Challenge to geek brains: come up with a solution for copyright registration and release writers from the prison of government monopoly

The Writers Guild of America strike and the recent ruling over content rights for print journalists reflect discord in the entertainment industry and in traditional publishing. In all corners of the content world, dialog is in progress over a number of issues, with new media at the forefront. Who could foresee the impact technology would have on the writing profession? New developments are announced with a frequency akin to the reproduction capabilities of rabbits. The entertainment industry appears unified and well-protected. The publishing industry is anything but.

Years ago, a contract from a periodical was a simple thing. Now, most publications want all possible, foreseeable, future and even maybe rights when they make an agreement with a journalist. Questions abound. Should a writer be paid for content uploaded to a cell phone? Should a writer be compensated if content originally run in print is published on the Web? Should a writer be allowed to pursue financial recompense if he or she didn’t formally register with the U.S. Copyright Office? This last question is one that perplexes and bothers me most of all. The U.S. Copyright Office notes, as I’ve pointed out before, the following:

In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.

And the monopoly for registration is owned by none other than the federal government.

I fail to see the logic. The government position assumes the only valid means of protecting the potential monetary value of one’s work rests in the government. Anytime something rests in the government, I get a little nervous. The downside of the current copyright registration procedure involves writers like me having to spend time filing forms and (naturally: it’s a government thing) paying to protect something I already own in the first place. And if you’ve ever tried to call the U.S. Copyright Office, you know that is essentially a pipe dream. The line is always, always, always busy. Journalists and other writers are as imprisoned as a felon when it comes to seeking damages from plagiarists who steal the work of others. Lacking an official U.S. Copyright document all a writer can do is demand the work be removed from a Web site, and there doesn’t appear to be much at all you can do if someone lifts lengthy passages for a book.

So here’s my challenge. Geek people, seize opportunity. Come up with a simple database where a writer can pay a fee and register his or her works online. Come up with some means of vetting the writer’s identity. Badger government officials—you know, the ones we elect to allegedly represent us—to determine how to set up the system so it will pass muster in the courts.

As a writer, I am extremely annoyed that the only hope of financial recompense, should someone steal my work, is in government hands and worse, the courts. When judges understand the freelance writing profession, I will look up at the Florida skies and see my hound dog flying wildly, waving to me as he wags his tail with joy, baying at the new feathered friends he’s made.

The Authors Guild issues statement about copyright settlement reversal

Posted with permission from The Authors Guild, a statement emailed to members Nov. 29 about the reversal in the Freelance Class-Action settlement:

We received surprising and disappointing news in our freelance class action suit this morning. The 2nd Circuit Court of Appeals reversed, in a 2-1 decision, the district court's approval of the settlement.

That settlement, valued at up to $18 million, was to resolve the copyright infringement claims of freelance writers against database companies, such as Dow Jones and the owners of Lexis-Nexis, that had made digital use of the writers' articles without permission. Plaintiffs and defendants had arrived at settlement in 2005.

The appellate court ruled that the district court lacked jurisdiction over claims relating to unregistered freelance articles. Copyright registration is required to bring a suit for infringement, but since registration is viewed as a formality (comparable, many of us believe, to the requirement that one file a complaint in order to get into court), lawyers on both sides thought the settlement could resolve infringement claims for both registered and unregistered works.

The settlement had been objected to and appealed by a group of freelance writers who thought it failed to allot sufficient funds to the claims of authors of unregistered works. If this decision stands, of course, such claims would be shut out entirely.

The shard of good news is that there is a substantial dissenting opinion by Judge Walker. We are considering our options at the moment. One possibility is to seek an en banc review (a review by all of the judges of the 2nd Circuit) to see whether we can persuade a majority of the court to see things our way.

For more information, visit The Authors Guild on the Web. The Authors Guild is an organization for writers, founded 90 years ago.

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.

SPJ president explains support for National Geographic in lawsuit filed by freelancer

Absent the front pages of most newspapers today is a story about an organization ensconced in the newspaper realm for almost a century. The story actually impacts publishers and content providers in all media. In simple terms, the Society of Professional Journalists has filed an amicus brief supporting National Geographic in a lawsuit brought by a photographer whose last name is Faulkner and others whose images were used in the magazine’s print edition. Geographic decided the magazine also owned rights to those images for use in a CD-ROM collection comprising numerous issues of the print edition. Two federal courts are at odds over who actually owns the rights. This is a simplistic explanation. Writer Erik Sherman offers the nitty gritty at his WriterBiz blog.

When I learned SPJ had filed the brief on behalf of Geographic, I immediately questioned the wisdom of an organization whose membership includes both publishers and freelancers. It seemed to me neutrality offered the best path for SPJ. In other words, this is not SPJ’s fight. In my opinion, seizing the opportunity for battle was not a wise move.

As a result of SPJ support for Geographic, the chair of SPJ’s freelance committee and one employee resigned. On message boards related to professional writing organizations, on telephones in freelancers’ offices and on blogs written by freelancers, the issue has become a hot topic.

Many of us will not renew our membership as a result of SPJ’s decision. Others who were about to join have shredded their applications.

