STATEMENT OF THE SOCIETY OF PHOTOGRAPHER, AND ARTIST REPRESENTATIVES, INC. by Edith Leonian, Chairperson, Copyright and Industry Practices Committees, SPAR The Society of Photographer and Artist Representatives, Inc. (SPAR) is a professional association based in New York City, with chapters in Atlanta and Chicago. Our members represent an estimated ninety per cent of the top self-employed photographers and illustrators whose work appears in national media. One of our basic functions is to negotiate on behalf of the visual authors we individually represent the terms of license for reproduction of specially commissioned graphic works. We are, so to speak, in the "front line" of the practical application of that part of Section 101 of the Copyright Act of 1976 addressed by Senator Cochran's proposed amendment to the definition of "work made for hire." In the normal practice of our industry, the compensation for commissioned artwork and photography is arrived at by negotitation based on both objective and subjective factors, among them the amount of time involved, the degree of skill or specialized knowledge required, the perceived status and reputation of the creator, and the contemplated usage. The extent of rights granted acts almost as a multiplier of the basic range established by the other factors for a minimal use (such as the most common grant to magazines one time reproduction rights.) - The introduction of the principle of divisibility of copyright in the 1976 revision of Title 17 reflected the existing practice of our trade, and we expected little or no dislocation when the Act took effect in January, 1978. We were aware of the "work made for hire" exception to the rule vesting copyright in the author of a work, but tended to regard it as a business decision, not a moral question. Licensing "all rights" generally calls for fees anywhere from three to ten times those involved in licensing specific uses for limited periods. rights: "Work made for hire" involves two rights more than "all" 1) the creator's right to otherwise terminate any grant of license in thirty-five years; 2) authorship. The value of the first seems somewhat remote, even to a client, since publishers survived very handily under the old law under which they received only 28 years. Loss of the right to terminate could make a substantial difference to the estate of the creator, and to the income of his or her family, however. The value of the second right, authorship, while minimal in monetary terms from a corporate point of view, is inestimable from that of the true author of a work. Since the vested "worth" of these rights is so much greater for the visual artist than for the publisher, it seemed to us more likely that prospective users would "settle" for "all rights." We could not help but feel that some such scenario was what Congress had in mind by requiring a written prior agreement before an eligible work could be considered a "work made for hire." Those were our expectations. What has actually happened Experience has taught us to associate the phrase "work made for hire" with has been a lot less logical, and a lot more onerous. attempts to "take" rights without adequate compensation with imposition rather than negotiation. Point: Most of those magazines who routinely request that "work made for hire" contracts for commissioned art or photography be signed expect to pay exactly the same for this vast bundle of rights as they had been paying over the years for "one time reproduction rights." Point: "Work made for hire" contracts are often presented for signature after the terms of an assignment have been negotiated; after the work has been executed after the work has been published. - even Point: Covering letters accompanying such contracts are frequently disingenuous, indicating that signature is needed in order that work may be published at all; that signature is merely a formality with no effect on the grant of rights; that signature is required before payment will be made; etc. Point: The lower level employees of conglomerates who commission photographs or artwork may in good faith bargain for "work made for hire" at minimal fees based on the limited use actually intended, their perceived inability to negotiate with their own organization's bureaucracy and the trust relationship they have established with their suppliers. Once acquired, the work then passes out of their control and may be used in other publications, in advertising, or for purposes which would normally require royalty arrangements such as trademarks or direct sale to the public. Visual work is peculiarly vulnerable to this kind of recycling and commercial exploitation. Point: There is an assumption, however unjustified, on the part of those who obtain "work made for hire" that ownership of the physical art or photograph is included. This makes retrieval of the property at best a tough negotiation. At worst, irreplaceable works of art are caught in the inexorable flow of files, transferred to "dead" storage, Because of the mere existence of the "work made for hire" exception, attempts are made to impose the status even where the intended use does not qualify under the existing second definition in Section 101 of Title 17. Artwork and photography are not commissioned by attorneys corporations whose counsel are necessarily conversant with the niceties of copyright law. almost always after the fact nor even by So the phrase shows up - on purchase orders requiring signature; on purchase orders not requiring signature; on the back of checks even in the face of a clear, fully executed copyright license detailing rights granted. The fact that such clients may be misleading themselves as to their legal status is a comfort neither to us nor to the creators we represent. We feel the only healthy situation is one in which the perception of rights acquired and the fact be one and the same. Our members do the best that they can to clarify understanding, but in the real world, as individuals dealing with bureaucracies, a point is reached where such efforts become counter-productive. At that point, the best of us, and the best of the talent whether we represent them or not, find we must simply walk away. The creators we represent, being by and large the elite of the field, are able to risk the loss of income which such action may involve. They and we are most concerned about those who are most vulnerable to losing their authorship under "work made for hire" young artists and photographers, easily intimidated, who do not understand that what they are signing away is not only their présent advantage, but their future assets and the basis of their estates. - We are concerned as well about the visible loss of graphic quality in the nation's publications which is resulting from the reduced participation of the best of America's photographers and artists. S 2044, the amendment offered by Senator Cochran, goes far toward alleviating the problems of lierary authors, but would leave visual authors still partially vulnerable. We hope that the Committee will give full consideration to extending the language of the amendment either by removing references to "supplementary works" from clause (2), or by making it clear that works of visual authorship are not intended to be included in that category. Respectfully submitted, THE SOCIETY OF PHOTOGRAPHER by Edith Leonian TESTIMONY OF AMERICAN BUSINESS PRESS American Business Press (ABP) files this testimony in opposition to S. 2044 which would exclude periodicals from the "work for hire" provision of the Copyright Act where an article is solicited by a publisher from a writer who is not an employee of the publisher. We believe enactment of S.2044 would represent an unwarranted reversal of longstanding judicial and legislative copyright policy--as it existed both before and after enactment of the Copyright Revision Act of 1976. ABP is a publishers' association of over 500 specialized business, technical, scientific and professional journals circulated nationally and internationally. A list of the members of ABP is attached. The information created and published by ABP publishers is vital to key decisionmakers in every segment of American technology, industry and business. Examples of ABP periodicals include Aviation Week and Space Technology, Datamation, Defense Electronics, Iron Age, Laser Focus, Medical Economics, Public Utilities Fortnightly, Railway Age, Telephone Engineer and Management, and Word Processing and Information Systems. ABP periodicals employ full-time editors who are experts in the highly specialized fields covered by these publications. Frequently, they also commission outside experts to write articles of interest to readers in order to provide better editorial coverage. The expense of publishing these outside articles is borne by the publisher. own the At the present time, the publisher is presumed to copyright in a commissioned article as long as there is an express written agreement between the publisher and the author to that effect. Section 101 of the current Copyright Act defines a work for hire for commissioned work as follows: "a work specially ordered or commissioned for use as a |