So the (ahem) leader has backed down, but with a final lashing out at those who called her to task for her ignorance.

Still no explanation of the (wrong) thinking that allegedly went into the decision, and still no apologies for, or admission of, going along with the stupidity (to be kind) of doing the bidding of a law firm that handles several publisher clients who either are defendants in cases tied to, or similar to, the Natl Geo case, or have themselves filed amicus briefs on behalf of publishers.

It's only publishers who have come down on Geo's side here, so it was suspect from the start for SPJ to have gotten involved on that side of the issue. It helps not at all to say "I knew some would be upset, but it's for your own good, kids." And pulling out a nameless freelance friend (haven't several journalists been called to task lately for the old imaginary friend game?) to supposedly compare the situation to a mother-daughter bad behavior grounding only strengthens the perception of arrogance that was evident all the way through.

Sorry, Mom, this was not a good performance for a president.

Unbelievable. You are so deeply out of touch with the thinking and sensibility of independent writers that I can't believe it, Christine. I'm sorry that you seem to be so hostile to freedom of expression as to identify it with a mob. But I hope you'll do some soul-searching about this.

I know. I know. You guys aren't going to like anything I have to say about this. We just disagree on the merits of this particular brief. I have nothing to apologize for -- and, as long as you keep the discussion civil, neither do you. The world spins on.

John, for what it's worth, I'm hardly out of touch with freelancers. I might collect my primary paycheck from a newsroom, but I do a significant amount of freelance work. That especially has been the case over the last two years, which I have spent a huge chunk of on maternity leave.

As for the nameless freelance friend (oh, the irony of your criticism given that you haven't even posted your own name): He is an SPJ member. His work is syndicated. He is an accomplished author. And he's an all-around nice guy who also happens to know how to negotiate clear freelance contracts. His insight helped me evaluate the merits of this brief.

Specific, non-ambiguous contracts is a great idea. I think we're hard pressed to find a professional freelancer who doesn't understand that.

Still, what you're advocating here is a position that says unless a writer/artist/freelancer -- whatever -- reserves a specific right at the time of contract for sale or license of their material, that that licensee or purchaser then can themselves hold those rights. A win for National Geographic in the case will put independent journalists in an untenable position where SPECIFICS MUST BE NEGOTIATED or the rights are forever lost, and as you said -- most of us aren't in position to do that. Why?

Because it's a struggle to sale anything. Unless you have a national reputation you risk losing a contract that you attempt to haggle over on terms. Publishers are greedy, and they want the most bang for their buck. This case is about money, not about making the situation better for Independent Journalists.

Maybe SPJ should put its resources toward helping journalists negotiate contracts and lead the charge against all-rights transfers and work for hire agreements.

I hope this has been a learning experience all around, for all of us. I'm glad that in the end, SPJ did the right thing.

The basic principles of copyright law are in fact quite clear. As writers, we own our work and license it to publishers. Under current law, we can and should continue to claim additional payment for reuse.

I'm happy that SPJ has made the right decision. I'm sorry it took so much damage and destruction to make that to happen.

Thank you, Sally, for staying on and fighting the good fight.

Wendy

It would, indeed, be grand if Sally's point were really so simple. An SPJ member and media lawyer sent me this note this morning:

"I think you are correct about the merits of the 2d Circuit decision. Both the copyright law and industry practice have always permitted publishers to reproduce issues in bound volumes and more recently on microfilm and in web archives. Generally this type of use is part of a license, i.e. 1st NA serial rights. Because of that it was generally unnecessary for contracts to be specific about that type of use.

"Assuming that the 2d circuit decision will be applied prospectively, you are correct that everyone is now on notice, publishers and freelancers, that they do need to be specific.

"The (Tasini) case, which the freelancers won, also informed all concerned of the need for more specific contractual relationships. But the net result was that the major publishers included more specific boilerplate in their contracts that was beneficial to them and not to the freelancers. Many freelancers were forced to accept the terms or forgo the work.

"After the 2d circuit decision I expect the publishers to do the same. The only difference here is that the contracts will explicitly set out what has been industry custom until now: you don't get paid more merely because the publisher creates the functional equivalent of bound volumes."

