Tasini vs. Times 3: Letter from: New York, No. 12
by A. D. Coleman

The much-anticipated June 25 decision by the U.S. Supreme Court in the precedent-setting lawsuit commonly referred to as Tasini vs. Times has profound implications for all those involved with the freelance production of intellectual property -- writers, photographers, graphic artists, and many more.

Formally titled Tasini et al v. the New York Times et al, this case was first filed by five National Writers Union members -- all of them freelance writers -- in New York City's District Court in December of 1993. (In pursuing this suit, the NWU had the backing of the United Auto Workers union, of which it's presently an affiliate.) The original decision, in favor of the defendant-publishers, was handed down on August 13, 1997. The writer-plaintiffs' appeal was argued before the Second Circuit in April 1998. On September 24, 1999, a three-judge panel issued a landmark ruling -- an unequivocal decision specifying that it constitutes copyright infringement for a publisher to place any freelancer's work online or otherwise reuse or resell it without explicit written permission.

The defendant-publishers then petitioned the Second Circuit for a full-court review of that panel's verdict. On April 6, 2000, the U.S. Court of Appeals unanimously upheld the lower court's decision on the electronic and other rights of freelance writers. That decision sent shockwaves through many branches of the publishing industry. In May of 2000, however, the Court of Appeals agreed to stay its own mandate to the lower court to proceed to the penalty phase, in order to allow the defendant-publishers to file for a hearing before the U.S. Supreme Court, which took place earlier this year. (More information on the case and its background appears on the National Writers Union's website.)

Clearly shopping for another opinion, Times et al apparently hoped that the Supreme Court, with its present conservative leanings, would favor capital over labor in this contest. That seemed unlikely, as the lower court's decision was closely reasoned. Moreover, protection of copyright is built into the U.S. Constitution itself, and any close reading of the copyright law as it has evolved over the past two centuries offers no justification for the publishing industry's current practices.

Yet with the abrupt truncation of the heretofore "free" supply of content for countless current and projected publishing ventures suddenly at hand, and billions of dollars' of reparations at stake, it was doubtful that the publishing industry would simply let this go with no further fight. The low estimate of the eventual cost of this suit to the defendants in damages is $6.5 billion USD; the high estimates go up to $200 billion. With the rights question now finally resolved, the lawsuit moves into its penalty phase. (To give just one example of how deeply this could hurt publishers, plaintiffs -- myself included -- in a comparable but smaller suit, recently settled against an online service called UnCover that, like Lexis-Nexis, offered downloads of published magazine articles for a fee, received $750 USD per unauthorized download for material that had been posted without permission from the authors. That case will certainly serve as a model when damages against the Times and other defendants in Tasini come up for assessment.)

Having the publishers' case rejected by the Supreme Court in a full hearing by a sweeping 7-2 majority puts the final nails in the coffin of the publishing industry's spurious claim to any rights -- not just electronic rights -- as automatically "bundled" with first serial print publication rights. That, in turn, gives freelance writers and other independent content providers all the more reason to resist contractual demands to surrender subsidiary rights to publishers without a fight. (At the same time, of course, it encourages responsible and foresighted publishers to request and license those rights formally from the independent contractors with whom they work -- and it has already moved many of the more bullying among them to demand such rights as a condition of any commission.)

Widely hailed by individual authors and other writers' organization such as the International Federation of Journalists and the Authors Guild, the Tasini vs. Times case has received acknowledgment from much further afield. For example, in the 20th anniversary exhibition held May-June 2000 at the International Center of Photography in Manhattan to celebrate the magazine Photo District News (the bible of professional applied photographers stateside), and in the accompanying special May 2000 issue of that periodical, the Tasini case features prominently among the half-dozen key items representing 1999 in a two-decade timeline. The American Society of Media Photographers has praised the NWU for spearheading this battle, as have many other professional organizations. This should surprise no one; content providers in other media -- photographers and other visual artists, for example -- are no less affected by digital media and the Internet than are writers. One of the useful side effects of the Tasini vs. Times case, in fact, has been an increased sense of common cause among professional organizations of content providers throughout the U.S.

So far, the only response from the Times to the decision has been to ask freelance contributors whose work has been put online illegally to ratify that illegality retroactively by signing electronic rights over to the Times and surrendering any right to sue for such misuse; otherwise, the Times indicates, it will simply remove any and all such work from its website and those of its licensees, rather than make any attempt to license the material legally from its creators.

This seems exceedingly short-sighted. In recent years, the music industry has demonstrated the feasibility of licensing even "samples" of recorded and published music that last only a few seconds, in ways that benefit the original musicians without notably impeding those who seek to recontextualize that material. The Publication Rights Clearinghouse, an organization created by the NWU to facilitate subsidiary-rights licensing, though in its infancy compared to such long-established music-licensing enterprises as ASCAP and BMI, serves to indicate that writing -- and, by implication, all content -- can find new uses, new users, new markets, and new audiences without disenfranchising anyone.

In any event, this historic ruling will function as the basic U.S. copyright law of the 21st century. No question that the Supremes, as they're now colloquially known over here, took the challenge seriously -- and, to their credit, rose to it.

This essay first appeared in PhotoNews (Germany), Vol. 13, no. 9 (September 2001), p. 10, in German.

Copyright © 2001 by A. D. Coleman. All rights reserved. For reprint permissions contact Image/World Syndication Services, POB 040078, Staten Island, NY 10304-0002 USA;T/F (718) 447-3091, imageworld@nearbycafe.com