Tasini Aftermath: The Consequences of the Freelancers' Victory

DePaul Journal of Art, Technology & Intellectual Property Law, Dec 2019

By Amy Terry, Published on 04/01/04

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Tasini Aftermath: The Consequences of the Freelancers' Victory

DePaul Journal of Art Tasini Aftermath: The Consequences of the Freelancers' Victor y Amy Terry 0 1 Recommended Citation 0 Amy Terry, Tasini Aftermath: The Consequences of the Freelancers' Victory , 14 DePaul J. Art , Tech. & Intell. Prop. L. 231 (2004) Available at: https://via.library.depaul.edu/jatip/vol14/iss2/3 1 This Case Notes and Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information , please contact Follow this and additional works at; https; //via; library; depaul; edu/jatip - Terry: Tasini Aftermath: The Consequences of the Freelancers' Victory CASE NOTES AND COMMENTS TASINI AFTERMATH: THE CONSEQUENCES OF THE FREELANCERS' VICTORY INTRODUCTION In 2001, the United States Supreme Court in New York Times v. Tasini affirmed freelance authors' exclusive right under the United States copyright law to post their works on electronic databases or to transfer that right to a database or publisher in writing.1 The case was considered a major victory for freelance writers. In principle, the victory was a milestone for the rights of freelance authors. However, the aftermath illustrates that the victory has had severe negative effects on the rights and the livelihoods of freelance writers. Still, freelancers have options to try to mitigate and reverse some of these effects. Before Tasini, the freelance world was governed by oral relationships. Under this scheme, freelancers retained their copyrights and were thus free to re-sell their pieces and exploit their works in new ways. Today however, many publishers, who hold superior bargaining power, require freelancers to sign away all copyrights to their articles. Currently, freelance writers, databases, and publishers are in court-ordered mediation to resolve three lawsuits regarding preTasini infringement. In addition, the majority of freelance work created and published before Tasini has been removed from 23D2ePaul Journal of Art, TDechEnoPloAgy U&ILntJelAlectual Property Law, Vol. 14, Iss. 2[[V201o6l]., XArIt.V3 :231 RT &ENT. LAW databases, benefiting neither side and leaving an historical gap for researchers and other interested parties. This article will address the background of the Tasini case and its holding as well as the aftermath and consequences of Tasini. The article will examine the status of pre-Tasini works, how current freelance contracts are structured, and what publishers now demand in return. In addition, it will explore possible steps that freelance authors can take to improve their positions at the bargaining tables, to empower themselves, and to structure more beneficial relationships with their publishers. I. BACKGROUND Before Tasini, relationships between newspaper publishers and freelancers were more casual and were typically established and maintained only through oral conversations.3 In 1978, when the current copyright law went into effect, it changed how contributions to collections such as newspapers were treated. Section 201(c) provides that the copyright in an individual contribution to a collection is retained by the author of the 3. See Telephone Interview with Ken Richieri, Vice President and Deputy General Counsel, The New York Times Company (Dec. 4, 2003); Tasini v. New York Times, 972 F.Supp. 804, 807 (S.D.N.Y 1997) ("As of the time this action was commenced, freelance assignments for The New York Times were typically undertaken pursuant to verbal agreements.. .These discussions seldom extended into negotiations over rights in the commissioned articles"), rev'd 206 F.3d 161 (2d Cir. 2000); see also Marx v. Globe Newspaper Co., No. 00-2579-F, 2002 WL 31662569 at *1 (Mass. Super. ) For many years, the plaintiffs' relationship with the Globe was governed by oral agreement in which the plaintiffs, as freelance independent contractors, wither regularly or episodically sold their work for a fee to the Globe for publication in the Globe newspaper. Under this oral agreement, the freelancers retained the copyright in their work and did not expressly grant the Globe any license to republish their work in any media other than the Globe newspaper. 2004] individual contribution and is distinct from the copyright in the collective work as a whole. Even after this change however, the industry standard did not involve written contracts with freelance writers.' As a result, freelance authors retained the copyrights in their works. In contrast, newspapers owned the copyrights to pieces written by staff writers because, as employees of the publication, their works are covered by the work-made-for-hire doctrine that states employers own the copyright of "a work prepared by an employee within the scope of his or her employment."6 The New York Times Company Vice President and Deputy General Counsel Ken Richieri explains that during the (...truncated)


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Amy Terry. Tasini Aftermath: The Consequences of the Freelancers' Victory, DePaul Journal of Art, Technology & Intellectual Property Law, 2016, Volume 14, Issue 2,