# New York Times Co. v. Tasini: Freelancers Keep Their Electronic Rights > The Supreme Court held that publishers cannot resell freelance articles to electronic databases under the Section 201(c) collective-works privilege without the authors' permission. Topic: Copyright | Author: Lidiia Levitska | Source: Intellectual Property Law (outsideipcounsel.com) Canonical: https://outsideipcounsel.com/blog/new-york-times-v-tasini-freelancer-electronic-rights/ *New York Times Co. v. Tasini*, 533 U.S. 483 (2001), decided how the Copyright Act allocates electronic-republication rights between freelance authors and the periodical publishers who first print their work. Six freelance writers had sold articles to *The New York Times*, *Newsday*, and *Time* without any written transfer of electronic rights; the publishers then licensed those articles to full-text electronic databases such as LEXIS/NEXIS and to CD-ROM products, where each article was retrievable individually alongside pieces from thousands of other issues and publications. Writing for a 7–2 Court, Justice Ginsburg held that this republication infringed the authors' copyrights because Section 201(c) of the Copyright Act — the privilege that lets a collective-work owner reproduce a contribution "as part of that particular collective work" — did not reach a database that presented each article standing alone. The decision reaffirmed that in the absence of an express transfer, freelancers retain the full bundle of rights in their individual articles. ## At a glance - **Case:** *New York Times Co. v. Tasini*, 533 U.S. 483 (2001), Docket No. 00-201 - **Court:** Supreme Court of the United States, on certiorari to the Second Circuit - **Decided:** June 25, 2001; 7–2 - **Opinion:** Justice Ginsburg for the Court; Justice Stevens dissenting, joined by Justice Breyer - **Subject matter:** Reproduction of freelance newspaper and magazine articles in full-text electronic databases and CD-ROMs - **Holding:** The Section 201(c) privilege does not authorize a publisher to license individual freelance contributions to electronic databases that reproduce them apart from the original collective work ## The two copyrights in a newspaper The case begins from a structural feature of the Copyright Act. A newspaper or magazine is a "collective work," and the Act recognizes two distinct copyrights within it: the publisher owns copyright in the collective work as a whole — the selection, arrangement, and coordination of the individual pieces — while each contributing author owns a separate copyright in his or her individual article. When a freelancer sells an article without a written transfer, the author keeps that individual copyright, and the publisher acquires only what Section 201(c) supplies by default. Section 201(c) grants the collective-work owner a limited privilege: absent an express agreement, it may reproduce and distribute the contribution "as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." That default was Congress's calibrated compromise. The 1976 Act deliberately reversed the older presumption — under which a publisher often acquired everything — and instead protected freelancers by presuming they parted with only a narrow reproduction privilege. The question in *Tasini* was whether the electronic databases fell within that privilege. ## Why the databases were not a "revision" The publishers argued that the databases were simply a "revision" of the newspapers and magazines — the same content in a new medium — and thus squarely within Section 201(c). The Court rejected the framing. The decisive inquiry, Justice Ginsburg explained, is not how the publisher perceives the database but how the articles are "presented to, and perceptibly retrievable by, the user." In the databases, a reader searching for a single article received that article as an individual file, divorced from the page layout, the surrounding stories, the photographs, and the advertisements that made up the original edition. The article appeared "clear of the context provided either by the original periodical editions or by any revision of those editions." That, the Court held, is reproduction of the contribution "standing alone," not "as part of that particular collective work." The Court offered a now-famous analogy: the databases were less like a microfilm reproduction of the newspaper — which preserves each article in the context of the full page and issue — and more like a library that had disassembled every periodical, then reassembled the individual articles into a giant, searchable catalog indexed by author and subject. Microfilm and microfiche stay within the privilege precisely because they reproduce the collective work intact; the databases did not, because their organizing principle was the individual article, not the edition. ## The dissent's marketplace concerns Justice Stevens, joined by Justice Breyer, dissented. He would have read "revision" more generously, emphasizing that the electronic