In the Wake of Tasini

How alt pubs should get their freelance house in order

The Supreme Court ruled in June 2001, in Tasini v. New York Times et al., that publishers must have a specific agreement regarding use of freelance material in electronic publications outside their print edition. This definitely concerns you if you sell your freelance material to any database, like LEXIS or Factiva. It is likely to be of concern even if you post freelance material to your own newspaper’s Web site.

The Copyright Act remedies for copyright infringement include the right to file an action in federal court, and if successful, to claim damages, from $700 to $30,000, without proving actual damages or any losses.” Depending on whether the infringement was “innocent” or “willful,” the court has the discretion to award legal fees as low as $200 or as high as $150,000. There is a three-year statute of limitations on civil claims. However, in theory, that three-year statute starts running every time someone “accesses” the article in question, because that constitutes a new publication. No plaintiff may sue in federal court without registering the allegedly infringed work with the Register of Copyrights.

Some publishers reacted immediately to the Tasini ruling. The New York Times, one of the Tasini defendants, gave its freelance workers the choice to allow their articles to continue to be posted and waive all payments, or to remove the material from any electronic archive. The Newspaper Association of America suggested similar choices to its members: purge all of the articles affected by this decision or negotiate specific agreements with freelancers whose articles you published in an electronic format.

Jonathan Tasini, president of the National Writers’ Guild and lead plaintiff in the litigation, has been quoted as pleading with publishers not to take a New York Times style “hard-line” but to keep minds open and to negotiate with authors.

Recently, the National Writers’ Guild and Steve Brill, publisher of Contentville, did negotiate an agreement that will give freelance writers 30 percent of the revenue from a sale of their articles from the Contentville site. According to columnist Brian Morrissey, “under terms of the deal, which was approved unanimously yesterday (August 3, 2001) by the NWU’s executive board, writers registered with the NWU’s Publication Rights Clearinghouse (PRC) will receive 30 percent of any sales of their copyrighted articles on the Contentville site. Writers also have the option of requesting that Contentville remove their articles from the site.” (Published on August 4, 2001.)

LexisNexis expects content providers to notify them immediately if they determine that they’re lacking the rights to any freelance articles that are licensed to LexisNexis and included in their database.

Other publishers have taken a “wait-and-see” approach, either assuming that their freelance writers will not take action or hoping that federal legislation will “fix” the problem, or perhaps because they do not want to take the problem seriously.

Other, more rational choices include all or one of these:

At the least, draft a contract for your freelance writers, artists, columnists and photographers that addresses the future rights issues. Ask these freelancers to sign the agreement before you publish their next work.

Inventory the freelancers who have NOT signed a contract providing for the electronic use of their materials. From a legal point of view, it makes sense not to use material from those people until they have signed a contract with you.

If you can’t get a satisfactory arrangement with them, purge their works from your electronic files and notify anyone else to whom you have sold the material.

There is one good rule that answers all copyright questions. The technical ability to make fast and easy copies is not the same as having the right to do so. Whether or not you agree with the Tasini rule, or sense any threat from your freelance relationships, my recommendation is to get your freelance house in order.

(See the details of the remedies section of the law by going through my Web site under the page called “Liability for Copying.” Here you’ll see the link to the U.S. Copyright Office Web site, where you click on Legislation, then Copyright Law, and then select “Chapter Five.”)

Copyright Alice Neff Lucan 2001