Publishers shot by their own gun

BDN photo by Seth Koenig.

BDN photo by Seth Koenig.

I must admit that I read the news of the Portland Phoenix’s federal lawsuit against the publishers of DigPortland with an emotion most accurately described as glee. Both alternative weeklies are, technically, competitors of my publication, The Bollard, so there’s some satisfaction seeing them duke it out in what could be a very expensive legal battle.

But the greater satisfaction comes from the fact that DigPortland’s honchos are getting shot with their own gun.

The owners of the Portland Sun, who bought the Phoenix last month, contend in their suit that Dig publisher Marc Shepard and associate publisher John Marshall violated agreements they signed, when both held similar positions with the Phoenix, not to work for any competing publications or share proprietary information with rival papers. Shepard and Marshall appear to have done much more than that. In addition to publishing a rival paper, it seems they helped convince the Phoenix’s entire editorial staff (all two of them), 13 of its 18 freelance contributors and three of its five advertising reps to jump ship to the Dig.

There’s no doubt that Shepard and Marshall have used knowledge and business contacts they acquired during their time with the Phoenix to help launch its competitor. In its legal filing, the Phoenix complains that every advertiser in the Dig’s first issue is a current or former Phoenix advertiser, and that close to half of them have since stopped advertising with the Phoenix.

When the Portland Phoenix was still owned by the Boston-based Phoenix Media/Communications Group, it wielded these “non-competition” agreements like a bloody sword. In addition to full-time staff members, many freelance contributors were also bound by these agreements. I know this first-hand, having had conversations with freelancers who felt they could not contribute to The Bollard for this very reason.

Now, I’m no lawyer, but it’s my understanding that these kinds of agreements are not legally binding under Maine law. For freelancers, it’s a moot point — well before you got to the courthouse steps, the Phoenix would have dropped you like a hot potato, and not without reason (publications generally strive to offer unique content). For ad reps and publishers, the rules are murkier — this case may set the precedent.

One outcome that seems unlikely is the one predicated by Dig and BDN contributor Alex Steed, who called the Phoenix’s lawsuit “not a very bright move” that “really sours the punch” of what would otherwise be a harmonious alternative-journalism market. It’s sweet of Steed to imagine such a situation, in which the staff and contributors of both alt-weeklies praise one another’s work and together make Portland a more vibrant and informed community. But that’s a naïve dream.

The reality is that Portland cannot support two quality alt-weeklies. Very few places on earth can — see the demise this past October of the San Francisco Bay Guardian, which folded after its parent company bought its more profitable rival, SF Weekly. Better yet, Alex, look at the guy you’re working for: Marc Shepard.

After working for the Boston Phoenix, Shepard was hired to sell ads for the paper I once edited, Casco Bay Weekly, Portland’s locally owned alternative voice. He left CBW to help start its competitor, the Portland Phoenix, and takes pride in the part he played helping to bring CBW to its knees. Shepard then went to work for DigBoston, the Boston Phoenix’s bitter competitor, after the Dig helped send the Boston Phoenix to its grave.

Shepard and the Dig’s founding publisher, Jeff Lawrence, are certainly within their rights to start a business here and aggressively try to steal the competition’s advertisers and contributors. In fact, when the Dig started in Boston, I and other CBW staffers helped Lawrence and his team figure out how to produce their alt-weekly, on the assumption that “the competitor of my competitor is my ally.” But in the current legal fight, it’s hard to see how Shepard and his second crew of Boston marauders come out looking like the good guys in Portland’s court of local public opinion.

Lastly, glee aside, I’m also a little bummed to see this fight unfolding, because the writers and editors of both papers are good people. I was once in their shoes, and I know how difficult it is to try to produce good journalism when there isn’t enough money to pay for it (heck, I’m still in their shoes!). The full-time editorial staffs of the Dig and Phoenix combined are less than the editorial staff CBW had in its heyday, and this cheapness is embarrassingly evident on almost every page they publish.

Regardless of who wins this lawsuit, readers who appreciate good journalism seem bound to lose.

Chris Busby

About Chris Busby

Chris Busby is editor and publisher of The Bollard, a monthly magazine about Portland. He writes a weekly column for the BDN.