In December 1993, a group of 11 freelance writers sued two newspaper publishers, two magazine publishers and two electronic reusers of published works. The claim: copyright infringement, based on the reuse of published articles in online databases and CD-ROMs without the writers’ consent. It was the first new-media copyright case of its sort.
For more than three and a half years, the case known as “Tasini v. The New York Times” slogged through federal court in Manhattan. Reams of legal papers were filed, four writers dropped out, and one writer and one publisher (Atlantic Monthly) settled, on undisclosed terms. Finally, [in mid-August], came the decision: Case dismissed. Publishers win.
Not so fast.
U.S. District Judge Sonia Sotomayor’s 56-page decision, which involved complaints against the New York Times, Newsday, Sports Illustrated, Lexis-Nexis and UMI (formerly University Microfilms, Inc.), knocked out some of the media organizations’ defenses. For example, Newsday argued that the rubber-stamp legend on the back of its checks to freelancers, which claimed rights for “electronic library archives,” covered the publisher. The judge said no. But a provision of the Copyright Act of 1976 allows the publisher of a collective work (such as a magazine or newspaper) to reuse contributions in “any revision of that collective work.” Sublicensing the contents of their publications for use in the Lexis-Nexis online database and UMI’s CD-ROMs, the defendant publishers said, was making such a revision. The judge agreed, and on that basis threw out the writers’ case.
The August 13 ruling left writers and publishers asking what it all means to them.
Perhaps oddly, lawyers and other close observers on both sides seem to agree that the victory is no green light for publishers everywhere to walk off with freelancers’ electronic rights for any new-media purpose they wish.
Lead defense counsel Bruce Keller, a partner at Debevoise & Plimpton in New York, told Steve Lohr of the New York Times: “The judge ruled that CD-ROMs and some kinds of databases are the functional equivalent of microfilm. But it is not a sweeping decision that determines copyright in all forms of electronic media.”
A year ago, a Times in-house lawyer discussed the then-pending court battle over freelance articles. “It is important...to appreciate the limited scope of the issue,” Kenneth Richieri wrote in the Summer 1996 issue of the Columbia-VLA Journal of Law & the Arts. “It pertains only to the appearance of such works in electronic archives of the Nexis variety and does not address the inclusion of such works in new electronic publications.”
The writers agree that the decision’s scope is limited, not necessarily including Web editions of magazines and newspapers and other forms of electronic publication. But they hastened to add that the story is far from over. “This is no done deal,” Jonathan Tasini told ASJA Contracts Watch. Tasini, president of the National Writers Union and the lead plaintiff among the writers who brought suit, sounded ready for another crack at making the writers’ case. “After reading the judge’s interpretation of ‘revision,’” he said, “we’re confident that an appeals court judge will reverse the decision.” In her decision, Judge Sotomayor suggested that Congress could not have foreseen “such lucrative markets” as some electronic publishing has become. So by her reading of the law, writers unfortunately get the short end of the stick.
“The Court does not take lightly that its holding deprives plaintiffs of certain important economic benefits associated with their creations,” she wrote. But for that, she continued, freelance writers must blame “modern developments which have changed the financial landscape in publishing.”
Reprinted with permission from a report by the American Society of Journalists and Authors.