The Fight for E-Freelance Fees

Folio: The Magazine for Magazine Management, May, 2001 by Susan Thea Posnock

A pending Supreme Court decision will end a long-standing legal battle over copyrights in the digital age, but the outcome may propel freelancers to legislative recourse.

Publishers and freelancers each got their day in court as the Supreme Court entertained arguments in the online database rights case known as Tasini vs. The New York Times on March 28. And while a decision is not expected until June, an end to the highly publicized legal battle could mark just the first salvo in the digital rights war.

At issue in the case is whether the use of freelance articles on electronic databases, such as Lexis-Nexis, should be considered revisions of the original work or a "new collective work" requiring payment to the freelancer. The existing copyright law allows revisions of earlier material to be sold without additional compensation to an author.

If publishers prevail, freelancers aren't expected to acquiesce without a fight. "I imagine freelancers will attempt to get some legislative reversal of the Supreme Court's ruling," says Robin Bierstedt, vice president and deputy general counsel for Time Inc. She's been involved with the case since its initial filing in 1993.

National Writers Union president and lead plaintiff Jonathan Tasini says his organization is exploring legislative solutions, and that the case has had a significant impact on the publishing industry no matter what the outcome. "Win or lose, we've rallied creators," he says. "A loss to us is far less significant than a loss to publishers because we have mobilized people and shown the importance of electronic rights."

However, freelancers say they are already feeling the effects of the court battle. More and more publishers are asking for all rights when hiring freelance writers. "I think the implications of the Tasini case are going to be more historical than anything ongoing," says John Dix, editor of IDG's Network World. "Today we all have release forms that take [digital rights] into account."

Yet release forms that deal with digital rights have not yet achieved uniformity throughout the industry. Gruner Jahr USA recently amended its freelance contract and did not take an all-or-nothing approach. The company's revised standard contract with writers and photographers stipulates that fees will be paid to contributors in the event of third-party usage. However, the new policy does not pertain to any work done prior to the change.

The impact on archives

Publishers appear to be intent on not paying additional fees to freelancers for past work no matter what the outcome of the case. "There would be substantial negative impact on archives if the Court ultimately disagrees with the publishers' interpretation of the copyright law," says Jim Cregan, executive vice president of government affairs for the Magazine Publishers of America. Publishers have maintained that they will delete the articles affected by the case rather than deal with the logistics of paying freelancers for the newly categorized content.

Tasini says the warnings of a depleted historical archive are unfounded, and that he doesn't believe publishers will yank the disputed content off the Web. "They're not going to do it," he says. "There are ways of dealing with this. What we're hoping is that logical, fair publishers will sit down with us and negotiate a resolution."

Should publishers lose, damages would not be decided by the Supreme Court. Instead, the case would be remanded to district court for determination of damages. The U.S. Court of Appeals (2nd circuit) had decided in favor of freelancers in 1999, with the appeal being pushed to the Supreme Court by publishers.

Tasini says freelancers will not give up the fight going forward. "There's no question in my mind that writers are beginning to see that, while their individual work is unique, their collective economic future is tied together-- and that means they have to be part of a union to fight collectively to protect their rights," he says. "The media companies have different interests, and the only way these interests will end up being resolved or compromised is [for us to] have equal power. I think the lawsuit is one piece of that."