SPJ - Who Do They Represent?

Sorry, folks, but I'm going off the jobs and scams track this morning to blog about an issue that is the utmost importance to freelancers - copyrights and the ability to negotiate our contracts. For 7 years, I worked both on the local level with my former local press club and the national level, hoping that freelancers would have a place within the Society of Professional Journalists. Four years ago, the then 90+ year old organization finally put into place a freelance committee. I was asked last year to chair that committee when the founder, Wendy Hoke, went to work part time in SPJ's office to help reinvigerate SPJ's membership.
I resigned as chair this morning and renounced my membership. What could be so important as to basically throw 7 years of my volunteer life down the tubes?
A case known in the biz as Faulkner vs. National Geographic in which a photographer sued the publisher for further compensation for repackaging his work. Other photographers and writers later joined the suit. The lower court in NY ruled against the freelancers while a lower court in Florida ruled in favor of them in a twin suit known as Greenberg vs. National Geographic.
For reasons still unclear to me, SPJ sided with the publisher and voted in favor (not once, but twice) of supporting the publisher.
My letter to SPJ's executive committee explains the position I took on behalf of SPJ's freelance committee and members:

"Dear Executive Committee,

In my role as chair of the Freelance Committee, I urge you to reconsider the decision to file a brief in support of the publication in the In the case of Faulkner vs. National Geographic.

