SPJ Seems to Woo Freelancers Again

The Society for Professional Journalists seems to be running a blog - called The Independent Journalist - aimed at freelancers. Amy Green is the author. Personally, I"m going to wait and see how the organization behaves towards freelancers, and not make a judgment based on what someone in SPJ says. There was a right dust-up last year over the stance SPJ took regarding the ongoing cases involving some photographers and the National Geographic as well as its then-president floating an idea of certification for "professional" journalists:

• SPJ Freelance Committee Chair Resigns over National Geographic Support


• SPJ President Seems to Support Certification for Pro Journalists


• SPJ President Responds to National Geographic Criticism


• SPJ Withdraws Name from National Geographic Brief


• Incorrect Information Again from SPJ President


• Lawyer Robert S. Becker Responds to SPJ posts

The organization has traditionally focused on the needs of staff journalists and had not been altogether welcoming of freelancers. I know some people had tried to change that and had eventually resigned from the organization. Perhaps things are different now, and I'm sure the new chair of that group's freelance committee is sincere and well-meaning. But ultimately it can be nearly impossible to move an organization beyond what its leadership wishes to do, particularly when the leadership is long entrenched. Perhaps SPJ will see the role that freelancers play, particularly when more and more news rooms lay off staff and newspaper owners are left wondering how they will survive in the long run. But it will be action on the part of the organization as a whole that will tell.

Lawyer Robert S. Becker Responds to SPJ posts

I had a comment come in on my latest post about SPJ president Christine Tatum's latest blog entry about the organization backing down from its support of the amicus brief in the Faulkner case. The comment was from a lawyer who said he was the one that Ms. Tatum quoted. Because I would like to comment on his response, I think it would be clearest for me to post it here and address it section by section.

Because I'm the lawyer Christine quoted let me try and set things a little straighter than Erik. First, here's what sec. 201(c) of the Copyright Act says:

(c) Contributions to collective works. 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 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.

That certainly reads the same was as the copy of the copyright statutes I keep on hand in my office.

In Tasini the Supreme Court clearly drew a distinction between databases accumulating individual articles and collections of individual issues of a publication into bound volumes. It said, "Microforms typically contain continuous photographic reproductions of a periodical in the medium of miniaturized film. Accordingly, articles appear on the microforms, writ very small, in precisely the position in which the articles appeared in the newspaper.... True, the microfilm roll contains multiple editions, and the microfilm user can adjust the machine lens to focus only on the Article, to the exclusion of surrounding material. Nonetheless, the user first encounters the Article in context. In the Databases, by contrast, the Articles appear disconnected from their original context. In NEXIS and NYTO, the user sees the "Jane" Article apart even from the remainder of page 26. In GPO, the user ses the Article within the context of page 26, but clear of the content of page 25 or 27, the rest of the Magazine, or the remainder of the day's newspaper. In short, unlike microforms, the Databases do not perceptibly reproduce articles as part of the collective work to which the author contributed or as part of any "revision" thereof. 533 U.S. 483, 516 - 17.

Let's take a look at the first two sentences that open the paragraph Mr. Becker quoted: "The Publishers press an analogy between the Databases, on the one hand, and microfilm and microfiche, on the other. We find the analogy wanting." To me, that says the publishers were trying to expand the bounds of existing rights to cover new forms of publishing. Now consider Mr. Becker's next remarks with some context:

My understanding, at least, is that National Geographic created a CD containing the entire issue of the magazine.

Then, Mr. Becker, you apparently didn't read the decision and haven't seen the product. Some photos were taken out of context and put only a splash screen. Yes, the pages were reproduced - which is why I and some others said that there is hardly a slam dunk argument either way - but there were some other differences from the magazines as well. This version allowed searching, which brings it closer to a database. The user can apparently jump right to an article without having to actually see much of the greater context. There were also additional differences:

In October 1997, defendant Eastman Kodak Company (“Kodak”) entered into a co-sponsorship agreement with NGI, Mindscape and Dataware pursuant to which Kodak would pay a fee to NGI for placement of a Kodak promotional message at the beginning of CNG CD-ROMs and advertising on the product package. Beginning with the 110 year product, each version has contained a very short summary of each article that appears on the list of “hits” generated by the search engine in response to user queries. Capabilities have been added to the software. All, however, contain a Replica section.

So, there is a search capabilities that brings up summaries of the articles before you go to the page with the article. That may or may not be within the intent of the copyright statutes, but certainly this is different from even microfiche reproduction. And, in one of the footnotes, we see this:

Additions to CNG 110 and its later iterations include: (a) an introductory tutorial, (b) new interactive software tools, such as a tool to darken text for easier reading and another tool to rotate images, (c) bookmarking capabilities, and (d) a search and save feature. See e.g., Pl. Opp. 56.1 St. (Ward DI 66) ¶ 14; Wells Decl. (Psihoyos DI 14) ¶ 21; Pl. Joint Reply 56.1 St. (Faulkner DI 87) ¶ 10. Other software capabilities not available in the Magazine include the ability to print digital pages and links to the NGS website.

