Freelancers Want the High Court to Rewrite Pay Rules

It’s a big guy/little guy scenario: the multibillion-dollar newspaper and magazine empires versus the lowly and low-paid freelance writers.

The battle lines are drawn. The stage is set. Now comes the end of the seven-year legal battle that will be played out later this month in the solemn, wood-paneled chambers of the U.S. Supreme Court.

The case’s core issue is one freelancers say is key to their livelihood. They claim the media companies have cheated them out of money that is rightfully theirs. The companies say it’s just not so. All this because of the fast-paced advances in the digital world that have created an issue that did not exist even a decade ago.

The high court will hear arguments March 28 in the case of Tasini vs. the New York Times, which should clarify, to some point at least, what rights freelance writers have in this new age of electronic wizardry.

At the forefront of this long legal battle is Jonathan Tasini, a Los Angeles native who is a freelance writer and president of the New York-based National Writers Union and a longtime advocate of authors’ rights. He, along with 10 other writers, initiated the suit in 1993, claiming the Times and others were reselling their work to electronic databases without compensating the authors. At first, the case received scant attention. Not so anymore.

“When we first started the case, I had to beg lawyers to even look at it,” said Tasini. “Once the Supreme Court took our case, my phone was ringing off the hook with lawyers willing to argue the case.”

Since the suit was filed, the stakes have escalated dramatically, with the popularization of Web pages, CD-ROMs, online services and other electronic media that have become a pervasive part of everyday life. And with that proliferation, the lines have blurred over who owns intellectual property in the electronic marketplace.

As the case goes before the court, the media giants--including the New York Times, Newsday (which is owned by Tribune Co., parent company of the Los Angeles Times), Time Inc. and Lexis-Nexis, among others--must argue that the 1999 decision in which the 2nd District U.S. Court of Appeals sided with the writers be overturned. The writers also have garnered support from the U.S. Register of Copyrights as well as the influential American Library Assn.

Both sides offer divergent views on the outcome of the case.

The media companies predict dire consequences should the writers prevail, saying they’ll be forced to eliminate thousands of freelance articles and photos from their databases that would, in turn, drastically affect historical research. The purging of stories would be necessary, they argue, because it would be impossible to track down and compensate authors who, in some cases, wrote their articles more than two decades ago.

The writers, in contrast, contend a victory in the Supreme Court should be the first step in the process of receiving payment for their electronically distributed work. As a show of how divisive the issue is, a number of noted historians have lined up on both sides of the argument. They include such luminaries as David McCullough and Doris Kearns Goodwin on the publishers’ side and historians Jacques Barzun and Robert K. Massie in support of the writers.

Tasini, the writers’ union president, said the case began when he and others noticed that their work was being resold to databanks by publications that originally commissioned the articles. The writers filed suit, arguing that reselling articles via the Nexis system and others was a violation of copyright law because the articles were “revised” simply by being put into a databank without the authors’ permission.

“We did a little research and decided there was widespread theft that was going on that had to be challenged in court,” said Tasini in a recent interview. The media companies’ view was quite the opposite, arguing that putting the stories in a databank was the same thing as printing a later edition or putting the articles in an anthology.

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The writers lost the first round of the case when the lower court judge sided with the companies’ interpretation of the law. But Tasini and company won in the court of appeals, which ruled that it was a copyright infringement to publish freelancers’ work without explicit permission.

But now, even with the upcoming arguments before the Supreme Court, one school of thought is that the media companies may lose this battle but win the war because they will demand (as many do now) that writers sign contracts turning over all rights, even those that don’t exist at the moment.

“I consider it to be a nonissue at this late date,” said Jonathan Kirsch, copyright expert and Los Angeles Times book reviewer, who has followed the case since its inception. “The questions the Tasini case raise have been answered in practice by publishers who have changed their contract forms. It was obvious that publishers needed to dust off and update contracts they offered to freelancers to eliminate the ambiguities that existed in the Tasini case.”

Still, as far as royalties go, many cases remain relevant. And those siding with the writers have painted the companies’ warnings about the mass destruction of archives as unnecessary. One of those is Marybeth Peters, the U.S. register of copyrights, who said destroying the archives would only harm public interest.

“Ultimately, the Tasini case should be about how the authors should be compensated for the publishers’ unauthorized use of their works and not about whether the publishers must withdraw those works from their databases,” she wrote in a letter that was read into the Congressional Record last month.

The lawyer representing the New York Times and others is Laurence Tribe, a Harvard professorwho has argued many times before the high court. He is adamant that the deletion of archives is a possibility if his side loses the case.

“They [Tasini et al] can’t purport to negotiate a solution for freelancers past, present and future around the country,” Tribe said. “They couldn’t solve the problem of a decades-old backlog in countless magazines and newspapers. That is the reason all the historians are alarmed.”

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Tasini, meanwhile, said what he and other writers want is a clearinghouse similar to that used to pay musicians royalties. He said such a mechanism, devised by his union and called the Publications Rights Clearinghouse, is already in place and would benefit the thousands of freelancers--his estimate is a minimum of 100,000 people--who make their living as piece workers rather than as full-time employees.

One of those who chose to use it was Steven Brill, publisher of Brill’s Content, who recently agreed to pay writers 30% of article sales on his Contentville Web site. He said his reasoning was simple.

“If the court decision says [the writers] own the material, then they should get paid for it,” Brill said. “It’s a fundamental matter of fairness and obeying the law.”

Other sources that have negotiated with the union for electronic rights include the magazines the Nation and In These Times, and the databases Uncover and SIRS Mandarin.

Meanwhile, Laurence Gold--who will be arguing the case for the union, in his 40th appearance before the high court--said it is still unclear what changes a victory would bring in how writers are compensated.

“I hope it works out well for the writers,” Gold said. “It can’t work out worse.”