Republishing E-Rights Still Far From Resolved

By: Steve Outing Whether print publishers have the right to republish a freelancer's work electronically -- barring a contract between writer and publisher that specifies the rights explicitly -- is still very much up in the air. At least two U.S. court cases that ruled in favor of publishers but are on appeal remain far from resolution.

An attorney who advises publishers on online rights matters says that the most significant case, Tasini vs. New York Times (1997), should not yet be considered the "law of the land." Lloyd Rich, a Denver-based publishing law attorney who maintains the Publishing Law Center Web site, says he is not at this point advising his publisher clients to base their behavior when it comes to republishing old freelance work electronically on the latest-round outcome of Tasini. Many legal observers have doubts that the case will withstand an appeal.

In the Tasini case, the plaintiffs (writers led by Jonathan Tasini, president of the National Writers Union) lost their case in New York District Court last year. Judge Sonia Sotomayor ruled that publishers do have the right -- without the authors' permission and without extra compensation -- to publish the work of the freelancers, when it is part of the "collective work" of a publication, in online databases and CD-ROMs.

The Tasini case is on appeal, and according to the new lawyer handling the case, Patricia Felcher of the Chicago law firm Peterson & Ross, all the written arguments have been filed and the wait continues for the 2nd Circuit appeals court to set a date for oral arguments. It's not likely to be resolved by the appeals court at least until much later this year.

Rich says his advice to publishers is not to consider the precedent set by Tasini to apply across the U.S.; at this point it's still a decision that applies only in the 2nd District, although other courts could pick it up and cite it in deciding similar cases. The risk is great that the decision could be overturned, and for a publisher who decided to electronically republish old freelance works without compensating the authors, "it could turn back to bite them," he says.

There are surprisingly few cases of similar nature in the judicial pipeline, says Rich. One case that is close was filed last year by freelance photographers against National Geographic, which published their works in a historical CD-ROM project. A Miami district court also ruled in favor of the publisher, citing the Tasini decision. Dan Carlinsky, vice president of contracts for the American Society of Journalists and Authors (ASJE), says that case primarily rested on another court's (the New York 2nd District) decision, and there's not much legal ammunition otherwise to support it. Also, the Miami District is not one where a lot of copyright and intellectual property precedent is set, Carlinsky says.

An appeal of the National Geographic case has been stayed until after a decision is rendered on the Tasini appeal. The judge in the National Geographic case ruled that putting the photographers' work on a CD-ROM was no different than putting it on microfilm, which is considered to be republishing of a collective work.

Contracts, always

The Tasini and National Geographic cases are largely looking at past practices -- they apply to publishers wishing to electronically re-use freelance material that originated without a publisher-writer contract that specifies electronic republishing rights. No matter how those cases eventually turn out, publishers and writers working together today must sign contracts specifying electronic rights that author grants to publisher; not to do so is foolish on both sides.

Rich says that his clients usually ask for some electronic rights, typically non-exclusive, to allow republication in a publication's own archive and the right to include a freelancer's material in content sold to sub-licensers such as database archive companies like Nexis/Lexis, Dialog, Northern Light and others. He says he's seeing in his clients a blend of attitudes, with some willing to pay an author additional compensation -- often in the range of 25-50% over the original fee paid the author -- and others still unwilling to pay anything at all over customary rates yet expecting rights for electronic republishing.

Rich says that some publishers are slow to get the idea that contracts are a necessity these days for all contracted writing jobs. "I have publishers who still say, 'Do I really have to have an agreement for that?'" The answer is a resounding yes.

ASJA's Carlinsky says that in the magazine industry, an increasing number of publishers are paying for various electronic rights -- typically in the 5-20% range for additional compensation for the first year of electronic re-use over base rates paid for a freelance work. Because consumer magazines, especially, rely so heavily on freelance content, it's imperative for them to come up with arrangements that writers will find acceptable. Newspapers, on the other hand, deal with much less freelance content and remain less likely to offer additional compensation for electronic rights. A good number of newspapers, Carlinsky notes, are not banking on the Tasini decision being upheld and are taking the conversative approach of removing freelance writing from their external database feeds -- rather than paying extra for e-rights.

Carlinsky harbors disdain for how newspaper publishers are dealing with the e-rights issue. "Anyone (freelancer writers) who's any good has gotten out of the newspaper business, and I advise them to do so," because of the electronic rights issue, he says. Publishers should not expect to perpetually use a freelancer's work in the electronic realm, and perpetually benefit from it, without on an ongoing basis compensating the writer. If an advertiser came to a publisher and wanted his ad to run on the publisher's Web site forever for one price, he wouldn't be taken seriously, Carlinsky says. Yet some publishers expect that of freelancers.

Part of the problem remains that royalties to authors for electronic re-use are often tiny, representing an accounting nightmare, so most publishers prefer a one-time extra fee to the author to take care of electronic rights. Efforts like the Authors Registry, a not-for-profit licensing and payment clearinghouse, are making headway in distributing royalties to authors for electronic reproduction of their work. The Registry distributed $441,000 to authors in 1997.

Carlinsky advises freelancers to be careful about specifying what electronic republishing rights they grant to publishers. In general, think of electronic rights as covering three distinct areas that should be specified in any author-publisher contract: 1) use on the publication's Web site (if original material was created for print); 2) use on electronic archives (the publication's Web archive, plus external database services with which the publisher has a provider relationship); and 3) use on CD-ROM publications.

The most important thing -- which in this era where electronic redistribution of freelance work because of the Internet is so prevalent -- is for both publishers and authors to work with a contract, always. Regardless of how the Tasini decision turns, says Carlinsky, "If the contract says something else, then that rules."

Contacts: Dan Carlinsky, asja@compuserve.com
Lloyd Rich, rich@teal.csn.net

Printing lesson learned

When the Sacramento Bee redesigned its political Web site, Capitol Alert, "we did many things right," says online content manager Rusty Coates. But one thing that was done wrong was to make the pages "printer unfriendly," he says. The width of the home page, which accommodated the logo and banner ad, pushed the text too far to the right so that when printed the page dropped text on the far right.

The Bee Web staff soon heard about the problem from the political folks who regularly read the site, print out its content, and pass it around to their colleagues "like joints at a Dead show," Coates wrote in a posting to the Online-News discussion list. The reader feedback forced the Web staff to acknowledge they'd made a mistake and reformat the page.

The lesson: Remember that many Internet users still print out your pages. While you don't have to design specifically for print, don't make your pages printer unfriendly.

NYT joins Classified Ventures

The New York Times Company yesterday announced that it has joined the Classified Ventures newspaper online classifieds consortium. That brings to eight the number of major newspaper companies funding Classified Ventures: Central Newspapers; Gannett Co.; Knight Ridder; McClatchy Co.; the New York Times Co.; Times Mirror, Tribune Co.; and the Washington Post Co. Most of those companies also funded New Century Network (NCN), the newspaper cyber consortium that folded last spring. NCN didn't get in to the classifieds space before its owners shut it down, but speculation was that it would.

Chicago-based Classified Ventures, which is a national online network providing classified listings, resources and services through its nationally branded and local affiliate Web sites, now has 140-plus newspapers represented among its eight owners. It currently operates the cars.com, apartments.com and newhomenetwork.com Web sites.

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