“Technology Known or Yet to Be Developed… In Perpetuity Throughout the Universe…”
How did the language of Work for Hire contracts get so expansive?
By Giulia Pines
I recently received an email from a senior editor at the Global Citizenship Review, a quarterly out of South Africa, asking to reprint an article I’d written for National Geographic on the history of the passport. Overjoyed that it might be gaining a new audience, I immediately resolved to give the editor permission to reprint it free of charge. But when I dug up my old paperwork for the assignment, I discovered that the rights to “The Contentious History of the Passport by Giulia Pines” were not mine to give away. I’d signed a Work for Hire contract.
I was still seething a bit when I attended a talk on copyright the following week at Columbia’s Tow Center for Digital Journalism. Hot on the heels of discovering the limits of my National Geographic contract, I’d received another one containing similar language. During a talk delivered by Rina Elster Pantalony, Director of Copyright Advisory Services at Columbia, it became clear that much of the striking legal language in these contracts is the result of an under-appreciated Supreme Court decision, New York Times v. Tasini. Given its profound impact on my profession, I marveled that I had never heard of the case before. It’s worth revisiting, not just for an explanation of how we ended up here, but also for insight into the shifting landscape of copyright as media technologies continue to change in unexpected ways.
Before the rise of the Internet, copyright law looked very different than it does today. A 1994 New York Times article from the early years of the digital era described the old copyright landscape:
[M]any magazines bought articles simply on the basis of oral agreements. When there was a written contract, it generally gave a magazine “first North American serial rights,” which meant the magazine acquired exclusive domestic rights to publication. The writer retained all other publication rights.
This began to change with the rise of CD-ROMs and the first computers. A struggle between creative freelancers and publishers bubbled throughout the 1990s, and came to a head in 2001, when the New York Times, Sports Illustrated, and Newsday announced a partnership with Lexis/Nexis to reproduce previously published articles for its database. This was too much for National Writers Union (UAW Local 1981) and its president and lead plaintiff, Jonathan Tasini, who filed suit in federal court (Sonia Sotomayor presiding) that alleged infringement of copyright. When the case reached the Supreme Court, a majority affirmed that freelancers had not automatically granted print publications the right to use their articles online, and awarded the plaintiffs $18 million. “In the early days of the Internet, this was a pivotal decision,” said Ms. Pantalony. (Like so many national stories from the summer of 2001, it was lost under the news tsunami of 9/11.)
It was also a pyrrhic victory for creators.
After SCOTUS decided against them, the Times came up with a sneaky workaround, offering its freelancers what amounted to a lose-lose situation: They could sign a new contract relinquishing all previous rights and get published online for no extra pay, or their work would be lost to the digital world forever. This was never a good deal, but over the years, the space for freelancers to walk away from such an offer has narrowed to the point of vanishing. The conquest of digital is complete. Shrinking budgets and disappearing outlets give freelancers fewer options for publishing their work, something that publications know and use as leverage. Freelancers are left with the choice between getting their work out to a wider audience online, often for dwindling compensation, or not having it seen at all.
Far from being a one-off response to a historic court decision, the language of post-Tasini Times contracts quickly became the new industry standard. More outlets started using that notorious phrase freelancers know all too well — “in perpetuity throughout the universe” — as publishers followed the Times’ lead and covered their bases.
But perhaps the legal phrase with the most serious implications for how we assign rights in the future is this one: “technology here and now known or yet to be developed.” In 2001, publishers saw how the move from print to digital could cause them problems; they weren’t going to risk it again with technologies they couldn’t predict. According to Pantalony, AI might prove to be the new Internet when it comes to the future of copyright issues. “My son plays college sports,” she explained, “and recaps used to be published online after every game. Now, there are data analytics aggregation systems. The question becomes, who is the author?”
The proliferation of Work for Hire contracts makes that question more difficult to answer. These types of contracts widen the gulf between authorship and ownership, so works can be more easily replicated without accountability to their creators. We’re already seeing this breakdown of public trust in the proliferation of sponsored content, where a byline marked simply “[publication] staff” immediately sets off alerts: whose opinions are these really, and who is paying? Additionally, a publication that owns all the rights to a piece of work can excerpt it at will, replicate it in another medium, or reprint it in a subsidiary. One of the original arguments in New York Times v. Tasini was that replicating articles in Lexis/Nexis took them out of their original context. Ironically, the decision led to many more contracts in which freelancers give publications the rights to do exactly that. [Editor’s note: The News-to-Table freelancer’s contract is creator-friendly, and does not include copyright forfeiture.]
The National Writers Union website still lists copyright as among its chief concerns. It asks, “Will copyright reform help our members and other creative workers take advantage of new technologies and business models that benefit us and the reading public? Or will keeping up with technology be a pretext for changes in the law which re-allocate rights and revenues in ways that unfairly favor publishers […] over creators?”
These questions speak to lingering unease over how technology will be used for profit in an ever-shifting media landscape. They also place writers and readers at odds with publishers. In a savvy PR move in the wake of the SCOTUS decision, the New York Times set up a Restoration Request Site (now offline) to instruct chastened writers on having their scrubbed work “restored” in exchange for all rights. A contemporaneous article in the Complete Review explained how the newspaper claimed it had been forced “to eliminate from…electronic archives tens of thousands of freelance articles.” The implication was that the Times reading public was the real victim of the case, and would suffer from a loss of access to the full Times archive. The fault for this lay not with the Times, but with its freelancers. “Do we even have to tell freelancers that, in our opinion, they’d be crazy to sign the Times’ ‘restoration request,’” the Complete Review implored in 2001. “We can’t imagine that anyone would even consider doing so; we hope we’re right.”
Plenty of them did, of course, and plenty of us still do. They’re called Work for Hire contracts.
Giulia Pines is a freelance journalist based in Queens, with recent work in the New York Times, the Atlantic, and Medium. You can find her on Twitter @giuliapines
Last edited: May 14, 2019
Author: Giulia Pines
Editor: Alexander Zaitchik
Artwork: Photo by Greg Rakozy on Unsplash