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the back of checks
even in the face of a clear, fully
executed copyright license detailing rights granted.
that such clients may be misleading themselves as to their
legal status is a comfort neither to us nor to the creators
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
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 present 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 photo
graphers 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.
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
TESTIMONY OF AMERICAN BUS INESS PRESS
American Business Press (ABP) files this testimony in opposi
tion to S. 2044 which would exclude periodicals from the "work for
hire" provision of the Copyright Act where an article is soli
copyright policy--as it existed both before and after enactment
periodicals include Aviation Week and Space Technology,
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 edi
The expense of publishing these outside
articles is borne by the publisher.
At the present time, the publisher is presumed to own the
copyright in a commissioned article as long as
there is an
express written agreement between the publisher and the author to
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 contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instruc
tional text, as a test, as answer material for a test,
an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work for hire. [Emphasis supplied. )
The foregoing section of the 1976 Act gives authors stronger
rights to ownership of a commissioned article than they had in
the pre-1976 Copyright Act.
The presumption existed in the
pre-1976 Act that the publisher and the author implicitly agreed
the publisher had the copyright where the publisher com
missioned an article from an author.
Brattleboro Publishing Co.
v. Winmill Publishing Corp., 369 F.2d 565, 568 (2d Cir. 1966).
Section 101 of the 1976 Act also vests ownership of the
copyright of a commissioned article in the publisher, but only if
Associates, 618 F.2d 1363, 1368, n.4 (Ninth Circuit 1980).
Additionally, the work for hire doctrine for commissioned
restricted by Congress in 1976 to certain categories:
collective works (periodicals), films, translations, compilations
and supplements, instructional texts, tests
kinds of commissioned work--e.g., musical compositions
and books not falling within the foregoing categories were
included as works for hire.
The report of the Senate Judiciary Committee accompanying the
1976 Act explains that the final language of the 1976 definition
of works for hire was
a compromise, when it stated:
Works made for hire.
Section 201(b) of the bill adopts one of the basic
The work-made-for-hire provisions of this bill respresent a carefully balanced compromise, and such they do not incorporate the amendments proposed by screenwriters and composers for motion pictures. Their proposal was for the recognition of something similar to the "shop right" doctrine of patent law: with some exceptions, the employer would acquire the right to use the employee's work to the extent needed for purposes of
his regular business, but the employee would retain all
The status of works prepared on special order commission was a major issue in the development of the definition of "works made for hire" in section 101, which has undergone extensive revision during the legislative process. The basic problem is how to draw a statutory line between those works written on special order or commission that should be considered as "works made for hire," and those that should not. The definition now provided by the bill represents a compromise which, in effect, spells out those specific categories of commissioned works that can be considered "works made for hire" under certain circumstances. [Emphasis supplied.]
Under the 1976 Act, an author commissioned to write an
the publisher's copyright by not signing a work
for hire agreement.
It is difficult to see what practical pur.
posel is served by S. 2044 other than to upset a carefully crafted
tion for the author among his professional peers and the public,
Ithe elimination of periodicals from the work for hire provi
sion also would mean that after 35 years, copyright in