New Battles Between Freelance Authors and Publishers in the Aftermath of Tasini v. New York Times

Journal of Law and Policy, Dec 1998

By Laurie A. Santelli, Published on 01/01/98

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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)


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Laurie A. Santelli. New Battles Between Freelance Authors and Publishers in the Aftermath of Tasini v. New York Times, Journal of Law and Policy, 1998, pp. 7, Volume 7, Issue 1,