Freelancers Confront New Challenges

Jonathan Tasini, President of the National Writers Union, during a July 2000 picket line of freelance photographers, writers and illustrators protesting The Boston Globe’s freelancer contract. Photo by Christopher Fitzgerald, BGFA (Boston Globe Freelancers Association).

No one knows when the first news went from one person to another or how that news was transmitted. But the earliest known—and most primitive—method of sharing the news was via drums. Humans, having gathered in tribes, heard news bulletins of a shared danger or the death of an elder transmitted through the language of commonly understood percussive beating. The drummers who dispersed the news in this way could arguably be considered the first freelancers, gathering tribal news and then communicating it, perhaps on a drum of their own making.

Since this decidedly low-tech reporting method was first devised, evolving technology has markedly improved the efficacy of journalism. There was the development of the written word, the Gutenberg press, the linotype, and most recently the introduction of the computer into the modern newsroom. Now, through the existence of the Internet, news from anywhere and everywhere is instantly available. However, oddly enough, it is the advent of this technology that threatens the livelihood of many freelance journalists today.

Freelancers have always been mavericks in the news business. By definition, they are independent. By nature, they are free-spirited. Working alone, they choose their stories, their markets, their audiences, but their work is not unprotected. Under existing United States and international copyright law, freelancers are able to peddle their ideas, their research, their words, to an interested buyer, and still own their handiwork. They are free to revise, reuse or resell their work as they wish.

In spite of their name, freelancers don’t work for free. Or, at least, they shouldn’t have to. However, that is exactly what The Boston Globe (and other news organizations) has recently demanded of its freelancers—to have their work to be used without paying for it. In April, the management of The Boston Globe sent letters to 1,000 of its freelancers—writers, photographers and graphic artists who have regularly contributed to The Boston Globe in the past—stating that if they did not sign its newly devised “license agreement” by July 1, 2000, they would be barred from working for the paper. The contract called for the newspaper to assume the freelancers’ worldwide electronic rights, as well as the worldwide right to republish the freelancers’ work in any form under The Boston Globe brand, without either compensation to or control by the freelancer.

The contract is also retroactive, permitting the newspaper to control, use and profit from any work the freelancer has ever done for The Boston Globe. Furthermore, the contract extends the life of the copyright 70 years after the freelancer dies. In other words, when a freelancer signs this contract, he/she is giving The Boston Globe permission to profit from the past and future archive of his/her work in any electronic media that exists or ever might be developed without sharing even a penny with the person who produced the work.

This is wrong. The “free” part of our name refers being free to work as we wish. Or, as in this case, respond as we wish. And many of my colleagues have. According to union estimates, more than half of The Boston Globe’s freelancers refused to sign what they perceive to be an onerous, unfair and perhaps unlawful contract. [The Globe reports that 70 percent signed.] In time, the Massachusetts Superior Court will rule on the contract’s lawfulness since a class action suit on behalf of freelance writers, photographers and graphic artists has been filed against the newspaper. The lawsuit, which is supported by the National Writers Union, Graphic Artists Guild of the International Union, the United Auto Workers, and the American Society of Media Photographers claims that The Boston Globe has used unfair and deceptive business practices to bully freelancers into giving up what is lawfully theirs.

This case is potentially precedent-setting, a fact that is not lost on seven members of Congress from Massachusetts who recently wrote The Boston Globe’s publisher, Richard Gilman, expressing concern about the fairness of the newspaper’s contract offer. Several signed a joint letter to the publisher, while Representative Barney Frank, who serves as the ranking member of the Judiciary Committee’s subcommittee on courts, copyright and intellectual property, sent his own message.

The National Writers Union recently prevailed against The Boston Globe’s parent company in a landmark lawsuit, Tasini vs. The New York Times, which established work contributed by freelancers cannot be reused electronically or in any other format by a publisher without the creator’s consent. The New York Times and The Boston Globe, along with other publications, face the risk of legal action for having routinely violated copyright law. So keen is The Boston Globe on obtaining these rights that the company has remained resolute in its refusal to negotiate in any way with any of its freelancers. Its message is clear: our way or no way.