As I’ve discussed with you in my past communication, this case is important to SPJ and its future. SPJ stands to lose a lot, if not all of the goodwill it has worked so hard to build with independent journalists. I have no doubt that many of our freelance members will leave us and opt instead to find organizations they feel are in support of their rights. There is nothing freelancers take more seriously than copyright litigation and how it affects us now and in the future. We can only earn a living by insisting that we are paid fairly for our work. As well, freelancers take very seriously their Return on Investment (ROI) because we’re running businesses. In our decision to join professional organizations, we usually choose those that not only offer benefits, but advocates for our rights.
I believe SPJ has taken the wrong position on several levels. I’ve researched this issue with many freelancers and people who deal in media law/copyright law for independent journalists. They overwhelmingly feel this case is comparable to The New York Times vs. Tasini, in which the court ruled in 1999 that freelancers had the right for further compensation for articles that were later sold by the original publishers to online archives. The contracts did not allow for future use of the works by the publishers.
In my research of Faulkner vs. National Geographic, I learned that the original case was filed first in Florida as by a photographer named Greenberg in Greenberg vs. National Geographic. Faulkner then filed his case in New York. The argument was the same in both cases. In both the Florida and New York cases casesNational Geographic compiled an anniversary CD ROM of its past issues, using photographs and articles that NG was said licensed to National Geographic via a one-time use rights contract. NG and its lawyers argued that because the works were presented in the same layout as they were in the original use, that it constituted the same use.
Interestingly, the Florida Court of Appeals ruled against National Geographic in the Greenberg case, citing that the freelancers had a right to further compensation for further use of their works.
However, the New York Court of appeals ruled against Faulkner in the same argument.
Now we have two courts of appeals with differing opinions on the same issue.
The American Society of Media Photographers, who are backing the freelancers in Faulkner, sums it up best: “If the NY decision becomes law, it means that publishers can make, publish, and sell digital versions of print versions of collective works without having to pay any additional licensing fees to the photographers, writers and illustrators who created the content. In a nutshell, those creators would be cut out of the loop for any part of the additional revenues that the publishers will be collecting for their digital versions.”
In addition, it is the opinion of the contract and legal experts that I’ve discussed this with that National Geographic does indeed owe the freelancers further compensation. They cite contract law that states that all uses have to be spelled out clearly by the entity creating the contract. The burden of allowing for future use did not rest on the shoulders of the freelancers who signed the contract, but with publishers making the contract.
I’ve been told SPJ took the position against the freelancers because they were advised by their legal counsel that “it would make the law more clear.”
But the law is clear. A contract is technically a form of private law intended to enforce a business arrangement. If NG only requested first North American serial rights, then it was saying that it only wanted to be the first on the continent to print the photos in a paper magazine – the definition of the term. That is clear. What the magazine wants to do is change the definition of the law – to make cloudy now what had been clear – because it sees additional revenue opportunities years after the original arrangement. You can understand why it wants to make more money, but to claim that it has an ongoing right to continue to use the material in any form is disingenuous.
Reprinting a magazine in any form at all would be just that – reprinting, and not something that was part of the original publication. It’s a reproduction after the fact. To want to do that in an electronic form is even more removed from the rights they originally wanted and paid for. As Christine (SPJ's president) said to me, freelancers must be adult and not squawk about the contractual arrangements they made. If that applies to freelance writers and photographers, then it certainly applies to corporations that want to ignore the previous agreements they made. Just because they didn’t envision how they might make money decades later doesn’t mean that the copyright owners should subsidize, out of their own pockets, those endeavors.
So we’re not talking about clarity, but about new definitions and new approaches to law. Now we have to ask whom these changes benefit? The argument could well be made that if the Supreme Court hears this case and rules in favor of the independent photographers and writers, that the law will certainly be clearer in that publishers need to spell out their contracts to include all future uses (which most contracts do today anyway).
Since 1909 SPJ has been viewed as an organization for and about newspaper staff writers. Independent journalists who have been members of SPJ have worked hard behind the scenes to change this perception. Still, it exists in the minds of many independent journalists and SPJ is very vulnerable to a misstep such as this. There is nothing freelancers take more seriously than copyright litigation and how it affects us now and in the future. I cannot stress enough that this is a case about big publishers vs. freelancers and if SPJ remains on the side of the publisher, it will be viewed within the freelance community that SPJ is trying to stand with publishers and “score points” with them. They will point to the fact that SPJ’s top leadership are all staff editors and writers. In addition, I believe that if SPJ continues with this stand, they we will be the only journalism advocacy organization to back the publisher. ASJA and NWU stood with freelancers in the Tasini case and earned a lot of loyalty for that with independent professionals. As the case becomes more widely publicized, it is highly unlikely they will take a different position in this case.
Unless you’ve worked as a fulltime freelancer, it’s hard to explain just how much of a flash point rights become. Photographers and writers look at the material as their property – which it is according to law. Now, changing the definition of rights may not be important to staff journalists, who are all doing work made for hire because they are employees. They don’t benefit, no matter how the case turns out. But the freelancers can potentially lose a great deal. So you have a situation where the majority of your members are untouched and a minority could be adversely affected. To publicly side with the publisher is effectively asking these freelancers to leave SPJ and find other organizations they feel are more welcoming and more willing to represent all of their paying members.
As well, I’m still deeply concerned that the original release presented on SPJ’s website said we were “among several journalism advocacy organizations” to support NG in this case. In reality, we were the only journalism advocacy organization known to support the publisher among a list of some of the biggest media companies and publishers in the business. That was clearly a misrepresentation and I’m not sure how that could have happened – especially in an organization run by journalists.
Lastly, I’m still very very troubled by at the appearance of a conflict of interest with (SPJ's legal counsel) regarding National Geographic. I understand media law and I understand that most of the law firms, whether locally or nationally, represent media companies as well as journalism advocacy organizations. However, I keep going back to my Ethics 101 professor, who on the first day of class asked us what the difference was with a conflict of interest and the appearance of one. Of course, as professionals we all know the answer: there is none. And the fact that (SPJ's legal counsel) still lists National Geographic as one of its clients, or former clients, smacks of the appearance of a conflict. As a leader in the industry with regards to ethical standards, this is bad form.
It is for all of these reasons, that as the National Chair of SPJ’s Freelance Committee, I ask you to reconsider your decision in filing this amicus brief on behalf of National Geographic. "