Freelancers take complaints against The New York Times to Supreme Court

From the Winter 2001 issue of The News Media & The Law, page 24.

The U.S. Supreme Court will hear a case this term pitting freelance writers against publishers vying for intellectual property rights to the digital archiving of copyrighted works. The case, New York Times Co. v. Tasini, will significantly affect future contract negotiations between freelancers and publishers.

Freelancers to The New York Times sued the newspaper and several other periodicals, including Newsday, Time and LEXIS/NEXIS, in 1997 for selling their works to electronic databases that archive articles. The federal district court granted the defendant media outlets summary judgment because the digital collections constituted a revision of the individual periodicals.

Although writers who do not work “for hire” retain copyrights in the original articles, the publishers own copyrights to their collective works as a whole. The owner of a copyright in collective works can reproduce and distribute an article as a part of that particular collective work, in any revision of that collective work, and in any later collective work in the same series.

In September 1999, the U.S. Court of Appeals in New York (2nd Cir.) reversed the lower court and stated that the databases were not revisions of the original materials. The court said the organizational structure of an electronic database does nothing to preserve the copyrightable aspects of the publishers’ works. For example, NEXIS users cannot reconstruct the arrangement of the day’s edition of The New York Times.

In its brief to the U.S. Supreme Court filed on Jan. 5, the publishers argued the copyrights in their collective works entitled them to reproduce and distribute those works, “a process that necessarily involves distributing the individual contributions.”

The publishers called the electronic archiving a “revision,” which is allowed under section 201(c) of the Copyright Act. That section provides that “the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.”

The publishers also argued that the Second Circuit decision conflicts with fundamental copyright principles because it would treat other non-infringing media, such as microfilm archives, as infringing. The publishers likened the CD-ROM technology to other indexing resources, such as the Reader’s Guide to Periodical Literature.

Finally, the publishers and database producers stated in their brief that the Second Circuit ruling “would have devastating effects upon the contents of electronic libraries if not reversed. Hundreds of thousands of non-staff-written contributions would have to be deleted from services such as NEXIS. CD-ROMs would have to be destroyed because it is impossible to delete individual articles.”

Tasini resembles a case argued before the U.S. Court of Appeals in Atlanta (11th Cir.) in October 2000. In Greenberg v. National Geographic, a freelance photographer sued the National Geographic Society for its use of his copyrighted photographs in a 1997 CD-ROM collection archiving 108 years of the magazine. Greenberg argued the CD-ROM set was “a new derivative work” protected by copyright law. National Geographic contended, however, the CD-ROM library was equivalent to The National Geographic bound volumes or copies on microfilm, which are not new works.

Tasini may be distinguished, the National Geographic Society argued in its brief to the Eleventh Circuit, on the grounds that the CD-ROM only reproduced issues of the magazine exactly as they originally appeared, and therefore was not a “revision” under section 201(c). The momentary glimpse of one of the copyrighted photographs shown in a moving image sequence at the beginning of the CD-ROM was so minimal as not to be actionable, the Society argued. Alternatively, the Society argued the use of the photo in the sequence was fair use, the doctrine of copyright law which permits limited use of copyrighted material for certain purposes, such as criticism, comment, teaching and scholarship.

According to the U.S. Supreme Court Web site, the parties’ final briefs are due by March 14. — DB