How much will the Supreme Court ruling change the game? 6/27 ReleVents hed: Online content convoluted dek: How much will the Supreme Court ruling change the game? by James Mathewson
A recent Supreme Court ruling has freelancers around the country cheering. The ruling, discussed in two news items on our site, which you can access here and here, will forever change a widely used publishing practice. Most online publishers license their archived content to various subscription-based services for a small fee. The services, such as Lexis/Nexis, then contract with corporate entities to offer access to their huge databases for a larger fee. The ruling made these arrangements illegal, unless the publisher makes these deals explicit in the freelancer’s contract.
The case–Tasini vs. New York Times–is not an unqualified win for freelancers, however. Many publishers modified their contracts to allow for archival uses when they began publishing on the Web. Others did so as soon as they started contracting with the subscription services, knowing that freelancers could call them on unauthorized use of their copyrights. And those that do not have those contractual provisions will include them in the future. Writers will need to accept this kind of use or they will have a difficult time finding work.
This is the strange reality of online publishing. It almost always favors the publisher, because of supply and demand. I suspect that some publishers will simply stop working with subscription services and offer more traditional copyright conditions as a plus to their freelance writers and artists. But the vast majority of publishers that count on this additional revenue will simply make it a condition of their freelancers that they accept this kind of use. The market for freelance jobs is such that, if you want to work, you will have to sign away your rights.
As a publisher and a freelancer, I have been on both sides of the negotiating table with respect to this issue. I have had an artist refuse a sweetheart deal that would have conservatively netted him $10,000 per year; he didn’t like the deal because it involved working outside the copyright box, allowing us to use his work on the Web as a way to promote the book we were jointly working on. Because he could not get a similar deal anywhere else, he was left with nothing. Several professional organizations advise their members to play hardball like this, to the detriment of the many and the benefit of the few.
As a freelancer, I take a much more pragmatic approach to rights. While I certainly don’t want to be exploited, I recognize that there are several freelancers for every job, and if I don’t accept publishers’ terms, I will not get work. Of course, their terms have to be within standard copyright laws, but there are many shades of gray in the interpretation of these laws. And the laws are getting more complex with the dawn of digital publishing, not only for writers and artists, but also for musicians. More and more, if you want to work as a freelancer (and who doesn’t?), you simply have to sign away a lot of rights (sometimes all rights). For this reason, I don’t think this case is as much of a landmark as many of the analysts cited in the story suggest.
James Mathewson is editorial director of ComputerUser magazine and ComputerUser.com.