Rights and wronged

copyright symbol - Copy.jpgIn 1979, I was assigned to write an article for an intimate apparel trade magazine. "Seductive Selling LA Style" was the first story I got paid for as a freelance writer. It was about a retail store on La Cienega called Trashy Lingerie. It's still there.

So are low rates like the one I got for that gig -- $150. Unless independent writers regularly contribute to print versions of The New Yorker, Vanity Fair or The Atlantic, we make more money working as a McDonald's shift manager.

Until the dawn of the digital era, freelance writers who actually made a living routinely resold their stories, or versions of them. They might have resold to a foreign newspaper, or licensed reprint rights to a PR company for press-kit photocopies of stories in which their clients were mentioned. Unless they expressly sold rights beyond one-time print use, writers' exclusive ownership of their copyright could enable them to market their intellectual property more widely. And because story fees were lousy, they had to.

Most writing assignments still pay crap. But because the online marketplace has so radically changed the media universe, many publishers insist on buying all or most rights for most work produced by freelancers. A publisher buys all rights because it can't or doesn't want to account for all of a work's uses. "All" doesn't mean "exclusive," it means that the publisher gets to share the rights to re-license the work with its creator. Although the writer retains the copyright, he or she must compete in the resell market with a much more powerful seller.

A couple of weeks ago, I received a thin envelope in snail mail from Dublin, Ohio. The sender was Literary Works in Electronic Databases Copyright Litigation, a wonky, vaguely familiar name. I figured it was a story pitch or fund appeal from one of the many media information purveyors that usually find me via email.

But the Ohioans weren't looking for money, they were offering it. The envelope contained a check for a substantial amount. No letter. Just a check whose stub bore a claim number and the message:

Dear Class Member:
Full payment of your claim in In Re Literary Works in Electronic Databases Copyright Litigation. Void after 90 days.
GCG, Claims Administrator

I've signed petitions. I've joined advocacy groups. But I've never sued anyone. Have I?

Well, yeah. Thirteen years ago, about 3,000 other freelance journalists and I sued some publishers for reselling our work when they didn't have the right.

I stared at the check, and remembered filling out reams of paperwork, determined, but cynical. There was no way I or anyone else would see anything remotely equivalent to the value of what had been stolen from us. I had plumbed years of story files more as a gesture of support for independent writers than for any real expectation of remuneration. It was a pain in the ass, but it was important to go on record that publishers don't get to repurpose our work without permission.

That's theft, and it violates the U.S. Constitution, which affords authors exclusive rights "to their respective Writings, ..."

In 2001, in a case known as New York Times v. Tasini, the U.S. Supreme Court found that five publishers had infringed on the copyright of six writers. The defendants had republished freelance writers' work in various electronic media when the creators had agreed to write stories only for one-time use in print.

The publishers removed much of the content from online databases, but shortly after Tasini, a related suit was filed that prompted years' worth of settlement negotiations. It was a larger, more complicated case in which writers were supported by the National Writers Union, the Authors Guild and the American Society of Journalists and Authors.

As a member of ASJA, I had learned that I could submit claims for stories I wrote that might have been reprinted for the benefit of the original publishers but not for me. In 2005, defendants agreed to pay $18 million to settle all claims in a byzantine formula involving four class actions and two categories of written material.

The wheels of justice indeed grind slowly, but in this case they were greased with righteous perseverance. Yes, lawyers made millions ($4 million, if I'm interpreting the online documents correctly), but writers had claimed nearly 300,000 works for consideration, and 26,583 listed publications had objected to 42,000 of them, which had to be reviewed.

I had filed 235 individual story claims, of which 122 were declared in ineligible. The settlement documents do not parse individual claims, so I don't know which of my 113 eligible stories were compensated and for how much in my share of the total $9 million split among 2,500 writers (502 of them had opted out of the class settlement).

My hundreds of claimed stories were published between 1980 and 2004 for article fees ranging from $100 to $2,200. They ran in publications no longer in business (including, it appears, the naughty knickers magazine), and those published by major players including the Los Angeles Times, Los Angeles Magazine, the Orange County Register, Modern Maturity (now AARP Magazine) and Travel & Leisure.

Did I receive what I was due? Nah. But more important than my check for $2,555.77 was confirmation that my work has value that our justice system respects. That organizations such as ASJA served a vital role in my nascent career, educating me about writers' rights and my responsibility in advocating for them. Loudly, if necessary.
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Photo: Ellen Alperstein

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