New Battles Between Freelance Authors and Publishers in the Aftermath of Tasini v. New York Times
Journal of Law and Policy
New Battles Between Freelance Authors and Publishers in the Aftermath of Tasini v. New York Times
Laurie A. Santelli 0
0 Thi s Note is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Journal of Law and Policy by an authorized editor of BrooklynWorks
Recommended Citation Laurie A. Santelli, New Battles Between Freelance Authors and Publishers in the Aftermath of Tasini v. New York Times, 7 J. L. & Pol'y (1998). Available at: https://brooklynworks.brooklaw.edu/jlp/vol7/iss1/7
-
Article 7
Follow this and additional works at: https://brooklynworks.brooklaw.edu/jlp
The debate over technology and the interests of authors is
the very essence of copyright law.1
INTRODUCTION
Twenty years ago, a freelance author2 wrote an article and
decided to sell it to a daily newspaper. The freelancer met with a
newspaper editor who, upon reading the article, decided that it was
worthy of publication and arranged payment. A handshake between
the two sealed the deal.3 Today, the same author sells another
article to the same newspaper and another handshake agreement
ensues. In both scenarios, the freelance author has given up her
copyright in the article in exchange for payment. Twenty years ago,
the author's article would only be printed in a hard copy version of
* 972 F. Supp. 804 (S.D.N.Y.), reconsiderationdenied, 981 F. Supp. 841
(S.D.N.Y. 1997), and appeal docketed, No. 97-9181 (2d Cir. Sept. 23, 1997).
** Brooklyn Law School Class of 1999; B.A., State University of New York
at Buffalo, 1995. The author dedicates this Comment to her parents. The author
thanks her brothers, for their guidance, Kira Zevan, for her encouragement and
Randall Cude, for his editorial talent. A special thanks to Christopher Grasso for
his continual love and support.
Marshall Leaffer, ProtectingAuthors' Rights in a DigitalAge, 27 U. TOL.
L. REv. 1, 12 (1995).
2 The author uses the terms "freelance author(s)" and "freelancer(s)"
interchangeably.
' See Sidney A. Rosenzweig, Comment, Don't Put My Article Online!:
Extending Copyright'sNew- Use Doctrineto the ElectronicPublishingMedia and
Beyond, 143 U. PA. L. REV. 899, 906 (1995) (recognizing that the publishing
industry has been historically notorious for not using written contracts).
the newspaper. But today, with the advent of electronic
technologies4 such as LEXIS-NEXIS 5 and CD-ROMs,6 her article is
printed in hard copy and also reproduced in electronic databases.
After Tasini v. New York Times,7 the handshake transfers the
freelance author's electronic copyright in her article to the
newspaper without any additional "consent or compensation.
4 The author uses "electronic technologies" and "electronic media"
interchangeably. The terms will refer to electronic databases that distribute
information by means of computer-aided processes. The terms will not refer to
electronic multimedia that combine text with sound and visual images.
' LEXIS-NEXIS is a computer-assisted research service. Frank J. Cavaliere,
Legal Research on the Web, 42 PRAc. LAW. 63, 66 (1996). The LEXIS-NEXIS
service was formerly owned by Mead Data Central Corp., and is currently owned
and operated by Reed Elsevier Inc. of London. Id. NEXIS is an arm of
LEXISNEXIS that retrieves articles from newspapers, newsletters, magazines and wire
services, including the New York Times, Newsday and Sports Illustrated
(defendant publications in Tasini). Tasini v. New York Times Co., 972 F. Supp.
804, 806 (S.D.N.Y.), reconsiderationdenied,981 F. Supp. 841 (S.D.N.Y. 1997),
and appeal docketed, No. 97-9181 (2d Cir. Sept. 23, 1997); Steve Lohr,
FreelancersLose Test Case on Electronic Publishing, N.Y. TIMES, Aug. 14,
1997, at D18 [hereinafter Lohr, FreelancersLose Test Case]. In response to
search requests by subscribers, the articles can be displayed on a computer
monitor and/or printed. Tasini, 972 F. Supp. at 806.
6 CD-ROMs are compact-discs with read-only memory. TONY HENDLEY,
CD-ROM AND OPTICAL PUBLISHING SYSTEMS 5 (1987). See infra note 61
(describing the storage capacity and the production costs of CD-ROMs).
7 972 F. Supp. 804 (S.D.N.Y.), reconsiderationdenied, 981 F. Supp. 841
(S.D.N.Y. 1997), and appeal docketed, No. 97-9181 (2d Cir. Sept. 23, 1997).
' John Frees, Tech Watch, FreelancersLose Case on Cyberspace Rights,
Bus. FIRST-COLUMBUS, Aug. 29, 1997, at 31. The recent actions of National
Geographicmagazine illustrate the potential effects of the Tasini decision. In a
plan to market National Geographic CD-ROMs, the magazine placed every
article from the last 108 years onto compact-disc products. Claire Safran, Whose
Work is it Anyway?, FOLIO, Sept. 15, 1997, at 51. The magazine sent letters to
over 2,500 contributors informing them that they would not be paid for the
project. Id. By relying on Tasini, the magazine may place the articles onto the
CD-ROMs, absent any express agreement, without compensating the freelancers.
Id. Howe (...truncated)