Green Eggs and Lawsuits

Greenberg's case is a victory for freelancers, and so is Tasini. But all-rights contracts make those victories disappointingly narrow, since most current and future freelancers now sign away all the rights on which Greenberg and Tasini based their lawsuits. Often, that's how it goes when artists sue over their contracts: They win the battle but lose the war, as businesses regroup to close whatever loopholes the lawsuits slipped through.

BUT BOTH THE GREENBERG AND TASINI RULINGS ARE important, and the Supreme Court victory in the Tasini case in particular is a big deal -- symbolically and actually. Publishers around the country have been trying to get more without paying more by pretending that it's not more, and Justice Ruth Bader Ginsburg, writing for the majority in the Tasini case, told them flat out that the Supreme Court isn't going to back them on that. When The New York Times sulkily threatened that an unfavorable ruling would force them to strip freelance articles from online databases, Ginsburg reminded them that there was another option: Just pay the freelancers. "In any event," she concluded crisply, "speculation about future harms is no basis for this Court to shrink authorial rights Congress established."

Lower courts will keep Ginsburg's opinion and the Greenberg case in mind when new cases -- like The Boston Globe suit -- come their way. In fact, Greenberg was already cited in the battle over Styron's and Vonnegut's books last week. Styron and Vonnegut sold the electronic publishing rights for some of their books -- Sophie's Choice, The Confessions of Nat Turner, Slaughterhouse-Fiveand Breakfast of Champions, among others -- to a small e-publishing company called Rosetta Books. Random House, which first published those books, went to court to stop Rosetta from putting them out as e-books.

Random House doesn't want the competition, of course, which is understandable. In its mind, the contracts with Vonnegut and Styron that give Random House exclusive rights to publish the work "in book form" automatically includes e-books. But that self-serving assumption of rights -- if we have this right, then we also have that one, and that other one, etc. -- is exactly what the major reforms in copyright law since Geisel's time have worked to undo. The rule since 1978 has been that any right the publisher doesn't specifically take for itself in a contract remains with the author. That's why Random House's contracts with Vonnegut and Styron go to the trouble of listing all the rights the publisher has -- to license the works to book clubs, to reprint them, to put them in anthologies, digests, magazine condensations, and microfilms. E-book rights are not on that list, so the court denied Random House's request for an injunction against Rosetta Books. This is why all-rights contracts, which are starting to show up in book publishing as well as in magazine and newspaper contracts, are so dangerous. Their whole purpose is to undermine the crucial principle that each right in a contract must be claimed separately and specifically, and that any right not claimed remains with the author.

All these cases are definitely about money, but they're also about control. What artistic integrity means, in practical terms, is that you want to have control over how your art is presented to the public. That's what Courtney Love says her lawsuit is about -- parent company Vivendi Universal doesn't understand her as an artist, and she signed with Geffen specifically to avoid being part of a big, anonymous corporation that wouldn't know how to promote her. Control is an even bigger problem for artists in the U.S. than money, because in our legal system, once you buy something, you're supposed to be able to do what you want with it, whether it's a painting or a Honda. So if you're a big corporation and you commission a sculpture for your front lobby, you want the power to move the sculpture anywhere you want, get rid of part of it if it's in the way, repaint it if you change the lobby's color scheme. Such changes are, of course, an artist's worst nightmare.

For years, artists of all kinds thought the way to end this nightmare was to get the United States to sign the Berne Convention, an international copyright law with a much more complete take on artists' rights than U.S. copyright law. Berne recognizes not just monetary rights, but also what it calls "moral rights," which protect artists' visions for their artwork.

The first moral right, under Berne, is that artists are the sole judge of when their work is a finished creation, and whether and when it can be displayed. If artists renege on a contract, they're liable for damages, but a court cannot order them to deliver their work. Second, artists have the right to attach their name to their work, to prevent the work of others from being attributed to them, and to prevent their work from being attributed to others. This right is separate from copyright, by the way, so that even if artists sign away copyright to someone else, the artists, as creators, still retain this so-called "right of paternity." Third, and perhaps most important, work cannot be distorted or altered once that work has been made public. So from the moment a movie is released, a book published, a song played on the radio, it cannot be altered except as expressly permitted by the artist.