That brings us back to the need for clarity of language, which this particular brief champions. Moving forward, we can -- and should -- band together to determine the clearer language that is needed to override the presumption publishers use to deny freelancers payment. This particular case could move us in that direction. As the SPJ member astutely notes, publishers are pushing for this "clarity" so that they can hammer it into their contracts. But clarity stands to be good for everyone, and if the court gives National Geographic what it wants, freelancers, ironically, stand to benefit, too. If publishers want clarity, then, well, let's band together to give them clarity!

If the court finds in Mr. Faulkner's favor, well, hope you're holding a contract with the same language used in his.

I realize that people need to eat and pay the light bill. But freelancers are continually compromised by a much, much larger problem that needs to be addressed:

When masses of people are willing to sign contracts that do not favor their own economic interests, how in the world does the larger freelance community ever hope to secure more equity and fairness in these contracts?

This is going to require study and action. It is going to require a real strength-in-numbers approach. It is going to require determination. And it might also require a financial sacrifice or two for the greater good -- a statement that sums up my feelings about this amicus. What is good for Mr. Faulkner really isn't all that good for anyone else. It is, of course, very, very hard to say that -- and it's also, as exhibited on this blog -- something a lot of people don't want to hear. But it's the truth.

This is a big deal -- and there's unfortunately no easy fix here. But will SPJ work to address these matters? Absolutely. I really don't look at all of this in the same gloomy, doomy way as does Wendy Hoke. As another SPJ member/SDX Foundation board member/former SPJ national president e-mailed me this morning:

"It's difficult, and as tough as this one was, you wanted to fight it, you did, and it generated a much needed debate that I think raised the visibility of the freelancers within SPJ. As hurtful as the debate may have become, you believed in the arguments, and put your name behind the fight. This debate is behind you. Move forward."

People can continue to bellyache and to complain about SPJ, or they can raise their hands and ask how they could use the Society's rich resources to mobilize and do great things. I invite anyone up for the latter to contact me directly at ctatum@spj.org.

I also think it would be great to use this forum to get a far more productive and proactive discussion rolling. Who will step up to that plate?

Chris:

My respect and admiration to you for putting the good of the society first. This sort of decision must have been difficult and painful.

That having been said, I do hope that at some time in the very near future, you will address the points raised by the Western Washington leadership, which questioned why we did not turn to outside counsel for legal advice on the Faulkner case.

Given that National Geographic is also a highly visible client of Baker Hostetler (a relationship B-H promotes on its Web site and in its publicity), we would like to have known how national addressed our legal counsel's apparent irresoluble conflict of interest.

Again, I salute your putting the chapter first in resolving a difficult situation.

It would be very difficult for some of us to "step up to that plate." We already have, just not the plate offered by SPJ. Various blogs and comment postings have been aggressive in responses to the court's decision and to SPJ's first inclination to sign on to a brief.

A statement above likens Geographic's, its subsidiaries' and various vendors' action as comparable to reproducing "issues in bound volumes and more recently on microfilm and in web archives." This description simply does not project the publishing product in dispute.

Here's a lift from the brief, based on the plaintiff's (Faulker et al) claims:

>>>>>(1)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.
(2)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.>>>

Judge Lewis Kaplan took it upon himself to set a precedent that I believe actually expands rights to publishers, and those were rights I don't believe were included in the original contract with the freelancers.

While it is admirable that SPJ backed off a decision that clearly alienates many of your freelancer members, the single-minded approach that "the brief has tremendous merit" is all the more worrisome.

Parallel to my belief is the worrisome silence on the part of the freelance community as a whole, other than the SPJ members who've spoken up.

Meanwhile, the single person at SPJ who took freelancers seriously and worked with her committee to render actual services to us has resigned and will not rejoin the organization.

Stepping up to the plate is not an option. Why work for an organization that (1)refuses to address the real issues within the brief and (2)did not seek the input of the freelance commmittee when the brief was originally supported by SPJ?

This is a big deal. There should be a strong statement forthcoming that judges be knowledgable about the freelance trade before making a precedent-setting decision. All trade organizations made up of those in the freelance or content-provision business should speak loudly and clearly about contract issues. This would do a great deal to bring publishers and media corporations "to the plate."

As I said in a recent column, Kaplan married a publishing lawyer. I hope she is not his primary source of information about the freelance trade.

