Tasini v. New York Times


Subject: Tasini v. New York Times
From: Emanuella Giavarra (ecup.secr@dial.pipex.com)
Date: ke 20 elo    1997 - 17:04:19 EEST


Dear list members,

On 13 August 1997 a federal judge in Manhattan has ruled against
freelance journalists who argued that publishers should not be allowed
to reproduce their work on CD-ROMs or in electronic databases without
their permission and without paying them beyond what they were paid for
the original material.

The case is known as Tasini v. New York Times. It is a famous case which
for more than three and a half years slogged through the federal court
of Manhattan. Below you will find the history and comments on the case
by the American Society of Journalists and Authors.

Kind regards,
Emanuella Giavarra
----------------------------------------------------------------------
ASJA CONTRACTS WATCH 49 (vol 4, #10) CW970815 August 15, 1997

[The American Society of Journalists and Authors encourages
reproduction and distribution of this document for the benefit of
freelance writers. Reprint or post as you wish, but please credit
ASJA for the information and don't change the content.]

        * * * * * * * *

   FIRST U.S. COURT DECISION ON ELECTRONIC RIGHTS: WHAT NEXT?

   Publishers' First-Round Win Is No Knockout, Say Both Sides

In December 1993, a group of 11 freelance writers sued two newspaper
publishers, two magazine publishers and two electronic reusers of
published works. The claim: copyright infringement, based on the
reuse of published articles in online databases and CD-ROMs without
the writers' consent. It was the first new-media copyright case of
its sort.

For more than three and a half years, the case known as "Tasini v.
The New York Times" slogged through federal court in Manhattan. Reams
of legal papers were filed, four writers dropped out, and one writer
and one publisher (Atlantic Monthly) settled, on undisclosed terms.
Finally, this week, came the decision: Case dismissed. Publishers
win.

Not so fast.

U.S. District Judge Sonia Sotomayor's 56-page decision, which
involved complaints against the New York Times, Newsday, Sports
Illustrated, Lexis-Nexis and UMI (formerly University Microfilms,
Inc.), knocked out some of the media organizations' defenses. For
example, Newsday argued that the rubber-stamp legend on the back of
its checks to freelancers, which claimed rights for "electronic
library archives," covered the publisher. The judge said no.

But a provision of the Copyright Act of 1976 allows the publisher of a
collective work (such as a magazine or newspaper) to reuse
contributions in "any revision of that collective work." Sublicensing
the contents of their publications for use in the Lexis-Nexis online
database and UMI's CD-ROMs, the defendant publishers said, was making
such a revision. The judge agreed, and on that basis threw out the
writers' case.
 
The August 13 ruling left writers and publishers asking what it all
means to them.

                             *****

Perhaps oddly, lawyers and other close observers on both sides seem
to agree that the victory is no green light for publishers everywhere
to walk off with freelancers' electronic rights for any new-media
purpose they wish.

Lead defense counsel Bruce Keller, a partner at Debevoise & Plimpton
in New York, told Steve Lohr of the New York Times: "The judge ruled
that CD-ROMs and some kinds of databases are the functional
equivalent of microfilm. But it is not a sweeping decision that
determines copyright in all forms of electronic media."

A year ago, a Times in-house lawyer discussed the then-pending court
battle over freelance articles. "It is important...to appreciate the
limited scope of the issue," Kenneth Richieri wrote in the Summer
1996 issue of the Columbia-VLA Journal of Law & the Arts. "It pertains
only to the appearance of such works in electronic archives of the
Nexis variety and does not address the inclusion of such works in new
electronic publications."

The writers agree that the decision's scope is limited, not
necessarily including Web editions of magazines and newspapers and
other forms of electronic publication. But they hastened to add that
the story is far from over. "This is no done deal," Jonathan Tasini
told ASJA Contracts Watch. Tasini, president of the National Writers
Union and the lead plaintiff among the writers who brought suit,
sounded ready for another crack at making the writers' case. "After
reading the judge's interpretation of `revision,'" he said, "we're
confident that an appeals court judge will reverse the decision."
 
                             *****

Mark Radcliffe is a nationally prominent intellectual property lawyer
with major publishing and multimedia clients. He told Contracts Watch
the decision doesn't change his advice to publisher clients.

"I tell them, if you need the right to reuse articles electronically,
get it in writing," said Radcliffe, a partner at Gray Cary Ware &
Freidenrich in Palo Alto, Calif. "Otherwise, you're resting a lot of
your business on a point of law that's never been interpreted before.
Spell out the rights you need in the contract. If you need to pay
extra to get them, then you do it.

"This is only the first shot in the battle. It's just the first
interpretation, and it's a controversial interpretation. There are
different courts in different parts of the country, and others may
come to different conclusions. This decision is going to be appealed,
and it could well be overturned."

                             *****

For a New York case, next stop after federal district court is the
U.S. Court of Appeals for the Second Circuit. According to Radcliffe,
"the Second Circuit, more than any of the other 11, prides itself on
leadership in copyright, and doesn't hesitate to overturn a decision
in copyright law. Particularly because it's a new interpretation of
the law, the Second Circuit will feel even freer about changing a
ruling."

Under federal rules, notice of appeal must be filed within 30
calendar days of the decision, but the clock can be slowed if the
losing party chooses first to move for re-argument in the lower court.

                             *****

In her decision, Judge Sotomayor suggested that Congress could not
have foreseen "such lucrative markets" as some electronic publishing
has become. So by her reading of the law, writers unfortunately get
the short end of the stick.

"The Court does not take lightly that its holding deprives plaintiffs
of certain important economic benefits associated with their
creations," she wrote. But for that, she continued, freelance writers
must blame "modern developments which have changed the financial
landscape in publishing."
 
                             *****

"The electronic databases," the judge wrote, "retain a significant
creative element of the publisher defendants' collective works."
Claire Safran, president of the American Society of Journalists and
Authors (ASJA), thinks otherwise.

"Electronic database compilers strip out nearly everything a
publisher brings to its publication: photos, drawings,
advertisements, page layout, headline type, index, table of
contents--virtually everything that makes a magazine or newspaper
what it is," Safran said. "Each issue is reduced to the writers'
words. And those words belong to the writers."

"The database compilers," she continued, "then mix that issue's
articles with "hundreds of thousands of article from years' worth of
other publications, making a new and totally different compilation. A
computer user simply cannot find the actual issue of the publication
itself in the database--because it doesn't exist."

                             *****

The electronic publishing field under dispute, defense counsel Keller
told Larry Neumeister of the Ass
reported that a Times spokesman forecast "that the company will make
$80 million over the next five years" from electronic archive rights.

                             *****

The full text of Judge Sotomayor's decision may be found on the World
Wide Web at http://www.nylj.com/links/tasini.html.

        * * * * * * * *

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                             *****

                     Check Before You Sign

A complete, searchable archive of ASJA Contracts Watch is available
on the World Wide Web. Find it--with other valuable information and
tips on freelance contracts, electronic rights and copyright--at the
Web address below.

                             *****

Inquiries and information from all are welcome.
     Contracts Committee, ASJA
     1501 Broadway, New York, NY 10036
     tel 212-997-0947
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