Most News Online Managers Relieved by Freelance Ruling

By: Steve Outing

This week's decision by a U.S. District Court judge in New York ruling that publishers have the right to electronically reproduce freelancers' work without getting permission from the writers -- or being obligated to pay them more money for electronic rights -- predictably has publishers and authors at odds. This is certainly not the end of this issue, and both sides expect this to continue either in a higher court, or in the halls of the U.S. Congress to enact federal copyright law changes that take into account the growth of the Internet as a profit-making publishing environment. A "win" this week for publishers could be temporary.

The judge's decision leaves the situation murky, for it applied to publishers' right to use freelance work on CD-ROMs and in archival databases; the ruling does not directly address newspaper Web sites, since the Web was not a part of the scene when this particular lawsuit was filed in 1993. (For other coverage of and details about the decision, see the Editor & Publisher Interactive News page.)

Following the decision, I conducted an informal survey of freelancers and online news publishers to gauge reaction.

The freelancers

"This is the worst possible thing that could have happened," says Jacqueline Kramer, a Seattle-based, full-time freelance writer. "I was sincerely hoping that the courts would help those of us who are not established enough to make demands or walk. Instead, they have cut my one-and-only argument for negotiations off at the knees."

Kramer says that to date she has gotten no extra money from any of her publishers for her material appearing online in addition to in print. "Every attempt to negotiate such rights has been met with the following response: 'We can get someone else.'" In order to get freelance work, she says she has felt forced to sign contracts with publishers that do not include extra compensation when her work appears online.

Many other freelancers report that they refuse to sign contracts that grant a publisher rights in all media without extra compensation. Alan Rothman, a California-based writer, estimates that 30% of his income comes from extra fees paid for his material to be published electronically. He says he will not sign a contract that gives a publisher the right to put his work online without additional compensation.

Says Rothman of the court decision, "Freelance writers need to obtain fair compensation for the literary property that they develop. Failure to pay proper compensation will only diminish the quality of the writing that enters the marketplace. If talented people do not receive adequate compensation, they must go to other methods of generating realistic income."

The new media managers

While freelancers predictably are fuming over this court decision, new media managers I contacted yesterday seemed relieved for some legal definition of a thorny issue, even if they know it may not last.

At Philadelphia Online, the Web service of the Philadelphia Inquirer and Daily News (both Knight-Ridder papers), general manager Fred Mann says, "Frankly, I was surprised by it. ... I can see the wisdom of both (sides') arguments, but I think on balance it's probably a correct decision."

The Philadelphia papers follow Knight-Ridder corporate policy, and the standard freelancers' contract followed throughout the chain purchases non-exclusive rights to a work for all media. Freelancers working with the Philly papers are free to sell their work to other publishers, but they don't get any extra money when the newspapers reproduce their work online -- either on the Web site, CD-ROM or in electronic archives.

Mann says that he cannot recall a single instance where the newspapers have paid extra for electronic rights. And if a writer refuses to sign the contract, typically the papers simply don't use that person's work. "We don't want to get into a situation down the road, where (in producing some derivative work like a CD-ROM or online package) we have to figure out whether we have rights" to use some material and not others, he says.

Dave Creagh, electronic publishing director of the Christian Science Monitor's Web site, says of the court decision, "It's high time. We like it a lot." The Monitor buys freelance work exclusive to all media for 90 days, after which the newspaper retains non-exclusive rights for all media, forever. The contract is generally non-negotiable, except occasionally for photographs, he says. Freelancers receive nothing for electronic re-publication.

An online executive for a chain of U.S. papers, who asked that he not be identified, reported that his company has one of the more restrictive contracts. The papers purchase all rights to material submitted by freelancers, and pay nothing beyond standard print rates for electronic publication; and the freelance contract is non-negotiable, he reports.

Voicing a view certain to raise the ire of freelance writers, this executive says, "It's hard to see why freelancers should be paid more because distribution of an article is increased through online distribution than through the newspaper. In the past, would freelancers have been expected to be paid more if the publisher decided to double the press run for a particular day? There is no additional work required by the freelancer to produce a piece." Needless to say, this publishing executive is happy with the court decision.

A more moderate view

Other publishers I contacted say they take a more flexible stance on the freelance electronic rights issue. Sam Pennington, publisher of the Maine Antique Digest, a specialty newspaper, says he does not pay freelancers extra money for print stories published online, unless they demand it and a separate deal can be negotiated. As with many publisher-freelancer negotiations, that may depend largely on how badly the publisher wants the material.

At the Providence (Rhode Island) Journal, a policy has been worked out that tries to appease freelancers, yet still serve the paper's interests. Online editor Andrea Panciera says the paper's freelance electronic rights policy has been in place for two years -- and was in the making two years before that.

The Journal considers non-staff writers to fit into three separate categories, and has contracts for each. The paper's stringers -- non-staff writers who cover community news -- typically sign a "non-exclusionary license," which gives the paper blanket rights to use any work submitted to the paper in any medium. The paper won't prevent these regular writers from selling their work elsewhere.

The newspaper has a second contract that is generally used for professional freelancers, who sign a contract for each individual work, giving the papers the right to use it in any medium but letting the authors retain ownership.

Panciera admits that some freelancers may not find the contract acceptable, so the paper does leave open the possibility of editor-freelancer negotiation where an additional fee for online publication might be granted. But in practice, this rarely happens; she says she's only paid a couple freelancers extra cash for online rights, when she badly wanted the material. Usually, she won't use the material rather than pay additional online rights.

Panciera says the New York judge's ruling will "make my job easier. ... It seems like a beam of light in what has been a murky area." The guiding principal in dealing with freelancers on the electronic rights issue, she says, will continue to be to treat non-staff writers fairly.

Far from over

This latest ruling really just sets in motion a future resolution of the electronic rights issue, rather than resolving the matter -- since an appeal by the plaintiffs, the National Writers Union, is likely. (Alternatively, writers organizations may go straight to Congress to ask for revisions in federal copyright law.) Many publishers have been loathe to grant additional payments to freelancers in part because their electronic ventures are bringing in little or no money. Freelancers are making noise now, in preparation for the day when electronic publishing of their work is bringing in significant incremental profits to publishers. A court ruling that might have gone the other way from this week's would have meant little in the way of hard cash for most freelancers.

Don't expect the debate over electronic rights to be settled for a few more years. When "real money" is involved in online publishing and the stakes are higher, look for this dispute to escalate even further. When publishers are in fact earning significant revenues from freelance material published electronically, freelancers will have a greater argument in favor of being entitled to a share of profits generated electronically from their work. This week's ruling is unlikely to stand. Stay tuned.

Movin' On

Chris Johnson has left the Washington Post to become managing editor of Student.Net Publishing, a news and features site aimed at a college audience.

Clarification

In my last column about new statistics on newspapers operating Web sites, I quoted Newslink researcher Eric Meyer as saying that about one-third of the sites report being profitable. Meyer points out that his and other research indicates that less than a third of online newspaper operations expect to be profitable by the end of this year. Meyer's projection is that one-sixth of sites will be profitable this year.

Steve

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This column is written by Steve Outing exclusively for Editor & Publisher Interactive three days a week. News, tips, and other communications may be sent to Mr. Outing at steve@planetarynews.com

The views expressed in the above column do not necessarily represent the views of the Editor & Publisher company