Furthermore, it is this member's opinion that when an organization attempts to dialog with members upset about an issue, condescension and criticism are not appropriate.

Hi, Alex -

Thanks for the kind words!

My Top 10 list of thoughts:

1. Conflict of interest is a very serious charge to level at a law firm. It has precise meaning - and, if proven true, could result in serious sanctions, even disbarment. I simply won't go there where B&H is concerned because the firm has not, to my knowledge, EVER acted in conflict of interest where SPJ is concerned.

2. The firm has never failed to give SPJ officials proper disclosure, and it has, on several occasions, recused itself from giving the Society legal advice because of its direct involvement in particular cases. Pretty much anyone with SPJ who has worked directly with B&H likely will tell you the same thing.

3. For what it's worth, I'm by no means the first SPJ president to deal extensively with B&H (and because of my work with SPJ's Legal Defense Fund, I have worked with the firm for almost 10 years). The firm has done an excellent job representing SPJ for more than two decades. I raise this point only because a whole lot of tough watchdogs who also love SPJ have watched this firm closely -- and I can assure you they would have tossed B&H on its kiester at the first hint of malfeasance. When we've had concerns and complaints, we've spoken up. When we've had questions, we've asked. When we've needed guidance, we've requested it -- and received it.

4. B&H might have represented National Geographic in the past, and it may do work currently in another division of what is a very large publishing company -- but it does not represent National Geographic in this case. It's very important to note that large companies, such as National Geographic, tend to have more than one law firm -- sometimes even dozens -- representing them on a variety of levels. Even relatively small news organizations commonly have in-house and out-of-house legal counsel.

5. B&H is a large and highly influential media law firm. Its client list runs wide and deep (and yes, I knew about its tie to National Geographic. As you've pointed out, it's proudly displayed on the firm's Web site, which is not exactly the smoking gun some people have made it out to be). If SPJ were to try to avoid cases involving parties that have in any way come into contact with Baker & Hostetler, well, let's just say SPJ wouldn't be doing nearly as much meaningful work in the realm of legal advocacy. The same would be true if SPJ were to hire any other influential media law firm -- which is precisely the kind we want representing us.

6. Media law firms large and small approach SPJ all the time with requests for assistance. In this particular matter, Time Warner, which is coordinating this amicus brief, approached B&H and asked that a request to join the amicus be sent to SPJ's Legal Defense Fund Committee for review. As is common practice (because B&H is, after all, the Society's law firm), B&H explained the merits of the brief and said it believed they were significant enough for the Society to add its name to the amicus.

7. Big assumption that does, indeed, need to be addressed: I DID seek input from media lawyers who don't work for B&H. I have several friends who are media lawyers. But did I also consult with SPJ's own legal counsel? Absolutely.

8. B&H lawyers will present their annual report to SPJ's regional directors during SPJ's national convention, Oct. 4-7. They have assured me that they will answer directors' questions and explain how they make decisions regarding which cases to bring to SPJ officials' attention. Remember: other media lawyers contact SPJ all the time with requests for review of, and assistance with, their cases. B&H works with them all on our behalf. It's also interesting to note that B&H -- specifically Bruce Sanford and Bruce Brown -- have worked to help me build a Legal Advocacy Network that is aimed, in part, at helping more journalists find more affordable and meaningful legal help that is closer to home.

9. In hindsight -- that always being 20/20, of course -- I would have worked with B&H more aggressively to weigh the merit of the brief against the realities of working with a membership organization and the challenges of explaining what is, admittedly, a tough and complex issue. As I've written repeatedly: the brief has merit and stands to help freelancers. Some folks concur, and others think I'm a nut case. But at a certain point, the conflict generated between those two camps is, ultimately, not in SPJ's best interest.

10. I wrote this on another thread and think it's worth reiterating here:

I'd like to see SPJ work on developing some resources that will help people conduct business using much clearer contracts that are more equitable and fair.

Few law firms are better at -- or more gracious about -- handling such work than Baker & Hostetler. That firm has acted with tremendous integrity, and its clients over the years have included the nearly penniless freelancer/author. And, don't forget, SPJ, which is hardly its top-paying client. The ill-informed criticism launched at this firm would be laughable if it weren't so shockingly, well, ill-informed.

