Freelance writers win Internet copyright battle.

In a case closely watched by the publishing and entertainment industries, a federal appellate court recently ruled that publishers who put the work of freelancers in electronic databases on the Internet and CD-ROM without permission violate copyright law. (Tasini v. New York Times Co., Nos. 97-9181, 97-9650, 1999 WL 753966 (2d Cir. Sept. 24, 1999).)

Reversing a lower court decision, the Second Circuit's ruling allows six freelance writers to proceed with copyright infringement claims against several media organizations. Allegations against these companies--whose publications include the New York Times, Sports Illustrated, and articles appearing in the LEXIS/NEXIS database--claimed the defendants published the writers' stories and articles in electronic databases without first seeking the writers' permission or paying them extra money.

The crux of the dispute was the interpretation of a section of the Copyright Act of 1976 that provides that a publisher of a collective work--like a magazine--that has obtained permission to publish original articles or other contributions to that collective work can publish revisions of the collective work without seeking additional permission from the individual authors.

The publishers argued that CD-ROM and Internet versions of the collective works were mere revisions and, therefore, excepted from the usual requirement of obtaining permission for publication. The U.S. District Court for the Southern District of New York agreed and granted summary judgment for the defendants.

Reversing that decision and writing for a three-judge panel, Chief Judge Ralph Winter Jr. noted that "the most natural reading of the `revision' of `that collective work' clause is that [the Copyright Act] protects only later editions of a particular issue of a periodical, such as the final edition of a newspaper.... It protects the use of an individual contribution in a collective work that is somewhat altered from the original in which the copyrighted article was first published."

The electronic versions of the publications at issue were not mere revisions, Winter said, because they contained much more information than the original publication. For example, Winter noted, "NEXIS is a database comprising thousands or millions of individually retrievable articles taken from hundreds or thousands of periodicals. It can hardly be deemed a `revision' of each edition of every periodical that it contains.

"Reading `revision of that collective work' as broadly as appellees would suggest would cause the exception to swallow the rule," Winter concluded.

Although the ruling was hailed as a victory for writers and other artists whose works can be published online, copyright experts noted that the effect of the decision will likely be limited by the now widespread use of contracts that require freelancers to give up all rights to their works, including electronic versions of them. (Mike McKee, Appeals Court Sides with Writers in Copyright Fight, The Recorder (Sept. 28, 1999), at http://www/callaw.com/stories/edt0928e. html.

The publishers are considering filing an appeal.