Morning Session (part 2 of 4)
The first speaker is
Maureen O’Rourke, presenting her paper “Bargaining in the Shadow of Copyright Law After
Tasini.” Ms. O’Rourke is a Professor, and Associate Dean for Administration at Boston University Law School. This paper appears to be a good summation of what has happened since the
Tasini case was brought back in 1992, it reads easily and will be useful to explain the matter to normals.
In her paper O’Rourke suggests that the problem with the current treatment to freelancers is that the present system (post-
Tasini) of freelance contracts undercuts the rights under copyright. Where, once, freelancers merely sold the merely right of first publication of a story (and various but limited republication rights) and were free to re-sell the story to other publications in different geographic regions; now (generally speaking) freelancers give up all rights to their work, in all forms until the copyright reverts back to them in 35 years. So while the NYT makes the piece available to a wider circulation and provides additional content to the Internet site, the freelancer still receives the same compensation he/she would have before the change in the contract terms, but loses the additional economic benefit of being able to re-sell the piece.
The question then becomes: “What rights do freelancers truly have, if the contract they sign does not allow them use of their copyright?” Part of the issue, of course, is the Internet. The Internet has made content available everywhere. For example, where there was once value to the Chicago Tribune for a piece that first appeared in the New York Times, because few people in Chicago saw the work; now the value to the Tribune eliminated since it is also available to anyone on the Internet via the NYT Web site.
O’Rourke concedes that there is a sliding scale because of the sheer number of freelance writers out there. New, less established writers want exposure more than anything else, so they will take less money and give up more rights (another place where the Internet helps, see
Dan Lewis and
Kevin Holtsberry as examples at
BootlegSports.com).. Older, established freelancers, whose names carry a certain cache (
Andrew Sullivan is a prime example), already have the exposure, so they can get more money for their works and assert more rights in their contracts.
O’Rourke lists some of the choices that freelancers and independent writers may pursue:
1. Each individual freelancer/independent writer signs own contract, gets whatever rights they can.
2. Guild/Union — a screenwriters or composers like group; where the writers sign away all rights, but gain rights to residuals.
3. European Model — This would require legislation that grants freelancers and writers more rights that can not be bargained away in contracts. It seems most unlikely beyond getting the law passed, since it would require too much government interference/activism in contracts.
4. Self-Publish/Internet — No separation between the author and readers, but it requires (a) a way to generate revenue (I think it is safe to conclude that tips aren’t enough) which would require a form of micropayments, that has been talked about as long as content has been placed on the web; and (b) a “brand awareness” of the author (
Andrew Sullivan,
James Lileks,
Matt Welch,
Ken Layne, and
Tim Blair all spring to mind).
Panel Comments
(Links to bio pages provided if available)
Emily Bass — A former partner at Gaynor & Bass, and one of the original attorneys to argue the
Tasini case in the District Court back in 1992. Essentially, she agrees with O’Rourke. She has a strong bias in favor of the freelancers. She sort of acknowledges the unintended consequences of
Tasini has been that publishers have now demanded all rights to freelance work, but feels that would have happened eventually (I don’t know if she’s right or not, perhaps it is irrelevant with the internet since that has really been the major downfall of resale rights). Bass states that since she is in agreement with O’Rourke, she will offer a historic perspective. She notes that the change in contracts to demand all rights started in 1995 when the internet really began to take off.
Bass does suggest a few possible options in opposing or changing present law and/or contract situations:
1. Tying Law. Kind of a reverse approach, the publishers will only purchase 1st publish rights ONLY if electronic publishing rights are included. The idea being that forcing the separation will at the very least increase the compensation to freelancers.
2. Compulsory Licensing. Much the way in the music industry permits anyone to play or redo a song, provided they pay the fee. Bass states that she believes the Majority Opinion in
Tasini, was making a vague suggestion to that effect.
3. Public Subsidies for all sorts of freelancers. A pipe dream, to be sure. Her justification was along the lines of a public good to have the kind of independent authorship, art, photography produced by freelancers.
Naomi Jane Gray — Ms. Gray is an Associate at href="http://www.weil.com/">Weil, Gotshal & Manges LLP. She has been representing National Geographic Society over a suit regarding the release of every issue of National Geographic Magazine on CD-Rom (The CD, while searchable, is the scanned reproduction of every issue, making it more like microfilm), and some past contracts with freelancers – the battle is essentially over the compensation if any owed over this package, or is it within the terms of the contracts. Clearly she is supposed to represent publisher interests on the panel, but appears to worry too much that she will be perceived to be a corporate shill.
She asks, “what did publishers expect from the contract?” Before
Tasini, she points out, the contracts included repackaging rights. In the publishers’ view digital rights is along the same lines and doesn’t require additional compensation. She argues that it should be “fair” for publishers to seek and get full value of their contractual rights under copyright law. She also makes the argument that freelancers get value when they can state in their resume or bibliography that they were published in “Prestigious publication X.”