I wonder how freelancers would react when/if B&H helps craft those resources. Will they be grateful -- or will they reject the valuable information and guidance provided by one of the nation's most influential law firms (regardless of specialty) and continue to spin conspiracy theories? I'm staying tuned.

I'd like to see the comments I posted this morning show up here.

Are you censoring comments?

Much of what Ms. Tatum writes here is incorrect, and she shows herself less than informaed about the current state of freelance writers. Here is my response: http://www.eriksherman.com/WriterBiz/2007/08/incorrect-information-again-from-spj.html

This whole debate comes to the use of the first person. As long as Tatum's stance remains "I decided" significant factions of SPJ membership will remain dissatisfied.

Perhaps the next president won't be "the decider" and will consider the input of multiple parties.

Perhaps less time defending Baker Hostetler and more time defending the rights of journalists.

Yes, it's hard to make tough decisions and to assume public responsibility for them -- much harder than it is to hurl insults from the shadows of anonymity.

This was not a decision made without significant input from several people. It's also a decision that was made using policy and procedure approved by SPJ's national board and in place for more than a decade.

It's important for everyone to know that I met with SPJ's Executive Committee about this matter two weeks ago. I generally presented the case and explained why Dave Aeikens and I supported this amicus brief and considered it a difficult, although perfectly defensible, stance for the Society to take. Dave and I told the committee -- composed of five other national directors -- that this was a tough decision, but that we would stand by it. I also told the committee that it was within its purview to overrule this decision. If it chose to do so, we would all move on.

The committee did not take a vote. No one pressed for a vote, and everyone in the room agreed that the decision would stand.

>>>>I generally presented the case and explained why Dave Aeikens and I supported this amicus brief and considered it a difficult, although perfectly defensible, stance for the Society to take.>>>

This mindset is the core of freelancers' anger. If the American Society of Media Photographers supported its members in this case, wouldn't you think SPJ would do the same?

Although you have made attempts to defend SPJ's position, you have not succeeded.

The ruling was a lousy decision, effectively expanding rights beyond what I believe the law should permit.

Had SPJ ever issued a public statement about protecting rights for freelancers in contract issues, we might have at least been able to take a bit of comfort in that.

The fact that you have continued to express support for the matter even after SPJ changed course says everything to those of us who freelance.

There is a victim here.

It is not SPJ.

Note: I always use my real name.

Kay -

You and I are in the same building, but we're talking about different rooms. If there is ever going to be a productive conversation, we need to discuss the same subject.

The phase of the case to which you have referred repeatedly is no longer before the court. That issue was decided in 2005. SPJ took no position in that matter. 

The related -- but different -- phase of the case that has concerned me is now a matter of contract law, not copyright law. The confusion surrounding the separate phases of the Faulkner case has reigned supreme. Dave Aeikens and I backed out of the amicus in part because we realized many people weren't discussing the same legal matter. Too much confusion. Too little time to try to clear it up before the brief is filed Thursday.

And, no, the media lawyer who made the previous comment is not so off track. He understands the difference between which case already has been decided and which one still needs to be.

And yes, I appreciate that you always post under your name.

Early today I responded to Erik Sherman on his blog. Others identified only as Anonymous had posted comments agreeing with his position. I posted the following disagreeing and identified myself. He chose to respond at a different location, providing a link in text, but no hyperlink. So a reader who wanted to find out what he said in response had to work a little to get there. I wonder how many actually read his response. I will not repost it because that would violate the Copyright Act. Here is what I said, and if Erik wants to have a discussion he can post his reply here.

Because I'm the lawyer Christine quoted let me try and set things a little straighter than Erik. First, here's what sec. 201(c) of the Copyright Act says:

(c) Contributions to collective works. Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

In Tasini the Supreme Court clearly drew a distinction between databases accumulating individual articles and collections of individual issues of a publication into bound volumes. It said, "Microforms typically contain continuous photographic reproductions of a periodical in the medium of miniaturized film. Accordingly, articles appear on the microforms, writ very small, in precisely the position in which the articles appeared in the newspaper.... True, the microfilm roll contains multiple editions, and the microfilm user can adjust the machine lens to focus only on the Article, to the exclusion of surrounding material. Nonetheless, the user first encounters the Article in context. In the Databases, by contrast, the Articles appear disconnected from their original context. In NEXIS and NYTO, the user sees the "Jane" Article apart even from the remainder of page 26. In GPO, the user ses the Article within the context of page 26, but clear of the content of page 25 or 27, the rest of the Magazine, or the remainder of the day's newspaper. In short, unlike microforms, the Databases do not perceptibly reproduce articles as part of the collective work to which the author contributed or as part of any "revision" thereof. 533 U.S. 483, 516 - 17.

