PREVIEW: Court Watch

Over the next few months, some of the nettlesome questions that have divided publishers and free-lance writers and photographers over the issue of who will control what in the digital age are likely to be answered, in a pair of court rulings.

The first, and biggest, decision is expected by late June when the U.S. Supreme Court decides in Tasini v. New York Times. After seven years, this has become the industry's version of Ali versus Frazier, with publishers winning round one, in U.S. District Court, and free-lancers taking round two, in the U.S. Court of Appeals.

Jonathan Tasini, president of the National Writers Union, and five other free-lancers sued The New York Times, Lexis-Nexis, and others, claiming that the sale of an article to a print publication does not include the right to license use of that article to an electronic database. The writers say such a move is a new use for which they must grant permission -- and be paid.

The publishers argue that such databases represent not a new use, but a revision, allowable under copyright law. Oral arguments on March 28 appeared to reveal a split among the justices and most sources predict a close vote.

If the court finds for the publishers, a number of other pending legal actions go up in smoke, and free-lancers will be left reeling. "It would mean that under the statutory default rule publishers have all the rights that matter," says Emily Bass, a New York attorney who has represented writers in the Tasini case since its inception.

If the court finds for the writers, three pending class-action suits seeking damages will immediately move forward. Laurence H. Tribe, who argued the publishers' case before the Supreme Court, says this would force publishers to choose between finding and paying for "hundreds of thousands" of articles, or removing the articles and "putting their newspaper like Swiss cheese with holes in it on the Internet."

While Tasini v. New York Times may tell us who controls what in the absence of an explicit agreement, a pending case against The Boston Globe could clarify just how hard a publisher can push to get an all-rights agreement.

Last year a group of writers, photographers, and graphic artists sued the Globe after being asked to sign a contract granting the Globe broad rights to their current and past work. If they didn't sign, they were told their relationship with the Globe was over. Some signed, some did not, but many felt that the contract, and the way it was presented, was unfair.

The Globe argues that the paper has the right to determine whom it will do business with and under what terms.

Indira Talwani, a lawyer for the Globe free-lancers, says it's not about whom the Globe can do business with, but how far it can go in forcing people to conform to an unfair licensing of rights. As she frames it, "The question is, did the Globe do something rotten?"

In January, the State Superior Court refused to dismiss the case. If writers win in Tasini, the Massachusetts court will try to figure out if the Globe did something rotten, and if so whether it was rotten enough to be illegal.

-- Stephen J. Simurda

Full disclosure: Simurda, a frequent CJR contributor, is a candidate for the presidency of the National Writers Union.