David Lange — Law professor at Duke University. He states that his perspective is the copyright system itself, and alternatives to it. Of course he then states proudly that he has just had his first poem published and mentions (without name-dropping) how he knows many composers and screenwriters. Lange is of the opinion that copyright law itself could be significantly reformed, and sees a tacit support for such in section IV of the Majority Opinion in
Tasini.
Lange, I guess thinking to catch the audience napping or shake things up, asserts that perhaps, copyright should be completely abolished. (There is no gasping in the audience, more a rolling of the eyes. This isn’t a class of 1Ls facing a radical viewpoint, this is a room with mostly lawyers that have more than a casual knowledge of copyright law, who know a professor’s shake-up the room gambit when they see it.) In support of this position, he references the Grateful Dead and their policy towards allowing taping at concerts and the proliferation of “counterfeit” goods in the Lot, while still making money hand over fist. He then contrasts that with the strict controls and limitations that arise in the movie industry with their various guilds and unions that make it hard to be published (screenplays being made into movies). He stresses that anyone who gets into art or writing to make money should have a back-up plan or a day job. His view is that only the few and lucky get to actually make money at that sort of things. The majority squeak by or do it on the side.
Stating the obvious, but it needs stating, Lange says that a guild is unlikely since there are so many freelancers out there (covering so many different topics) to help push down the prices publishers need to pay. The issue of freelancers getting less rights can be seen as good for the general public since the works can be more widely disseminated (the internet); (but at the same time, shouldn’t there be a concurrent reduction of publishers’ rights out of some fairness issue? Like a reduction in time before the copyright reverts back to the author.).
In discussing alternatives to the present copyright scheme, Lange supports the idea of a compulsory license. Some system that would change copyright from a property system to a liability system. Lange is of the opinion that “fair use” under § 107 of the copyright code is not getting proper treatment; that it should be superior to § 106.
Joel Hecker — A NYC intellectual property attorney, who specializes in representing photographers (artists, commercial and photojournalism). To him, Tasini is more of a morale booster then anything else for the freelancers.
In response to Lange’s comments, Hecker disagrees. He feels that copyright and the ability to make money can still occur in the internet age. In his view, the written contract is more vital than ever. A good contract makes things clear and sets out what the parties expectations of the agreement truly are. To him,
Tasini, was all about a failure of the parties to make these expectations clear. Once the case was brought in 1992, standard contracts were changed to remove the ambiguities.
The collective or compulsory licensing scheme doesn’t seem realistic to Hecker, with respect to photographers because the value for most stock photos is not that high (minimal returns).
Questions — There are less than 15 minutes for questions. A majority is taken up by one person who begins with, basically, a five minute haranguing various panelists; first Hecker for using an example where his client had a $300,000 photo shoot contract as not applicable since it was clearly a commercial shoot (apparently he only wanted artist-related contracts discussed); then Lange for suggesting that most artists can’t make a good living doing art; and then he thanks Bass for helping to bring the original case. He then makes a long rambling statement that if it has a question, most in the audience (including myself) missed, because they stopped listening. Hecker and Lange defend their positions from the guy, and then it is about time for lunch.
Introduction (Part 1 of 4)
Friday, November 1, was a symposium at
Case Western Reserve University School of Law. The symposium, sponsored by the Center for Law, Technology & the Arts, was called
Copyright in the Digital Age: Reflections on Tasini and Beyond. The event has two papers being presented with panel discussions to follow. There is also a speech from a “normal” (non-lawyer) in between.
I. Morning Session — “Bargaining in the Shadow of Copyright After Tasini”
II. Keynote Speaker — “Who Owns What in the Digital World”
III. Afternoon Session — “Untangling the Web of Music Copyrights”
For those unfamiliar with Tasini, this was a 2001 US Supreme Court case,
New York Times Co., Inc. v. Tasini, 533 U.S. 483, 121 S.Ct. 2381 (2001). Quick and dirty synopsis: freelance authors sued NYT for violating copyright by publishing past articles of theirs in electronic databases (LEXIS/NEXIS) when no such provision was in their contracts. NYT argued that there was no violation, because the electronic publishing was merely a revision as part of the archived copies (i.e, microfilm). The Court disagreed, finding that the nature of the electronic database allows the user to just pick out individual text-only articles without viewing the entire periodical in which it appeared.
[Personal aside: I always, viewed this more a matter of a poorly written contract that didn’t include language for databases. The unintended result of this case being brought was that most freelance contracts now assign all rights to the publisher, but without additional compensation; hurting the freelancer a little more.
]
[Personal asides: I attended the symposium out of interest and because I would be able to pick up 4.5 CLE hours. CWRU Law School is my alma mater, but I haven’t been back there since I graduated in ‘97. Not the fondest memories of the administration. Got to the school at 8:30. An hour too early. Thought the event started at 9am, actually doesn’t start until about 10. D’oh! Parking around the school is as bad as ever, but I was able to nab a metered spot by the Cleveland Institute of Music (a stone’s throw from the law school). I will just need to feed the meter at lunch time.
