In the summer of 2001, thousands of freelance journalists made headlines when they took on some of America’s biggest media outlets. In a strongly-worded lawsuit, 2,500+ freelance writers and various writers’ guilds, alleged that the New York Times, Dow Jones, and the now-defunct newspaper behemoth Knight Ridder were allegedly profiting off their work and not fairly compensating them for it. After a 17-year-long legal battle, the case has finally come to a head, and the freelancers are walking away with a $9 million victory.
The case got its start after nearly 3000 freelancers branded to together to allege that the publications had run afoul of copyright law by selling their articles to LexisNexis for inclusion on the electronic database without their authorization and without paying them. Turns out, it was common practice up until the early 2000’s for many newspapers and magazines to take articles that had been published in print beginning in the 1980’s (before electronic databases were first used by newspapers) and to sell the digital rights to those article to online databases.
The problem, according to the writers guilds and the thousands of writers, themselves, was that the authors had only agreed to the one-time publication of their articles by the newspapers and magazines and had not agreed to – nor had they been paid to – have their work reproduced electronically.
“The correct thing to do would have been to ask the freelance writers for permission [to license their articles to LexisNexis] and then pay the writers,” former Times reporter and editor James Gleick, who was one of the named plaintiffs in the lawsuit, told the Times recently, reflecting on the long-running case.
The recent settlement, in which a least a few freelancers are expected to receive six figure payouts (each individual’s settlement amount will differ depending on how many articles they authored, etc.), is a victory. It is not, however, without some noteworthy takeaways in 2018 when – according to a 2016 McKinsey study – some 68 percent of the U.S. workforce consists of freelance, or independent, laborers.
Particularly striking is the time frame: It took a whopping 17 years for almost 3,000 freelancers to be paid fairly. It is “certainly a victory tinged with bitterness,” plaintiff James Gleick told the Times, “because 17 years doesn’t make sense.”
Second, these lawsuits (and even much more simple acts of freelancers voicing concerns) are not without real risks. As freelance journalist Joan Oleck – who was one of five named plaintiffs in an earlier lawsuit against the New York Times, Newsday, Time magazine, and LexisNexis in 1993 – noted in an recent article for Entrepreneur, “the [New York] Times's legal team [sent out a letter] ordering editors at the paper to blacklist us five plaintiffs” for filing the lawsuit.
While that alleged instance of retaliation took place 25 years ago and the New York Times has not come under fire since, Oleck says that abuses still run rampant amongst other entities in the publishing world.
“Earlier this year," she write, "I had a long-term freelance gig ripped from me … My crime: I'd demanded (politely) to be paid on time ... I was terminated for that demand.” Oleck aptly notes that such an “act of retaliation is a no-no under New York's freelance protection law, and the city's Department of Consumer Affairs agreed, helping me to file my claim, which was successful. I was reinstated to the publication's freelance ranks.”
But she is not alone in her account of less-than-ideal treatment of freelancers, who have come to serve as common tools for companies looking to sidestep the costs that come with full-time employees.
Consider the $200,000-plus lawsuit that 40 freelance creatives filed against Ebony Magazine last year, alleging that the media giant failed to compensate them in violation of state wage and labor laws. According to Larry Goldbetter, the president of the National Writers Union, which represented the class of individual freelancers in the since-settled lawsuit, the case was the necessary next step in the fight to organize freelancers to fight against "publishers seeking to exploit creative labor."
Such a movement, Goldbetter says, was necessary, as "freelancers are oftentimes at the mercy of the publications they write for, often lacking union protections other workers have and with many afraid of being blackballed for speaking up about nonpayment.”
That lawsuit came amidst widespread complaints within the fashion industry – and beyond – about the terms of massive publications' deals with freelance writers and other creatives. For instance, last spring, Vogue's parent company Condé Nast made headlines for adding language to its freelance contracts to allow for quicker payment in exchange for a discount on the agreed-upon rate. This set the industry and the internet abuzz with fury, while Condé Nast later stated that the new language is meant for larger vendors, such as Staples and FedEx, and not individual creatives.
Right around the same time, Digiday published a “confessional” conversation with a fashion industry freelancer, who told the media and marketing publication that freelancers’ pay can be dismal: “The highest online rate I’ve gotten so far was $700, and the lowest I’ve gotten is $100.” The payment schedules can be slow: “You don’t get paid until months after you file your stories.” The level of competition is fierce: Freelancers are “fighting for space in an increasingly competitive landscape and getting paid much less than their on-staff counterparts.”
Finally, one of the commonly cited qualms: It is not unheard of for editors to steal freelance pitches. “I pitched an editor some ideas they rejected, and later, I saw those ideas posted on their site and written by someone in-house,” the freelancer speaking on the condition of anonymity told Digiday.
These recurring claims were echoed in a 2016 Freelancers Union survey, which found that freelancer wage abuse, in particular, is a widespread epidemic in New York and other major cities in the U.S. with “more than 70 percent of freelancers in New York alone report that they have trouble getting paid for their work.”
Taken together, these lawsuits and the array of individual claims seem to clearly indicate that abuse still runs rampant when it comes to the independent workforce. They further emphasize just how far the fashion industry still has a long way to go, even in light of emerging freelancer protections, to adapt to the changing landscape that is modern-day employment.