Thousands of freelance writers are finally receiving compensation for copyright infringement by newspaper, magazine, and electronic database publishers during the early days of the internet. In 2001, a number of lawsuits were consolidated into one class action suit (known as In re Literary Works in Elec. Databases Copyright Litig.) on behalf of freelance writers.
The dispute arose when publishers licensed articles written by freelancers to electronic databases without the writers’ consent. While today’s publishing contracts almost always require freelancers to assign electronic rights to the publisher, that was not the case before the internet became popular – and obviously not an issue for contracts drafted before the internet existed.
Further, many freelancers sold the rights to publishers without any written agreement. The custom was that the publisher obtained only the right to publish the work in one issue of the newspaper or magazine. It was, therefore, argued by the authors that they retained all electronic publication rights and that the publishers’ licensing of those rights to electronic databases was a copyright infringement.
The case first settled in 2005, but legal challenges to that settlement ended up going all the way to the Supreme Court, which stated in 2010 that the settlement could proceed. Although the final settlement received approval in 2014, payment was delayed by 41,000 objections from the defendants, each of which had to be resolved.
The settlement payout totals $9,456,000. Each writer’s settlement check is based on a number of factors, including whether and when the works were registered with the US Copyright Office. In addition, the defendants are responsible for reimbursements of nearly $4 million in attorney fees and almost $900,000 in administrative expenses.
In 2001, the US Supreme Court decided a case called New York Times Co. v. Tasini, rejecting the publishers’ argument that the electronic publication was simply a “revision” of the original collective works permitted by the Copyright Act. The Supreme Court agreed with the authors’ position and made it clear that publishing online is not merely a “revision” because the articles were not published in the same context and because the databases offered individual articles rather than intact periodicals.
Although publishers and freelancers are now aware of the issues surrounding electronic rights, it’s important for publishers, as well as writers, photographers, illustrators and others who create content for publication, to recognize the fact that it is difficult to predict what will come next.
The 1976 Congress recognized that new media were inevitable when it revised the copyright law to include language addressing media “now known or later developed.” It is common for publishers to use the broad language of the statute in their publishing agreements. Freelance content creators are also beginning to recognize the importance of having written agreements for their works that anticipate future uses we may not yet be able to imagine.
As noted above, one of the factors on which each author’s settlement was based in the Literary Works settlement was whether and when the infringed works were registered with the Copyright Office. Writers whose works were registered before the infringing acts occurred are entitled to a greater amount per infringed work than are the authors whose works were registered only after the infringement occurred or had not been registered at all.
Many creative people don’t timely register the copyrights in their works, believing that there’s no need to spend the money need because the statute provides copyright protection without registration. While this is partially true, it is shortsighted, because the infringer of a work that is not registered isn’t liable for statutory damages or attorneys’ fees. Instead, the infringer is liable only for the copyright owner’s actual damages, that is, the losses resulting from the copyright or the infringer’s profits, whichever is greater.
Unfortunately, it’s usually very difficult to prove that the copyright owner was deprived of profit because of the infringement. As a result, recovery of actual damages is often far less than the cost the copyright owner incurs in litigating the case. If, therefore, costs and attorneys’ fees are not recoverable, then copyright owners will often find it economically impractical to redress an infringement.
Please feel free to contact us if you have questions about or need assistance with registering or enforcing your copyrights or with publishing or licensing agreements.
