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.

Freelance writers’ claims nixed for works published on Internet; NWU president calls court decision ‘an outrage’

The U. S. Court of Appeals for the Second Circuit in Manhattan voided a settlement on Thursday, resulting in widespread implications for freelance writers. The New York Times reported Judge Chester J. Straub contended in his decision, “… federal copyright law allows claims for damages only by writers who have registered their work with the United States Copyright Office. The vast majority of freelancers did not register, so he said the courts had no jurisdiction over their disputes, and the case should not have been approved as a class-action suit.”

An original agreement had been brokered in 2005 and approved by the courts, whereby publishers would reimburse writers for Web use. Straub apparently contradicts the U.S. Supreme Court ruling in 2001 that digital reproduction without permission violates the author’s rights.

Straub’s ruling also contradicts information listed in F.A.Q. on the U.S. government Copyright Office site declaring that copyright exists from the moment the work is created. Bear the fine print listed on the U.S. government Copyright Office Web site in mind, however:

Do I have to register with your office to be protected?
No. 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. See Circular 1, Copyright Basics, section “Copyright Registration.”

Why should I register my work if copyright protection is automatic?Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.

The courts typically favor creative workers in the entertainment industry, but when it comes to writers, it’s a sad tale of abandonment and woe. It’s this writer’s opinion that courts have little idea of the intricacies and practices in the publishing industry. Gerard Colby, National Writers Union president, called the latest decision an “outrage,” and he told the Times he hopes the decision can be appealed to the U.S. Supreme Court.

Don’t be naïve: if your content is good enough to publish you deserve to be paid

I often have aspiring writers ask me if they should write for free. I usually tell them if something’s good enough to publish, you should be paid for it. I confess I often see things published that weren’t good enough to see the light of day, in my humble opinion, but yesterday I saw something that completely blew my mind.

There was a “job” listing by a publication at the freelance board for the Society of Professional Journalists. I took a look at the publication’s Web site. The manuscript and image submission guidelines state the following:

“By submitting your material, for good and valuable consideration, the sufficiency and receipt of which you hereby acknowledge, you hereby grant to (publication) a non-exclusive, perpetual, worldwide license to edit, rerun, reproduce, use, syndicate, and otherwise exhibit the materials you submit, or any portion thereof, as incorporated in their feature, (name of feature) or the promotion thereof, in any manner and in any medium or forum, whether now known or hereafter devised, without payment to you or any third party.”

Amazing. My advice to you when confronting terms like this: Just don’t do it.

The Web enables any aspiring artist in any genre to set up a blog or Web site and share your work. This is the era of citizen journalism. Why would you want to assign any kind of rights to your material if you’re not getting compensated? So you can say someone else put your work on their site and stuck your name on it?

This is almost as bad as buying an anthology so your poem will be included in a book.

Be smart. If your content is good enough to publish you deserve to be paid. And if you’re not offered compensation, go and set up a blog or a Web site. You can do that free at a number of places, including blogger.com.

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.