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Freelancers Want the High Court to Rewrite Pay Rules

March 20, 2001|J. MICHAEL KENNEDY | TIMES STAFF WRITER

It's a big guy/little guy scenario: the multibillion-dollar newspaper and magazine empires versus the lowly and low-paid freelance writers.

The battle lines are drawn. The stage is set. Now comes the end of the seven-year legal battle that will be played out later this month in the solemn, wood-paneled chambers of the U.S. Supreme Court.

The case's core issue is one freelancers say is key to their livelihood. They claim the media companies have cheated them out of money that is rightfully theirs. The companies say it's just not so. All this because of the fast-paced advances in the digital world that have created an issue that did not exist even a decade ago.

The high court will hear arguments March 28 in the case of Tasini vs. the New York Times, which should clarify, to some point at least, what rights freelance writers have in this new age of electronic wizardry.

For the Record
Los Angeles Times Wednesday March 21, 2001 Home Edition Southern California Living Part E Page 4 View Desk 2 inches; 41 words Type of Material: Correction
Misidentification--In a story about a court battle between freelancers and newspapers in Tuesday's section, a picture of Jonathan Tasini, president of the National Writers Union, was mistakenly paired with a quote from Laurence Tribe, lawyer for the publications involved in the suit.

At the forefront of this long legal battle is Jonathan Tasini, a Los Angeles native who is a freelance writer and president of the New York-based National Writers Union and a longtime advocate of authors' rights. He, along with 10 other writers, initiated the suit in 1993, claiming the Times and others were reselling their work to electronic databases without compensating the authors. At first, the case received scant attention. Not so anymore.

"When we first started the case, I had to beg lawyers to even look at it," said Tasini. "Once the Supreme Court took our case, my phone was ringing off the hook with lawyers willing to argue the case."

Since the suit was filed, the stakes have escalated dramatically, with the popularization of Web pages, CD-ROMs, online services and other electronic media that have become a pervasive part of everyday life. And with that proliferation, the lines have blurred over who owns intellectual property in the electronic marketplace.

As the case goes before the court, the media giants--including the New York Times, Newsday (which is owned by Tribune Co., parent company of the Los Angeles Times), Time Inc. and Lexis-Nexis, among others--must argue that the 1999 decision in which the 2nd District U.S. Court of Appeals sided with the writers be overturned. The writers also have garnered support from the U.S. Register of Copyrights as well as the influential American Library Assn.

Both sides offer divergent views on the outcome of the case.

The media companies predict dire consequences should the writers prevail, saying they'll be forced to eliminate thousands of freelance articles and photos from their databases that would, in turn, drastically affect historical research. The purging of stories would be necessary, they argue, because it would be impossible to track down and compensate authors who, in some cases, wrote their articles more than two decades ago.

The writers, in contrast, contend a victory in the Supreme Court should be the first step in the process of receiving payment for their electronically distributed work. As a show of how divisive the issue is, a number of noted historians have lined up on both sides of the argument. They include such luminaries as David McCullough and Doris Kearns Goodwin on the publishers' side and historians Jacques Barzun and Robert K. Massie in support of the writers.

Tasini, the writers' union president, said the case began when he and others noticed that their work was being resold to databanks by publications that originally commissioned the articles. The writers filed suit, arguing that reselling articles via the Nexis system and others was a violation of copyright law because the articles were "revised" simply by being put into a databank without the authors' permission.

"We did a little research and decided there was widespread theft that was going on that had to be challenged in court," said Tasini in a recent interview. The media companies' view was quite the opposite, arguing that putting the stories in a databank was the same thing as printing a later edition or putting the articles in an anthology.

*

The writers lost the first round of the case when the lower court judge sided with the companies' interpretation of the law. But Tasini and company won in the court of appeals, which ruled that it was a copyright infringement to publish freelancers' work without explicit permission.

But now, even with the upcoming arguments before the Supreme Court, one school of thought is that the media companies may lose this battle but win the war because they will demand (as many do now) that writers sign contracts turning over all rights, even those that don't exist at the moment.

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