasim v. New York Times Co. that electronic rights were retained by freelance writers under the Copyright Act of 1976 even when included in reproductions of entire collective works. A lower court ruling in 1997 had decided that works reproduced within the entire original collection were only "revisions" and did not infringe upon copyrights.
The ruling was the culmination of a six-year legal battle pitting six freelance writers against five of the biggest names in publishing: The New York Times, Inc.; Newsday, Inc.; The Time Inc. Magazine Co.; Mead Data Central Corp.; and University Microfilms International.
At the heart of the case was a disagreement over the very nature of electronic reproductions.
"The suit initially started because we really did need a re-definition of copyright law in the electronic information age," said freelancer and plaintiff Mary Kay Blakely.
But what began as a search for truth developed into a bitter dispute over money between freelancers and print publishers engaging in electronic publishing. Jonathan Tasini, president of the National Writers Union and a plaintiff in the case, said the fight has only intensified in recent years as the popularity of electronic publishing has increased among consumers and publishers.
"You're talking about millions of dollars that aren't going to freelancers, whether because media companies are outright stealing work from writers, which this decision proves, or they are forcing writers to sign all-rights contracts and basically saying 'we're not going to pay you,"' Tasini said.
As a result of the ruling, publishers must now pay freelance writers a portion of any profit they receive from electronic reproductions. Despite the publishers' vow to fight on, the NWU has set up a clearinghouse to help freelancers collect due payments. Just how much they should receive has yet to be determined.
"That's what the writers and the union are really going to have to sit down and figure out," Blakely said. "If anyone has collected money from the sale of these works to the databases, writers should get some of that money. If the entire newspaper is sold and I have one column, how much money is that one column worth?"
According to The New York Times' assistant general counsel George Freeman, such discussions are a bit premature.
"The notion that we're going to have to pay huge amounts of money is ill thought out," he said. "We don't intend to pay them."
Freeman said that if the ruling ultimately stands, The New York Times will delete the electronic records from the various databases. It is a solution, he said, that is bad for everyone.
"I think it's a lose-lose situation. I think it's ultimately something that the freelancers don't want because it means they're no longer associated with The New York Times," he said. "It hurts researchers because it creates gaps in the historical record. …