Robertson settlements hinge on having copies of original assignments

CORRECTION: Apparently the term "assignment" in the notice of settlement in the Robertson case refers to 3rd parties to whom rights may have been "assigned", not the assignment by the editor of the story, photo or illustration work. Claimants under the class action need only fill out the claims form and specify the work that they were responsible for. We regret the error and any confusion it may have caused. Make your claims. This is good news for freelancers, particularly ones who don't have written proof of the order from the magazine or newspaper.

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The drawn-out class action over copyright in what has become called The Robertson case is winding its way to a conclusion in which the best possible outcome will be a series of payments to freelancers and others who make a claim...provided they kept tidy and complete files.

The notice of the settlement was published in the Globe and Mail September 19. The accompanying claims form makes it clear that writers, photographers and illustrators claiming a share will need to provide written proof. For many freelancers, that may be harder than it at first seems since they are not only required to provide information about the articles or work, where and when each was published, and the length or nature of the work but, according to the claim form, also the original written assignment.

Since many of the possibly eligible articles may go back 15 or 20 years or more, the likelihood of having a copy of an original assignment letter for articles or illusrations from an editor (even assuming there was anything more than verbal instructions) seems remote.

The suit was launched more than 13 years ago by Heather Robertson on behalf of thousands of freelance writers claiming their work was reproduced electronically without proper permission or compensation.

In May, the defendants agreed to pay $11 million to settle the class action suit. The defendants were The Thomson Corporation (now Thomson Reuters Corporation), Thomson Reuters Canada Limited, Thomson Affiliated and Information Access Company (formerly The Gale Group Inc. and CTVglobemedia Publishing Inc. (formerly Bell Globemedia Publishing Inc.), the publishers of the Globe and Mail newspaper.

Effectively, however, this means there will be something like $4 to $5 million in compensation available to individual writers, photographers and illustrators for freelance work published prior to May 1, 2009 in various newspaper databases.

The rest of the $11 million is eaten up by

• $4 million in legal fees;
  
• plus a 10% fee to the Law Foundation of Ontario, whose Class Proceedings Fund financially supported the case; and
• Unspecified donations to the Professional Writers Association of Canada (PWAC), the Writers' Union of Canada and the Canadian Association of Photographers and Illustrators in Communications (CAPIC).

The awards to individual writers, photographers and illustrators will be based on a points system calculated on original fee paid for the work, the length of the work, and the publication in which the work first appeared. Alternatively, they can forego compensation and ask for their work to be taken down from Globe websites.

Writers who want to opt out of the settlement (thereby presumably retaining their right to sue separately) have to indicate this by no later than November 2, 2009.

Those who wish to file a claim must do so prior to January 18, 2010.