SPJ Freelance Committee Chair Resigns over National Geographic Support

A writer I know, Kerri Fivecoat-Campbell, had served until this morning as the chair of the freelance committee at the Society of Professional Journalists. (A disclosure here - I know her through a couple of writing organizations and she did ask me to appear on a panel at the upcoming SPJ conference, though for no fee and no expense reimbursement. The topic was not how to be a tough negotiator. But I won't be attending now, given all this.) Because I have some connections here, consider this an opinion piece fortified by my own research.

She resigned today, as recently did Wendy Hoke, the part-time membership manager of the organization. The trigger incident they both cited was SPJ's support of National Geographic in the Faulkner v. National Geographic Society law suit.

For those who may not be aware of this case, it concerns a copyright dispute. National Geographic had reissued magazines on CD-ROM and sold them to the public. The CD had reproductions of the pages of the magazine, though also had some introductory splash screen with photos and a search mechanism. The photographers insisted on additional payment, saying that the new product went beyond the use allowed by contract. The magazine claimed that the use was allowed under U.S. copyright law as a reissue of the magazine.

I won’t get into the legal issues at stake in any depth because, at least to me, there is a case to be made for either side. According to the relevant copyright law:

“Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, 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 argument becomes whether an electronic version, with features distinct to it, can be considered a revision of the collective work allowed under the law. So far, two courts have come down two different ways.

But forget that for a moment. There’s a separate question: Should an organization like SPJ take a position at all, let alone in favor of a publisher? According to Fivecoat-Campbell, the reason the group’s board gave her was that they supported National Geographic on the advice of their law firm, Baker Hostetler, because it would make the law “clearer.”

Certainly I could see how this point might use a bit of clarity, but it could be clear in two different ways. One is that a publisher could put a magazine onto any electronic medium and treat it as a revision, and that it’s no different from, say, archiving the magazine pages on microfiche and making them available to libraries. The other view, which could prevail, is that the new features and new market – as a consumer product for use on a computer – makes this a different and new use, and that the photographers deserve compensation if the contract didn’t already provide for such use.

Yet SPJ decided to weigh in on the side of National Geographic, because of the suggestion from Baker Hostetler. If you go to the law firm’s site, you notice that National Geographic (I’m not sure whether that is the society as a whole or the publication only) is listed as a representative client. When Fivecoat-Campbell asked the board about what seemed to be a conflict of interest, she was told that the law firm hadn’t done work for National Geographic since the 80s, and so there was no conflict.

Fivecoat-Campbell argued that once there was a financial tie, there is always at least the perception of a conflict. That’s easy enough to understand. The firm might want to woo back business it lost, and could be perceived as thinking of its own interests, or those of a “former” client, rather than the interests of SPJ and its members, which include editors and writers, both staff and freelance, but not, to my knowledge, publishers.

However, there is another complication. Today I called the office of a lawyer, at Baker Hostetler, who is identified on the web site as having represented National Geographic. I heard from the office that the firm still does work for the society. That raises the very large question of whose interest the law firm was supporting, and the equally big issue of why SPJ leadership decided to throw in with National Geographic.

I’ve called SPJ and both the acting executive director and the president elect have referred me to the organization’s president, who is currently on vacation. (I’ll provide an update when I hear something.)

There are some additional troubling issues. From what I understand from a number of sources, the original press release said that SPJ was one of several journalism advocacy organizations supporting National Geographic. When challenged on this, suddenly the press release online changed to “journalism organizations,” as not a single other organization of writers or editors had signed on. In fact, the amicus brief was supposedly organized by Time Inc. – hardly a protector of the independent journalist. I was able to confirm that the law firm approached SPJ, and not the other way around.

Now we enter into the speculative portion of my post. Why did SPJ do this? Was it really to protect the “little guy” publisher? I doubt it. But the organization has a history of comprising staff journalists, and still has the reputation of being most focused on their interests rather than the approximately 10 percent of the membership that is freelance. This has me wondering if the situation isn’t really about top officials at SPJ wanting to support staff people, thinking that if the business playing field were more “even,” that freelancers would be forced to go away and that staff people would have their positions safeguarded. Certainly there is nothing that most of the membership will gain or lose, because they are on staff and so always do work made for hire. Therefore, on one hand the majority of members don’t gain from this position, and a minority could lose.

I find that generally things are done for some reason. I keep trying to figure out some other rationale and haven’t been able to find one, and haven’t heard back from SPJ. But if my speculation is correct, the organization’s leaders are fooling themselves. The forces of change in the industry are too large to control, and more and more publishers will look at a growing amount of freelance writers as a form of economy. So SPJ is directly siding against the very people who could (and have been, from what I’ve heard) provide the biggest source of new members. That seems crazy on the surface, but to be fair, it wouldn’t be the first time I’ve seen those in charge of a writers’ organization make decisions based on their own self-interest.