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May/June 1997 | Contents
Who owns that online story?
Electronic Right by Christina Ianzito
Ianzito is an assistant editor at CJR. There are pluses to being a freelance writer: no commute, no boss, and no sticky office politics or stale office coffee. But there are also minuses: no paid vacation days, health-care coverage, or 401(k) plans. Free-lancing can be a tough way to pay the mortgage and clothe the kids. And, as The Boston Globe's new contract makes clear, it's not getting any easier in the age of the Internet. At least the contract is to the point: it's just three short sentences, concluding with the unequivocal "The Boston Globe shall own all rights, including copyright, in your articles and may reuse them with no additional payment being made to you." Period. Oh, and, "Very truly yours, Globe Newspaper Company." This kind of contract isn't new, but it's part of a new chapter in the saga of free-lancer versus publisher in the electronic age. Even though no real fortunes are being made through Internet journalism yet, the battle is, at its heart, about money -- who's going to get it someday and who's going to be left in the cold. Some Boston free-lancers are fighting back, trying to keep a foot inside the door to future profits. In December, almost 2,000 freelance writers, regular and one-time contributors (including this writer) alike, received the Globe contract with their holiday mail. More than 200 writers quickly united into the Boston Globe Freelancers Association to protest, as they put it, this "attempted seizure of all rights." They've asked management to withdraw its demands and offer some compensation for putting their work online, and to discuss the issue in a meeting with members of the association -- to no avail. The Globe claimed that 700 writers had signed the contract by the end of March; the free-lancers believe that few of those were professional writers. Some publications -- like Time Warner's Cooking Light and American Express's Travel & Leisure -- have been willing to pass royalties on to their writers. But the Bostonians are not alone. The Globe's parent, The New York Times Company; Scholastic Inc.; some Hearst magazines; and other media organizations have sent out similar contracts to their free-lancers. The Village Voice's new contract, first given to free-lancers in February, asks for exclusive rights, but only for thirty days. It also asks the writer to grant the paper the right to include the article in a database, or any kind of anthology of Voice writings. "We have to retain the ability to archive," says Barbara Cohen, the Voice's in-house counsel. Another argument from publishers: at some point there has to be closure. It's impractical to chase a writer many years after she has produced her work. "In this new age of electronic publishing you need to clarify who owns what," says Globe spokesman Richard Gulla. But the Boston free-lancers think the clarification process has been taken a bit too far. Writer Wendy Kaminer views contracts like the Globe's as a nationwide civil-liberties issue, in that ownership and control of ideas are being concentrated in the hands of a few. Jonathan Tasini, plaintiff in a lawsuit against The New York Times Company and others and president of the National Writers Union, sees it as a constitutional issue. He points out that the Constitution gives Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Assuming journalism is, more or less, a "useful art," the Founding Fathers' intentions seem straightforward. Tom Duffy, a founder of the Boston protest group, emphasizes that the Globe has been "a wonderful, progressive employer." He is therefore quite willing to rethink the rules as the Web transforms the journalistic game, he says, "but why do they need to grab the entire copyright?" The Globe apparently wanted to leave no room for confusion. Or lawsuits. Tasini v. The New York Times is a still-unresolved suit filed in December 1993, by eleven writers attempting to recoup damages from the Times (and Newsday Inc., Time Inc., Nexis-Lexis, and others) for using their articles electronically without permission. The suit seems to have sent some publishers running to their lawyers -- who've drawn up some seriously unambiguous contracts that require writers to grant that permission. In September, Editor & Publisher advised publishers, in light of the Tasini case, "to obtain the broadest rights possible, often described as a grant of 'all rights.'" Meanwhile, writers like to eat. Despite their reservations, some freelancers do end up signing the contracts because the pluses (a check, a nice clip) can outweigh the minuses -- a loss of leverage. "I signed a particularly bad and odious contract with Playboy last year," says Rogier van Connecticut. "You spend an enormous amount of time establishing contact with an editor. Then he sends you the contract and all that he can say is, 'This is what my boss or my lawyer is telling me to do.'" |
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