The Boston T-1 Party
In Boston, another revolution is brewing. Only this time, the dreaded empire is the New York Times company, owner of The Boston Globe. The Globe fired the first shot on about April 5, when it sent a letter to 1000 freelancers, asking them to sign a license agreement posted on the Globes' web site. At first glance, the contract sounds reasonable, giving freelancers the right to resell their work over time. But in exchange, the Globe claims the right to market its past and future archive of freelancers' work in any conceivable electronic media, now and foreverfor no additional fee. Anyone who doesn't sign will be barred from working for the Globe.
Within days, the contract was denounced as a "rights grab" by Debra Cash, a dance critic and cofounder of the Boston Globe Freelancers Association (BGFA). Cash e-mailed hundreds of writers, photogs, and artists, urging them to resist the "strong-arm tactics" and to hold off signing the contract. At the very least, she wants to find out if the decree came from the Globe, or directly from the king's throne in New York. And her efforts have paid off. As of last week, only about 10 percent of freelancers had signed. BGFA will meet this week to collect signatures for a formal response.
"We are not Luddites," says Cash. "We are friends of the Internet." In the best-case scenario, she hopes the Globe will negotiate a new agreement that distributes potential Internet revenues more fairly with its contributors. But if the Times Co. tries "to make this a test case," she says, "they can throw the tea into the harbor. They're not going to make a precedent off of me!"
According to Globe spokesman Richard Gulla, the agreement "was not mandated by the New York Times Company" but "developed in-house." He explains that the paper's Web site, Boston.com, is "incomplete without freelance material. We want to make the material that's in the paper available in electronic and other forms."
But a darker theory persists: The Times Co. has discovered a significant revenue stream from selling freelance work, and they don't want to share it. Indeed, Boston.com is the fastest-growing site in the New York Times Digital stable. The site's visitor count is up, and in the first quarter of 2000, its revenues in a category that includes "license fees and database royalties" were up 11.5 percent. In the same period, the Times Co. earned nearly $43 million in "fees and royalties." Multiply by four, and the stakes are a potential $172 million a year. What monarch would cut the peasants a piece of that?
If you doubt the king is greedy, consider the timing of recent events. On April 6, just after the new contract arrived, a federal appeals court affirmed Tasini v. The New York Times, the 1999 decision that supports peons' rights. Siding with Jonathan Tasini, president of the National Writers Union, the Second Circuit found that the Times Co. violates copyright law every time it reprints freelance work electronically without obtaining permission to do so. But rather than face what its own lawyers call "enormous potential liability," the Times Co. has chosen to fight. This month, after the Second Circuit denied their request for a rehearing, Times Co. lawyers filed a motion to appeal Tasini to the Supreme Court.
Meanwhile, in a statement signed by four other creative guilds, the National Writers Union denounced the Globe's contract as "remarkably unfair" and a "desperate backdoor attempt to bypass" the Second Circuit decision. At the Times Co., "the bottom line is greed and disrespect," says Tasini. "By day, [publisher] Arthur Sulzberger and his father sit on the boards of arts institutions, claiming to be advocates of the arts. But at night they beat artists to a pulp."
Historically, the Globe has treated freelancers well, according to Jim Scherer, who has sold the paper 40 to 50 photos a year for 17 years. "I'm used to newspapers and magazines needing electronic rights," says Scherer, "and typically we've negotiated a small additional fee to cover that." But since 1993, when the Times Co. annexed the Globe, things seem to have gotten worse.
In 1996, the Globe made its first rights grab, asking freelancers point-blank to surrender their copyrights. But the BGFA resisted, and management let the matter drop. The alarms rang again this March, when the Globe began training editors in how to talk about a new contract. Freelancers organized, anticipating an act of bad faith, and weeks after the contract went out, widespread resistance has caused panic. Some editors are telling freelancers to sign now, rather than wait for the July 1 deadline. At least one has hinted there are "hordes of hungry freelancers" waiting to take over. Photographer Scherer grew skeptical when an administrator assured him "the Globe has no intention of making money" off his work. If his photos have no potential value on the Internet, he wonders, why is the Globe going to so much trouble to put them on its site?
There's more cause for concern: The company is already licensing editorial and visual content on the Internet. For $400 a pop, a third party can "tease" a Globe story on its own site for three months, provided that it links to the full text of the story on Boston.com. In addition to selling these "web reprints," the Globe provides content to Merlin-net.com, a commercial photo archive. And the Globe recently partnered with Captivate Network, a supplier of Internet content for the elevators of high-rise offices and hotels. But Globe spokesman Gulla says that even if freelancers sign the agreement, the paper will not be able to sell their work through reprints or Merlin.net, because the creators retain the copyright.
If the company isn't trying to line its coffers, Scherer questions why management wants to own retroactive rights to every photo it ever bought from him, and to own them for the lifetime of his copyrightwhich extends 70 years after his death. And while the cover letter fails to note the contract's infinity, it makes one time limit crystal clear: "Starting July 1, 2000, we will not accept work by anyone who has not signed."
Gulla insists "nobody is putting a gun to anybody's head to sign this." But the contract's "take it or leave it" tone sufficiently offended the American Society of Media Photographers that they are preparing to challenge it in court. In a written analysis, the ASMP's general counsel invoked "the labor practices of the great Robber Barons" and deemed the contract "an unconscionable and thinly veiled attempt to grab additional rights on a wholesale basis, while giving nothing in exchange."
Scherer, who sits on ASMP's national board, sees the contract as a dangerous "trendsetter for other publications," under the theory that "if certain things become standard practice at one level of the market, they rapidly spread to other markets."
The National Writers Union may join the ASMP lawsuit. In the meantime, Tasini urges writers to bear the consequences in mind. "If the outright theft does not stop," he warns, "in five years, no individual authors will control their copyright."
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