July 27 - August 3, 2000
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Whose rights?
What's behind the nasty struggle between the Boston Globe and its freelance contributors?
by Dan Kennedy
Chris Fitzgerald got lucky. One day several years ago, the freelance photographer was working a routine stake-out for the Boston Globe when underworld figure Stevie "The Rifleman" Flemmi slithered onto the scene. Fitzgerald was able to resell his Flemmi pic to other media outlets, including NBC's Dateline for $1600.
Now Fitzgerald's ability to keep earning money from that photo is at the heart of an increasingly rancorous dispute. As of July 1, freelancers were required to sign an agreement giving the Globe the right to reproduce their work electronically. According to Globe spokesman Rick Gulla, 500 freelancers had signed as of Tuesday -- the day after more than 60 non-signers staged a noisy hour-and-a-half-long demonstration in front of the Globe's headquarters. Although there are several points of contention, perhaps the most vexing involves work such as Fitzgerald's Flemmi photo.
To the protesters, the agreement appears to allow the Globe to resell freelancers' work for any purpose it wishes, including publication in other media. Although the agreement specifies that the copyright remains with the freelancer, Fitzgerald finds that gesture to be hollow. "In a sense, I'll be competing with my own work, and it will diminish the value of my work," says the photographer, who was on the picket line Monday.
But to Globe lawyer Fiona Trevelyan, the right to reuse freelancers' articles and photos "in works that are marketed and/or grouped under the Globe's name or brand" (to quote from the agreement) specifically prohibits the Globe from selling Fitzgerald's photo to Dateline and keeping the money for itself. "We can't resell it willy-nilly to a third party under the agreement," Trevelyan says. "We don't own the copyright. They [the freelancers] can take it anywhere they want and republish it." Indeed, it's an argument the Globe has made over and over. Yet, with at least 200 freelancers still refusing to sign, it's clear that many simply don't believe management assurances.
"The language of the contract clearly allows them to do that. It's an all-rights contract," says National Writers Union president Jonathan Tasini, who helped organize Monday's march and is the driving force behind a lawsuit filed by several former Globe freelancers. "So it's a lie."
A lie? Or a misunderstanding that is the entirely predictable result of the high-handed, uncommunicative way in which Globe management has attempted to deal with freelancers' rights in the age of the Internet?
Like all major metropolitan newspapers, the Globe supplements its full-time staff of more than 400 writers, photographers, editors, and artists with hundreds of freelancers -- some of whom write occasionally, some of whom are regular contributors. Among the best-known: Pulitzer Prize-winning architecture critic Robert Campbell and op-ed page columnist (and National Book Award winner) James Carroll, both of whom have reportedly signed the agreement; and lifestyle columnist Linda Weltner, who refused to sign and is a plaintiff in the lawsuit. Lesser-known freelancers include people such as photographer Jim Scherer, who took food shots for the Sunday magazine until July 1; arts critics such as Elijah Wald, Debra Cash, and Bill Marx (who are leaders of the Boston Globe Freelancers Association); and part-time correspondents for the Sunday regional editions.
Under copyright law, when the Globe or any other publication contracts with a freelancer, it buys the right to use a work one time only unless otherwise stipulated in advance; any additional uses must be negotiated separately. It's a long-standing practice that recognizes the difference between a staff employee, who receives medical coverage, vacations, retirement plans, and other benefits, and a freelancer, an independent contractor who does without benefits but who has more freedom to profit from his or her work. It's also a relationship that has been upset by the Internet: obviously the Globe, like any newspaper, wants to be able to publish its full product, including freelance material, on its Web site.
The push started in February of this year, when the New York Times lost a case brought by the National Writers Union. That case, known as Tasini, after the union's president, held that every electronic reuse of a freelancer's work must be considered a separate use for which he or she can demand compensation.
Two months later, the Globe -- a wholly owned subsidiary of the New York Times Company, although Gulla says the Globe is acting entirely on its own -- responded to Tasini by informing about 700 of its most frequently used freelancers that it would require their consent to reuse their work electronically as a condition of their continuing to contribute to the Globe. But the Globe is looking for quite a bit more than permission to publish freelance material on its Web site, Boston.com. It wants to include such work in its archives on the site (cost: $1.50 to $2.95 per article) and sell it to commercial databases such as Lexis-Nexis and the Knight-Ridder library, all without any additional compensation. And it wants to include not just new work, but everything the freelancers have ever produced -- going back, in some cases, 18, 20, or more years.
In a move that might fairly be described as brazen, the Globe has already sold to Lexis-Nexis and Knight-Ridder a large number of articles written by freelancers who have refused to sign the agreement, including Weltner, Wald, and Marx. "That's theft," says Wald. "I have absolutely never given them permission. It's violation of copyright." Jonathan Tasini hints that the Globe's unilateral action may result in a class-action lawsuit. But Trevelyan, the Globe lawyer, calls such an arrangement legal, arguing that the agreement it wants freelancers to sign merely formalizes a relationship the paper contends was already in effect.
A huge complicating factor in all this is the reality that, to date, the Internet has turned out to be a lousy business for media companies. The two biggest general-interest Web sites, Slate and Salon, are both major money-losers: Slate runs on Bill Gates's pocket change, and Salon, following layoffs and a precipitous plunge in its stock price, is pretty much running on fumes. Among newspaper groups, the New York Times Company has one of the most ambitious Internet strategies. Yet at the same time that the company was reporting profits of $101.7 million for the second quarter of this year, it also reported that the operating losses for New York Times Digital, of which Boston.com is a part, had ballooned to $15.5 million. To be sure, there may come a time when Internet media will be a fabulously profitable enterprise. At the moment, though, it is perhaps understandable that publishers, looking at hemorrhaging new-media losses, are loath to pay freelancers any extra money.
The Globe is not acting in isolation. Tasini, asked to name one major newspaper handling freelance rights in a way he finds acceptable, replies that there aren't any. The New York Times, according to spokeswoman Kathy Park, now requires freelancers to sign an agreement handing the copyright over to the Times, an arrangement that is far more restrictive than the Globe's. Earlier this year, the Boston Herald proposed a "work for hire" agreement under which the Herald would retain all rights, including the copyright. Kevin Convey, the managing editor for features, says the Herald has since amended that agreement, and is now seeking an arrangement similar to the Globe's -- except that the Herald is not demanding the rights to past work. "We don't have a deadline, although we're on the verge of doing so," Convey says. (The Phoenix, which relies heavily on freelance material, includes that material on its Web site and in its electronic archives. The paper, its Web site, and the online archives are all free. In addition, when the Phoenix sells a freelancer's work to AlterNet, a syndicate that serves the alternative press, the freelancer pockets the fees.)
But the Globe, by virtue of management's July 1 deadline and a group of well-organized freelancers, has emerged as a test case that will be watched far beyond Boston. Locally, Monday's rally received scant coverage: the Globe itself published a short article, WBUR Radio and New England Cable News covered it, and WGBH-TV rolled tape for a segment of Greater Boston to be shown later this week. But none of the Big Three television stations (Channels 4, 5, and 7) saw fit to send a reporter, nor did the all-news powerhouse WBZ Radio. Nationally, though, the Village Voice has weighed in with a lengthy piece, and the Poynter Institute's MediaNews.org Web site publishes regular updates.
Dan Kennedy's work can be accessed from his Web site: http://www.shore.net/~dkennedy
Dan Kennedy can be reached at dkennedy[a]phx.com
Articles from July 24, 1997 & before can be accessed here
