The Contract from Hell

— Confronted with the issue of music piracy on the Internet, the San Diego Union-Tribune took an unequivocal stance in a May 4 editorial. "Property rights must be protected," the newspaper declared. "Legitimate companies will have to follow copyright laws and pay royalties to musicians and record companies." The piece, however, ignored the related question of who owns the electronic rights to work produced by freelance writers for newspapers. Disagreement over those rights has created a bitter rift between the local paper and some of its most seasoned contributors.

In recent years, as newspapers throughout the country have established online editions and electronic news archives have proliferated, the question of freelancer copyrights has become contentious. In 1993 Jonathon Tasini, head of the National Writer's Union, and other writers sued the New York Times, Newsday, Time magazine, University Microfilms International, and Mead Data Central for using freelance articles in electronic databases without the writers' permission. Although the district court ruled in favor of the publishers, a federal appeals court last September reversed that decision, and the full court of appeals let the decision stand. The New York Times has since announced that it will appeal to the U.S. Supreme Court, but the high court is not expected to announce whether it will consider the case until sometime early next year.

Some awareness of the questionable legality of using freelance articles in electronic form without permission from their authors dawned at U-T headquarters several years ago. Veteran freelancers recall being asked then to sign a contract that would have given the newspaper all rights associated with any article produced for the U-T. "Under it, you could never resell anything," says Miriam Raftery, a frequent contributor to the U-T's home and real estate sections. "Not a single writer, to my knowledge, signed that."

Local freelancers say the U-T didn't press the issue then, but a new contract surfaced about eight months ago. Unlike its predecessor, it did allow freelancers to sell or use their work in any form after an initial ten-day exclusivity period. However, it also granted the U-T authority to use freelance articles "in any format, without limitation, print and electronic" in any of the U-T's present or future publications, as well as to "make the work available for reproduction and distribution on magnetic, optical, or electronic media, including electronic transmission" to any online terminals or databases.

"I thought, 'Gosh, no way am I going to sign what we were calling the Contract from Hell,'" says Baja-based writer Paula McDonald. She began contributing articles about Mexico to the U-T's "Night and Day," food, and travel sections in 1994, although by last fall she had wearied of covering Baja and told her editors she wouldn't be working for them for a while. They thus never asked her to sign the new contract.

Last winter, however, McDonald discovered that roughly 50 of her articles already had been incorporated into the newspaper's electronic archives and were being made available free to visitors to the "SignOn San Diego" website. Furthermore, when she searched on the Internet, she found "hundreds and hundreds" of appearances of those same works on other sites. "I was horrified! Truly horrified!" she says. Since she only sold the newspaper "one-time print rights" to all those articles, she felt convinced that "what they've done is completely illegal."

McDonald says, "I've always taken a very strong stand about not negotiating away all my rights." She says her experience with one of the first stories she ever sold as a freelancer taught her the importance of this. In 1979 Good Housekeeping magazine agreed to buy the one-time print rights to publish a short inspirational Christmas story by McDonald called "The Last Straw." "They didn't pay me much," she says. "It may have been $200." However, readers responded to the story so warmly that the magazine later paid to run it again in 1984 and 1993. McDonald has also received additional money for publication of the story as a stand-alone book, in audio form, and in the best-selling Chicken Soup for the Soul. "Hopefully someday it will be done as an animated Christmas special," she says.

She offers other examples. A 1996 article she wrote for Reader's Digest about a boy who raised his seven siblings alone on the streets of South Central Los Angeles later appeared in Chicken Soup for the Teenage Soul and has also drawn interest from television and movie studios. "These kinds of things can keep rolling and rolling and rolling," McDonald says. In fact, she says the only way she has survived as a freelance writer has been to recycle her work. But her ability to do that would plummet, she argues, if the first publisher to whom she sold each story spread it throughout the Internet.

Raftery, the home and real estate writer, echoes those sentiments. "Some years, as much as 50 percent of my income has come from resales," she says. While the U-T typically pays only $50 to $400 for articles, national magazines may pay ten times that much. "Now obviously, if someone is going to pay $2000 to $3000 for an article, they want total control," Raftery says, adding that she can't offer a national magazine those rights if the U-T has already seized them. She also felt robbed by the U-T's actions.

During the early part of this year, Raftery and McDonald say they began communicating with other freelancers who work for the U-T, along with trying to ascertain how many freelance articles have been incorporated into the U-T's website archive. They say they've now determined that the archive contains roughly 4500 freelance pieces, about 3000 of which were produced by 30 or so writers whom they have contacted. Some of these writers eventually described their plight to the National Writer's Union, which responded by sending a grievance officer and contract advisor to meet with the group.

