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[GWL]: Tasini and beyond

Have you longed for an easily understandable summary of the ongoing Tasini brouhaha concerning writers' rights? San Diego freelancer Caron Golden (board member and past president of the SD Press Club) gave this presentation to the CA Bar Intellectual Property Institute recently. It's a bit long for our listserver, but reads quickly, and I think you'll agree well worth keeping on file.
-- Debra Lee Baldwin, San Diego, CA
 
 
CA Bar Intellectual Property Institute
Panel: Tasini and Beyond
Caron Golden
 
This is what freelance writers do: We get an idea for a story. We spend hours, days, maybe weeks researching it and developing contacts. Then we craft a query letter, send it out to one or more editors at magazines or newspapers. Then we wait. Sometimes we wait weeks. More often, months. Let’s say we hit the jackpot and the story resonates with an editor. We get the assignment. We go back to doing more research. We write. We turn the piece in. We rewrite. Hopefully only once. Sometimes several times. Then we wait some more for a check. For most freelance writers, the check for all that work isn’t going to be very large – perhaps five cents a word, 10 cents, 50, maybe even a dollar, which, after more than 20 years is still the gold standard for writers. Even burger flippers at Mac Donalds have seen an increase in the minimum wage. Most writers have not.
 
So, what we’ve relied on all these years is the ability to take that work and re-license it. Let’s say I earned $300 for a newspaper story that originally was licensed for first serial rights, a long-standing practice in the publishing industry. Once it was published, I could go out to non-competing markets and sell second serial rights repeatedly. I have friends who have a warehouse of articles, on the earnings of which they have sent kids to college. Not only have they resold these pieces to other publications, they may have sold them to book anthologies like Chicken Soup for the Soul. Reprints (or second serial rights) as well as self-syndication earn writers the living they can’t make on the original sale alone. Once those articles are put on the Internet through local archives or international databases, their resale value drops to almost nothing, as you can imagine.


But let’s say that, like me, your articles for newspapers are news pegged and you can’t easily resell them. I still hold the copyright and still “own” the article. I may not be able to move them to another publication but the newspaper can make subsequent revenues through new ways of packaging it: on its Web site, on a CD-ROM, to one of its partner publications, through paid reprints. It’s endless. And, as the creator of that work, I expect to participate in those revenues.
 
So, you can imagine my surprise several years ago, when I found the 60 or so articles that I had written for the San Diego Union-Tribune on its Web site, complete with banner ads. I had never been contacted by them for permission to use these stories again. I was not being paid by them for their new use. Then I learned that not only were they on the Web, but they had been sold to various databases, including international databases that as attorneys all of you know and use – and pay steeply to access, like Lexis-Nexis.
 
I’m only one of hundreds, even thousands of writers across the country who have made this kind of discovery about what newspapers and magazines have arbitrarily done with our work. Work that we own the copyright to. We are not employees with salaries and benefits whose output is owned by the company.We are independent contractors who understood that we were licensing our work to an organization for a specified use and specific time period.
 
That, in essence, is what Tasini vs. The New York Times was about. Jonathan Tasini and the other plaintiffs, through the initiative of the National Writers Union, did a yeoman's job in clarifying the abuses by these publishers and establishing finally what we writers had long asserted – that we hold the copyright to our work and should have control over what is done with it and share in any ongoing profits that are made from it, unless we sign a contract to the contrary. And, it’s what the class-action lawsuit I’ve been involved in against the Union-Tribune and other organizations and databases is about.
 
Being fought separately, but just as important, is the whole issue of contracts. Ironically and completely against the spirit of the Tasini ruling, publishers are now coercing writers to sign all-rights contracts or even work-for-hire agreements that force writers to relinquish these rights for both future and past work, and generally for no additional fees. Some contracts actually go as far as to use language like “In all mediums now known or to be discovered and in all universes now known and to be discovered.” Why? Well, we’re told that they need these stories to have a complete historical record. That they’re not making any money off of them.
 
But that’s far from the truth. Let’s take a look at SEC filings some of these companies have made. The New York Times, in 2000, received $66.6 million in Internet revenues. As per the 10K wording, “The 2000 increase was from new revenue streams and the 1999 increase was primarily due to increased growth in advertising revenue.”
 
The Washington Post: “Online advertising revenues for 2000 totaled $27.1 million, a 108% increase above 1999 online advertising revenues.”
 
Gannett: “Pro forma advertising revenues for local newspaper Web sites increased by 88% in 2000, which followed a 68% increase in1999. Recent traffic on our sites was more than 40 million visitors and over 150 million pages viewed per month. Twenty-five of local Gannett newspapers now have operational Web sites. The company is also pursuing opportunities to developnational Internet businesses.”
 
E.W. Scripps Co.: “On-line advertising revenues were $5.2 million in 1999, $1.8 million in 1998 and $100,000 in 1997.”
 
Interesting – and galling. Especially when you are a writer getting bupkes and your livelihood is threatened.
 
This month, AOL Time Warner told writers at Ski and Skiing magazines that unless they sign a work-for-hire contract that they will be barred from writing for those publications, and have refused to meet with writers to discuss the contract. So, you say, find another outlet. Well, let’stalk about publishing consolidation. AOL Time Warner doesn’t just do this with one magazine. It becomes precedent for their other publications – all 46 of them.And then others in the industry follow suit.
 
Indeed, my colleagues in San Diego were presented with a contract that demanded far reaching rights to future articles – and past articles – with no room for compromise. If they didn’t sign, they could no longer write for the Union-Tribune. Many, many held their ground and lost a reliable source of income. Others, who financially had no choice, were coerced into a relationship they don’t want and are bitter about. Personally, I’ve lost somelong-standing relationships and income with publications because I could not bring myself to sign one of these contracts. I no longer can afford to write for newspapers and have a difficult time finding magazines that do not force us to write under these onerous conditions. Like many others, I’ve had to develop other outlets for earning a living.
 
That shouldn’t have to be the case. We believe that for the writer-publisher partnership to work, this heavy-handed approach must stop.Those publishers who wrote angry editorials against Napster are the same ones foisting these contracts on writers and infringing their copyrights by illegally publishing their work online and selling it to databases. The basic on-line infringement issues in the music industry and the writing industry are almost the same. Writers are now in a similar position to that of musicians before ASCAP.
 
There are demonstrated ways to make this new electronic publishing world work for both parties, including negotiating reasonable contracts and implementing the Publication Rights Clearinghouse run by the National Writers Union, which I’d be happy to describe. In fact, we just got good news this week that Primedia, Inc. a media company with more than 280 titles, has agreed to work with the NWU to negotiate fees for electronic use,as well as use the PRC and negotiate infringement claims. So, this concept is not a fantasy for writers. We recognize that publishers want to have content in a variety of media. We’re writers, we want our work read, not hidden away. But there is a bottom line – ours is that we want control of and compensation for what we produce, for work that is the essential foundation of their products.
 
Caron's comments after her presentation:
Interestingly, even the attorney for the LA Times seemed to be on our side, noting that the NY Times had gone overboard in coercing (her word) writers to sign these all-rights contracts and that publishers were just acting petulant in taking the work down from Web sites and being unwilling to negotiate payment. Indeed, a solution offered -- by the "opposition" -- was to set up a settlement fund for writers and even if they can't find some writers, make the money available once they do surface. The argument that they shouldn't pay anyone because they can't find everyone was even considered bogus by them. I'm feeling that once the rhetoric cools, we may actually win both the battle and the war. So, a very productive event, I'd say. 

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