For The Huffington Post (HuffPo) these days, it’s not easy being rich. This past April 12, barely two months after the influential news website was acquired by AOL in a celebrated $315 million deal, one of its former bloggers and union organizer Jonathan Tasini sued both HuffPo and AOL in federal court in Manhattan, seeking more than $100 million of the jackpot sale price on behalf of himself and about 9,000 unpaid bloggers of the website. The suit claims that HuffPo “unjustly enriched” itself at the expense of the unpaid bloggers (including the writers on the website’s HuffPost Comedy) who were promised “exposure” from writing on the website.
The website’s founder, Arianna Huffington, has dismissed the lawsuit as having no merit because there was no contract for the payment of compensation to the bloggers. Some people have compared the bloggers’ lawsuit to the lawsuit by the Winklevoss brothers against Facebook, which was recently rejected by an appellate court.
However, since we are talking about using free content to build a profitable online business, a more appropriate comparison can be made to what sometimes happens in the comedy industry, when rookie comics are still trying to get their feet wet in the highly competitive world of stand up comedy. Usually at that early stage of their careers, most young comics are literally dying to get a venue to “showcase” their talents in the hope that they might be seen by important industry folks like booking agents, producers and casting directors. Or they might simply be looking for a venue to try out new material as they develop their craft. In such situations, it is common to find such rookie comics agreeing with the owners of comedy clubs and bars that they would appear in those venues and perform their stand up routines for free.
So, as it happens, the unpaid bloggers at HuffPo and the rookie comics are making the same kind of bargain with their hosts, which reads something like this: “You give me ‘exposure’ at your venue or your website and you don’t have to worry about paying me. I won’t look in your pocket.”
Now, suppose they turn around and ask to get paid for all their past work? Can they win?
Well, since they have no contracts for paid work, we are not dealing with a breach of contract situation with all those binding legal obligations. The way it is, the comic can decide to skip a scheduled appearance at the club house or perhaps show up at a different venue. And the blogger can decide not to submit his written piece to HuffPo’s editors by the agreed deadline or can even choose to submit it to another website altogether. Likewise, the club owner can decide to cancel the comic’s scheduled appearance or give his spot to another comic. And HuffPo’s editors can decide not to publish a written piece submitted by the blogger. In all these situations, there will be no legal headaches for anyone involved.
But the bloggers and comics can perhaps bring an action for “unjust enrichment,” just like the HuffPo bloggers have done. (This is a lawsuit in “equity”.) But here too, there is a catch: the bloggers and the comics have to show that at the time they made the appearance at the club or submitted the written piece to the editor they expected to “get paid” for their work and that the club owner or the website operator knew or had reason to know that they expected to get paid for their work and that it was not being done for free. Was that the situation here?
Although the HuffPo bloggers likely won’t end up winning their case, they can still play their cards in the public arena outside the courtroom where the emotions of public opinion rather than lawyer arguments in a courtroom carry more weight. Going back in history, one can recall that when some young comics inLos Angeles in the late 1970s tried to get paid for their work atMitziShore’s Comedy Store, these comics, including Jay Leno, David Letterman and Tom Dreesen, had to win their case out on the streets. They couldn’t win in court but, out on the streets, public sympathy combined with threats of business disruption at the comedy club to force the club owner to agree to start paying them for their work. Even so, the comics won a right to get paid going forward, not for past work, as the bloggers are demanding.
If the HuffPo bloggers play it right, they may perhaps win a chance of getting paid for future work. In this time of high unemployment, when the rich corporations are not so popular, many members of the public just might feel that any bloggers whose efforts yield such a huge windfall for a website should receive something more than just the benefit of “exposure” from the website.