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Freelance writers win case over electronic reprint rights

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    NMU         U.S. SUPREME COURT         Copyrights & Trademarks         Jun 25, 2001    

Freelance writers win case over electronic reprint rights

  • The high court’s decision will require publishers to revise their contractual relationship with freelance writers before they can post freelance articles in online databases.

The U.S. Supreme Court, ruling against media companies, said freelance writers have the power to decide whether the articles they sold to print publications may be reproduced in an electronic form.

In a 7-2 decision on June 25, the justices’ ruling in the underlying copyright dispute means that The New York Times must either pay its freelance authors when redistributing their articles online or negotiate other conditions for republication.

Under federal copyright law, freelance writers control the rights to their works sold to publishers unless otherwise specified in an agreement. The publishers, however, retain the rights to their publication as collected works, which includes freelance articles, and may revise or republish the work as a whole. At issue in this case was whether reproduced articles in an electronic database constitutes a new work, with ownership in the hands of the author, or the reproduction or distribution of the collected work, to which the publisher retains the copyright.

In the majority opinion by Justice Ruth Bader Ginsburg, the court ruled that the reproduction and distribution of the articles did not constitute a collective work because the articles were no longer in the context of their initial publication.

According to the court, “The Database no more constitutes a ‘revision’ of each constituent edition than a 400-page novel quoting a sonnet in passing would represent a ‘revision of that poem.”

In dissent, justices Stephen Breyer and John Paul Stevens said that the reproduced articles on electronic databases should be treated as a “revision”of the original edition, “as long as each article explicitly refers to the original collective work and as long as substantially the rest of the collective work is, at the same time, readily accessible to the reader of the individual file.”

Breyer wrote that “[n]o one doubts that the New York Times has the right to reprint its issues in Braille, in a foreign language, or in microfilm, even though such revisions might look and feel quite different from the original.”

On Dec. 16, 1993, Jonathan Tasini, president of the National Writers Union based in New York City, and five other freelance authors sued the New York Times Company, Newsday, Inc., and Time, Inc., claiming that the print publishers had infringed upon their copyrights when the publishers licensed rights to copy and sell articles to computerized databases such as Lexis/Nexis.

The lower court sided with the publishers, ruling that writers’ copyrights were not violated, because the periodical publisher was prohibited from selling a particular article to a different publication. This was overturned in September 1999, when the U.S. Court of Appeals in New York (2nd Cir.) determined that the electronic databases did not produce revisions of the original works but produced new works, which does not preserve the publishers’ copyrights of the articles.

The freelance writers argued that the publishers reproduced their articles as a new work because the computer databases contain the articles in a text-only format, which does not resemble the way the work was published in the original print version. For instance, a Nexis user would not be able to reproduce the front page of The New York Times, but the user can access each article individually that was on the front page.

The publishers maintained that as the copyright owners of the original publication and the collective works they had the right to reproduce and distribute the freelance articles on an electronic database. The publishers argued that electronic distribution is analogous to microfilm or microfiche, which publishers have long sold as archives and which are covered as a revised form of the collective work. The freelancers countered that microfiche maintains the original published format of the article in the periodical, whereas a database may only reproduce the work as an individual article.

The Supreme Court was not persuaded by the publishers’ argument, noting that the fact that microfiche reproduced the material in the very same position as the original article makes the reproduction a part of a collective work. “In the Databases, by contrast, the Articles appear disconnected from their original context,” and thus were not mere revisions of the collective work, the Court found.

(Tasini v. New York Times, Counsel for freelance writers: Emily Bass, Gaynor & Bass, New York City; Counsel for publishers: Bruce Keller, Debevoise & Plimpton, New York City) AP

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© 2001 The Reporters Committee for Freedom of the Press

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