Incorrect Information Again from SPJ President

I keep telling myself that I will stop paying attention to the SPJ/National Geographic debacle, and every time president Christine Tatum makes statements that, at least to me, seem completely off the mark and incorrect. These come from comments she made on her own post.

You guys aren't going to like anything I have to say about this. We just disagree on the merits of this particular brief. I have nothing to apologize for -- and, as long as you keep the discussion civil, neither do you. The world spins on.

Actually, Ms. Tatum has been the one essentially calling freelancers ignorant. She hasn't once that I've seen tried to back up her claims with reasoning. That is the real point irritating freelancers. A number of us have said taht there are arguments to be made on both sides. But to pretend that one view of the world is so clear as to go beyond the need for proof is disturbing.

John, for what it's worth, I'm hardly out of touch with freelancers. I might collect my primary paycheck from a newsroom, but I do a significant amount of freelance work. That especially has been the case over the last two years, which I have spent a huge chunk of on maternity leave.

There is a big difference between doing some freelance work on the side and running a full freelance business as a living.

It would, indeed, be grand if Sally's point were really so simple. An SPJ member and media lawyer sent me this note this morning:

"I think you are correct about the merits of the 2d Circuit decision. Both the copyright law and industry practice have always permitted publishers to reproduce issues in bound volumes and more recently on microfilm and in web archives. Generally this type of use is part of a license, i.e. 1st NA serial rights. Because of that it was generally unnecessary for contracts to be specific about that type of use.

Unfortunately, this is incorrect. Copyright law specifically does not permit web archiving of individual articles. The Tasini decision settled that. Of course, the publishers wanted that as a given, but they didn't get it. In other words, publishers had certain business practices that did not ultimately stand up to legal scrutiny.

"The (Tasini) case, which the freelancers won, also informed all concerned of the need for more specific contractual relationships. But the net result was that the major publishers included more specific boilerplate in their contracts that was beneficial to them and not to the freelancers. Many freelancers were forced to accept the terms or forgo the work.

Certainly, though there would be no improvement with the assuption that the rights automatically transferred to the publisher.

"After the 2d circuit decision I expect the publishers to do the same. The only difference here is that the contracts will explicitly set out what has been industry custom until now: you don't get paid more merely because the publisher creates the functional equivalent of bound volumes."

Additional significant electronic function that cannot exist in bound volumes is not creating something that is the functional equivalent, by definition. That's what the CDs were. And, no, this won't change how publisher move forward with their contracts, because they made those changes years ago. All this will do is embolden them to push to extend the definition of rights even more, effectively overturning limitations of pre-existing contractual agreements.

That brings us back to the need for clarity of language, which this particular brief champions. Moving forward, we can -- and should -- band together to determine the clearer language that is needed to override the presumption publishers use to deny freelancers payment.

I hate to break it to Ms. Tatum, but she's years late in this. The specificity does exist in the vast majority of current contracts. They ask for enough rights - even if non-exclusively - so they aren't hampered in doing whatever they want. And when you broaden the definition of rights, which is what the decision did, you essentially go back and brush away even boundaries found in older contracts. This is not clarity, it is backdating changes to existing terms and conditions.

But clarity stands to be good for everyone, and if the court gives National Geographic what it wants, freelancers, ironically, stand to benefit, too. If publishers want clarity, then, well, let's band together to give them clarity!

And how do you propose to do that if, as you seem to acknoledge, it's often a "take it or leave it" atmosphere? First, if you expand the definition of what the original right grant was, you don't need greater clarity because the publisher has an expanded definition and retroactively has what it wanted. If there is additional language, do you really think that the publishers are going to negotiation with groups of freelancers? That's collective bargaining and illegal for freelancers, unless you're doing work in Hollywood, in which case you're working under a series of engagements as a temporary employee. I'll grant Ms. Tatum a presumption of sincerity here, but I don't think she realizes the legal limitations on such action.

I realize that people need to eat and pay the light bill. But freelancers are continually compromised by a much, much larger problem that needs to be addressed:

When masses of people are willing to sign contracts that do not favor their own economic interests, how in the world does the larger freelance community ever hope to secure more equity and fairness in these contracts?

This is going to require study and action. It is going to require a real strength-in-numbers approach. It is going to require determination. And it might also require a financial sacrifice or two for the greater good -- a statement that sums up my feelings about this amicus.

