I guess this week’s US Supreme Court decision in New York Times Co. v Tasini answers the age-old conundrum of when a tree falls in the forest, does anyone hear? The trees fell, and we all heard. But they didn’t, so does it matter?
In a surprising decision, the Supremes ruled 7 – 2 that newspaper and magazine publishers infringed the copyrights of freelance writers when the writers’ articles were published in electronic databases without permission after print publication. While no remedy for the copyright infringement was outlined in the decision, publishers face the likelihood of paying significant damages to the thousands of freelance writers whose work was used without permission.
The publishers argued that including freelance writers’ works in electronic databases was simply a “revision” and therefore allowable under the copyright law. The court didn’t buy it. Freelance writers’ works used without permission in an electronic database “no more constitutes a ‘revision’ of each constituent edition than a 400-page novel quoting a sonnet in passing would represent a ‘revision’ of that poem,” Justice Ruth Bader Ginsburg wrote in her majority opinion.
Justice John Paul Stevens wrote the dissenting opinion and was joined by Justice Stephen Breyer. Stevens and Breyer believe that the inclusion of individual articles within an electronic database amount to a revision as the term is defined in Section 201(c) of the 1976 revision of the Copyright Act of 1909. The dissenting opinion seems to stem from the concept of changes to a collective work (which can, and usually is, copyrighted separately from its constituent parts).
Of course most writers won’t see a penny from the decision because since the early 1990s most publishing contracts have demanded the writer grant the publisher “all rights in any medium, known or unknown, throughout this or any other universe.” I’m not kidding.
In an appalling — but not surprising — move, the publishers quickly announced that, rather than make a fair payment to the writers, they would immediately begin removing the infringing material from their databases. Arthur Sulzberger Jr., chairman of the New York Times Company, led the charge, telling the nation’s newspaper of record that it “will now undertake the difficult and sad process of removing significant portions from its electronic historical archive.”
Dan Gillmor, of the San Jose Mercury News, summed it up nicely: “The Times‘ response to its loss in court reminds me of the kid who brings the bat and ball to the pickup baseball game, gets mad after striking out and goes home, taking the bat and ball. If he can’t win, nobody will play. A great newspaper is acting like a spoiled brat. That’s disappointing to those of us who admire the Times in so many other ways.”
To date, nowhere in any medium, have I read, seen, or heard any publisher acknowledge that maybe, just maybe they should pay freelance writers a fair license fee to include their works in electronic databases.
This is the same approach the publishers took when I demanded payment from Ziff-Davis for years’ worth of my copyrighted material they had published electronically without permission. In those days (late 1980s – early 1990s), Ziff-Davis and other trade publishers presented outrageous contracts to freelance writers, demanding all rights in all mediums. Some of the writers, including me, refused to sign the contracts and granted only one-time North American print rights, retaining all other rights. Ziff-Davis representatives said that they would stop buying material from us, but they never did; the assignments kept coming. Acknowledging I had been Ziffed, I eventually let the matter drop when I couldn’t even negotiate a print subscription out of them. I haven’t written for a trade magazine since.
Jonathan Tasini, lead plaintiff in the case and president of the National Writers Union, stated “it’s time for the media industry to pay creators their fair share” and called for both sides to negotiate.
In 1993 the National Writers Union set up a Publication Rights Clearinghouse that works like similar models in the music publishing industry. Writers register their work with the clearinghouse and publishers can use it to track copyright ownership and license obligations.