By Michael Miner

Dial B for Blunder

The Sun-Times newsroom just made the astonishing discovery that the warm, collegial feelings flacks traditionally express for working reporters might not be totally sincere.

The following message was left the evening of Friday, September 24, on the voice mail of investigative reporter Charles Nicodemus. A tape of the message made its way to Hot Type.

Chipper voice: “Charles, it’s Adrienne Levatino at Unicom ComEd. Umm, I actually have [senior vice president] David Helwig on the phone. I was going to conference us in to talk with you about the report. I don’t know how long he’s going to be there tonight. If he’s going to be there for a while I’ll call back and give you his number. Thanks.”

But the message didn’t end there. When Nicodemus checked his voice mail, he discovered that the ComEd spokeswoman continued talking.

Levatino: “Well, that was kind of lucky. I got his answering machine. Are you going to be there for a while?”

Helwig: “Yeah.”

Levatino: “Can I leave your number directly?”

Helwig: “Yeah, sure.”

Levatino: “OK, I’m not sure if he’s–you know, Charles is the kind of guy that’ll call you and tell you that if you don’t call back he’ll send a rat to suck your blood out of your neck and then go home for the day. So–”

Helwig: “Mmmm–”

Levatino: “I wouldn’t stick around too long just on his behest.”

Helwig: “I’d give him my pager number, but that might be–”

Levatino: “Oh no you don’t! No. You don’t want to do that. You don’t want to do that, David, because for the rest of your life–”

Helwig: “right–”

Levatino: “–this man will get you. And for God’s sake don’t give him your home number! Because you’ll have to have it changed! No, I wouldn’t give him your pager.”

Helwig: “OK.”

Levatino: “Let him try and find you, you know, with the number.”

Helwig: “We’ll be around here like 45 minutes–”

Levatino: “You know we’ve done our best here.”

Helwig: “OK.”

Levatino: “OK!”

Helwig: “See you.”

Levatino: “Thanks. Bye.”

Nicodemus had nothing to say about this conversation, which he refused to play for me. Other reporters weren’t so reticent, and one commented, “Considering the level of disdain we hold public relations people in, it certainly came as a surprise to learn that they in turn don’t think so much of us.”

Levatino says she was the victim of a utility breakdown. She thought she’d clicked off Nicodemus’s line, but a blown transformer in the phone system betrayed her. She found out what had happened several days later, when Nicodemus called “and left me a message saying he wished I would have the intelligence to hang up the phone before I entered into colloquies–that was his word–with my colleagues.”

“We think it’s a compliment,” said a colleague of Nicodemus. “He’s caused a lot of people sleepless nights, but we didn’t know PR people were among them. The whole place was hysterical. Everyone was guffawing.”

Said Levatino, “This is personally a nightmare.”

It’s Unanimous: Writers Get On-Line $$$

A masked man steps out of the shadows. “Your money or your life!”

“Golly, that’s not fair,” you say. “I work hard for my money, and I don’t think you deserve it.”

The gunman patiently sets you straight. “I’m in a terribly high-maintenance business,” he explains. “This hood is solid silk, my piece is top of the line, and the armor-piercing bullets cost a fortune. Then there’s the hideout, the lawyers, the auto insurance–I pay a lot because I often drive fast. The way my accountant works the numbers, he says I lose money every time I pull a job. I deserve your money a lot more than you do.”

This is a reasonable argument when it’s backed up by a gun at your head. For several years now, the print media of America have made roughly the same argument to freelance writers. “We’re paying you a handsome pittance to publish your story in our newspaper or magazine,” they say. “We also intend to put it up on the Web for everyone in the world to read, and you won’t get a penny more for that. But why should you? We still lose a fortune on our Web sites, so you don’t deserve a penny.”

“But that isn’t nice,” the indomitable freelancer fires back.

“Don’t forget you have a choice!” respond the media worthies. “You can sign our new contract, in which you waive all ‘new media’ rights until hell freezes over. Or you can refuse to sign it–and we’ll never publish another word you write. It’s up to you. And is that your baby I hear crying for milk?”

Last week a federal appeals court in New York stepped into this imbroglio. A panel of three judges ruled unanimously that posting freelancers’ stories on Nexis is legally no different from selling them to the Times of London, and without permission or compensation the nation’s media have no right to do that. Damages have not yet been determined.

The ruling can be read several ways: as a glorious assertion of the rights of writers, as a vindication of publishers who saw this day coming and began making freelancers sign over those rights, as a chance for some writers to pick up some change for stories that went on-line in the early years, before the publishers wised up, or as a clarification of the ethical relationship between writers and publishers that sooner or later will lead to a new deal between them.

“This is wonderful! This is sensational!” says Patricia Felch, the Chicago lawyer who argued Tasini v. New York Times Co. for the writers. “The publishers are panicking. They’ve got to be. I would be very surprised if all the big intellectual-property departments of all the big law firms are not sitting down as we speak writing opinion letters.”

