Whose rights?, continued

by Dan Kennedy

The lawsuit the freelancers have filed in Suffolk Superior Court will most likely take months to resolve, and would appear to be a difficult hurdle in any case. The freelancers have already lost their request for a preliminary injunction. Boston lawyer William Strong, author of The Copyright Book: A Practical Guide, says that, in general, a publisher such as the Globe is within its rights to insist on the terms under which it will work with freelancers, as long as those freelancers sign on the dotted line. "You can ask for anything," Strong says. "It's a question of whatever consenting adults agree to."

The freelancers' lawyer, Ira Sills, believes the Globe's real failure has been to sit down with the freelancers and deal with them in an open, cooperative manner. "I think the Globe has made a big mistake that betrays a certain arrogance of style," he says. "They're not evil, base people who run the Boston Globe. They're just people who have great confidence in the rightness of their position."

Even if the Globe has the right to drive a hard bargain, the dispute threatens to turn into a public-relations nightmare. At Monday's demonstration, passing drivers honked their horns in sympathy as freelancers held signs bearing messages such as BOSTON.CON and RESALE IS OUR 401K. Seven of the state's 10 congressmen -- Barney Frank, Joe Moakley, Jim McGovern, Mike Capuano, Bill Delahunt, John Tierney, and John Olver -- have written to publisher Richard Gilman to express their concern. (Gilman, in a written response, called the Globe's agreement "more favorable to the freelance community than the agreements put into place at other major newspapers.") The next step, says Tasini, is to encourage advertisers to boycott the Globe. The Globe's union for full-time journalists, the Boston Globe Employees Association, declined to participate in Monday's demonstration because of contract language prohibiting such action. But union president Robert Jordan passed out a statement that said the BGEA "continues to support the freelancers' ongoing efforts to gain a fair and equitable contract with the Globe."

Linda Weltner, who says she's never made more than $18,200 a year from the Globe in nearly two decades as a weekly columnist, expresses bitterness that she was let go without so much as a goodbye when she refused to sign the agreement. To her, the threat is very simple. After having published two collections of her columns, is she now in competition with her former client? Might the Globe, on its own, make Weltner's columns available to the public under some sort of "Globe brand," as management appears to be claiming the right to do?

"If you can go to the Globe databases, why would you buy my book?" asks Weltner. "Why would anybody buy the stuff from me when they could just take it off the Web?"

Then again, it's hard to imagine why anyone would prefer to download Weltner's columns -- and pay for them one at a time -- rather than buy her books, which are more attractive, easier to use, and cheaper, at least on a per-column basis. But this isn't just about current technology -- it's about future technology, too. In a few years, it might become possible for the Globe to publish an e-book of Weltner's columns. Statements by the Globe's spokesman, Gulla, and its lawyer, Trevelyan, would appear to preclude that. Yet who knows how a future Globe official might choose to interpret the agreement?

Compromise is not impossible. The freelancers might start by backing off the ridiculous notion expressed by some among their ranks that they should be paid extra merely for having their work appear in the Globe's daily Web edition. It's simply a fact of life that newspapers are now published on paper and on the Internet. As for archival use, the National Writers Union proposes a "microtransaction" system, whereby freelancers would receive a small payment each time their work is accessed. That may be an accounting hassle, but there are other possible solutions, such as paying the freelancers a reasonable flat fee for including their work in commercial databases. The Globe should also back off its demand for the electronic rights to past work as a condition of receiving future assignments, and make it absolutely clear that it will not attempt to resell freelance material to other media, whether under the "Globe brand" or not. Maybe Richard Gilman should listen to Steven Brill, who, after his new Web site Contentville.com got caught posting material whose copyright was of questionable provenance, vowed to do better. The reason, he wrote to MediaNews.org, was that "because I started out life as a writer (and still consider myself one) I'd be plenty pissed off if I thought I owned something and was watching as someone else sold it and pocketed the money."

Still, the Globe can probably get away with the agreement as it stands. Asked whether the wrangling has made it more difficult to put out the paper, editor Matt Storin responds, "No, it hasn't. I'm not saying it has had no effect whatsoever, but it has had minimal effect." And let's face it -- some freelancers have good reason to sign. John Mello, who writes technology reviews for the business section, puts it this way: "The kind of stuff that I'm doing for the Globe doesn't have much of a shelf life anyway. New products are introduced every 10 minutes, so whatever I write about them is dated mighty quick."

Yet it's also true that the Globe is finding new ways to make money from its freelancers, and it is refusing to share the money with them. Simply put, the Globe has made a difficult way of making a living even more difficult. If the Globe's model is a harbinger of national trends, you can only wonder what the long-term impact will be on the quality and quantity of people who seek to write and take photographs for a living.

"It might be nice to try to split the baby between the author and the publisher," says Harvard Law School's Jonathan Zittrain, faculty co-director of the school's Berkman Center for Internet and Society. "Theoretically, they should both be winning if tons more people, thanks to digital technology, can see it."

Of course, the notion that the Globe is trying to deny freelancers big money is also theoretical, at least at the moment. Those who stand to lose the most are photographers and well-known writers with marketable names -- and even then only if the Globe tries to resell their work to other publications, which the paper insists it cannot do under the terms of the agreement. There is essentially no resale potential and only minimal archival value for the vast bulk of freelance material in the Globe, such as theater reviews, local political round-ups, and the like.

Which raises perhaps the most important question of all: if this isn't such a big deal, why won't the Globe come up with a more flexible arrangement? Why has it insisted so unbendingly on a take-it-or-leave-it proposition? "My problem is not that they're trying to take this stuff for free," says photographer Greg Mironchuk, a plaintiff in the freelancers' suit. "It's that they don't want to negotiate. It's the strong-arm that we object to."

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Dan Kennedy's work can be accessed from his Web site: http://www.shore.net/~dkennedy

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Dan Kennedy can be reached at dkennedy[a]phx.com

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Articles from July 24, 1997 & before can be accessed here

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