Hermosa Beach-based Harry Youtt says he and the group members decided to alert the U-T to the freelancers' concerns and open a discussion about possible solutions. "We wanted to give the U-T the chance to do the right thing," Raftery says. Youtt thus drafted a 2400-word letter to Union-Tribune editor Karin Winner, and he planned to send it for arrival on Monday of last week. But before the letter was even mailed, several of the freelancers began hearing from their editors about the much-detested contract. Raftery says she was told on Wednesday, August 16, that she had to sign it or else her budget remodeling column, "Small Change," would be pulled from the next Sunday's "HomeScape" section. The author of about 350 articles for the U-T since 1993, Raftery says she pleaded for the opportunity to negotiate, offering in the interim to sign contracts on an article-by-article basis. But the editor responded that no further discussion was possible, and the newspaper wouldn't be able to publish any more of her work.

Raftery has since learned that the U-T has terminated its relationship with several other writers who resisted pressure to sign the contract. Dave Horrigan, whose "Mac Track" column has covered Macintosh computers in the "ComputerLink" section for the past three years, says he received a copy of the contract four or five months ago and for at least two months had been suggesting changes to it. On August 15, however, he got a call from a junior editor informing him that if he didn't sign the contract as written, the paper wouldn't be able to accept any more of his material.

Horrigan says he declined with regret. Although he was paid "less than $100" per column, he says he often got 400 letters a week from readers whom he describes as "the nicest people in the world. They're the heart of America, if you will -- the tryers, the doers, the creative ones.... And the idea that the U-T would just abandon this community is incredible to me!"

A sub-sea engineer who claims credit for "hundreds of inventions," many patented, Horrigan says the loss of his column won't hurt him financially. Nor will it have much impact on Charles Harrington Elster, a local language authority and radio commentator who found about 18 of his book reviews and editorials in the U-T's online archives. Elster refused to sign the contract about two weeks ago. "I'm in it because it's the right thing to do," he says. "But I'm not really sacrificing my income."

That's not the case for all the writers who refused to sign. "We're really looking at tough times," says Terry Tucker Hinkley, a gardening writer who estimates that she has sold about 45 articles to the U-T over the years. "This was unbelievably hard to take. I cried off and on for three days straight."

Calls to the U-T to discuss the freelancers' current situation were not returned. However, Copley Press Inc.'s vice president and chief legal officer Harold Fuson Jr. apparently did speak to a writer for Editor and Publisher's online news service, which posted a report on the controversy last week. That article quoted Fuson as saying the U-T hadn't yet decided whether to purge the aggrieved freelancers' articles from its archives. (The article did not address the question of whether or how those articles might be retrieved from Lexis/Nexis and Westlaw, two electronic databases to whom the U-T apparently sold them.) The story also contained the corporate attorney's assertion that electronic use of articles printed in the U-T brings in only minuscule amounts of revenue and probably never will amount to much. Finally, it quoted Fuson as saying that the Copley Press would "think carefully" about the issues raised by the freelancers.

Youtt, the writer's union representative, as of Tuesday had not received response to his letter. So this week several of the freelance writers retained the services of J. Daniel Holsenback to represent them against the U-T. A Gray Cary veteran who helped form that firm's intellectual property department, Holsenback should be able to compare notes with colleagues in several other cities. In June a group of Boston writers sued the Boston Globe for telling freelancers that they can no longer work for the paper unless they give up their electronic rights. This month, a group of Northern California writers also applied for class-action status to represent up to 10,000 freelancers whose works are included in the Northern Light, ProQuest, and Thompson's Gale Group archives. A similar suit against a Denver database company called UnCover resulted in a $7.25 million payment for back royalties to the writers involved in that case.

Youtt describes the current situation in San Diego as "an exciting moment in newspaper history. It's a big general-circulation newspaper in a big community, and we've got the people to take it on. So from a standpoint of group action, I think it's great." Some of the local freelancers also appear to be drawing inspiration from their colleagues' solidarity. McDonald, for example, says, "I have a whole new set of heroes."

Others are concentrating on what they will do now that they have lost the U-T as a showcase for their work. Computer writer Horrigan says he'll continue selling his column to three publications outside the United States, and he's negotiating with three more in this country. He also plans to start publishing his weekly reflections on his website (www.appleunderstanding.com) and may seek ads for that. Garden writer Betty Newton, who had written for the HomeScape section for 17 years and whose "Gardener's Companion" feature filled a large space in the section the first Sunday of every month, says she plans to write for California Garden Magazine, the publication of the San Diego Floral Association. "Their budget is limited," Newton says, "but the quality is there." Newton also points out that if the U-T managers "get their act together, I will be happy to write for them again. And if not, well, I'm happy to tend my garden." *

Editor's note: Freelancers who write feature stories for the Reader do not see their work on the paper's website unless they contribute to the City Lights or entertainment pages.

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