To my eyes, at least, this sounds significantly different from a straight scanning and reproduction of the pages on a CD. If the issue was clarity, then, as I have written multiple times, a decision either way would have added clarity. In fact, given that the judge decided that the changes did not rise to the level of making the CD version different from a reproduction of the magazines, I'd argue that the decision in favor of NG actually increased uncertainty, because it opens a door part way for publishers to continue pushing. Now let's look at more of the decision:

The defendants here suggest that Tasini made clear what the Greenberg panel, in their view, misunderstood: as long as an individual work appears in its original context, the resulting product qualifies as a permissible reproduction or revision of a collective work under Section 201(c). They press the microform analogy, arguing that the CNG is precisely the kind of product evidently envisioned by the Court as being consistent with the rights possessed by the holder of a copyright in a collective work under Section 201(c).

I think the question for copyright owners is whether mechanisms like dimming content and being able to rotate images is really maintaining the original context.

Although the judge found that, in this case, the changes noted did not, in his opinion, rise to the level of of a material fact because the vast majority of the reproductions were exact and because the changes owed to regional , he is admitting that the magazine did make some changes and even update advertisements. So where will the cut-off for changes be? I thought SPJ supported this decision because it will make things clearer, but this is inviting future litigation if publishers push to see how many changes they can make. That is hardly clearer. Now back to more from Mr. Becker:

Erik claims the CD is not the functional equivalent of a bound volume because it is electronically searchable. I don't see anything in Tasini that draws such a distinction. The Court drew a distinction based on presentation, reproduction of the article in the context in which it was originally published versus collection in a database divorced from the original publication.

Mr. Becker, I find this argument disingenuous. When addressing functional equivalence, I was responding directly to Ms. Tatum quoting you, I believe:

"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."

If functional equivalence of bound volumes wasn't pertinent, why, then, did you bring it up? Since you did bring it up, I replied. But, please, don't start objecting to my responding to a point you made and that Ms. Tatum quoted.

If Erik and others have issues with SPJ's initial decision to join the amicus brief and/or Baker & Hostetler's role in that decision and/or Baker & Hostetler's representation of media corporations that is an entirely different matter.

A number of us disagreed that support of the decision would be in the best of freelancers. I and some others also wondered whether there was at least an apparent conflict of interest because the law firm had National Geographic as a client. And, technically, these are, indeed, different matters from whether the CD version of the magazines is a revision or a new product.

Christine and SPJ took a position and had the courage to step back from it in response to criticism. I would hope that others, including Erik, at least have the courage to admit that the 2d Circuit opinion is consistent with prevailing precedent and move on to discussion of how to protect freelancers' legitimate concerns about being compensated fairly for their work.

I've yet to see either you, Ms. Tatum, or anyone else show that the reasoning in the opinion is beyond reproach. and that is almost immaterial compared to the larger point of whether it will help or injure freelancers. The real issue was whether SPJ was helpful or injurious to freelancers in its stand. Given the tone with which Ms. Tatum backed off, I don't see the retraction as courageous so much as trying to get out of the line of fire.

As for the discussion of how to protect freelance concerns, why, Mr. Becker, I and others, whom you and/or Ms. Tatum have criticized as ill-informed and not addressing the most important issues, have been involved in this discussion for, oh, a good seven or eight years at least in time-consuming and active ways. Please don't act as though this is an idea that you and Ms. Tatum have clearly seen just now and that the rest of us have missed. If anything, you are coming many years late to the discussion.

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.

SPJ Withdraws Name from National Geographic Brief

In a blog entry yesterday, SPJ president Christine Tatum made the following announcement: "This afternoon, I decided that SPJ shouldn't add its name to an amicus brief that supports clarifying contract law that affects freelancers and publishers." Btu the way she did it continued, I think, her belittling of freelance writers as immature children who don't realize when their betters are giving them wise words of guidance. (More on this shortly.)

She also backed down while essentially saying that her view was completely right and not understanding the objections of freelance journalists who economically live and die by their understanding of and negotiation of publishing contracts. The first sentence that I quoted says quite a lot - "I decided that ..." Notice it wasn't that the board reconsidered, but that it was her sole decision.

Legal Defense Fund Committee Chairman Dave Aeikens and I still very much believe the brief has tremendous merit. Though SPJ's national board is divided on the matter, Dave and I aren't alone.

Was it even a majority of the board? Or was this decision, to put the organization's name behind a given legal effort, the sole choice of these two people? I don't know - and, to be fair, I have no skin in the game, as I've never been an SPJ member.

As I have previously stated, I was fully prepared for some people to disagree with my stance. I knew they'd insult my intelligence and hurl silly and unfounded insults. That, unfortunately, is how many people choose to handle disagreements (even better are those who throw barbs without having the guts to attach their names to them). So be it.

For the most part, I think it was Ms. Tatum who was insulting people's intelligence, saying that they were lashing out, that they didn't understand her clear logic. Of course, when people asked her to present the logic of her assertions - even when she invited questions - she never provided responses, clear or muddy, to address the queries. She also never addressed the issue that SPJ was following the lead of its legal counsel, which also happens to have National Geographic as a current client.

