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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There is something ironic about avowed leftists' claiming capitalist-style property rights in their writings, but perhaps it has something to do with the Marxist "labor" theory of value. At any rate, the case went to the Supreme Court after a federal appeals court ruling in the writers' favor. The issue was whether putting an article into an electronic database amounted to a second publication of the work, analogous to republishing the article in an anthology. The Supreme Court ruled 7-2 that it was--and the court was right. Up until then, the standard writer's contract granted only the "first North American serial rights" to the newspaper or magazine, leaving the writer free to sell the piece a second time elsewhere later. No one, either writers or publications, had even thought about databases--because they didn't exist until the 1980s. Tasini was one of those rare decisions in which the Supreme Court's conservative bloc--Antonin Scalia, William Rehnquist, and the like--signed on to a majority opinion written by the ultra-liberal justice Ruth Bader Ginsburg.

Of course, long before the Tasini decision came down in June 2001, just about every newspaper and magazine in America hired copyright lawyers to rewrite their standard-form contracts so as to make it airtight-clear that the writers were giving up their rights to control electronic distribution, in return, perhaps, for a slightly higher fee for the article itself. That was as it should be, because those rights are worthless to individual freelancers, practically speaking, unless the writer happens to have a well-known name or a technical specialty, such as science or exotic travel, that would create a noticeable hole in the database should the writer choose to play hardball and refuse to sign.

"The value in those rights is the holdout value, because newspapers want to be able to sell complete databases," Douglas Lichtman, a professor of copyright law at the University of Chicago, explained to me. "If you can say, 'I am the theater critic for the New York Times, and you can't place my stuff in your database,' you might have some clout. But if you're unsuccessful, you lose completely. You won't be able to sell your writing" to the databases. Lichtman calls the Tasini suit "a historical accident." In retrospect, everyone knew what the contracts should have said, "which is why they were changed. The Tasini decision was good law but bad policy."

AFTER THE RULING CAME DOWN from the Supreme Court, the New York Times issued an internal memo, later leaked to the press, that warned its editors not to run articles by any of the name-plaintiffs in that case. This might have seemed a reasonable precaution, for few people care to do business with someone who has sued them, but the plaintiffs seized the opportunity to declare that they had been "blacklisted" by the Times. The martyrs styled themselves the "Tasini Thirteen" in the manner of the Hollywood Ten. Behind the scenes, however, most of them, including H. Bruce Franklin, who had a dispute with the Atlantic, quietly settled their electronic claims for undisclosed amounts.

Meanwhile, the class-action suit on behalf of the rest of us went on file. As far as the legal issues were concerned, the class-action was shooting fish in a barrel, since the federal appeals court had already ruled in our favor in Tasini and the Supreme Court was about to affirm. The trick to our case--and maybe that's what makes it worth $4 million in legal fees--was to pry a substantial settlement out of an array of major print-media publishers without quite letting on that nearly 100 percent of us would likely never have been able to prove that we were owed a nickel in damages from any of them because we'd never registered our copyrights.

Indeed, when I asked Kay Murray, general counsel for the Authors Guild, how many members of the plaintiff-class were actually holders of registered copyrights in her estimate, she replied, "I can't discuss that." Her response helps explain our lawyers' eagerness to ensure that all the name-plaintiffs in our case, the ones who were supposed to be "representative" of the rest of us, were duly registered and thus were entitled to receive at least some statutory damages in court had they sued individually. My source informs me that the writers' organizations first tried to persuade the publishers to set up an automatic licensing and royalty-check system for writers in databases along the lines of the ASCAP system in the music industry. The publishers refused to do that--so organizations went for the next-best arrangement that would make them look as though they were doing something for their members: a multi-tiered, jerry-built settlement that hands out piddling sums to vast numbers of people who actually deserve nothing at all.

The biggest problem "our" lawyers now face is finding enough freelance writers who feel sufficiently enraged about the infringement of their copyrights by Big Capitalist Media that they'll be willing to take time away from their writing in order to search through their files of yellowing clips and enter the necessary data on their proof-of-claim worksheets so they can collect their few hundred bucks. I've asked around among some fellow writers who received the notice of settlement, and their responses have ranged from "What?" to "I'm not gonna bother," to "Oh, I just threw that stuff out." My own position is that I could make more money using the time to write another article. I may change my mind, however, for the settlement document contains a kind of prisoner's dilemma: If the total amount claimed by those who do file forms doesn't exceed $10 million, the overage (up to the $10 million) will go on a pro rata basis to those who file. Now there's an incentive!

Alternatively, I could file a protest of the entire settlement, but then I'd have to show up in person (or send a lawyer to show up) in federal court in Manhattan on July 28, the date of a scheduled hearing on whether to approve the terms. In any event, my protests are more general. They concern a class-action system that rewards lawyers to the tune of millions of dollars for cherry-picking easy legal battles, and a court system that is willing to dissipate even more millions of dollars on people like me who cannot prove that they were injured in the smallest way. If the National Writers Union wants to do something for writers, instead of fooling around with Lexis/Nexis, why doesn't it try to get us bigger fees for our articles in the first place? Hell, I might even decide to become a Marxist and join up.

Charlotte Allen is author, most recently, of The Human Christ.