If you’ve been freelancing for a while, chances are pretty good that you stand to collect money due you for electronic use of your work without permission.
In August 2000, the American Society of Journalists and Authors and the Author’s Guild filed suit in U.S. District Court for the Southern District of New York maintaining that their members who had written stories for periodicals and had registered copyright for those articles had not been properly compensated for electronic use.
Within 30 days a group of individual writers in San Francisco belonging to the National Writer’s Union joined, but the case was stalled while the U.S. Supreme Court decided the New York Times v. Tasini case. In that groundbreaking case, the court upheld the decision of the U.S. Court of Appeals, which ruled that, when there is no contract relating to electronic rights, a print publisher may not put the writings of freelancers on databases (such as LexisNexis), CD-ROMs and other media without securing their permission. In other words, if you have not expressly transferred to the publisher the right to reproduce your work electronically, the publisher cannot legally license your articles to other media.
The three cases were consolidated, and U.S. District Judge George M. Daniels immediately ordered it into mediation.
“Judge Daniels saw that it was not a question of copyright infringement anymore,” says Jim Morrison, past president of ASJA and president of the organization when the suit was filed.
“The Supreme Court had already ruled on that matter in Tasini,” he says.
The defendants (see sidebar listing of publishing companies and databases) early on denied all allegations or any liability by the plaintiffs but agreed to settle to “conclude finally and definitively” all claims.
Beginning in March 2002, the parties met with mediator Kenneth M. Feinberg, former administrator of the 9/11 Fund.
“We ended up with a claims-made settlement,” says Morrison, who was party to the talks on behalf of ASJA members. “Instead of doling out a pile of money to claimants, it’s on a per-story basis based on three categories.”
Edward Roeder, a freelancer based in Washington, D.C., believes a better deal can be had and urges freelancers to opt out of the suit, an option available to all.
“The lawyers are getting paid far more than their efforts have been worth, while the writers are getting a fraction of what a normal settlement would be. Worse, the publishers get the benefit of their theft,” he says.
That’s because if you accept the full amount of the settlement, publishers can continue to use the works electronically with penalty.
Morrison says the individual award amounts are small, but if you have hundreds or thousands of eligible stories, the payoff can be large.
“We looked at what is typically paid out under copyright infringement, and it’s not at the high end, maybe $30,000 for a bestseller. We thought those fees would be much less if we went to trial.”
Adding to the complexity is that you have to prove that copyright infringement is willful.
“In this case, we were confronted with the fact that publishers maintained electronic rights were the same as the first-print rights,” he says.
In the end, the plaintiffs believed it unreasonable to expect the court to award higher damages.
Under terms of the settlement, which has received preliminary approval from Judge Daniels, publishers have agreed to pay up to $18 million toward the settlement of claims.
Writers (the suit doesn’t cover photographers or artists) may receive compensation according to the following categories for any English language literary work published after Jan. 1, 1978:
Category A Subject Works: Payable for each work you registered with the U.S. Copyright Office before any infringement occurred or within three months of the first publication of the work.
* $1,500 for each of the first 15 works written for any one publisher;
* $1,200 for each of the second 15 works written for that publisher;
* $875 for each work written for that publisher after the first 30 works.
Category B Subject Works: If you registered your work before Dec. 31, 2002, but after any infringement of the work and more than three months after the first publication of the work you receive the greater of $150 or 12.5 percent of the original sale of each work.
Category C Subject Works: For all other works, including those that were never registered with the U.S. Copyright Office, you will receive:
* $60 for each work originally sold for $3,000 or more;
* $50 for each work originally sold for $2,000 to $2,999;
* $40 for each work originally sold for $1,000 to $1,999;
* $25 for each work originally sold for $250 to $999;
* The greater of $5 or 10 percent of the original price of all other works.
“If you want your stories removed from the defendants’ database forever, you can do so and only get paid 65 percent of the claim,” says Morrison.
However, if you accept the full claim, you will not be able to prevent the continued electronic use of works.
Beginning immediately, writers can file claims through a simple form available at www.copyrightclassaction.com. You’re not required to know exact dates and headlines.
“These are questions you need to answer to the best of your knowledge,” says Morrison. “It’s up to the publisher to disprove any claim, so it’s good to be aggressive.”
He recommends conducting an online search of your work with participating defendants.
“If you wrote a story for them — particularly newspapers — it’s likely they posted it online,” he says.
“If you signed one of those awful all rights agreements granting retroactive electronic rights with no further payment, you still are eligible. You don’t get 35 percent for future rights because you already signed it away for free and you shouldn’t have,” he advises.
Morrison says he’s pleased with the court’s decision.
“Electronic rights are a secondary use, a republication, and I think the courts have followed the obvious copyright law,” he says.
There is a clause in the settlement that prohibits publishers from retaliating against anyone who makes a claim.
“Magazines especially rely heavily on freelancers who report well and write well. Electronic rights are worth money to publishers and should be worth money to writers as well. They are separate uses. Publishers are paid a royalty every time that story — your story — is downloaded.”
The claims period goes through Sept. 30, 2005 (120 days), and after that the claims administrator will start cutting checks.
Wendy Hoke is a Cleveland-based writer and editor. Her work has appeared in numerous publications, including The Plain Dealer, The Columbus Dispatch, Northern Ohio Live and Charleston magazine. She serves as co-chairperson of SPJ’s National Freelance Committee and can be reached at wendyhoke@comcast.net. Her online Weblog, Creative Ink, can be found at www.creativeink.blogspot.com.
Tagged under: Freelancing