“This could be a pyrrhic victory,” says Michael McCready, a Chicago attorney who’s already taken on the Tribune over freelancer fees. “It was a victory for the past, and it would be great if everything stayed the way it was. Unfortunately, the Tribune already has changed their contract to remedy this.”

Jonathan Tasini–who gave his name to the 1993 suit, though there were other plaintiffs, just as there were defendants besides the New York Times–is president of the National Writers Union, which is dedicated to the strenuous work of bringing to the isolated writers of America strength in numbers. Tasini thinks the decision is at the very least a great moral victory.

“When we sued,” he E-mailed me, “the companies were stealing our work anyway, so what did they expect writers to do? Sit back and let them do it?…In the long struggle for any kinds of rights, there is significant importance in a struggle to a moment or moments where people understand their rights.”

In 1997 a district court judge ruled against Tasini. She found on-line republication to be the sort of mere “revision” allowed by the Copyright Act of 1976–comparable to the changes a newspaper or encyclopedia undergoes from one edition to the next. The judge concluded that while an author retained the copyright to his or her individual work, the publisher owned the copyright to the collective work and was free to sell it to a commercial database such as Nexis (another defendant). If a publisher could do that, no one doubted that it could also post the same stories on its own Web site.

Publishers applauded this logic. But the three judges of the Second Circuit of the U.S. Court of Appeals shredded it. “Publishers’ contention that the electronic databases are revised, digital copies of collective works cannot be squared with basic canons of statutory construction,” they unanimously declared. “The New York Times actually forbids NEXIS [that’s the court’s emphasis] from producing ‘facsimile reproductions’ of particular editions….What the end user can easily access, of course, are the preexisting materials that belong to the individual author.”

Their opinion is “unbelievably broad,” Felch rejoiced. “Most opinions have some element of ‘Well, if this were the case we might rule otherwise.’ This has none of that.” And the trial court wasn’t told to take the case back and try again, this time entering an order consistent with the appellate opinion. “It is so rare for a court to reverse and remand with instructions to enter judgment for the other party,” said Felch. “They just don’t do this. But they did.”

The appellate court also made it clear that publishers have a way out. “Publishers and authors are free to contract around the statutory framework,” said the opinion, noting that the New York Times had already “updated its policy to require freelance writers to execute an express transfer of their copyrights.”

So have a lot of other publishers. Some high-minded publishers have responded to changing technologies by paying extra for new media rights, says Tasini (as the Reader has), but more of them simply got tough. The Chicago Tribune is one of the hard cases. Highly dependent on freelancers, especially to provide copy for the far-flung suburban editions, the Tribune sent out inflexible new contracts three years ago and told writers to sign them or disappear. Some freelancers the paper especially valued cut better deals, while others organized and hired McCready to negotiate. But facing a stark deadline, their rebellion collapsed.

Now publishers can no longer claim that what they’re demanding from writers didn’t actually belong to the writers in the first place. Tasini has new cards to play, and his press statement bristles: “Today we are here to celebrate a watershed moment in the fight to guarantee that writers are treated with dignity and respect….The companies who we sued today have been tarred as law breakers. From this day on, they carry the stain of having repeatedly, consistently and brazenly stolen our work….They have been branded copyright pirates.”

But his open letter to publishers is tactful and sympathetic. “Neither the NWU nor the freelance writing community is seeking to undermine the distribution of magazine and newspaper articles via on-line networks,” he writes. “We want to see our work continue to be disseminated via the likes of Nexis, America Online, the World Wide Web, and other new media so you can make a profit and we can make a fair living.”

Then Tasini offers to negotiate. He proposes (not for the first time) that the Publications Rights Clearinghouse license secondary rights on behalf of writers, collect fees from publishers, and distribute royalties. It’s an arrangement that would parallel BMI and ASCAP’s middleman role between musicians and radio stations. The NWU cofounded the Publication Rights Clearinghouse in 1995 with UnCover, a huge database of magazine and journal articles.

Tribune executives surely have a lot to say about all this. They’re not saying it publicly though. “It’s my area, and I’m not going to give you a comment,” said associate editor Joe Leonard, who usually speaks up. He told me company lawyers wouldn’t talk either, and he was right.

Chicago’s Local 12 of the NWU claims about 300 members, which, in a city where the Tribune alone uses some 2,000 freelancers, indicates how far the union has to travel before it can claim to speak for the masses. “The next challenge,” says chairman Suzan Erem, “is to organize writers well enough that they refuse to sign contracts that give away their electronic rights. They need to negotiate that right just as they negotiate any other right. Writers are going to have to have the guts to say, ‘I’m worth more.’ Freelance writers have a hard time with that because they’re working in the dark. They don’t know what the next writer down the road is going to charge.”

Art accompanying story in printed newspaper (not available in this archive): photo/Robert Drea.