Tangled up in dotted lines

Like a human body unsure of whether the brain outranks the heart, or vice versa, the Society of Professional Journalists* wrestled itself into a knot during the past few weeks, apparently conflicted about whether to throw its considerable weight behind The Publication or The Journalist in a legal battle over copyrights and contracts. The resolution of SPJ's inner struggle came last week when the non-profit professional organization reversed its initial decision to side with the publication in this particular case. But rather than switch sides, SPJ pulled itself out of the match and retreated to the sidelines, which is where some say it should have been from the start.

The collateral damage was considerable. Besides the resignation of two freelancer advocates from SPJ (a membership manager and the Freelance Committee Chair departed in protest), SPJ's hokey pokey-like dance prompted intense and heated debates on several blogs, including that of SPJ's president, who went where few journalists dare to tread — she actually engaged readers in the comments section of her blog.

Throughout the multiple screens of sometimes toxic text, however, I was persuaded that this isn't about SPJ, or even a lawsuit that the American Society of Media Photographers says "could eventually end up before the U.S. Supreme Court"

What's really going on here is the logical progression of media budget battles from the newsrooms of publication companies to the dining rooms of freelance writers and photographers.

Buyouts and layoffs may not be the end, but rather the beginning of the real battle, the one over publication rights to a journalist's work.

As Publications have slashed their staff sizes in an effort to improve profits, some have continued to publish the work of their former employees by re-engaging them as freelancers. The practice has allowed publications to realize significant financial savings because, of course, the work of an independent contractor costs nothing in terms of benefits, workers comp insurance, liability insurance, vacation time, sick time, etc... The difference, however, is that those publications must now secure copyrights to the journalist's material, and therein lies the rub.

With an independent contractor the publisher does not enjoy automatic ownership of all notes, negatives, electronic files and research. No longer does the publisher get complete and total say in how or where this former staffer's material is edited, altered or published. Now, perhaps more than ever, the contract is key.

It doesn't take long to imagine the logistical nightmare large publications would face if they allowed each and every independent writer or photographer to negotiate their own contract terms. For that reason, the one-size-fits-all agreement has been used, and verbally abused, by independents for years. But now, with more and more highly trained journalists being cut out of newsrooms and thrown on the freelancer woodpile, there might just be enough friction to light a fire. Already, many former full-timers have realized what their independent colleagues have known for years, that out here the rules are different.

I'm there. Three years ago I jumped out of a happy and comfortable life as a full-time reporter to pursue the desire to write books. In that time I've completed two unpublished novels, started a third and, in between, I've written freelance articles and shot photographs for magazines and newspapers. I've no regrets, but one simple disappointment — I miss the unspoken bond of trust that I had with my editors.

Out here, bonds of trust are rare, and even if you find them, it's still advisable to get it in writing.

As a full-timer, my editors (even the grumpy ones) always had my back. That was essential. Because of it, I never once feared the threats of people whose misdeeds were reported beneath my byline. Whenever my head was requested on a platter, I trusted my editors not to hand it over, and my editors, in turn, trusted that I always took care to get the story right. That sacred bond was a critical component of journalism, the source of power in Ben Bradlee's famous declaration that the Washington Post would stand by Bob Woodward's and Carl Bernstein's reporting of a scandal that toppled a crooked presidency.

Independent journalists, however, must behave as though they're on their own, which is not to say the editors who contract freelance work are not honorable. In many cases these editors are the same people who supervised the independents when they were staffers. But out here, the relationship is different. Out here, only the printed words are reliable.

Although some may speak of the "spirit" of an agreement, regardless of what the words seem to say, the undeniable reality is that spirits evaporate when editors depart, whether through normal attrition, or as victims of continued buyouts and layoffs. Documents, however, remain to be interpreted by lawyers and judges.

As counterintuitive as it might be for a reporter or photographer to give a contract priority over the pursuit of a story, that's exactly what more and more independent journalists recommend. Otherwise, the journalist could end up with a choice between acquiescence to a bad contract and the loss of all the time (i.e. money) invested.

Even honorable parties disagree, so it goes without saying that negotiations of any kind can consume huge chunks of time. Most freelancers can't afford to seek an attorney's assistance for each and every contract, so its common for them to spend hours deciphering legalese, and then, if unsatisfied, to research alternatives. What might seem to be a simple word change can take hours, or days, to achieve as editors who are already busy at work putting out a publication are forced to act as go-between for the journalist and the publication's legal department.

That's where the erosion of trust becomes most severe, for what is a journalist to make of the editor who presents an unfavorable contract without so much as a wink, or single word of warning? Surely the editor knows the nature of the contents, particularly in situations where the legalese of an agreement could expose the journalist's entire family to financial ruin. Yet, the editor's loyalty must be to the employer, which expects its contracts to be presented with nothing more than an advisory to "sign and return when time permits."

