Bloggers & the Law: Bloggers Sue Arianna Huffington, AOL & Huffington Post for Unjust Enrichment

While speaking at Retail Camp last weekend, a Journalist turned Fashion Blogger in the audience inquired into why I required  my writers at Ladybrille sign an agreement. She explained that as a Journalist she never had to sign an agreement. I responded to her that as a Journalist I also, with one exception, have never had to sign an agreement for the publications I have written for. However, as to how I ran my own business, with my knowledge as a lawyer, it was important I have these agreements in place to avoid any issues.

The current lawsuit against Arianna’ Huffington’s Huffington Post underscores my point.

Where the world of social media is headed remains to be seen. But, it sure looks very interesting and as more monies exchange hands, I expect to see even more law suits. Here’s the deal:

1. Bloggers you create content. That content under copyright law belongs to you the moment it is “fixed in a tangible medium of expression.”

2. What does having a copyright mean for you? It means you have a bundle of rights that are yours. They are: reproduction, distribution, performance and display rights and the right to create adaptations of your work. It is important to know that only you the author has these set of copyrights.

3. Now, let’s say as in the Huffington Post case you will read below, you decide to take your content i.e. your articles and upload on Huffington Post. Let’s further say Huffington Post has you explicitly sign a valid legal agreement that says in exchange for publicity and exposure i.e. credit, you have to submit your articles for free. You agree. Huffington Post essentially then becomes more of a content aggregator, to use the term loosely. Its value increases thanks to its 9000 bloggers, yourself included. Its owner sells the site and it is acquired by AOL for $315million. Can you recover when you expressly gave your rights away?

First, lawyers (trial lawyers i.e. litigators) can and will always find something to sue about. So, the question cuts straight to the chase on whether you can successfully prevail in such suit, not whether you can sue Huffington Post. The Huffington Post, to my knowledge,  is a case of first impression and depending on what happens here, I expect to see even more lawsuits of this nature.

Can you recover?

The bloggers in the above case are trying a class action suit under an “unjust enrichment” theory. To prevail, they must show:

1. Huffington Post is enriched by $315million thanks to the acquisition by AOL;
2. The enrichment was at the expense of bloggers who contributed all of their articles and now seek restitution (compensation); AND
3. The circumstances, writing for free to make the online site $315million richer, is such that in equity and good conscience restitution should be made; AND
4. Huffington Post knew of the benefit the bloggers gave it and compensation should be reasonably expected (additional requirement).

Short Term Goal, Get the Money
For the bloggers, it is about getting paid right now. That $315million needs to be shared. But, what about the long term implications for both publishers and bloggers/writers?

Publisher Perspective: If the Huffington Post bloggers prevail, we make it very hard for small businesses to grow and to give bloggers or writers the platform for exposure when these publishers fear they will be sued later. These are adults who knowingly entered into a contract. That they negotiated a bad deal for themselves does not mean they get to come back and demand payment. They signed a contract and it is what it is. It is very bad for business when courts try to impose new terms in a contract after the fact. There was never a future promise of payment. They don’t like the terms they signed up for, they can leave.

Blogger Perspective : Even if as a blogger I waived my rights initially, when you become rich as a result of my work and that of my fellow bloggers, we shouldn’t have to tell you to pay us. You should pay us. It is the morally right thing to do. Five years ago, none of us knew blogging will be where it is today. It is now a professional job, clearly as you have made $315million off our labor and sweat so it is the right thing to do.

What is the legally right thing to do? What is the morally right thing to do? Should, as a matter of public policy, people who enter contracts be allowed to sue because they short changed themselves in the deal they signed?

Let’s take a look at the music industry. Artists sign bad deals often with record labels. If we permit the result the bloggers seek how does that affect industries like the music industry? What about film? Actors and actresses act in a film, they get paid. The film grosses millions, more than anyone could imagine. Should these actors and actresses be allowed to return and ask for compensation with the same argument of unjust enrichment?

Shouldn’t business owners expect some finality when they do business? Should they have to look over their shoulders worried about when or where the next law suit will come from? These are all tough questions blogging and the law raises and it is one the courts certainly have to address.

Here we go with the story:

Above the Law reports:

“The gorgeous and glamorous Arianna Huffington, reigning empress of the liberal blogosphere, has been sued by some of her not-so-loyal subjects.

This morning, a group of unpaid bloggers for the Huffington Post, led by union organizer and journalist Jonathan Tasini, filed a class-action lawsuit against the HuffPo; its foundress, La Arianna; and media giant AOL, which bought HuffPo back in February. The gist of the lawsuit, as Tasini told Jeff Bercovici of Forbes, is that the site’s unpaid writers “must share in the value they create” — $315 million worth of value, based on what AOL paid for the Huffington Post.

As a writer myself, I’m all in favor of writers being paid for what they do. But the lawsuit against HuffPo strikes me as a bit dubious….

Writer compensation should be determined in advance, as a matter of contract. It should not be imposed after the fact, through litigation — and after the writers in question expressly agreed to write for free (as they are perfectly capable of doing, in this free country of ours).

In a press conference this morning, Jonathan Tasini used some over-the-top rhetoric to explain the lawsuit: “In my view, the Huffington Post’s bloggers have essentially been turned into modern-day slaves on Arianna Huffington’s plantation.” My knowledge of U.S. history could be better, but my recollection is that slaves didn’t consent to their enslavement. And weren’t fed Greek cookies and rugelach when the plantation got sold for millions.

Tasini continued:

“[Huffington] wants to pocket the tens of millions of dollars she reaped from the hard work of those bloggers….This all could have been avoided had Arianna Huffington not acted like the Wal-Marts, the Waltons, Lloyd Blankfein, which is basically to say, ‘Go screw yourselves, this is my money.’”

Ah, okay — now we’re getting more traction. This isn’t a legal argument, but a moral one, as well as a public-relations point. And liberals care about morals and PR and stuff, right?

(If a conservative person acts greedily, at least they’re not being hypocritical. The names trotted out by Tasini — Wal-Mart, the Waltons, Lloyd Blankfein — don’t cause conservatives to cringe.)

“We are going to make Arianna Huffington a pariah in the progressive community,” Tasini vowed. “No one will blog for her. She’ll never [be invited to] speak. We will picket her home. We’re going to make it clear that, until you do justice here, your life is going to be a living hell.”

In other words: “Arianna, we’re going to annoy the hell out of you, until you make this case go away through settlement. Maybe you can give us all free digital subscriptions to the Huffington Post?”

Setting aside the morality and public-relations issues, what is the legal theory here? From Jeff Bercovici:

Jesse Strauss, an attorney for the plaintiffs, said the suit is based on a claim of unjust enrichment. “The legal theory we’re going on is one based in common law,” he said. “This is not a statutory claim….This is not a contract claim. . .”

Full story on Above the Law.