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Justices will hear case on rights to articles by freelance writers

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    NMU         U.S. SUPREME COURT         Copyrights & Trademarks         Nov 6, 2000    

Justices will hear case on rights to articles by freelance writers

  • The high court will decide whether The New York Times can sell a freelancer’s work in an electronic database without violating the copyright.

The U.S. Supreme Court accepted a case on Nov. 6 that pits freelancers against publishers vying for intellectual property rights to the digital archiving of copyrighted works. The case, New York Times, Co. v. Tasini, will have a significant impact on how freelancers negotiate with publishers.

Freelancers for The New York Times sued the newspaper and several other periodicals in 1997 for selling their works to electronic databases, such as NEXIS, which archive articles. The federal district court granted summary judgment in favor of the defendant media outlets. The court said the digital collections constituted a revision of the individual periodicals.

In September 1999, the U.S. Court of Appeals in New York (2nd Cir.) reversed the lower court and stated that the databases were not revisions of the original materials. The court said the organizational structure of an electronic database does nothing to preserve the copyrightable aspects of the publishers’ works. For example, NEXIS users cannot reconstruct the arrangement of the day’s edition of The New York Times.

Although writers who do not work “for hire” retain copyrights in the original articles, the publisher owns copyrights to the collected works as a whole. The owner of a copyright in collected works can reproduce and distribute an article as a part of that particular collective work, in any revision of that collective work and in any later collective work in the same series.

A decision for the freelancers would mean they have the exclusive right to archive their works, even if they were first published with a periodical. Jonathan Tasini, one of the original plaintiffs in the case, suggested in a statement that a freelance victory could make publishers liable for past and present copyright infringements for archived works. Freelancers also might be able to force publishers to remove their copyrighted works from archived databases.

Since the inception of the Tasini case, the Times has required freelancers to cede all copyright rights in freelance work prior to publication.

The case closely resembles one argued before the U.S. Court of Appeals in Atlanta (11th Cir.) last month. In Greenberg v. Natl. Geographic, a freelance photographer sued the National Geographic Society for its use of his copyrighted photographs in a 1997 CD-ROM collection archiving 108 years of the magazine. The photographer argued the CD-ROM set was “a new derivative work” protected by copyright law. National Geographic contended, however, the CD-ROM library was equivalent to The National Geographic bound volumes or copies on microfilm, which are not new works.

(New York Times v. Tasini; Media Counsel: Bruce Keller, Debevoise & Plimpton, New York City; Laurence Tribe, Boston) DB

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