Legal departments often get blamed, and maybe they are partly at fault, although the lawyers surely do only what is asked of them. Likewise, the business side of publications are only doing their job, struggling to maintain quality while cutting costs, which, unfortunately, requires that people who have always played on the same team (i.e. editors, reporters and photographers) assume opposing sides in a negotiation that can sometimes resemble an automobile purchase with the editor in the role of salesman and the contract in the form of the sticker price. Some reporters won't be savvy enough to treat the "sticker" as a starting point for negotiations, while journalists with more experience will often waste costly hours in an effort to negotiate a fair agreement. In both cases the result is an erosion of trust that runs counter to the mission of journalists.

It feels like an insult to remind journalists that word choice is critical, and yet, I'm frequently surprised by colleagues who display a cavalier attitude about the contracts they've signed.

"I never read them, I just sign," said one friend last week.

I suppose apathy is understandable, if not excusable. The length of a contract can be daunting. Some are longer than the stories they commission. But once the reader delves into the legalese, he or she might be shocked at what they find.

Some journalists are asked to sign away complete ownership of not just their words and pictures, but all their notes, research material, electronic photo files and negatives (even though these often remain in the journalist's possession). The same agreements can seek to assign liability and require the journalist to defend the material against any claim, presumably even the frivolous ones. Depending upon what state the publication calls home, the court of jurisdiction could be hours away by jet plane, travel that the journalist would be expected to finance should a court appearance be required. Some contracts seek to deny the journalist any right to limit how or where the material is used, which makes me wonder whether a third party could purchase the rights and use the material in an unjournalistic way for which the journalist might be contractually liable, not to mention publicly shamed. Some contracts stipulate that any courtroom dispute between journalist and publication will ultimately be financed by the defeated party, which means the loser pays all legal costs for both sides. Imagine a journalist with a credit card versus a law firm on retainer.

On the matter of copyrights, depending upon how they're spelled out, the journalist might not be permitted to resell the work, which significantly cuts into the potential income some stories realize as a result of multiple sales.

The list of examples goes on and on, up to and including confidentiality clauses, which could make it difficult for journalists to draw the attention of colleagues to unfair situations, in direct conflict with the ethical code of journalism.

Non-journalists surely snicker at this as our welcome to the reality of the world of business. Some will even say that fear of "what if" is so far fetched, so beyond what's reasonably imaginable, that expressions of concern about contract phrases are Chicken-Little idiocy.

Maybe so.

Then again, who in the 1980s could have imagined the lawsuit that recently tied SPJ in a knot?

When my friend and colleague Wendy Hoke resigned her post as Membership Manager for SPJ in protest of SPJ's involvement, she explained it this way on her blog:

"In a nutshell, top officers decided to join major media companies in an amicus brief supporting National Geographic over a freelance photographer. The photographer was suing to get paid for reuse of his work in an anniversary CD ROM. The work dates back to the 1980s before freelancers even knew what "electronic uses" were.

[CUT...]

At the very least, this was a decision [by SPJ] that was made recklessly and without full input of those most affected by its precedent—freelancers. At worst, it was an ethical breach and a break from SPJ's long history of not weighing in on labor/management issues because it has members from both constituencies. Somehow that position is okay for staffers, but not for independents. I was left scratching my head and clearly the top leaders didn't feel a need to answer my questions about the decision."


Two days later, when Kerri Fivecoat-Campbell resigned her post as SPJ Freelance Committee Chair and renounced her membership, she posted her letter of resignation on her blog, in which she said:
"There is nothing freelancers take more seriously than copyright litigation and how it affects us now and in the future. I cannot stress enough that this is a case about big publishers vs. freelancers and if SPJ remains on the side of the publisher, it will be viewed within the freelance community that SPJ is trying to stand with publishers and “score points” with them."

Even as SPJ President Christine Tatum, an assistant features editor/multimedia editor for The Denver Post, sought to explain why SPJ jumped in, and then why it jumped out, she emphasized the need for freelance journalists to read before they sign on the dotted line:
"Despite all of this rancor, one big problem remains: contracts concerning payment for freelance work should be much clearer. Far too many freelancers are not in a position to negotiate their own terms, and they are, frankly, continuing to sign bad contracts because they have no other choice if they want to pay the bills."

And if that's what's really going on here, then the question that remains unanswered is how thousands of independent freelance journalists accomplish any meaningful change from the dining room tables they've converted into desks.

*DISCLOSURE: TJ Sullivan has been a member of the Society of Professional Journalists for more than eight years and is a recipient of SPJ's Sigma Delta Chi Award and Bronze Medallion for work published in 2001.


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