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Freelancer Suing Huffpo Also Sued NYT in Supreme Court…And Won

Freelance writer Jonathan Tasini is suing Arianna Huffington. We’ve discussed how well she’s taking it.

Tasini wrote on his blog this morning:

There is little doubt that unjust enrichment has taken place. In society, our law tries to reflect our moral values, and vice versa. The thousands of bloggers created the value of the Huffington Post. Arianna Huffington created a tiny piece of that value—but she has declared that she, and only she, should benefit from the value of the sale to AOL.

I have no idea whether we will win the legal case. Judges do what they will do. It is a novel argument—as was the legal argument at the heart of the case I brought against The New York Times in 1993, which we won in the U.S. Supreme Court in 2001 (and, full disclosure, yes, Scalia, Thomas and Rehnquist also voted in our favor in the 7-2 decision—a fact I will have to live with). At the time, many pundits or “observers” opined that we had no chance. So, I suggest we all take the opinions of various people with a healthy dose of skepticism, or, at least, a “wait and see” attitude.

Wait – what?! His case against the New York Times went to the Supreme Court?! And he won?! Wow – we can’t even IMAGINE 7-2 decisions anymore…

Here’s the majority opinion:

SUPREME COURT OF THE UNITED STATES


No. 00—201

NEW  YORK  TIMES  COMPANY,  INC.,  et al.,
PETITIONERS v. JONATHAN TASINI et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

[June 25, 2001]

Justice Ginsburg delivered the opinion of the Court.

This copyright case concerns the rights of freelance authors and a presumptive privilege of their publishers. The litigation was initiated by six freelance authors and relates to articles they contributed to three print periodicals (two newspapers and one magazine). Under agreements with the periodicals’ publishers, but without the freelancers’ consent, two computer database companies placed copies of the freelancers’ articles–along with all other articles from the periodicals in which the freelancers’ work appeared–into three databases. Whether written by a freelancer or staff member, each article is presented to, and retrievable by, the user in isolation, clear of the context the original print publication presented.

The freelance authors’ complaint alleged that their copyrights had been infringed by the inclusion of their articles in the databases. The publishers, in response, relied on the privilege of reproduction and distribution accorded them by §201(c) of the Copyright Act, which provides:

“Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.” 17 U.S.C. § 201(c).

Specifically, the publishers maintained that, as copyright owners of collective works, i.e., the original print publications, they had merely exercised “the privilege” §201(c) accords them to “reproduc[e] and distribut[e]” the author’s discretely copyrighted contribution.

In agreement with the Second Circuit, we hold that §201(c) does not authorize the copying at issue here. The publishers are not sheltered by §201(c), we conclude, because the databases reproduce and distribute articles standing alone and not in context, not “as part of that particular collective work” to which the author contributed, “as part of … any revision” thereof, or “as part of … any later collective work in the same series.” Both the print publishers and the electronic publishers, we rule, have infringed the copyrights of the freelance authors.

I

A

Respondents Jonathan Tasini, Mary Kay Blakely, Barbara Garson, Margot Mifflin, Sonia Jaffe Robbins, and David S. Whitford are authors (Authors). Between 1990 and 1993, they wrote the 21 articles (Articles) on which this dispute centers. Tasini, Mifflin, and Blakely contributed 12 Articles to The New York Times, the daily newspaper published by petitioner The New York Times Company (Times). Tasini, Garson, Robbins, and Whitford wrote eight Articles for Newsday, another New York daily paper, published by petitioner Newsday, Inc. (Newsday). Whitford also contributed one Article to Sports Illustrated, a weekly magazine published by petitioner Time, Inc. (Time). The Authors registered copyrights in each of the Articles. The Times, Newsday, and Time (Print Publishers) registered collective work copyrights in each periodical edition in which an Article originally appeared. The Print Publishers engaged the Authors as independent contractors (freelancers) under contracts that in no instance secured consent from an Author to placement of an Article in an electronic database.

Read the entire case here.

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