Saturday, August 11, 2007

SPJ rescinds amicus brief; Judge Kaplan of Faulkner vs. Geo is an interesting guy

After days of emails and message board comments flying back and forth between freelancers who belong to the Society of Professional Journalists, I bit the bullet. I re-read the legal decision handed down by Lewis A. Kaplan, judge for the U.S. District Court, Southern District of New York.

This is not riveting reading. It is rather like reading, in succession, the breakdown in nutrients on 100 cereal boxes.

For me, there was a humorous moment in Kaplan’s decision. He cited Webopedia in defining the term ‘JPEG’ in a footnote, explaining how to pronounce the term (“jay-peg.”)

My Wednesday and Thursday columns this week hit on the highlights of what became a veritable fracas between SPJ’s president and various freelancers who get a wee bit touchy when it comes to copyright issues. Though a couple members got a little sassy in their comments on the president's blog, others like me just wanted answers to simple questions.

In defense of SPJ, the organization has backed off signing on to an amicus brief on behalf of National Geographic in a court battle over copyright issues. Actually, the term ‘Geographic’ is putting it too simply. Also involved were NG subsidiaries National Geographic Ventures and National Geographic Enterprises (now known as National Geographic Holdings). Mindscape, Inc., was also involved as was Dataware Technologies Inc. (now known as LeadingSide, Inc.), and a division of Dataware called Ledge Multimedia. Eastman Kodak Company was involved because of a new ad included in the collection Geographic produced, and a few thousand free copies of a CD-ROM Kodak received. At some point, Dataware filed for bankruptcy. Right now, the nutrient table on my daughter’s box of Cocoa Puffs is looking riveting.

Judge Kaplan ruled for Geographic and friends, citing numerous instances of case law. Basically, he contended the CD-ROM was equivalent to a Microfiche reproduction, and Geographic had the right to take hundreds of issues of the magazine, compile the content into a multi-media collection going back many years, and sell them with the same rights to the content as though Geographic was selling single issues. Here’s a lift from the judge’s decision—CNG refers to the digital multimedia collection of the issues of the magazine. Kaplan says the plaintiffs—Faulker and other writers and photographers upset enough to sue “the world’s largest nonprofit scientific and educational organization, with approximately ten million members worldwide”—claimed the following:
*The CNG contains material that never appeared in the Magazine – not only the animated opening sequence and music, Kodak advertisements, and in some editions a summary of each article and a closing montage,but software tools including a search engine with advanced search capabilities, save, print and bookmark features, and a hyperlink to NGS’s Internet web site.
* The software tools provide the user with an opportunity to have a media experience in using the CNG that is different from simply reading print pages.

You can even switch photos around to different angles.

Although I’m about to cancel my subscription for ethical reasons, I must tell you, I cannot do all these things with my print copy of National Geographic. If I could, I might wiggle a few tunics on strong masculine legs. Or I might make an iceberg larger in an effort to metaphorically combat global warming. The creative mind knows no bounds when it comes to manipulation, especially with images. I must also confess I am a bit upset with an organization that prefers to pay corporate lawyers large sums instead of offering nominal sums to freelancers for reprint rights.

Despite the fact the CNG is a very different product than the hundreds of single issues put out by a society I respected until now, Judge Kaplan ruled against the plaintiffs. Bottom line: the slick multi-media collection complete with interactive software is the same as those printed issues with all those lovely 4-color photographs. Freelancers lose. Corporate entity wins. Sound familiar?

But wait! There’s more. Judge Kaplan may not like photographers or writers, but he really likes movies. This is the judge who placed an injunction on the DVD-Copy Website so that DVDs could not be decoded and played on personal computers. Not only must the owner of DVD-Copy not post the code, he can’t even link to sites that do. If the words 'freedom of speech' are running through your mind, know you are not alone. Please note I am not arguing the merits of that ruling. I’m just pointing out Kaplan took a strong stand to protect deserving firms like Disney, Universal City, Paramount and Time Warner from having their copyrights infringed upon. He’s not the first judge to prefer movies to text and print images I am certain.

Now at first I thought Judge Kaplan might just be a wee bit uninformed about the publishing industry. But no! In February, 2004, the New York Times reported Judge Lewis A.Kaplan of Federal District Court in Manhattan married “a former news correspondent and publishing lawyer.” NYT says Kaplan's bride was, until September 2000, a vice president and associate general counsel at Random House in Manhattan. So the judge certainly has a ready resource for knowledge about publishing.

When I returned Friday evening from covering an assignment for a daily newspaper and afterwards, a late dinner with my husband, I found a notice posted on the Society of Professional Journalists site. The notice stated SPJ decided against signing the National Geographic (et al et al) amicus brief. That relieved me somewhat. The organization I believed in had seen the light. Tatum is quoted in the article on the site.
"We believe this brief is good for all journalists wanting fair compensation for their work, but we also listen to our members and see clearly how support of the brief has not been good for the Society," SPJ National President Christine Tatum said. "Our members are divided over this issue. We would love for them to focus instead on projects and causes that garner much broader support."