My understanding, at least, is that National Geographic created a CD containing the entire issue of the magazine. Erik claims the CD is not the functional equivalent of a bound volume because it is electronically searchable. I don't see anything in Tasini that draws such a distinction. The Court drew a distinction based on presentation, reproduction of the article in the context in which it was originally published versus collection in a database divorced from the original publication.

If Erik and others have issues with SPJ's initial decision to join the amicus brief and/or Baker & Hostetler's role in that decision and/or Baker & Hostetler's representation of media corporations that is an entirely different matter. Christine and SPJ took a position and had the courage to step back from it in response to criticism. I would hope that others, including Erik, at least have the courage to admit that the 2d Circuit opinion is consistent with prevailing precedent and move on to discussion of how to protect freelancers' legitimate concerns about being compensated fairly for their work.

Actually we are in the same room, but I'm sitting on a hard chair and you're sitting on a recliner.

What is at the root of this entire matter is copyright law and the interpretation of it as applied to contracts signed by the plaintiffs(some of the plaintiffs stood in for dead people). The latest document (it is available on the Web) focuses on the issue of copyright infringement in a major discussion in one section. What started the whole process was Greenberg's belief his copyright had been infringed for several photos.

This is the part I disagree with from the June, 2007 decision:
>>>>Under the Tasini framework, we conclude that the Replica and Program portions of the CNG are privileged under § 201(c).>>>

I conclude this is a ruling biased towards a large conglomerate that farmed out rights from a nonprofit to several profits, producing a product that is not the equivalent of bound volumes or volumes on microfilm, and my belief does not hinge on a search mechanism.

Have you looked at the product? Did the judge(s) actually experience the product?

This is an excellent example of sophism so beloved by modern courts and litigators, clouding the real issue that is so simple if you cut all the hyperbole away.

National Geographic could have paid freelancers a re-print fee for usage of material but instead opted to pay litigators. The original plaintiffs had no other recourse. Now I know SPJ has not mentioned anything along these lines, but I happen to believe in common sense. So maybe it will do some good to bring that up at this point.

If you want to talk about courage, every freelancer who posted under his or her real name had to be pretty courageous. Because some publishers might hold our outspoken positions against us.

I must also add that in each post I placed here, I lifted your own remarks and responded directly to them.

You can wave the issue of contracts around all you like. There isn't a freelancer alive who'd espouse lack of clarity in a contract.

This whole deal started with copyright infringement issues because that's what the plaintiffs complained about. Had they been the defendants, this then would have been a contract issue.

And I still believe SPJ had no business involving the organization in this matter.

If you want to make a statement about clarity in contracts, that is a different issue and can certainly be done without the filing of an amicus brief.

And surely if you believe there is confusion, with all the verbosity put forth in blog postings here, there was ample opportunity to clear it up.

Once again, Kay, you've laid out an interesting argument -- just not for the right phase of this case.

SPJ isn't signing this amicus, so I'm not debating it further in this forum. People interested in speaking with me directly should give me a call.

And I guess you're not debating with the input of at least one commenter, myself, who has tried to post the same comment both last night and this evening.  I'm glad I copied it and sent it to you.

For the record, I was always taking about contracts.

I don't have strong feelings on this issue either way because I have not yet grasped the subject matter.

However, having worked with Christine Tatum on FOI issues over the years, I know she is very diligent and open to constructive dialogue.

We have not always agreed on related subjects. For example, I wanted SPJ to respond vigorously to police harassment of a fellow journalist last year. I was not satisfied at all with SPJ's lame response, but I felt Christine worked to make sure my views were heard.

My purpose in writing today is to stand up for Christine as a person of integrity and good judgment. She knows anyone in leadership who makes any kind of decision is bound to take a load of crap. I'm glad we have a national president who is not afraid to make decisions, and I hope she can enjoy a few moments on the home stretch of her term.

Andy Thibault