Intergalactic Rights Anyone?

The slick, high-tech mediums launching us into the new millenium have brought with them some old, legal albatrosses, not the least of which is the issue of copyright infringement. In a case of the ever-cheapening of the written word, discussion rages over who owns a piece of work after it's been published, and how ownership is determined when that piece is reprinted in another format, say online or in a database. While the scenario of the big, bad publisher taking rights -- and thus money -- from the poor, starving writer is not exactly new, the Web and other modes of electronic publishing have served as lightning rods for debate on the issue. They've established a dichotomy that makes it trickier than ever for freelance writers to make a decent living. While the potential audience for a writer's work has grown exponentially with the advent of these new mediums, the ability to resell work in different markets -- the bread and butter of freelance life -- is beginning to disappear as the entire world has theoretically melded into one huge market out in the ether. And writer's paychecks have shrunk in kind, causing despair among many in the profession.The latest chapter in this murky debate comes in the form of a ruling in Tasini et al. v. New York Times Co., a six-year-old legal battle. The case involves Jonathan Tasini, president of the National Writer's Union (NWU), and a handful of other freelance writers, who sued the New York Times Co., Newsday Inc., Time Inc. Magazine Co., University Microfilms International and Mead Data Central Corp., former owner of the Lexis-Nexis databases, for using their work without permission or payment.On September 24, 1999, the 2nd U.S. Circuit Court of Appeals overturned an earlier ruling that had been in favor of the publishers and said that, in lieu of a contract, ownership of written material reverts to the author after initial publication and all royalties from electronic database reprints should be directed to them. Though the case dealt only with databases, it's likely that Web content will be covered under the same precedent."Thanks to their own greed and arrogance, the media industry faces the grim reality of a tidal wave of lawsuits that will boggle their minds," Tasini exulted after the verdict. "Every single data provider now is at risk. We could go into court tomorrow if we wanted and ask to shut down every database," he told (ital)The New York Times(ital).Such overzealous claims are unlikely to come to fruition."The idea that there's a pot of gold for freelancers who wrote a few stories for (ital)The New York Times(ital) five years ago, forget about it," says David Wallis, a frequent contributor to (ital)The Times(ital) and (ital)The Washington Post(ital).First off, in recent years it's become common practice for many publishers, including those named in the suit, to require writers to sign contracts allowing electronic republication of their work. Secondly, in many cases the statute of limitations for copyright infringement has passed. And besides, not everyone can afford to be a martyr for the cause and bite the hand that feeds them; some just want to pay the rent. Nonetheless, the case does lay some substantial groundwork. "It's an important decision in taking back writer's rights and maybe not being dictated to so much," says Wallis, who, while no fan of the NWU, commends Tasini for going forward with the case. Wallis says he's worried, however, that the decision could create a backlash where publishers force writers to agree to stringent contracts and give up all rights to their work, everywhere, for all time. Such concerns aren't unfounded."While this decision may give writers more bargaining clout when it comes to negotiating with publishers, my feeling is publishers will react by making explicit agreements that authors are transferring all copyrights to a given work to the publisher," says Jeffrey Reyna, an attorney specializing in Internet law at Hancock, Rothert and Bunshoft in San Francisco. So the work could end up on Lexis-Nexis, a Web site, and even as-yet-unknown mediums and writer's would never see another cent for it. What the decision may really mean is that now more than ever it will be incumbent upon writers to pay attention to the wording in their contracts and push back when publishers attempt to usurp their rights and their royalties."The lawsuit ruling establishes a principle. It's one small step forward," says Marc Cooper, a contributing editor to (ital)The Nation(ital) magazine and a former executive officer of the NWU. "What it will mean depends on the ability of writers to stick together and keep their voices heard, especially when it comes to penny-pinching new media companies that may parade as the future but whose relationships with their freelancers are downright Dickensian."