AI and Work-for-Hire: How Journalism Was The Canary in the Coal Mine

Where SAG/AFTRA and freelance journalism intersect

AI scans are one of the issues in the SAG-AFTRA and Writers’ Guild strike. The former union has rejected a contract condition that would allow production companies to scan the faces and bodies of the actors filling minor roles and to be able to use those likenesses in perpetuity. This sort of rights grab has plagued freelance journalists and writers for years, and represents one of the factors that has contributed to undermining newsrooms across the country. 

In 2001, Ruth Bader Ginsburg wrote the majority decision (7-2) for Tasini v. New York Times. The court ruled that the Times had violated the copyrights of freelance writers whose articles the company had sold to the search engine Lexis/Nexis and which were also bundled into DVD-ROMs that the Times had created.

While the Tasini case was a short-term win for freelancers, it led to a longer-term loss. The New York Times and other publications have rolled back Tasini by embedding work-for-hire clauses in their contracts.

Work-for-hire contracts strip freelancers of their copyrights. Until fairly recently, freelancer writers, journalists and audio producers retained the rights to their work upon publication as standard practice. The idea was that staff members would work under work-for-hire terms because they were enjoying the benefits of stable employment while freelancers had hustle constantly to find new work. The platform hosting the freelancer’s piece might retain rights such as a publication exclusive for a set number of days, but the creator could subsequently use the material in a book or a different version of the story.

But the journalism landscape has shifted dramatically. Last year, a report on the health of local journalism reported that 60% of the jobs in those newsrooms disappeared between 2006 and 2021, a drop from 365,460 to 104,920. This only considers local news, and doesn’t include audio outlets or platforms such as Buzzfeed, National Public Radio, or The Washington Post, which are just a few of the outlets that have closed or laid off staff this year.

As a result, the ranks of freelancers have swollen. These members of the precariat must navigate challenges like reading and understanding contracts and negotiating pay on their own while also scrambling for work.

Meanwhile, pay rates have plummeted at the same time work-for-hire contracts have become increasingly standard. For example, in 2019 an article on forest fires raging in the Brazilian Amazon earned me $500. A decade earlier a similarly complex story about failures in a post-Katrina home-rebuilding program earned twice that amount.

Today, not only are rates often largely symbolic but, in terms of text journalism, the number of places open to pitches seems to shrink regularly. This has an enormous impact on who has the ability to report and on what stories get told. A colleague in Appalachia who had won a prestigious fellowship a few years ago just announced that he would be pivoting to nursing. For my part, I’ve taken on various side gigs that have no relationship to journalism or communications.

The lack of organized representation further stymies freelancers. The Writers Guild and SAG/AFTRA represent some newsrooms, but freelancers are generally excluded from these agreements and left to fend for themselves.

There are some efforts to remedy this shortfall. I spoke with dozens of freelancers inside and out of the U.S. about their work-for-hire contracts during my tenure as an organizer with the Industrial Workers of the World’s Freelance Journalists Union, and the Freelance Solidarity Project has launched a campaign addressing the threat tied to generative AI. In 2016, New York City passed the Freelance Isn’t Free Act, guaranteeing independent workers the right to full and timely payment as well as a written contract.

Still, efforts to challenge work-for-hire clauses have been piecemeal, a reminder of the ongoing effort involved in building the kind of power that can culminate in a strike like the SAG/AFTRA and Writers’ Guild action.