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Supreme Court to Review Jurisdiction in Freelance Writers Case ‘Settlement’
by
Posted On March 9, 2009
Once upon a time, freelance writers came to realize that the articles they had written for a particular newspaper or magazine were being sold over and over again through electronic databases, CD-ROMs, and other new media—without compensation. The copyright law provides that unless contracts specify otherwise, publishers only get one use of an article. Well, lo and behold, the contracts that freelance authors and publishers had used did not anticipate electronic databases full of past issues, reproducing, re-reproducing, and re-re-reproducing the articles of freelancers. The publishers and database vendors were the only ones reaping the re-re-rewards of the freelance writers’ labors! So the freelancers sued and ultimately won in the Supreme Court. The Tasini case that came out of the U.S. Supreme Court in 2001 (http://newsbreaks.infotoday.com/nbReader.asp?ArticleId=17563) was ultimately remanded to the Federal District Court for further proceedings. However, most hoped that a workable solution in the form of a settlement would be worked out—a solution addressing the rights of all freelance writers and providing full access to the complete written record of the magazines and newspapers. As the Supreme Court said, "[t]he Authors and Publishers may enter into an agreement allowing continued reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution" (emphasis added).

The parties (The Author’s Guild, the National Writers Union, and the American Society of Journalists and Authors), represented by Jonathan Tasini, negotiated a settlement that broke the freelance writers into three classes. Classes A and B were those who had registered copyrights on their works before or after the initial suit, and Class C was everyone else. The paltry sum of up to $18 million was deemed by the publishers and database vendors to be sufficient compensation, despite the fact that long before all of the A and B class participants were paid off, there would be nothing left for the C class (http://newsbreaks.infotoday.com/nbReader.asp?ArticleId=16234). When the "settlement" went to Federal District court for approval, Irvin Muchnick and other members of the C class objected (http://newsbreaks.infotoday.com/nbReader.asp?ArticleId=16105).

Muchnick and the "Objectors" appealed the "settlement" to the Federal Circuit Court of Appeals, which penned an opinion that came out of left field to say that because the C class members (more than 90% of the claimants) had not registered their copyrights, they had no right to sue in federal court. Hence, the Federal Court had no jurisdiction to address their rights!

Huh?!

So Muchnick and the objectors appealed to the Supreme Court again—since the court had already found that (registered or not) the copyrights of all of the freelance writers had been violated by the publishers and database vendors.

Last week, the Supreme Court granted certiorari, this time to determine "Does 17 U. S. C. Sec. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?" (Reed Elsevier, Inc. et al., Petitioners v. Irvin Muchnick, et al., U.S. Supreme Court Docket No. 08-103). In other words, do the federal courts have jurisdiction over the rights of freelance writers who have yet to register their works with the U.S. Copyright Office, even though a work is copyrighted immediately when it is created in tangible form (not just when the author seeks registration with the Copyright Office). As Muchnick points out, many freelance writers make too little on their articles to justify spending $35 or $45 to register each of their works.

Hint from the author: If you are a freelance writer and you think your articles are possibly being copied and sold over and over through publisher websites, database vendors and aggregators, CD-ROM collections, audiobooks, and goodness knows how many other ways the petitioners have reused and reproduced your work, you should file for registration with the Copyright Office! Registration will enable you to sue to enforce your copyrights in federal court—no matter how this case comes out.

So the freelance authors can spend the next few months saving up to register their articles. What about the publishers and database services?

If they think a one-time $18 million payment is going to be sufficient any longer (since attorney fees come out of the settlement before the authors get anything, and appeals are really expensive), they are clearly dreaming. And if the petitioner-publishers and databases that are continuing to collect royalties without compensating the author-copyright holders think that the Supreme Court is going to say, "oops, we didn’t have jurisdiction to make our prior Tasini decision. Our bad. Sorry," they are, in my humble opinion, sleepwalking into a nightmare result.

The Supreme Court spoke in 2001 that freelance writers had rights to compensation. They are not likely to be amused by this challenge to their jurisdiction over the original case.

And the petitioners should note that a settlement was but one option that the Supreme Court mentioned in the Tasini opinion. The courts can come up with a solution, and/or Congress can come up with a licensing scheme—and goodness knows what that might turn out to be!

The only smart course of action by all concerned is to save the Supreme Court the time and trouble of having to decide this matter again. The parties should negotiate a settlement that is just and fair for all—fair for all freelance writers, freelance photographers, and other creators whose works are being copied and sold over and over through websites and databases, CD-ROMs, downloaded audio files, etc.; fair for researchers and other information users, who want access to all of the works published in every issue of periodicals. After all, pending settlement, publishers have taken hundreds of works of many freelance authors out of their databases, often without asking the author. In addition, databases such as LexisNexis have been removing the works of authors who object to having their works made available for sale and duplication without compensation.

