Could Guest Bloggers Sue?

Collaborative blogs, and inviting guest bloggers, is one of the most effective ways to maintain continuity for professional blogs. But who owns the intellectual property of the posts, especially if the site goes commercial with the intent to gain profit?

Jonathan Tasini started writing for the Huffington Post when the site was just 7 months old, writing 216 pieces, and stopped blogging on February 10, 2011, just 3 days after a purchase of the site by AOL was announced.

He’s launched a class-action lawsuit against AOL Inc., TheHuffintonPost.Com, Inc., Arianna Huffington and Kenneth Lerer for damages and injunctive relief. The entire claim can be found on the site dedicated to the suit set up by Kurzon Strauss LLP. One of Tasini’s lawyers, Jeff Kurzon, is a McGill Law graduate.

The preliminary statement raises an interesting question,

1. This action seeks to vindicate the fundamental principle that the creators of value deserve to be compensated and, in particular, addresses the important issues of (a) whether in the digital age, profitable digital media sites should be required to compensate the creators of valuable content from which such sites derive substantial revenues and (b) if so, how the creators of content should be compensated.

The claim makes a point in para. 12 of noting that Tasini was also the lead plaintiff in the class-action, New York Times Co. v. Tasini, 533 U.S. 483 (2001), which was successful at the Supreme Court of the United States in finding that the New York Times could not license freelance journalist work in back issues of electronic databases.

The $105 million claim would entitle the site’s 9,000 bloggers damages for $11,666. The basis of the claim is grounded in deceptive business practices under N.Y. Gen. Oblig. Law §349. Mark Wilson points out that no such provision exists, and it’s likely that N.Y. Gen. Bus. Law § 349 was what was intended:

Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.

As Wilson notes, the claim does not substantiate where promises of exposure were made by the Defendants.

The second basis for the claim is under the common law principle of unjust enrichment. Wilson points out that the Huffington Post’s Terms and Condition do not contain any “valid and express agreement between the parties” regarding payment, but there was no contract either. However, Strauss has been quite clear that the claim is not based on contract or a statutory claim.

Jeff Bercovici interviewed Jimmy Nguyen of Davis Wright Tremaine over the claim, and Nguyen pointed out some problems with getting the case certified, especially if some of the bloggers state they were treated fairly.

Wilson adds some additional points on class certification,

…do the class members all have the same case, arising from a similar set of facts? With 9,000 potential class members, that seems attenuated. Were all bloggers treated the same? Some undoubtedly generated more traffic than others, meaning that any injury they suffered was greater (unless they also received more exposure for their personal websites, which would tend to mitigate their injuries).

The question of injury to any individual blogger is a pretty individualized question. Not all bloggers benefitted the same. Not all bloggers put the same amount of work into Huffington Post. If their work were given a value, probably a very small number of bloggers – much less than 9,000 – could say they deserved a significant amount of money.

I expect the class will not be certified because the “questions of law or fact” are pretty individualized, at least based on this definition of the class. That any person who has ever blogged for Huffington Post suffered injury, and how much injury they suffered, is in question.

Tom Hayes is already joking that we can call him a “digital scab,”

Writers need to think differently about their careers now, need to be their own brands, in demand for their unique skills and product. Rather than think like employees, we all need to see ourselves as entrepreneurs — we all work for ourselves now. And, like smart businesspeople, sometimes you use lose leaders, like an unpaid post here and there, to drive traffic or make a sale elsewhere.

One of the bigger questions is whether collaborative blog sites will take a different approach moving forward. Mike Young suggests webmasters take the following steps to avoid these problems in the future,

(1) clearly states the work is donated, (2) there’s no compensation for it, and (3) identifying the intellectual property rights you’re getting to the blog posts.

The flip side is that Tasini’s lawsuit might also help resolve the question of how to deal with collaborative blog sites. Bercovici states,

Even if Tasini does succeed in getting certified, a judge could still easily rule that there’s nothing inherently unfair about the arrangement, whatever the writers in it may have belatedly decided. Since Tasini has said his bigger goal with this suit is to get it enshrined in law that writers must be paid for the value they create, such an outcome would be, for him, a worst-case scenario. Says Nguyen, “He could create a precedent that’s the opposite of what he wants to create.”

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Comments

  1. Since I am not a lawyer, I have to ask this dumb? quesiton… if this were a Canadian suit, wouldn’t the principles laid out in Robertson v. Thomson Corp. 2006 SCC 43 apply? The SCC held in part that “A non‑exclusive licence granting the right to republish an article in databases or CD‑ROMs does not need to be in writing.”

    By voluntarily posting on a site like Slaw wouldn’t that be, in essence, granting a non-exclusive licence over authored works?

    Thanks in advance for educating me.
    Shaunna

  2. Shaunna, That’s not a dumb question at all.
    A brief look at Robertson seems to demonstrate closer parallel to Tasini’s Times suit, not the Huffington Post, given the focus on republication in databases.
    Unjust enrichment exists in Canada, and was recently commented on by the SCC in Garland v Consumers’ Gas Co. and Pacific National Investments Ltd v Victoria (City). Canadian courts considering unjust enrichment will also look at commercial realities and the expectation of parties when considering detrimental reliance in the absence of contract.
    These cases added additional steps to the analysis of unjust enrichment, including a public policy consideration for denying restitution.
    Mitchel McInnes’ comments on Garland and Pacific are worth reviewing.

  3. I suspect that the result of Mr Tasini’s further suit will be that engagements of writers will become ever more explicit that the writing may be published in any medium at any time, and that compensation for that writing will not increase significantly to account for the breadth of the newly permitted use. Silence on payment will be expressed to mean no payment will be forthcoming. I doubt that Canadian online publishers will need to wait until Ms Robertson brings a second Tasini-like suit to reinforce this understanding.

    In short, I find the new suit to have very little merit and even less likelihood of producing longer term gain for writers, especially those who write without an agreement for payment ahead of time.

    However, just to be on the safe side, as a Slaw columnist, I am giving the Administrator notice that I insist that my remuneration be doubled immediately, before the terms of our implied contract can be amended against my interests.