SPJ President Responds to National Geographic Criticism

First, I apologize to readers that I'm once again discussing SPJ. I've never been a member, have nothing for or against the organization itself, and wouldn't ordinarily spend this much time on a single topic, as this blog is about the freelance writing business and how we can all get better at it. But there are occasions you have to make time to address a topic.

Christine Tatum, president of the Society of Professional Journalists, responded to criticism I and others have aimed at the organization's decision. Because I find some of the points poorly reasoned at best and disingenuous at worst - though I have no way of knowing which case is true - I'm going to parse through them here. Had either she or the president elect returned my call, as the latter promised would happen, I might have had a different impression. But they didn't and so that wasn't possible.

Let's start with this statement at the end of the third paragraph:

And yes, I knew some people would express their disappointment and disagreement in very hurtful, personal ways - and with screeds that are grossly inaccurate.

If you want to be a responsible journalist with a journalism society's blog called "Freedom of the Prez," it might be sensible to avoid blanket charges of "screeds" that are expressing disagreement in "hurtful, personal ways." Which ones does she mean? Who knows? And in the absence of specificity, it becomes impossible to see whether a given criticism was overtly personal or unreasonable, let alone grossly inaccurate. I prefer to directly address statements and look at them for what they are, not use the rhetorical trick of setting up straw men. Now for the next statement that I find interesting:

I was right on all those counts, but I stand by the decision I helped make because it stands to help clarify law so that freelancers can negotiate smarter contracts that help ensure they're paid fairly for their work.

Well, she claims she was right, but doesn't offer evidence to support her point, so that part falls away. Maybe someone has posted something of that character - in which case she can point that out directly.

Now for the second part - that a ruling in favor of National Geographic helps freelancers because it makes the law clearer. As I mentioned in my first post on this subject, if there was reasonable disagreement over the interpretation of copyright law - and I believe that there is - then you can have greater clarity by settling the question in favor of National Geographic or in favor of the photographers that brought the law suit. You don't have to pick one particular side for clarity to appear. And of course freelancers can negotiate better contracts - to the extent that large publishers make that possible.

Unfortunately, freelance writers and photographers are often at the mercy of much stronger economic interests that can effectively keep them from making a living. And contracts are typically drawn with greater specificity - and publishers demanding and often getting a greater range of rights for no additional pay. The result is not being "paid fairly for their work." You only get better pay when you have natural control of the rights that publishers want. If publishers get additional rights automatically - and, remember, we could debate whether electronic compilations of years of magazines is a reasonable interpretation of copyright law - then they won't pay additional money to freelancers because they need not.

A ruling in favor of National Geographic would be forward-looking. It essentially would draw a bright line that says, "OK, Everybody, from now on, here's how to wheel and deal in a manner that helps spare all of you costly litigation."

Nonsense. As I mentioned, a ruling in favor of either side lets everyone know how to negotiate. And, to some degree, I would call a ruling expanding the rights available to publishers backward looking in the light of the "Tasisi, et. al. v. New York Times, et. al." decision, which stated that a publisher doesn't automatically get the right to include individual articles in a database without a specific license of those rights.

This case stands to clarify what, precisely, freelance journalists must do to overcome a legal presumption publishers often use to deny them payment. I am specifically referring to the presumption set by 201(c) of the Copyright Act - a presumption publishers have used, and abused, to skirt payment to freelancers for privileged reproductions of their work.

Freelancers already know what to do when a publisher tries to claim rights for which it hasn't contracted. It's called filing suit. So far groups of freelancers have been successful in the Tasini case and are still waiting to see whether the settlement for the large class action suit against database companies will be upheld.

A decision in favor of National Geographic would serve to put publishers on notice: they can't automatically argue - as far too many of them have - that they don't have to pay freelancers for those privileged reproductions.

Huh? If they have the rights automatically, then they don't need to pay freelancers, and other case law has already put them on notice that they need to license rights. They already know this. How ever did Ms. Tatum reach this conclusion? Or is she parroting an argument from Baker Hostetler, SPJ's law firm that approached SPJ with the idea of joining the brief and that still has National Geographic as a client? As I understand from at least one former member of SPJ, either Ms. Tatum or the board claimed that the firm stopped representing National Geographic in the 1980s. Sorry, but that appears not to be the case. So this does seem like a nasty conflict of interest.

A ruling in favor of National Geographic also, obviously, would put freelancers on notice: if they want to be paid for privileged reproductions of their work, they must have a contract with the publisher that expressly and clearly states that position in writing. Put another way, if you've got a clear contract, you'll get your money.

Ms. Tatum apparently knows little of professional freelancers. We already understand the value of a contract - and we understand a point of law that seems to escape her. Unless explicitly transferred, a right to material remains with the copyright owner. In other words, under US law, if it's not in the contract, it explicitly isn't offered and isn't paid for. There is no need for greater clarity; statue and case law are abundantly clear.

This case does not affect a freelance journalist's ability to negotiate the terms of a contract, and it actually stands to strengthen a freelancer's ability to receive payment for the reproduction of work published in the same context as the original.