Does Ms. Tatum realize that this also is something most working freelancers have known for about, oh, ten years? The only legal strength-in-numbers approach you can get is getting the writers to do so individually. She might want to talk to people who have been working in this area a hell of a lot longer than she has before making presumptions. Many freelancers have been making such sacrifices for years. It has helped move some publishers in some cases. But, please, let's not think that this is like a lightbulb going on over the heads of most freelancers for the first time. But then, had she actively spoken with any of the freelance writing groups, she might have heard some of this. Maybe she's been working closely with them, but this would be the first I've heard about it.

As another SPJ member/SDX Foundation board member/former SPJ national president e-mailed me this morning:

"It's difficult, and as tough as this one was, you wanted to fight it, you did, and it generated a much needed debate that I think raised the visibility of the freelancers within SPJ. As hurtful as the debate may have become, you believed in the arguments, and put your name behind the fight. This debate is behind you. Move forward."

Why did it take a group of people feeling that they were being stabbed in the back to "raise visibility?" The debate isn't behind the organization, because too many of the freelancers seem to feel alienated.

1. Conflict of interest is a very serious charge to level at a law firm. It has precise meaning - and, if proven true, could result in serious sanctions, even disbarment. I simply won't go there where B&H is concerned because the firm has not, to my knowledge, EVER acted in conflict of interest where SPJ is concerned.

I don't remember anyone saying that there was a definite conflict of interest - only that the circumstances, and the fact that the law firm had National Geographic as a client, raised the question. A question that I don't think Ms. Tatum had addressed in public.

2. The firm has never failed to give SPJ officials proper disclosure, and it has, on several occasions, recused itself from giving the Society legal advice because of its direct involvement in particular cases. Pretty much anyone with SPJ who has worked directly with B&H likely will tell you the same thing.

As I understand it, Ms. Tatum had told at least one SPJ member that the firm hadn't done any business with National Geographic since the 1980s. That was apparently incorrect. As I often talk with lawyers, I've found that they will tend to refuse to comment if their firms do any business with one of the parties, even if the lawyer in question doesn't.

4. B&H might have represented National Geographic in the past, and it may do work currently in another division of what is a very large publishing company -- but it does not represent National Geographic in this case. It's very important to note that large companies, such as National Geographic, tend to have more than one law firm -- sometimes even dozens -- representing them on a variety of levels. Even relatively small news organizations commonly have in-house and out-of-house legal counsel.

So? If it represents the association in any way, I think it raises the question of whether it can keep separate the interests of clients when they might potentially conflict. Of course, Ms. Tatum may be assuming that the matter was totally in keeping with the interests of SPJ and its members. But some vocal group of members and former members don't seem to agree, so perhaps it's not so easily dismissed after all.

As you've pointed out, it's proudly displayed on the firm's Web site, which is not exactly the smoking gun some people have made it out to be).

How about this: As I mentioned on one of my blog entries, one lawyer's office there admitted that National Geographic is still an active client. Is that better?

8. B&H lawyers will present their annual report to SPJ's regional directors during SPJ's national convention, Oct. 4-7. They have assured me that they will answer directors' questions and explain how they make decisions regarding which cases to bring to SPJ officials' attention. Remember: other media lawyers contact SPJ all the time with requests for review of, and assistance with, their cases. B&H works with them all on our behalf. It's also interesting to note that B&H -- specifically Bruce Sanford and Bruce Brown -- have worked to help me build a Legal Advocacy Network that is aimed, in part, at helping more journalists find more affordable and meaningful legal help that is closer to home.

That is acutally totally aside the points that people have been discussing.

I'd like to see SPJ work on developing some resources that will help people conduct business using much clearer contracts that are more equitable and fair.

There are a number of writers organizations that already work in this area. Why not recognize that they exist and that speaking with them might be prudent? Ms. Tatum might even get a wider view of fulltime freelance writers than she might get within whatever few she spoke to.

Few law firms are better at -- or more gracious about -- handling such work than Baker & Hostetler. That firm has acted with tremendous integrity, and its clients over the years have included the nearly penniless freelancer/author. And, don't forget, SPJ, which is hardly its top-paying client. The ill-informed criticism launched at this firm would be laughable if it weren't so shockingly, well, ill-informed.

If it were so ill-informed, I suspect it should have been easy for you to dismiss it in a reasoned way. But Ms. Tatus didn't even attempt to do that, from what I could see from the outside, and from what I've heard from the inside.

I wonder how freelancers would react when/if B&H helps craft those resources. Will they be grateful -- or will they reject the valuable information and guidance provided by one of the nation's most influential law firms (regardless of specialty) and continue to spin conspiracy theories? I'm staying tuned.

They might well point out that a number of writers' organizations already have created such networks. The questions put to Ms. Tatum were not conspiracy theories. But then, if you can't mount a cogent argument, I guess you wave your hands and try to distract.