Then I read Tatum’s statement on her ‘Freedom of the Prez’ blog. Now there are some people who have the gift of diplomacy and some who do not. And there are some presidents (need I say more?) who believe in absolute freedom for their executive inclinations.

She talked a little about intelligence, silly insults and people who throw barbs without attaching their names. Ah, those freelancers are a rowdy bunch. Must have something to do with the astronomical costs of our health insurance or perhaps the fact we don't have New York law firms on hand to advise us every time a contract comes our way.

Tatum said something that got this Southerner a little riled. She recounted a message expressing support from a freelancer she consulted:

"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."

This had an effect on me similar to the effect I felt when I stepped on a large snake whose species I could not identify as I walked barefoot across my garden to pick a tomato.

Mom and SPJ? Is a professional organization taking the position of disciplinarian because the contracts we must accept are not heavily weighted in our favor? I'd suggest freelancing full-time. There is a bit of room for negotiating, but see how far you get quibbling at length over a contract.

I have serious misgivings about an organization that waded into territory it did not thoroughly investigate to begin with, into a court case presided over by a judge who has marital ties to the publishing profession, and into a court case where the judge feels it necessary to explain the pronunciation of the term ‘JPEG.’

I further have serious misgivings about those in my industry who are unable to compare the technology in use 20 years ago, such as preparing color plates—often discarding these very expensive plates if a single color wasn’t properly registered—to the technology of today whereby digital scanning may produce a photograph that is worthy but trust me, will still be different to many produced by those antiquated color plates. Perhaps you’d have had to be there to see the way magazines were produced before desktop publishing to understand what I am talking about. I further have problems with my organization taking a position on a matter that clearly did not favor the best interests of a segment of its membership. Furthermore the matter had nothing to do with those SPJ members who work as employees for publishers and other media corporations. I have big problems with the president of a national organization who tries to tell me the organization sided with a publishing conglomerate (and associated subsidiaries and vendors) in a situation that clearly—common sense is helpful here—cannot be rationalized as fair to the freelancers involved.

I am still speechless over the fact SPJ did not consult the national freelance chairperson before making a decision that clearly impacted freelancers.

The case of Faulkner vs. National Geographic (and associated subsidiaries and vendors) is far more complicated than a simple contract dispute.

That a federal judge is incapable of putting the picture together and that he is incapable of understanding the differences in the product Geographic produced compared to issues of the print magazine simply drives home my entire opinion about federal courts in general.

Tatum concluded her post by defending her decision to offer the brief on behalf of Geographic and by addressing those rowdy freelancers directly. “I have nothing to apologize for -- and, as long as you keep the discussion civil, neither do you."

I have a smart chicken running around my back yard. She flew over the fence one day and decided to adopt us.

Perhaps a future U.S. president will send her to preside over a federal court—just as a president put Kaplan in a court to ultimately preside over a case that will govern other courts’ decisions on photographers’ and writers’ freelance work in the future. We may take comfort in the fact he’s kept the movie industry safe, however, from all those kids who want to copy a DVD.

I think my chicken, with a small amount of training, might also be able to run a courtroom, or a non-profit. It looks easy enough, and she's one smart bird.


Jill said...

Thank you. For doing the reading, the analyzing, the parsing. The quality of the freelancers who've even signed up with SPJ (at least in the past) make the situation even more disturbing: because there are so many excellent, savvy, smart, experienced ones who could have prevented this whole fiasco. What a waste that the leadership failed to consult its own freelance membership, committee chair or other, before it became what it is now.

Erik Sherman said...

Good work on the decision analysis. And if you want to make the chicken insanely happy, feed it some cheese. (We have seven of them.)

Kay Day said...


Jill, I had to read it twice just to understand parts of it. The plaintiffs didn't bring a suit solely on the basis of re-use of their materials, but also on the various subsidiaries and other entities involved. And you're right--"What a waste..." fully applies here. SPJ lost the best freelance chair we've ever had and an employee of comparable talents too.

Erik, cheese? I'll try it and see what she says. She is one opinionated chicken. And thanks for words about decision analysis. Considering the level of respect I have for your work and knowledge of legal matters, your comments are appreciated.

Note I did a light edit this morning. There was one para that veered off-track and on my re-read in the light of day, seemed unfair and petulant, so I took it out. Cleaned up the piece overall too.

And now I'm off to a wedding and then a story for paper.

Best to both, Kay

Erik Sherman said...

My, this whole thing is making my head hurt. I hadn't read the additional comments of her 10 points. Here's my take on top of yours:

Now, I really do have to stop looking at all this.

Wendy Hoke said...

Nice analysis, Kay. I posted Saturday about how this got started and the point at which, should SPJ have chosen the path of diplomacy, this all could have been resolved.

I am saddened by a waste of four years of working on behalf of freelancers. She even took credit for things that were in the works long before her tenure (freelancer directory and new membership cards).

Ugh! I'm so done with SPJ!