Yet another blanket statement without reasoning. If certain future rights are automatically included in even a First North American Serial Rights contract, then it does affect the freelancer's ability to negotiate because the publisher already has what it wanted. And how in the name of all that is rational does she conclude that it makes it easier for a freelancer "to receive payment for the reproduction of work published in the same context as the original"? National Geographic's point in the suit is that copyright law permits it to republish work in the same context as the original magazine without the need for additional permission or additional payment. This argument is like saying the following: A) rain makes things wet; B) if you stand outside, you are in the prevailing weather; therefore C) if you stand outside in the rain, you will be drier than you would otherwise.

And it is most certainly possible to negotiate a clearly worded contract that leaves little to chance and yields payment for years to come.

Did Ms. Tatum even read the position that National Geographic has taken? It says that it doesn't need to pay an additional penny to the freelance photographers for the additional use. If this CD publication of the material in context is allowed under copyright, then why not any other conceivable form? Maybe transmission of pages to cell phones.

Which brings me to the ambiguously worded contract (that's the trial court's finding currently on appeal in the federal second circuit) Mr. Faulkner negotiated with National Geographic Society. The court so far has ruled that the specific language in that contract is not enough to win him additional compensation from National Geographic, which has distributed a privileged reproduction of his work (in this case, a CD-ROM collection of magazines exactly as they appeared in hard copy print). The court so far has ruled that whether in 1987, 2007 or 2017, the contract's language is not constructed in a way that favors Mr. Faulkner.

Let's be a little more precise. There have been two court decisions that are in conflict - one favoring another photographer and this one favoring National Geographic. There is no provision for additional payment because there is no provision for this use. The contract was drawn up in the 1980s, before the Internet, before widespread use of CDs - and before the Tasini decision, which settled that publishers could not do as they had done, which is take more uses than they had been granted contractually. The question in this case really comes down to whether the copyright statutes would grant the electronic use in question, because they reproduced the original pages of the magazine. That's where the ambiguity is - in the definition of the statute.

At first blush, this case appears to be a David-versus-Goliath match-up. A little guy striking back at the big guy on behalf of little guys everywhere.

Uh, yeah.

That isn't the case.

Why not? This is an unsupported statement. My guess is that there is no argument that would make it look any other way.

A ruling in Mr. Faulkner's favor would help him and what is likely a very, very, very small group of freelance journalists who are parties to contracts containing the same ambiguous language. I can't underscore enough the phrase "very, very, very small group."

This certainly isn't proof that it's not a David and Goliath situation. In the original Biblical story, David was a single person - seems like a very, very, very small group to me. And so what if the case only directly affects a few photographers? US law is intended to protect the rights of those in the minority. Why would the number of photographers affected address the issue of ethics or equity?

The people who have most concerned me are those freelancers who are holding contracts that are not like Mr. Faulkner's but are also unclear. Indeed, a ruling in favor of National Geographic would make it even more difficult for those people to prevail should they pursue legal action. However, it's also important to note that a ruling in favor of Mr. Faulkner wouldn't necessarily help them at all.

This is a more clever argument, but also fallacious. A poorly drawn contract will always be a potential problem. But a finding in the favor of National Geographic will affect virtually every freelance writer, photographer, and graphic artist, because it would expand the concept of what certain licensed rights entail. This would be like selling your used car and then finding out that a legal ruling said that you had to sell your trailer hitch, even if the contract for the sale only specified the car. Make no mistake: a ruling in favor of National Geographic will have widespread impact on freelancers. I'm still not arguing whether the publication is right or wrong, but let's not pretend that standing out in the raid doesn't get you wet.

A ruling in favor of Mr. Faulkner essentially would continue to allow everyone to traffic in ambiguity - and that is almost always likely to benefit the publisher.

This to me seems like something out of 1984. If a ruling in favor of Mr. Faulkner would benefit the publisher, don't you think that all those lawyers the publisher retains - including, perhaps, the people at Baker Hostetler - would realize it and agree? They disagree because such a ruling would specifically not be in their favor. A ruling in favor of Mr. Faulkner would not encourage ambiguity in contracts. Instead, it would resolve the ambiguity of whether a publisher could make this sort of use and argue that it was merely a revision of the original magazine.

Instead of looking backward to determine how they might win additional payment from shaky contracts forged in the past such as Mr. Faulkner's, it would be much smarter -- much more beneficial for all journalists -- to ask: "What can we do to help freelancers get paid fairly far into the future? How can we band together to identify and correct unclear and problematic contracts that harm our livelihood?"

[Holding up my hand in good Catholic school fashion]... ohh, ooh, pick me! Pick me! It's simple - recognize that freelancers have sets of rights and demand that publisher pay fairly for them and not try to twist arms. If you're on staff, don't mewl out "The lawyers say I have to do this." Stand up with the many editors who have gone back to management and lawyers and said, "If you want more, it's only right to pay for more. Don't ask these people, who don't get the benefits of full time employment, to hand over rights as though they were on staff." I know many editors who have done just this - and it would help if more did.

I'll end with the very beginning of the post. Its title is "A tough decision aimed at helping all freelancers". This is semantic noise. I think I've argued reasonably and accurately that freelancers will not benefit from a ruling in favor of National Geographic.

Now to what I perceive as a more important issue. Why is SPJ taking this approach? Their arguments do not stand up under any scrutiny and their legal advisor has what to my eye appears as at least a potential conflict of interest. All I can do is ask the question, "How would a ruling that hurt freelancers benefit SPJ?" Iv'e given my opinion in my other post. Perhaps I'm wrong, but then I haven't heard anything compelling to the contrary.