A tough decision aimed at helping all freelancers

After very, very careful consideration, and in accordance with longstanding SPJ policy and procedure, LDF Committee Chairman David Aeikens and I agreed that SPJ would add its name to the brief, which supports a ruling in favor of National Geographic and not Mr. Faulkner, a freelance journalist.

This was a tough decision, and it was not at all made lightly. I knew it might anger some journalists - even to the point of dropping their membership in SPJ. I knew there would be questions about why SPJ would take on this particular issue when it typically (though not always) steers clear of business practices. And yes, I knew some people would express their disappointment and disagreement in very hurtful, personal ways - and with screeds that are grossly inaccurate.

I was right on all those counts, but I stand by the decision I helped make because it stands to help clarify law so that freelancers can negotiate smarter contracts that help ensure they're paid fairly for their work. It might sound odd - even ludicrous to some - but a ruling in favor of a publisher in this case actually could help all freelance journalists well into the future.

A ruling in favor of National Geographic would be forward-looking. It essentially would draw a bright line that says, "OK, Everybody, from now on, here's how to wheel and deal in a manner that helps spare all of you costly litigation."

This case stands to clarify what, precisely, freelance journalists must do to overcome a legal presumption publishers often use to deny them payment. I am specifically referring to the presumption set by 201(c) of the Copyright Act - a presumption publishers have used, and abused, to skirt payment to freelancers for privileged reproductions of their work.

A decision in favor of National Geographic would serve to put publishers on notice: they can't automatically argue - as far too many of them have - that they don't have to pay freelancers for those privileged reproductions.

A ruling in favor of National Geographic also, obviously, would put freelancers on notice: if they want to be paid for privileged reproductions of their work, they must have a contract with the publisher that expressly and clearly states that position in writing. Put another way, if you've got a clear contract, you'll get your money.

This case does not affect a freelance journalist's ability to negotiate the terms of a contract, and it actually stands to strengthen a freelancer's ability to receive payment for the reproduction of work published in the same context as the original.

While nothing about the law is absolute, it can be more certain. And it is most certainly possible to negotiate a clearly worded contract that leaves little to chance and yields payment for years to come. People successfully do this all the time. And though we can't foresee all of the ways in which media will change in the next two years, much less the next 10, the court has said those changes likely will not override a clearly worded contract.

Which brings me to the ambiguously worded contract (that's the trial court's finding currently on appeal in the federal second circuit) Mr. Faulkner negotiated with National Geographic Society. The court so far has ruled that the specific language in that contract is not enough to win him additional compensation from National Geographic, which has distributed a privileged reproduction of his work (in this case, a CD-ROM collection of magazines exactly as they appeared in hardcopy print). The court so far has ruled that whether in 1987, 2007 or 2017, the contract's language is not constructed in a way that favors Mr. Faulkner.

At first blush, this case appears to be a David-versus-Goliath match-up. A little guy striking back at the big guy on behalf of little guys everywhere. That isn't the case. A ruling in Mr. Faulkner's favor would help him and what is likely a very, very, very small group of freelance journalists who are parties to contracts containing the same ambiguous language. I can't underscore enough the phrase "very, very, very small group."

The people who have most concerned me are those freelancers who are holding contracts that are not like Mr. Faulkner's but are also unclear. Indeed, a ruling in favor of National Geographic would make it even more difficult for those people to prevail should they pursue legal action. However, it's also important to note that a ruling in favor of Mr. Faulkner wouldn't necessarily help them at all. Either way they slice it, those freelancers would, unfortunately, need to wage their own lengthy and costly legal battles focused on language very specific to their circumstances.

If, by some slim chance, they have the money to wage a legal battle, the cycle may only repeat itself.

A ruling in favor of Mr. Faulkner essentially would continue to allow everyone to traffic in ambiguity - and that is almost always likely to benefit the publisher. At the same time, I can understand why it is tempting for freelancers to want to leave open the door to ambiguity. Who, after all, wants to concede that they signed a contract that doesn't benefit them?

Instead of looking backward to determine how they might win additional payment from shaky contracts forged in the past such as Mr. Faulkner's, it would be much smarter -- much more beneficial for all journalists -- to ask: "What can we do to help freelancers get paid fairly far into the future? How can we band together to identify and correct unclear and problematic contracts that harm our livelihood?"

I realize that no matter what I write, there are very reasonable and respectable journalists who will disagree with me. Disagreement over this matter is precisely why this case is sitting before a judge. But I hope we can all come together to help remedy what is a sorry state of affairs that affects far too many hardworking journalists.

A ruling in favor of National Geographic Society is a relatively rare opportunity to help advance that very important and far more progressive discussion. It would add clarity to the law and protect journalists by improving their chances of receiving fair compensation.

That is a cause worthy of this Society's support.

Published Thursday, August 09, 2007 11:44 AM by christinetatum
Filed Under: SPJ Matters, Media Law