US freelances win their work back

FREELANCES in the USA have won a legal judgement which is vital for journalists everywhere. Attempts by publishers around the world to claim that the theft of freelances' words and pictures was routine and legal are now in tatters. This is an important step toward establishing worldwide that quality journalism is best backed by individual journalists having ownership of their work and taking responsibility for it - not by corporations owning the news outright.

Six members of the National Writers' Union in the USA have won an appeal in the long-running lawsuit over unauthorised use of their work by the New York Times, the online database company MEAD, and others. On 24 September the Court of Appeals for the Second Circuit handed down a strong judgement, making it clear that newspapers have no right to re-sell articles online when they have bought only a license to use them once in print.

Back on 13 August 1997, Judge Sotomeyor initially ruled on the case, brought by National Writers Union president Jonathan Tasini and nine colleagues in December 1993. She dismissed the publishers' main argument - that they had an implicit right to re-sell freelances' work. But she then ruled that, under an obscure section of the US Copyright Act designed mostly to cover contributions to encyclopaedias and dictionaries, that the online editions of the newspapers were "revisions" of "collective works" - and so that the publishers needed neither freelances' permission nor to make any further payment.

The appeal panel ruled that "Publishers' contention that the electronic databases are revised, digital copies of collective works cannot be squared with basic canons of statutory construction." Layperson's-British-English translation: "It's crap.".

The defendants - The New York Times, Newsday, Time, MEAD Data Central Corp. and University Microfilms International - now have to decide whether to appeal to a higher court. The National Writers' Union, meanwhile, is supporting the freelances in taking the case to the next stage - claiming damages.

Jonathan Tasini commented: "We hope companies everywhere will come to us to negotiate a fair deal for writers rather than face a costly legal tsunami." The NWU has collected information from hundreds of writers whose works have been infringed, and will demand that their publishers pay compensation for past infringement and negotiate a contract with the Publication Rights Clearinghouse to license future rights. The PRC is a computerised licensing and syndication agency set up as an NWU initiative.

"We don't think continued litigation is in anyone's best interests," Tasini continued: "But make no mistake about it. We fought this suit for six years, and we intend to pursue this matter until all writers involved are treated fairly."

The most immediate result of the ruling will be to encourage writers in the US to refuse contracts which demand that they hand over all rights in their work to publishers for no extra money. In the US, as in the UK, publishers started trying to impose such "assignment" of rights in the early 1990s - as soon, the Freelance suspects, as their lawyers pointed out that their re-selling of freelances' work through databases would eventually be found to be illegal.

"Assignment" of all rights is simply not possible in most countries and is against the spirit, at least, of international law. This hasn't stopped publishers trying the "collective work" argument in France, the Netherlands and elsewhere - and being rebuffed by the courts, rather faster.

Christopher Warren, President of the International Federation of Journalists, said the case "shows yet again the importance of freelance journalists joining together and acting collectively through their union."

For more details see the NWU website.

Oct 1999
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