Since I have an hour to kill, I just relax in the lounge drinking some coffee. The lounge was built in ‘95-96 while I was still in school. Looks the same. Same tables, chairs, and vending machines. Even the students look the same, though a little younger. I know, that’s because I am now five years older (eight years from when I started, but I try not to think about that).
The following summary broken up into separate links is based on my opinions, less than perfect notes and copies of the draft papers presented at the symposium. The symposium was recorded by the school, and did not allow other recordings. According to the Director of the Center,
Professor Nard, the symposium will be released in the Spring edition of the Case Law Review.
]
The speaker presents her paper and then each of the four panelists will spend about twenty minutes commenting on it. There is supposed to be about fifteen minutes at the end of each panel for questions. I expected some panel debate, but this format really doesn’t permit that.
Pitt! Pitt! Pitt!
Away all weekend at the in-laws, and no internet connection.That was okay. I'm not sure, even now, that I've digested the
28-21 Pitt win over the Virginia Tech Hokies in Blacksburg, VA. VaTech had been running smack all week long about how
this was a revenge game for being humiliated last year by Pitt, and some of the comments made by players since gone from Pitt after the game. Instead, they, the 12-13 point favor, the #3 team in the polls, lose at home to an unranked team. Pitt is now ranked in the Top 25 in both the
coaches and
writers polls. The
Hokies have to eat crow.
Still others have biases that make the game something different. Take Neil Rudel, Sports Editor at the
Altoona Mirror (no Website). Neil's columns usually end up online a few days later at
PhillyBurbs, but there was no column up for this week, yet. Well, let me turn this over to my friend Lee. Lee sent me an e-mail this morning with a quick breakdown of Rudel's column. Lee lives in the middle of Penn State Country, where people's eyes literally mist-up when discussing Joe Paterno. Lee graduated from Pitt, and did graduate work at Ohio State. For some reason he returned to Altoona. Most of the locals, by now, suspect it was just to make their lives a little more miserable. I've added some comments in brackets [ ].
On Mondays, Neil Rudel -- sports columnist for Blue White Illustrated, the Penn State Radio Network, and the Altoona Mirror (his day job) -- traditionally puts out a column in several newspapers containing his thoughts on the past weekend's Penn State game. But this Monday, his column is all about Pitt. This is about as much of an official Penn State view of the Virginia Tech win as you're gonna get. See how many left-handed compliments you can count. [Not much of a conflict of interest for an editor of a paper don't you think?]
Walt Harris has made steady, if unspectacular, progress during his six seasons as Pittsburgh's head football coach -- until Saturday night. Harris' program authored its signature win... vaulting the once-proud Panthers into the Top 25 for the firs time in 11 years. Harris' career record now stands at 34-33... You'd think the people of Pittsburgh would soon take notice. The Panthers, regardless of what they list for an attendance, have averaged well short of half capacity in 65,000 seat Heinz Field.
And Miami rarely sells out the Orange Bowl, but that didn't stop them from kicking the living bejeezus out of Penn State last fall. [As for stadiums and fans not supporting the team, even
Rudel has stated that winning, and winning key games is the key.
If Penn State wants to sell out Beaver Stadium this year, it's clear it needs to beat Nebraska. More surprising than the Lions letting Central Florida back into Saturday's game with a passive defense - after an aggressive defense had taken control - were the 5,000-plus no-shows. PSU crammed a record 109,313 into its expanded stadium for Miami last year and has not sold out since. Capacity is listed at 107,262, but attendance was almost always over capacity in the past. Saturday's gate of 103,029 was the lowest since the latest renovation by more than 3,000. The eight home games are a factor this year, but you'd think the opener on a gorgeous pre-Labor Day weekend would be in demand. What's Louisiana Tech on Sept. 21 going to draw, particularly if the Lions don't beat the Huskers?
But, as my friend Lee would point out, he's not talking about Penn State right now.]
But I digress... Rudel then says the same thing that he says every time Pitt has a big win... Harris is too good for Pitt.
This is all coming at a time when Harris' job appeared to be on the line. It was widely reported by midseason that following Pitt's 2-5 start last year, Panther athletic director Steve Pederson made contact with Ron Zook, who has since become Florida's head coach... Harris could end up with the last laugh, though. A strong finish -- particularly if he beats Miami -- could actually make him an attractive candidate for the usual bevy of openings expected to follow the season.
If Pitt loses, Harris is overrated. If Pitt wins, Harris is leaving. That's pretty much been Rudel's line for five or six years now.
What you won't ever hear Rudel admit is that our win over Virginia Tech was bigger than any win that Penn State has had in years. Furthermore, we did it in true Penn State fashion -- with offensive line domination and a powerful rushing game. Like I told Shawn, I thought that we looked more like Pitt in the [Jackie]
Sherrill era than Pitt in the Harris era. [Penn Staters might argue this season's early season
win against Nebraska was a big win to say that PSU football was back, but given the piss-poor season Nebraska has had, the win is only good for the fans' psyche, and not much else. Much the same way Pitt's blowout of Syracuse this season.]
