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
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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)