January 15, 2004
Boston Globe Lawsuit Dropped; ASJA and Creators Network Support Freelancers in Ongoing Rights Fight
Statement from the Creators Network
It's a cold and unhappy day for freelance creators in Boston, Mass. A hard-fought lawsuit filed by freelancers against the Boston Globe over the newspaper's grabby contract has been dropped in appeals because a lower court ruled that the newspapers' tactics, however unfair, were not illegal. Freelancers decided to drop the case in order to leave the door open for future litigation. A battle is lost, but the war for fair treatment of freelance creators continues.
We salute the writers and photographers who took a stand.
Sophia Dembling, for the Creators Network
Statement from American Society of Journalists and Authors
The Boston Globe may be off the hook in the courtroom, but not in the eyes of the freelancers it has wronged by demanding they sign away their rights for nothing or never write for the paper again. That's bad business for the Globe, which has driven away talented writers and photographers with its hardball tactics. The American Society of Journalists and Authors applauds BGFA's heroic, ongoing battle to get justice for freelancers who don't want to work for free.
Lisa Collier Cool, president of ASJA
Statement from Boston Globe Freelancers Association
Dear fellow freelancers and supporters,
We are writing to inform you that legal counsel and the plaintiffs in Marx et al v. Globe Newspaper company are announcing today that they have come to the decision to drop the legal appeal in our case. This decision was reached after lengthy strategic discussions and has been done in order to keep the door open for litigation in other potential Massachusetts cases.
Marx et al v. Globe Newspaper Company raised two different issues. One was a novel legal argument that the Globe's hardball tactics constituted an unfair business practice under Massachusetts law. The second legal argument was more traditional. Freelancers claimed that the Globe had misrepresented the contract in its statements to freelancers and to the general public. We continue to feel strongly that as a factual matter both things are absolutely true. Unfortunately, the lower court found that even if this constituted outrageous behavior by the newspaper, it wasn't a violation of existing state law. If a court of appeals were to rubber stamp the lower court's ruling it would set a bad precedent that could limit the ongoing fight against this and other publishing industry abuses.
We are sad to report that the warnings we sounded about the contract back in the spring of 2000 have come true. People who signed the contract have found their work on third-party websites, occasionally without their bylines. Entire sections of the Globe are being "re-purposed" for inclusion in the Worcester Telegram and Gazette, and there is reason to believe that all Globe material will soon be sent through the NY Times syndicate, whether or not contributors give permission. Oral agreements to pay contributors for secondary uses were, as they say, worth the paper they were written on.
At the same time, freelance rates at the Globe have actually decreased. People are making less money after signing away rights to their articles, illustrations and photographs.
Many freelance writers and most of the freelance photographers who were working for the Globe in July 2000 walked away from the contract. Each of us will have to decide whether to sign in the future. For many of us, the fact that the Globe has been unwilling to budge on its demands for retroactive and derivative rights without providing any compensation whatsoever is reason enough to stay away.
During the past three years, more and more publishers have demanded broad rights to future work from freelancers. We have been told, however, that our very public stand against the contract has given some publishers pause and slowed down the unfair demand for retroactive rights to past work.
It has been a long, hard struggle. At an estimated $400/hour, the Globe and the New York Times empire may have spent as much as a million dollars fighting this lawsuit. A million dollars could have paid for a lot. Freelancers could have been paid for the rights to include our work in the historical record and for archival use. Lawyers could have written contract language that restricted the sale of our work to third parties or to create derivative works. The Globe could have even increased our pay in such a way that we gained parity with employees who grant broad rights to their work in exchange for benefits and job security. But the Globe -- and the Times -- are simply greedy. The Globe's lawyers said in open court that they have the right to demand anything from freelancers merely because it's a buyer's market. The race to the bottom is on.
The BGFA will continue to fight these contract abuses. Federal copyright violation claims against the Globe were not addressed in Marx v. Globe, and are still outstanding. Members of the steering committee and our colleagues will continue to educate writers, photographers, illustrators and the general public about what these sorts of extortionate contracts mean in the age of Big Media.
We always cheer when little David manages to beat Goliath. The giant New York Times empire is, for the moment, able to get its way. But you can be sure that this struggle has resonated on Morrissey Boulevard and in Manhattan and that the publishing industry is watching. We changed the terms of the debate by calling the Globe on its deceptions and by identifying the real costs of this contract to creators over the course of our working lives. We can be proud we've stood against a contract that undervalued our worth as professionals.
Best wishes, BGFA Steering Committee
Permission granted to cross-post this BGFA advisory in its entirety. More on the story from Boston magazine.