As we ponder the meaning of Copyright Awareness Week this April 22-28, the nation should be very concerned about the financial squeeze the publishing industry is inflicting upon freelance writers in this country today. Originally, U.S. copyright law was enacted to provide protection for writers’ rights so that we could control our ideas and benefit from our work as individual creators. Today, the publishing industry has circumvented the law in an effort to make freelance writers the sharecroppers of the information era.
In Article I, Section 8 of the U.S. Constitution, the founding fathers crafted special constitutional rights for individual creators. To promote the science and arts, they believed it wise to grant individual creators the exclusive right to their work. Nowhere in the Constitution does it mention special rights for companies or publishers.
For freelance writers and other individual creators, the system worked fine for many years and the country benefited from this creative output. Today, as the publishing industry becomes more highly concentrated and obsessed with the bottom line, the system is falling apart. The balance of bargaining power between the freelance writer and the publisher has become so unbalanced that the industry is crushing individual creators.
Leading the charge to enrich the media at the expense of writers is the New York Times. For eight years, this publisher fought freelance writers in the courts to strip us of our constitutional rights. In the early part of the 1990s, the Times made the business decision to use the work of freelance writers on their website without obtaining the permission of the copyright holders – the freelance writers. Ignoring copyright law – which only gives publishers permission to use “print rights” – they decided to cut the freelance writers out of additional income streams generated by the corporation on the internet. Magnifying their greed, they decided to sell this constitutionally protected material to database aggregators like Lexis-Nexis and others.
Although they spent eight years in the courts to wear down freelance writers, the Times never fooled the writers or the judges. On June 25, 2001, the Supreme Court ruled in Tasini v. New York Times that freelance writers own the copyright to their work. The justices ruled that the Times and their publishing allies violated copyright law. It was a necessary but Pyrrhic victory for the writers.
Long before the ink was dry on the favorable Supreme Court decision, the Times and many other publishers figured out how to make an end run around the constitutional intent of the founding fathers. Since they could not strip our constitutional rights away from us in the courts, they decided to force “all rights” and “work for hire” contracts on us. These widespread and sinister contracts are now being promoted as the model contracts in the industry. Many publications simply refuse to cover the work of any writer who refuses to sign this type of contract that grabs rights from individual creators.
To the detriment of the creative output in the country today, the publishing industry is engaged in an enormous profit grab. As internet revenues rise dramatically, the publishing industry is building a business model that excludes individual creators. Although individual creators depend upon secondary sales of their work to survive, writers, photographers, graphic artists and illustrators are being stripped of the fruits of their labor. Some of the new contracts are so bad that they demand rights to all mediums “yet to be discovered throughout the universe.” If the son of the internet can zap your work to some distant corner of the paying cosmos, only the publisher will be richer for the effort.
The emerging consensus of the trade unions that represent individual creators is that only the right to bargain collectively under federal law can save us. At the present time, publishers can use the antitrust laws to prevent many individual creators from bargaining collectively. Although these laws were intended to break up corporate monopolies, the publishers can argue that individual creators are in collusion to restrain trade by fixing prices.
Actors and screenwriters already benefit from coverage under collective bargaining laws. Since they work as employees for studios and film companies, there is a balance in bargaining power between these artists and the media companies. As the publishing industry is becoming more highly concentrated and powerful today, it is essential that freelance writers, photographers, graphic artists and illustrators also win these collective bargaining rights.
To support the arts and the intent of our founding fathers, individual creators need public support to be included under collective bargaining laws. In this Copyright Awareness Week, we ask the public to support us in our efforts to win rights that many of you already enjoy.
Dennis DeMaio is vice president of the National Writers Union. He can be reached at dpdemaio@aol.com
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