SPJ president Christine Tatum has a rather eloquent blog entry at Freedom of the Prez, whereby she defends the organization’s decision, made by Tatum and the Legal Defense Fund Committee chair, to support Geographic. Without meaning to, I’m sure, she infused a bit of humor into the fracas. Here’s what Tatum wrote:

“I stand by the decision I helped make because it stands to help clarify law so that freelancers can negotiate smarter contracts that help ensure they're paid fairly for their work. It might sound odd - even ludicrous to some - but a ruling in favor of a publisher in this case actually could help all freelance journalists well into the future.” The decision was made, she says, “…After very, very careful consideration.”

If you really, really believe that argument, I have a Pulitzer Prize I’d like to sell you.

SPJ might have made a conciliatory statement about this matter, averting what should have been obvious: impending alienation of the freelancers in the organization’s midst.

If contracts for freelancers are an issue, you’d think there’d be information plastered all over the SPJ Web site. Prior to joining, when I heard the organization’s name, SPJ—to me—stood for freedom of the press, and for protecting my rights as a journalist to information held in government files. I never envisioned SPJ as an organization involved with contracts between freelancers and publishers, and I doubt any of the other freelance members did either. That’s what I have organizations like the American Society of Journalists and Authors for.

Federal courts disagree about Geographic’s use of the materials, so we are not likely to resolve the right and wrong on blogs or phones or message boards. For one thing, the legal brief is as long as the community phone directory we get here in our neighborhood.

Tatum writes, “A ruling in favor of National Geographic Society is a relatively rare opportunity to help advance that very important and far more progressive discussion. It would add clarity to the law and protect journalists by improving their chances of receiving fair compensation.”

This reminds me of the impact made on my driving by a handsome officer who handed me a ticket for speeding.

Absent this entire sequence of events is a large dose of common sense. Geographic could have paid their contributors a reprint fee for digital use in a collection, one that will surely be profitable, and that society may have saved large payments to legal firms, and none of this would have been an issue. Does a publication really prefer paying a lawyer rather than a contributor? What does that say about the moral standards of such a publication?

I plan to cancel my membership in the National Geographic Society too.

I’ll hand it to SPJ president Tatum. She did a fine job of crafting words to justify SPJ’s decision. What’s missing is the logic. There’s a hole in the foresight as significant as one famous emperor’s new clothes.

And now that I think of it, I actually have two Pulitzer Prizes for sale. Cheap. I’ll engrave your name right on the front of them. Email me for details.

SPJ freelance chair resigns, cites amicus brief in National Geographic case

I met a few SPJ members in Washington at the D.C. chapter's Christmas party. I'd traveled to the capital to read poetry at 'Florida Poets Arrive' at the U.S. Library of Congress.

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The Society of Professional Journalists signed on to an amicus brief supporting National Geographic in a lawsuit involving contributors’ rights relating to collective works produced by publishers. How does this serve SPJ or the freelancers who belong to the organization?

Kerri Fivecoat-Campbell was a definite asset for freelancers who belong to the Society of Professional Journalists. Most members of the organization are full-time employees of newspapers and magazines. Most freelancers join the organization because SPJ is a guardian of freedom of the press. My own membership fees have connected me to a network of writers and editors around the country, but until Kerri headed the freelance committee, there was scant attention to those who are self-employed.

Kerri worked hard to increase our presence in SPJ. One big accomplishment was the freelancer database she and her committee implemented. Now if an editor is looking for an independent journalist, there’s a handy database full of willing and available writers. She also maintained the SPJ blog The Independent Journalist, listing jobs, opportunities and other information relevant to our trade.

Unfortunately Kerri emailed me this morning, stating she is resigning her position as chair of the SPJ Freelance Committee.

Kerri is leaving because SPJ signed an amicus brief supporting National Geographic in a lawsuit. NG purchased photos from contributors, using the works in print editions. But now the photos are included in a CD-ROM collection.

As an SPJ member, I’m not satisfied with the organization’s explanation justifying signing on to the brief—I fail to see how this fits with SPJ’s emphasis on freedom of information and first amendment rights. SPJ notes in a statement on the Web site:

This case does not harm a contributor’s ability to receive payment for the reproduction of his work when published in the same context of the original. It merely affirms that any such understanding must be expressly written into the contract.

Chances are when some of these contributors signed contracts, a comprehensive CD-ROM collection was an idea unborn. If a CD-ROM of each issue had been produced separately—and written into the contract as such—that would be a different scenario. But a collection of numerous issues in digital form should not fall under the contractual agreement these freelancers signed for usage of their properties in the print edition. The marketing for these products will certainly be different—the approach in selling a subscription is inherently different than that used to sell a collection. We are talking about a completely different entity.

Even federal courts are at odds over this matter. The American Society of Media Photographers says in the case of Florida photographer Jerry Greenberg, the U.S. Court of Appeals for the 11th Circuit ruled that Geographic had violated Jerry's copyrights by creating and selling the digital collection without permission to use his photographs.

But then the U.S. District Court for the Southern District of New York dismissed almost identical claims by photographer Douglas Faulkner and others.

As digital collections become more popular, issues over rights to intellectual property will surely proliferate.

Freelancers in SPJ have certainly lost a strong advocate. Kerri Fivecoat-Campbell did a great job for us. She really made us feel like we belonged.

I'd have preferred that SPJ at the least stayed neutral in the Geographic brawl--taking sides alienates those of us who may be fringe members, but believe in the mission SPJ built its foundations on.

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Erik Sherman's WriterBiz.

K.C.'s Write for You, Kerri Fivecoat-Campbell's blog