Legal update for magazine editors

A report from the meeting of the American Society of Magazine Editors New York 14 May, 2003.

How weird it was to be a freelance writer sitting in on a "legal update for magazine editors," which was sponsored by the American Society of Magazine Editors on May 14. It was, after all, a session designed to tell magazine editors what they needed to do to get the most rights, for the least money, out of people like me. Weird.

Media lawyer Rob Bertsche (of the Boston law firm of Prince, Lobel, Glovsky & Tye) waxed nostalgic about a time when publishers could grab every right in the world, in media now known or heretofore invented, and freelance writers, "in desperation," took whatever they could get. He said that the Tasini decision of 2001, which found that the New York Times did not have the right to sell freelanced articles to the Lexis/Nexis database without written permission to do so, made freelancers "empowered." But not too empowered: With guidance from lawyers like Bertsche, editors are simply learning to be more specific in their contracts, carefully enumerating the rights they want to obtain and the various ways in which the writer's work might be "repurposed" — on a web site, a CD-ROM, a searchable database, an anthology.

Bertsche made it sound like editors have to pay extra if they want these extra rights — this has not been my experience, but maybe I've been unlucky. He also took it for granted that the contracts originally offered to freelancers are negotiable — different editors with different degrees of authority cross out different things, he said, and maybe magazines need a centralized process through which to "customize exceptions to the standard contract."

An important sidelight to Tasini is that the Court said that microfilm is different from an electronic database — microfilm, the court said, is not a "new publication," because it preserves the original format, looks like the original newspaper or magazine, and forces the reader to, in effect, flip through the publication page by page. On the web, on the other hand, the article looks and feels like it's a whole new thing. As a result, Bertsche said that some publishers are now trying to create "flippable databases," which somehow make it seem like the reader is going through a publication page by page, as with microfilm. Would this mean that publishers don't have to specify, or buy, the right to use an article in such a database — since they don't pay extra now for putting a piece on microfilm?

He alluded to the "massive" database/freelance negotiation that has been going on for the past two or three years — one involving ASJA and the Authors Guild and one that NASW has, I believe, been silent on — and said that it's now coming toward an end. He didn't venture a guess about what the conclusion would be, nor about what it would mean for magazine editors.

Bertsche warned editors to watch out for their paper trails — or even their electronic email trails. He said that in the case brought by photographer Jerry Greenberg against National Geographic for using 64 of his photos in a searchable collection of CD-ROMs without his permission, the most damning evidence were the memos and emails passed among the Geographic staff warning that using those photos might be wrong and could possibly be illegal. Bertsche said the existence of those emails explains why the jury, in March 2003, gave Greenberg the highest allowable amount in damages, $400,000. The lesson, he told the editors: when you're concerned about the legality of grabbing too many rights, or grabbing rights to something you're not entitled to, don't write anything down.

Bertsche advised the editors to use "post-Tasini language" in their contracts with freelancers. He said they have to be sure to obtain rights to publish "in all media now existing or hereafter developed" (he left out "in perpetuity throughout the universe," a phrase I guess they stopped using because it was so ridiculous); to get rights to publish "on any online service or website"; and to specify that the rights obtain "regardless of whether the Article may be accessed individually or in conjunction with other materials from the Magazine."

Having dispatched the ordinary all-rights contract with alacrity, he then went on to talk about contracts that take all rights not only to the article in question, but to all articles the freelance has ever written for that publication — contracts that a lot of newspapers are now requiring because they make putting things on databases retroactively so much more convenient. He talked about the case of Marx v. the Boston Globe, in which he represented the Globe. The Globe told freelancers that they couldn't write for the Globe anymore unless they gave the Globe the right to put all their old stuff on the internet.

When freelance writers sued the Globe, saying the paper was taking undue advantage of its power in the marketplace, a Boston judge originally agreed with the writers and placed an injunction against the Globe. But then that same judge changed his mind, and in November 2002 he said such a retroactive rights grab was perfectly fine. Public policy, he said, "does not prohibit the Globe from requiring a freelancer essentially to release any copyright claim as a condition of continuing the freelance relationship." Bertsche said he doesn't know if this attitude applies to states other than Massachusetts.

Bertsche didn't talk about indemnity clauses at all, but in his "clauses to consider" list in his handout, he included the standard indemnity clause, where the freelance warrants that no laws have been broken, including libel and privacy, and that the writer hasn't exposed the magazine to criminal, tort, or other liability.

But let's give him credit — he was a decent guy, for a lawyer, and he did tell the editors that "you don't want to overreach with a freelancer because you want to be fair, and you don't want to pay for rights you don't need."

He went on to talk for another 2 or 3 hours about other issues that were not really related to what we've been asked to consider on the contract subcommittee: how an editor should decide when a manuscript is unacceptable and whether to pay a kill fee; duration of copyright; what constitutes fair use; copyright infringement on a magazine's web site; what constitutes libel; issues raised when a reporter uses illegal means to obtain material. But he did raise two points that might be of special interest to NASW members.

The first is HIPAA, the Health Insurance Portability and Accountability Act of 1996. Included in HIPAA is the prohibition of any "individually identifiable health information" to any "covered entity." He said reporters are afraid of being classified as "covered entities," meaning they wouldn't be entitled to hospital records, medical reports, etc. The Newspaper Association of America, he said, is lobbying to get it stated explicitly in the legislation that reporters are not included. The fear is that hospital personnel, ER workers, police officials, and whistleblowers will be afraid to release any information to journalists that might have a human element, and reporters will be forced to resort to dry statistics when they write their stories. If reporters had been "covered entities" under HIPAA, the argument goes, no one would have been able to write about Cheney's heart disease, Reagan's Alzheimer's, the condition of the Columbine victims, the health of people in epidemics like SARS. I don't know what efforts are really going on to exempt journalists from this restriction — this was the first I'd heard of it — but might there be a way for NASW, whose members so often write medical stories, to get involved here?

The second was Bertsche's discussion of what he called "access post 9/11." The hour was getting late, so he kind of rushed through this part, but the new issues raised in the context of homeland security were interesting and possibly worth pursuing: restrictions imposed by the USA Patriot Act (he included a summary of the law written by the ACLU in his handouts); a crackdown on FOIA requests; increasingly detailed background investigations of reporters. Before reporters could cover the US Open golf tournament, for instance, they were forced by the USGA to authorize the release of "any and all records concerning me or my background. . . which may be in the possession of any local, state, federal or national entity." As for FOIA, Attorney General Ashcroft has said in writing that he would uphold any agency's decision to deny FOIA requests for access to its records and documents.

Robin Marantz Henig, a freelance writer living in New York City, is a member of the NASW board of directors, and author of the new book, "Pandora's Baby: How the First Test Tube Babies Sparked the Reproductive Revolution."

May. 13, 2003

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