If this all sounds familiar, it seems to me to be an extension of the contract negotiations by the Writers Guild, the Screen Actors Guild, and the American Federation of Television and Radio Artists (AFTRA) that want to be compensated for today’s DVD, internet, and other technological uses of their work, as well as tomorrow’s technology (whatever that might be). Substitute "author’s copyright or licensing fees" for "residuals." In the next decade, we may be watching movies projected on the insides of our eyeballs—whatever the new technologies that come along, adequate compensation for creators and full access by the entire population are essential. After all, the only constant is change—so evolving technology is more foreseeable than the status quo staying the same forever.

In Conclusion …

So Carol, "it’s the technology, stupid." Right? No. It’s doing the right thing, no matter what the technology. If publishers, database producers, aggregators, and/or vendors (or any entity duplicating, selling, remarketing, or otherwise profiting on a creator’s work) are getting enriched, then the creator must get a share. Whether it’s freelance photographers’ or writers’ works being commercialized (or whether it is the creative effort of the actors on the screen), no matter the technology or means (copying/printing/scanning from databases, renting DVDs, or downloading movies over the internet), it is only fair and legal to compensate them.

Of course, if the petitioner publishers, database aggregators, and vendors want decades of litigation with authors fighting for fair compensation each time there is a new tech advance, then they can continue this battle. It won’t help the information consumer, libraries, web users, the public, or creators, but if the petitioners would rather support perpetual employment for intellectual property attorneys, that is their prerogative. Some day Congress or the courts will intercede on behalf of the creators—and the petitioners will rue the day that they failed to negotiate an equitable solution.

Documents, Databases, and Blogs Dealing With Freelance Litigation

www.copyrightclassaction.com: This purportedly "official" site slants toward the prosettlement group.

http://freelancerights.blogspot.com: Irv Muchnick’s "Discussion of the Settlement in the Landmark Lawsuit Over Unauthorized Reuse of Freelance Authors’ Previously Published Newspaper and Magazine Articles." This comprehensive site also provides links to articles about the case, documents, etc.

www.supremecourtus.gov : You can follow the progress of the case before the Supreme Court by searching for the docket number 08-103.


Carol Ebbinghouse is law library director at the California 2nd District Court of Appeals and the "Sidebar" legal columnist for Searcher magazine.

Email Carol Ebbinghouse

Related Articles

6/28/2001Tasini Case Final Decision: Authors Win
9/22/2011Authors Take Libraries to Court in Face Off on Copyright Issues


Comments Add A Comment
Posted By Jerry Natchman3/9/2009 6:45:20 PM

You apparently don't understand that this argument is moot and there will be no "rueing the day." If you sell an article for publication nowadays you must sign away your data base rights or the piece will not be used. The scuttle for money in the settlement was the last vestige of this battle for freelancers. If the Supreme Court does not rule in favor of the petitioners, the $18 million is gone forever, thanks to Mr. Muchnick and his pals. The statute of limitations for unregistereds has long since past for filing individual claims for the time period of the class action suit.

**********************************

Response from Carol Ebbinghouse

The issues are not moot. If they were, there would not continue to be tens of thousands of dollars spent on the litigation.

Not all publishers require the freelance writer to “sign away your data base rights or the piece will not be used.” I have never signed away any future rights (database, CD-ROM or any other technology) to my articles, and I have written and continue to write for different magazines and trade publications.

The fact is newspaper and magazine publishers, through commercial databases, their own web sites, CD-ROMs and other technologies, are still selling and re-selling works created and still owned by freelancers without compensating them! They are doing it now and will continue in the future, keeping the profits for themselves until some form of royalty system is developed, through a negotiated settlement, the courts, or Congress.

Since the copyrights continue to be violated, registration at this point will at least get compensation for the three years of violations prior to registration. However, it could be argued that the unregistered claimants (everyone in C Class and those Class A and Class B members who have still not registered some of their creations), have not sat upon their thumbs, but arguably relied upon the class action to represent their interests. In this case, there might be an equitable tolling of the limitations period. Hence I encouraged other C class members and all of those with unregistered copyrights to register now, lest they be precluded by the equitable concept of latches from prosecuting their claims. Also, as Irv Muchnick told me, “registering is the necessary insurance in case the Supreme Court ultimately decides that only registered works can be addressed in a settlement. Now, I don't think it will go that way -- but I obviously don't know.”


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