databases faithfully reproduced the publisher's editorial contribution — the same articles the publisher had selected and edited — and that a user's ability to retrieve a single item did not change the nature of what had been stored. The dissent worried about the practical consequences: with electronic rights unresolved for decades of back issues, publishers might simply purge freelance material from historical archives rather than track down and pay every author, creating gaps in the electronic record of the nation's newspapers. The majority answered that these were remedial questions for the lower courts, not reasons to distort the statute. It stressed that "the parties (Authors and Publishers) may enter into an agreement allowing continued electronic reproduction of the Authors' works," and that speculation about archival deletion could not override the rights Congress had assigned. The choice between negotiating licenses and removing content, the Court reasoned, belonged to the market and to Congress, not to a strained reading of Section 201(c). ## Open questions *Tasini* resolved the status of full-text databases that isolate individual articles, but it left the boundaries of "revision" and "the same series" to be worked out case by case. Later litigation tested how the privilege applies to products that preserve more of the original context. In *Faulkner v. National Geographic Society*, courts confronted a digital archive that reproduced complete magazine issues as page images — a format closer to microfilm than to LEXIS/NEXIS — and generally treated such faithful, issue-based reproductions as permissible revisions. The line the Court drew thus turned less on the technology than on whether the user encounters the contribution embedded in its original collective context or extracted from it. Where a new digital product falls along that spectrum remains a fact-specific question. ## Implications - **Get electronic rights in writing.** For any freelance contribution, publishers who want database, archive, app, or web-syndication rights must obtain an express transfer or license; the Section 201(c) default will not supply them. - **Presentation to the user controls.** Whether a republication is a permitted "revision" turns on how the contribution is displayed and retrieved — embedded in the original collective work versus retrievable standing alone — not on the publisher's characterization. - **Faithful, issue-based archives fare better.** Digital reproductions that preserve the entire original edition (page-image archives, microform equivalents) are far more likely to fall within the privilege than searchable databases indexed by individual article. - **Legacy archives carry latent liability.** Publishers exploiting decades of back content should audit their freelance chains of title; unremediated electronic use of pre-transfer freelance work is an infringement exposure that settlement and licensing, not deletion alone, can cure. ## Frequently asked questions **What did Tasini decide about freelance articles in databases?** The Supreme Court held that publishers who bought only the right to publish a freelancer's article in a print periodical could not, without further permission, license that article to electronic databases like LEXIS/NEXIS. Doing so infringed the freelancers' copyrights because the databases reproduced the articles standing alone, not as part of the original collective work. **What is the Section 201(c) privilege?** Section 201(c) of the Copyright Act gives the owner of a collective work (such as a newspaper or magazine) a default privilege to reproduce and distribute each contributor's article "as part of that particular collective work, any revision of that collective work, and any later collective work in the same series." It is a narrow default that applies only when authors and publishers have not otherwise agreed on rights. **Did Tasini force databases to delete the articles?** No. The Court expressly noted that remedial questions were for the lower courts and that deletion was not the inevitable outcome. Publishers and databases could negotiate licenses or blanket payments. The litigation ultimately produced a class settlement, and many publishers moved to secure electronic rights in their freelance contracts going forward. ## Authorities and sources - *New York Times Co. v. Tasini*, 533 U.S. 483 (2001), Docket No. 00-201 (decided June 25, 2001). [Justia](https://supreme.justia.com/cases/federal/us/533/483/); [Cornell Legal Information Institute](https://www.law.cornell.edu/supct/html/00-201.ZO.html). - Oral argument and case summary via [Oyez](https://www.oyez.org/cases/2000/00-201). - Vote (7–2), Ginsburg authorship, and Stevens/Breyer dissent corroborated by [Wikipedia: New York Times Co. v. Tasini](https://en.wikipedia.org/wiki/New_York_Times_Co._v._Tasini). - Statutory text of the collective-works privilege, [17 U.S.C. § 201(c)](https://www.law.cornell.edu/uscode/text/17/201) (Cornell LII).