354 SUPREME COURT TO HEAR TASINI CASE
November 13, 2000
The Supreme Court has agreed to review the Tasini copyright infringement case and render a
verdict before June 30, 2001.
The Court's decision will have a major impact on creator rights in the digital age.
The case (The New York Times Co. v. Tasini, No. 00-201) revolves around the question of
whether publishing companies must obtain permission from free-lance contributors' before
including their work in electronic databases.
In September 1999, the U.S. Court of Appeals for the Second Circuit, in New York, reversed
a lower court and ruled that under a provision of the Copyright Act of 1996, the companies
can not publish free-lancer's work without permission and compensation.
The complaining companies are the New York Times Co., Newsday, Time Magazine, and two
database companies, Reed Elsevier Inc.'s Lexis/Nexis division and University Microfilms
International. These companies have been supported by friend-of-the-court briefs filed by
23 publishers and trade groups.
In his brief the Times' lawyer, Lawrence Tribe, argues that the 2nd Circuit ruling should
not be allowed to stand because, "the Second Circuit's judgment, as a practical matter,
sets a national rule requiring the destruction of decades' worth of articles currently
stored in electronic archives."
Patricia Felch of Chicago's Banner & Witcoff, who represents
free-lance authors in the case, thinks the publishers are vastly
overstating the impact of the 2nd Circuit decision. The destruction of databases won't be
necessary, she insists. A mechanism is already in place -- known as the Publication
Rights Clearinghouse -- to handle republication rights, analogous to ASCAP and BMI in the
music world. "Publishers won't have to track down every author," she says.
Whatever the decision it is not expected to have a large impact on the future publication
of articles and pictures because many publishers now require free-lancers to sign over the
rights to both print and electronic archive versions of their work. It may, however,
result in higher initial compensation for those uses if it is clearly recognized by the
courts that the creators are entitled to additional compensation for these additional
It is also interesting to note that while some publishers archive in this manner (and
usually charge fees for access to such archives) not all do. Should all publishers be
required to pay additional higher fees for archive usage when only some are archiving
It is hoped that the Supreme Court will recognize that while a decision in favor of the
New York Times et al may make life easier for the large publishers, it may hurt many small
publisher as well as all creators.
See original stories on the Tasini case
One major publisher that will certainly be affected by the Supreme Court decision is
National Geographic. When they first published their "108 Years of National Geographic"
on CD-ROM they argued that they did not have to compensate photographers for the work that
appears on these discs and cited the original Tasini decision.
There are at least four cases now working their way through Federal Court. They include
two separate cases filed by photographers Jerry Greenberg and Fred Ward, an action filed
in Colorado by Minden Pictures and photographer Louis Psihoyos and an action on behalf of
several plaintiffs who are represented by attorney Stephen A. Weingrad.
Minden Pictures is not innvolved in a legal dispute with NGS over the CD-ROM at this time.
They settled their case on unauthorized use issues and have retained their rights to
proceed with the CD-ROM case pending the outcome of the other legal actions in this