The Boston Globe maintains that the contract allows freelancers to retain their copyright and the right to resell their work to other news outlets in New England after a news embargo that varies from 24 to 48 hours, and so the contract is actually a favorable one for the freelancers. However, a significant number of freelance journalists—including many who signed and will continue to write for the newspaper—criticize the contract as a blatant grabbing of their rights and a way for the paper to profit by reaching into the pockets of its freelancers. Others contend that the claim of writers retaining copyright is spurious since its value is much diminished.

For the 450 who have signed the contract, few are happy about giving away their work but many felt forced to acquiesce. They sound resigned to this changed circumstance, saying that getting something is better than nothing. Many signed under duress, unhappily, unwillingly and warily. And, no doubt, those who opted not to sign, as well as those who have, are hoping for a favorable court decision that would restore their right to retain ownership of their work. Most freelancers I know would prefer to remain independent agents if they can be paid fairly for their work, instead of being indentured to a company that treats them poorly and attempts to depict that poor treatment as though they are doing them a favor.

So how does this sign-or-sever situation impact freelancers?

Freelancers who sign can work for The Boston Globe, although the contract explicitly states that the newspaper is under no obligation to accept their work, even though it gains access to it. In exchange for their signature, it is increasingly likely they’ll forfeit a significant source of earnings in the future. Some newspaper executives predict that increasing revenues will come from electronic sources. Freelancers who have signed will receive no benefit or derive any profit from this burgeoning market since they no longer control their electronic rights.

While these freelancers retain the copyright, their work loses much of its market value if The Boston Globe is able to compete more effectively and efficiently than individual freelancers. For example, if the newspaper decides to publish “The Best of The Boston Globe,” what chance does the freelancer have of interesting another publisher in using the same articles? In some cases, The Boston Globe is going to be able to grab the rights to a backlog of as many as 20 years or more of a freelancer’s work without compensation. In many cases, the paper will assume control of work that originated before the Internet existed. By doing so, the newspaper reaps the rewards of the writer’s labor without ever having had to provide benefits, as they would to staff whose work the paper can reuse as they desire.

For freelancers who do not sign, the most immediate impact to them is a direct—and, in some cases, quite significant—loss of income. In the six zoned editions of The Boston Globe, the first of which was launched in 1986 and the last nearly a decade later, about 80 percent of the content is contributed by freelancers, who, in many cases, were recruited from full-time staff jobs at other newspapers. [Overall, freelancers contributed about 25 percent of the newspaper’s articles.] After futile attempts at negotiations with The Boston Globe, these reporters’ refusal to sign the contract has resulted in a total cutoff of assignments and contact. But it is not only freelancers whose lives are being upended by this situation. Readers are affected, as well. Since it is the most successful freelancers who have the most to lose under the terms of such a contract, many of them have chosen not to sign. Therefore, the creative ideas and perspectives of these successful freelancers are not being used.

As things stood before this new contract, Boston Globe freelancers earned a fraction of the pay of full-time staffers, as well as not having access to company-subsidized health insurance, vacation or retirement benefits. Under this new contract, they’ll receive even less. Who can blame them for not wanting to become cyber-sweatshop workers? Perhaps in all of this, the most unsettling aspect is the worry a lot of us have about the pernicious affect this might have on other news organizations. For The Boston Globe to succeed in erasing the long-standing practice by which writers hold on to their property rights, then surely other publications will follow, as some already have. [Other professions are facing this problem, as well. For instance, some musicians are fighting the challenge to their copyright protection because of the development of music-sharing Web sites such as Napster, which allow users to download music for free.] In time, contractual arrangements such as this one undoubtedly will dissuade many talented, independent-minded journalists from pursuing this kind of work, thus limiting the perspectives of reporting and writing upon which our civil society depends.

It matters if writers own their words. And it ought to matter more than to just the writers themselves when their words are taken by someone else without proper compensation. While the Internet expands our ways of getting to new banks of knowledge, these banks shouldn’t be stocked with what is not rightly theirs to give away.

Linda Weltner, freelance columnist for The Boston Globe, speaks to freelancers at an informational picket line on July 2000 outside the newspaper’s offices. Photo by Christopher Fitzgerald, BGFA.

Anne Driscoll was a freelance weekly columnist and reporter for The Boston Globe for 10 years, until her refusal to sign the new contract ended her work with the paper. She has been a freelance writer for 20 years, working for The New York Times, Baltimore Sun, People, and others. She is the author of a series of books for girls called “Girl to Girl.”

The Boston Globe was offered the opportunity to write an article on this topic, but declined.