Cyber Revolution Creates a Revolt
The New York Times touched off a furor this fall when it began asking its contributors to sign away all rights
NEW YORK — MORE than a hundred New Yorkers braved uncommonly cold weather last week, crowded into a Broadway cooking shop, and peered over each other's shoulders in silence as Jacques Pepin deftly carved a turkey to the bone.
The famed French chef's monthly food column had been a staple at The New York Times for more than seven years. But in September, much to his fans' dismay, Mr. Pepin abruptly resigned.
''I thought the conditions they were offering us were ridiculous, especially considering the pay at The New York Times is practically nonexistent,'' Pepin says.
This summer the Times created an uproar in the usually staid journalistic community by demanding freelance writers sign away all rights to work published in the Times - forever.
The Times says that is the best way to guarantee flexibility as it moves into the ''still-uncharted waters of electronic media.'' The writers charge it amounts to theft.
''Contracts like these pose a threat to the possibility of being a writer in this country,'' says Russell Miller, a member of the National Writers Union which, along with the Authors Guild and the American Society of Journalists and Authors (ASJA), has organized hundreds of writers to protest the paper's move.
The Times counters it needs those rights to avoid the cumbersome process of going back to each freelancer for permission to reuse his or her work each time it creates new electronic products.
''This isn't a money grab,'' says Gordon Medenica, vice president of operations and planning at The New York Times Company. ''This is merely an attempt to have our legal rights lined up so we'll have flexibility in the future.''
The freelancers say they have no problem ceding electronic rights, they just want to be paid for them.
The list of authors who have protested includes Gore Vidal, Norman Mailer, and Isabelle Allende. But it's the dozens of little-known freelancers who depend on the Times for their livelihoods who are paying a price.
Many simply sign the contract, putting current survival over the hope for future royalties. Some continue to write without signing. A handful have stopped contributing. A few high-profile writers, like Jacques Pepin, have gone public with their indignation.
''Most of the writers are really cowed and afraid,'' says freelancer Christopher Gray, whose ''StreetScapes'' column has appeared weekly in the Times since 1987.
While the writers drew the battle line at the Times, the issue had been brewing for years as the explosion of on-line services and other electronic media raised new questions about who owns the rights to the vast amount of material that is daily sucked into cyberspace - and, more important, who can profit by it.
''Every time you have a new generation of technology, you have a new flurry of lawsuits to sort out its impact on preexisting rights,'' says Jonathan Reichman, head of copyright practice at Kenyon & Kenyon in New York.
The writers say such a suit is behind the Times's new demand. For decades, newspapers and magazines have sold the rights to put their back issues on microfilm for archival purposes. Since the early 1980s, many have also contracted with on-line data services like Lexis/Nexis.
In 1993, the Writers Union and a group of freelancers brought a lawsuit against several major publishers, including the Times, charging that the practice violates their copyright.
By law, publishing companies own the full rights to everything produced by their full-time employees while on the job. Those staff writers, in turn, receive a salary, benefits, and an office.
Freelancers get no benefits or resources. Instead, they retain the copyright to their work and routinely resell it in different forms to make a living.
''The copyright law of 1978 gives to freelancers the ownership of their material,'' says Dan Carlinsky of the ASJA. ''That means you license the publisher the right to use it once and anything else that's done with it is up to you.''
The Times contends on-line services like Lexis/Nexis are simply an archive that contains the whole paper as it appeared on the date of publication, and the use of a freelance article was already paid for in that context.
''It's like you had a stack of old newspapers in the corner,'' Mr. Medenica says.
But the writers say such on-line data bases are inherently different. People search them by topic or author and use and pay for each article separately. The databases track what is downloaded, tally the total for each publisher, and send them a royalty check.
The freelancers say that is secondary use, and they deserve a cut of any profits. ''They are taking my property and selling it over and over again for the next century,'' Mr. Carlinsky says.
The case is pending. The freelancers say the publishers know they will lose, which is why the Times suddenly began requiring them to sign away all their rights in perpetuity.
''They are now trying to take by force, by their power in the marketplace, what they know they don't control by copyright law,'' says Jonathan Tasini, president of the National Writers Union.
The Times denies that the new contracts are aimed at potentially new electronic products. It says it would be too complicated and onerous to send out thousands of royalty checks that may only be worth a few dollars.
The writers say computers can easily track the articles used, and collective licensing agreements can simplify the bookkeeping. The Writers Union and ASJA have already set up a registry to distribute royalties and a clearinghouse similar to the American Society of Composers and Songwriters' (ASCAP) system.
''Today you can't play 'Louie, Louie' in a corner bar without someone from ASCAP collecting a royalty,'' says Irvin Muchnick, assistant director of the National Writers Union.
The writers say they very much want the New York Times and other publications to thrive in the electronic era. ''More than anything else, they're fighting for their lives,'' says Pepin, noting that newspaper circulation continues to fall. ''I understand that. Nevertheless, we cannot abide by the conditions they're offering us.''
The Monitor requires freelancers to give up exclusive worldwide rights for 90 days for print, syndication, and electronic publishing. After 90 days the Monitor retains those rights, but on a non-exclusive basis. Freelancers do not receive royalties for electronic usage, but they are free to resell the piece, and all other rights revert to them.
When the Times instituted its new policy, it exempted its book review, op-ed section, and Sunday magazine. Otherwise, an internal memo stated ''the paper's position was unambiguous'' - the paper required all rights.
But to several writers, including Pepin, the paper has expressed a willingness to negotiate. Says one Times editor: ''The ball is still very much in play.''