The Magazine

Freelance Writers of the World, Unite!

You have nothing to lose but your copyright fees.

Aug 1, 2005, Vol. 10, No. 43 • By CHARLOTTE ALLEN
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Now here comes a hitch that you non-writers should know about: About 99.9 percent of freelancers never bestir themselves to register their works with the Copyright Office. Books, yes (the publisher takes care of that); articles, hardly ever. Indeed, I'm told by someone close to the class action that the lawyers who filed it wanted to have all "representative" plaintiffs be registered--and accordingly had a tough time digging up name-plaintiffs besides Doctorow and the others. Registering a copyright isn't difficult, but it's a hassle--you have to fill out a form and send a copy of the work to Washington--and it also costs $30. For a long magazine article sold, say, to the reasonably generous Atlantic, that's not too bad, but it's a big chunk, when added to taxes, out of a $350 book review sold to the Washington Post. Failure to register doesn't mean that writers forfeit their copyrights under federal law, but it does mean that if they sue for infringement, they have to prove that they were monetarily harmed. By contrast, those who register and then sue for infringement receive automatic damages plus attorney's fees under the 1976 Copyright Act.

The upshot is that the vast majority of writers who go to the trouble of sorting through decades-old boxes of clippings and filling out the claim forms stand to collect $60 per article tops for all that paperwork (the average payout per article will probably be more like $25). The converse is that nearly every one of these people, if they had to go to court and prove actual damages, would probably collect zilch. For who is harmed--and how--when a newspaper sells its content to a database? Electronic databases such as Lexis/Nexis and University Microfilms are research tools typically used by libraries, schools, and other writers, and the articles appear in plain-vanilla text-only format. As far as I'm concerned, I'm perfectly happy to have my work distributed via Nexis; it gets my name around.

IF 99.9 PERCENT OF THE CLASS MEMBERS in In re Literary Works in Electronic Databases will likely walk away with peanuts, the lawyers who brought the suit--two law firms in San Francisco and one in Philadelphia--stand to collect big time. The settlement document hands the three firms $3.825 million in attorneys' fees plus more than $500,000 in costs. That's something to think about: $400 for me, $4 million for my lawyers.

The class action suit filed by my new friends Doctorow, Dworkin, Pogrebin, et al., is actually an offshoot of another electronic-database lawsuit filed in 1993, Tasini v. New York Times Co., that went all the way to the Supreme Court in 2001. Tasini was not a class action, but as with "my" lawsuit, the 13 writer-plaintiffs in Tasini seemed as well known, if not better known, for their far-left political views as for their literary output. They included such figures as: H. Bruce Franklin, a Maoist literature professor at Rutgers who had been turfed from Stanford in 1972 for helping students occupy the campus computer center to protest the Vietnam war; Barbara Garson, another Vietnam-era antiwar-horse who had written a 1967 play, MacBird, analogizing President Lyndon Johnson to Shakespeare's murderous thane; New York University law professor Derrick Bell, a cofounder of the "Critical Legal Studies" movement that views the edifice of the law as a smokescreen for capitalist power grabs; and Jonathan Tasini himself, a labor-movement polemicist whose writings have targeted every corporate evil from Wal-Mart to globalization and then some.

Tasini was then president of the National Writers Union, one of three professional organizations for writers involved in both lawsuits. The other two, the Authors Guild and the American Society of Journalists and Authors, concern themselves mainly with writers' issues--finding work, fighting perceived censorship, and the like. But the National Writers Union, an affiliate of the United Auto Workers (only a writer could see the metaphorical connection), has branched out into an all-purpose advocacy group at the left end of the ideological spectrum. The union backs gay marriage, condemns the war in Iraq, and has announced its opposition to discrimination against its "transsexual, transgender [there's a difference?], and cross-dresser members." When the University of Minnesota expressed second thoughts about its press's planned publication of Judith Levine's book Harmful to Minors (2002), which claimed there was nothing wrong with children having sex, the union fired off a letter of protest, charging the university with helping to "perpetuate a taboo on the subject of minors and sexuality." The National Writers Union was the driving force behind the Tasini lawsuit, with part of the litigation funds coming out of the dues of the folks who build the SUVs that left-wing writers denounce out of the other sides of their mouths.