A highly respected freelancer with whom I have consulted (but gracious, why post the name here and sick the ill-informed and/or angry flash mob on him/her, too?) while evaluating this matter wrote today:

Another example of name-calling on her part. Ill-informed? Most pro freelancers I know are at least aware of many of the intricacies and issues in publishing contracts, and also understand that there issues arise when the courts essentially expand the definitions of types of rights. It's not clear to me that Ms. Tatum does.

"Of course I can see why those freelancers are pissed. It's like when your mom used to say, 'I'm grounding you for your own good. You'll thank me later.' Mom was right, but it was hard to believe that at the time.

"SPJ didn't involve itself in this case to benefit publishers or injure journalists. SPJ raised its voice because it is the job of journalists to create clarity in the face of constangly mutating, endlessly confusing language and smokescreens. The lower court merely underscored the bedrock principle of good writing: Words have meanings. Contracts, like well-written stories, must say what they mean and mean what they say. To disagree would be to dishonor our profession."

My sentiments exactly. Thanks for capturing them so beautifully, my freelancing friend.

This is why I made the statement about her belittling freelancers as immature children, whether doing it through the voice of someone else or through her own. I've yet to see a single cogent argument from SPJ that this brief provided any benefit to freelancers or even to journalism. All I've seen have been unsupported assertions. Certainly contracts must say what they mean and mean what they say, but the issue was not contract language, but how certain commonly understood legal definitions and concepts adapt to radically different circumstances. People don't start including wording into contracts to address issues until they know that the issues could come up. I don't think the conflict that was the fault of either freelancers or of publishers. However, as it wasn't overtly addressed, I think that it was the fault of the publishers that they tried to claim rights without wanting to negotiate with the other parties or pay them.

Despite all of this rancor, one big problem remains: contracts concerning payment for freelance work should be much clearer. Far too many freelancers are not in a position to negotiate their own terms, and they are, frankly, continuing to sign bad contracts because they have no other choice if they want to pay the bills.

And all this is completely aside from the stand that SPJ took. Nothing in its backing of National Geographic would do anything to help freelancers negotiate contracts. Let me inform the SPJ board, since it doesn't seem to understand: the terms are completely clear in most publishing contract. The publishers get everything they want while paying chicken feed at best to the writers. I say this after being the head of ASJA's Contracts Committee for over five years and having personally helped many hundreds of writers and having read many hundreds of publishing contracts.

The statement also shows ignorance of the market. If most freelancers did negotiate and walk away from bad deals, the publishers would quickly realize that they could't hire enough people and they would change their contracts. I've seen it happen wtih major publishers because a large enough group of regulars simply said no. You can do other types of work to pay the bills if you have to. Until you are ready to push back and not take whatever someone decides to give you, you remain an economic and emotional slave.

As these matters are hashed out, SPJ will continue to work to help freelancers understand what they need to do to protect their income.

I'd be interested in hearing what SPJ has done as an organization, outside of the work of the former freelance committee chair, to address this issue. Perhaps they have done something, but I'm pretty well plugged into the freelance community, and I've never once heard a single freelance writer refer to SPJ as a resource for those who want to better understand and negotiate contracts. These are people who spend considerable time looking for resources that could be helpful.

And contrary to Ms. Tatum's apparent view in this post, the issues extend far beyond pay, into legal liability, indemnification, and control of your work and reputation. If you don't really understand the nuances of contractual issues for freelance writers, you are likely going to cause more damage than good by your efforts. So were I looking for help, I think SPJ would not be at the top of my list as a potential resource.

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.

SPJ President Seems to Support Certification for Pro Journalists

In a blog entry, Society of Professional Journalists president Christine Tatum writes about whether journalists should need certification. If you read the post, she never exactly says that there should be mandatory registration, but given the tone and the points she makes, it certainly sounds as though she supports the concept:

I know. I know. Journalism is a trade, not a profession. But if journalists who are formally trained and who make their primary living by working in the news business are going to differentiate themselves from the rapidly rising number of truly irresponsible hacks out there (who are, arguably journalists) and retain the public's trust, they need to give "professionalization" some serious thought.

she quotes at length - and apparently, by her admission, without asking permission - over 800 words from a book written by her former ethics professor, Philip Meyer. Here is one of the key paragraphs:

"Journalism schools are already under pressure to provide midcareer training so that those who graduated before the computer's use became so common feel less disadvantaged in comparison to new, computer-ready graduates. A certification program would be a logical part of a midcareer training program. And both the schools and the midcareer students should be comfortable with it since a journalism degree is itself a form of certification. So, for that matter, is a passing grade in any specific skills course.

And then Meyer asks, "Who will step up and volunteer (to devise certification programs)? Specialists in fields that are easy to define but hard to learn would make good candidates." Why do I get the feeling that Tatum would suggest SJP as a logical candidate.

Given SPJ's support of publisher National Geographic, I have to wonder whether this stand is another way of trying to ensure the future of staff journalists and to keep out the hoi polloi, including all those unwashed freelance writers.

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.