Freelancers Win In Landmark Supreme Court Copyright Case

On June 25, the Supreme Court issued a decision in New York Times Co., Inc. v. Tasini, 533 U. S. ___ (2001). The decision is considered a landmark one in the area of copyright law, and is especially important for the publishing industry, including freelance writers, as well as publishers of magazines, Web sites, newsletters (both on- and offline) and other printed materials containing articles submitted by freelance writers. It is also has additional significance because it clarifies the circumstances under which work submitted by freelance writers for a specific publication can later be re-published, in electronic format or otherwise.

In Tasini, several freelance authors submitted writings for publication in various New York Times publications. The authors’ submissions did not include consent to placement of the articles in an electronic database. Nevertheless, the New York Times sold the articles, without the articles' authors' permission, to third party companies that uploaded the articles to various searchable Internet databases. Using a search engine, the articles could be found when users employed key words to find articles on particular subject matters. Once a particular article was found, it appeared alone and was not intact with the rest of the publication in which it originally appeared. The freelance writers of those articles sued the New York Times for copyright infringement, and the Supreme Court found in favor of the writers. 

In its decision, the Court relied heavily on section 201(c) of the Copyright Act. That section states:

Copyright in each separate contribution to a collective work
            is distinct from copyright in the collective work as a whole,
            and vests initially in the author of the contribution. In the
            absence of an express transfer of the copyright or of any
            rights under it, the owner of copyright in the collective
            work is presumed to have acquired only the privilege of
            reproducing and distributing the contribution as part of
            that particular collective work, any revision of that collective
           work, and any later collective work in the same series.

The Court confirmed that, absent an agreement to the contrary, a freelance writer who submits an article for inclusion in a publication does not transfer copyright rights in that article to the publisher. Instead, the publisher has rights to reproduce and distribute the article only as part of the entire intact collective work (the entire magazine), or a revision of the collective work (again, the entire intact publication in which the article originally appeared). The publisher does not have the right to give or sell the individual article to another publication for republication, nor can it reassemble the article into a separate new format without the author's permission. The Court found that, not only was the New York Times liable for infringement, but so were the third parties to which it sold the articles without the authors' permission.

Since the decision, the New York Times has indicated an intent to lobby Congress to pass a law more favorable to the publishing industry, which would have retroactive effect, thus foreclosing any of the Tasini plaintiffs from receiving damages, and preventing freelance writers from benefiting from the Tasini decision in the future.

Also as expected, digital content publishers are also not happy with Tasini, and have begun a lobbying effort of their own. For example, the Software & Industry Information Association has initiated a lobbying effort to encourage Congressional action that would have the effect of reversing overturning Tasini.

Here are a few tips for publishers and writers in light of the Supreme Court’s decision in Tasini:

1.                 Publishers should consider registering the copyright for their periodicals with the US Copyright Office.

2.                 Writers should consider registering the copyright for particular articles with the US Copyright Office, especially after they have published a few pieces in different publications. The price to do this is about $30 per article, so finances are definitely a consideration, along with the perceived value of the article itself, and the circulation of the publication in which it will appear.

3.                 Both writers and publishers should consider what options exist in terms of negotiating the rights to particular pieces of work. While Tasini is clear on what happens if there is no agreement, it does not mean that the writer and publisher cannot hammer out an agreement of their own. Is the writer transferring all rights in the article to the publisher? Is the writer transferring only one-time publication rights to the publisher? Can the publisher sell the article to a third party? If so, will the writer receive a royalty, and if so, how much? Can the publisher control how and whether the individual article appears in another publication at a later date? These are the types of things both parties would need to consider in reaching an agreement.

4.                 As a writer, even if you did not transfer copyright rights in an article to a publisher, as a matter of courtesy, if you give a second publisher permission to reprint your article, or if you are going to reprint it yourself (either on your Web site or in newsletter or other printed form), it’s a good idea to let the original publisher know and offer to include a credit to the original publication. Sometimes, you have no control over what a second publisher of your article will print in terms of prior publications ... the second publisher may not want to reprint the article while also giving credit to the first publisher, so keep in mind that your good intentions may not be well received with a second publisher. Every situation will be different.

Whether you are a writer or a publisher, if you have any questions about Tasini, or how you can negotiate a contract to protect your copyright rights, both now and into the future, please do not hesitate to contact us at (202) 457-0100 or email johnson@internet-law-firm.com.