Green Eggs and Lawsuits

Illustration by Rob Clayton

TO UNDERSTAND THE RISKS ANY ARTIST -- MARTIN SCORSESE, Courtney Love, you -- takes when signing a contract, it helps to start with Dr. Seuss. In 1968, Theodor Seuss Geisel (a.k.a. Dr. Seuss) sued a toy company called Poynter Products Inc. because it was marketing dolls based on his cartoons without his permission and, outrageously, putting his name on them. He hated the dolls, calling them "tasteless, unattractive and of inferior quality." He wanted the courts to stop the company from making the dolls and from using his name.

Perhaps you can see what's coming. The courts ruled against him. Twice. They told him he'd signed away all his rights to the cartoons on which the dolls were based when he published those cartoons in Liberty magazine in 1932. That's the way copyright law worked until relatively recently: By signing away one right -- the right to publish -- you automatically signed away all rights. And that was not explicitly stated in contracts; it was just understood. Or not. Either way, if the matter went to court, business won and art lost.

Artists' rights in the U.S. are still pretty shoddy today. Artists have many more legal recourses and protections now than they did when Geisel was making his case, but mostly America's laws regarding artists continue to reflect our national attitude toward artists: These are weird, potentially dangerous people who often care less about money than is acceptable. That's true whether you're a painter, writer, cartoonist, songwriter, director, dancer, or anyone else who's trying to create something you want other people to see or hear. Business is our national art form, and business is deeply suspicious of art. So is our court system.

Right now an interesting smattering of lawsuits is dealing with this uneasy relationship among business, the law and art. There's Courtney Love, of course. Then there's the case the U.S. Supreme Court decided last month -- in The New York Times vs. Tasinithe court ruled in favor of freelancers and said the Timescannot put their work on databases like Lexis-Nexis without their permission. Jerry Greenberg, a photographer, just finished suing National Geographic. A bunch of freelancers are suing The Boston Globe. Last week, a federal court ruled that William Styron and Kurt Vonnegut, and not their publisher, Random House, hold the electronic publishing rights for various of their books.

These cases are about copyright -- who owns the work? -- and about contracts. They are also only the latest in a long line of artists' legal battles over those exact issues. Every time a new technology -- like radio, or "talkies," or the Internet -- comes along, business and art fight for control of it. The lawsuits tell the story of that fight, and the case law that emerges then becomes part of the patchwork of legal rights artists have in the U.S.

I know I mentioned Courtney Love early on, but I'm not going to talk much about her lawsuit against Vivendi Universal, even though it's important, because it's been written about plenty. Instead, let's talk about freelance writers. If by chance you are a freelance writer, you might have noticed some odd additions to your contracts in the last few years. Lines like: "Publication claims all rights to the article in all media now existing or yet to be invented or imagined, and all other means and forms of exploitation, in perpetuity, throughout the universe."

Officially, these are called "all rights" contracts. I call them "infinity times infinity" contracts. (L.A. Weekly doesn't use all-rights contracts, but does ask for electronic rights.) They are the publishing industry's hysterical power grab in response to the Internet and, to a lesser degree, to CD-ROMs. These are companies that have seen their profits decline steadily for years, and suddenly a way to reverse this trend revealed itself: reusing, repackaging and re-selling stories on the Internet and other media. For instance, the New York Times Company (which owns The New York Times, The Boston Globe and a bunch of small, regional papers) makes big bucks selling its content to Lexis-Nexis. The only thing publishers had to do to make this new money was make sure to get all rights, throughout the universe, to any story bought by the publisher.

But even as publishers changed their contracts, they started getting sued. Jonathan Tasini, head of the National Writers Union (of which I'm a member), and other freelancers sued The New York Times.

Meanwhile, Greenberg had been selling his photographs to National Geographic for 40 years. But when the magazine got ready to put out a 30-disk CD-ROM set celebrating its 108 years, including several of his photographs without his permission and without paying him, he sued. He pointed out that his contract said that after any given photograph was published, the copyright reverted to him. National Geographiccountered that the CD-ROM was no different from having the pictures appear in bound copies of the magazine, or on microfilm, as they do in libraries.

The case clearly had big publishers freaked. Gannett Company, the New York Times Company, the Magazine Publishers of America, and the Newspaper Association of America all filed briefs supporting National Geographic. They lost, though. The court ruled in Greenberg's favor this past March, saying National Geographic violated copyright law and should pay Greenberg's legal fees.