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the broad exposure that work for hire provides.

A writer

soon discovers, however, that while the publisher benefits

from the sale of subsidiary rights, "exposure" does not pay

the writer's bills.

Our cultural history is blemished by the way the market

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and shrinking markets for writing threaten the survival of the

independent writer as never before.

In 1977, Daniel Rapoport (now WIW's President) reported in

the Washington Journalism Review that some national magazines

paid the same fees as they did back in 1870, when Henry James

was a freelance writer.

The general economic outlook for writers

has improved little since 1977.

As noted by a Columbia Journalism

Review article in the fall of 1981: "Whether they rely on savings,

the income of a spouse, or a full- or part-time job, most free

lancers cannot get by on what they make."

Too many publishers pay as low as 8 to 10 cents a word for

A 4,000 word feature-length magazine a sum equal to a $25 per week wage, would be this writer's

a freelance written article.

piece, which took four weeks to research, write, and revise, might

earn its author $400 after publication, or $100 per week.

If the

commissioned arti

is not published

to vagaries of the market

place, a "kill fee" of 25 per cent of the agreed-upon payment, or

return on a month's work.

Capricious publishing fee schedules and other practices

force freelance writers to depend upon the sale of subsidiary

rights

the recycling of a work to additional buyers

in

order to recoup the initial investment of time and resources.

In a "work made for hire" situation, however, that opportunity

is denied to freelance writers.

In demanding work for hire,

publishers use their unequal economic bargaining power in the
marketplace to extract a blanket assignment of all rights from

the work's creator, usually in exchange for the equivalent of

an one-time publishing fee.

WIW affirms the concept that each author should have the

opportunity to negotiate in separate contracts the resale of every

right accruing from a creative work.

This organization, therefore,

supports S. 2044, which Sen. Cochran has introduced, as a means of

closing loopholes in the "work made for hire" provision of Sec.

101 of the Copyright Act that perpetuate these publishing abuses. WIW is grateful to the Members of the Committee, especially Sen.

Mathias, for the opportunity to present the following specific concerns and experiences of its members regarding "works made for

hire."

According to the legislative history of the 1976 Copyright

Act, the concept of "work made for hire" was intended to be "a

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carefully balanced compromise," 1/

a compromise between the presump

tion that the creator of a work owns the copyright and what the

Congress saw as the legitimate interests of employers.

However,

because of widespread abuses by the publishing industry, the balanced compromise Congress sought does not exist. Congress,

therefore, must act to correct these abuses and assure that the

rights of a work's creator are protected.

Works Created by an "Employee."

In the case of work created by a true employee, it is

arguable that the publisher should own the copyright.

In exchange

for providing the employee with a salary, fringe benefits, (e.g.,

sick pay, worker compensation, and paid vacations), a workplace,

and supplies; and by actively supervising the employee's day to

day activities, the employer can claim ownership rights in the

employee's work.

Typically, a publisher provides a freelance writer with

none of the traditional benefits of employees.

A freelancer pro

vides his or her own workplace, and is paid a flat fee only upon

acceptance of a work.

The publisher provides no insurance or

other benefits; nor does the publisher actively supervise the

freelancer during the preparation of the work.

1/

H. Rep. No. 94-1476, p. 121; S. Rep. No. 94-473, p. 104.

Despite the clear indication that a freelancer is an

independent contractor rather than an employee, WIW knows of a

number of instances in which publishers, without any written agreement with the writer, claim that the freelancer is an "employee"

for the purposes of the Copyright Act. Therefore, without agreeing in writing to "work for hire," the freelancer is faced

with the publisher's claim that it owns the copyright to the

freelancer's creation.

Because of the time and expense involved

in litigating the copyright issue, and the fear of retaliation by

the publishing industry, WIW has found that freelancers generally

relent rather than fight.

One reason that publishers can make this claim is that the

Copyright Act does not define the term "employee."

As noted by

Melville Nimmer, a leading commentator on copyright law, the courts are neither clear nor consistent in deciding who is an employee and who is not. 2/

WIW asks that the Committee clarify the Copy

right Act by restricting the definition of "employee" to those

situations in which the writer both receives the benefits and is

under the direct supervision typical of true employee status.

Works Specially Commissioned or Ordered by the
Publisher For Specific Types of Publications

According to both Prof. Nimmer and representatives of the publishing industry, work for hire should apply only to a particular work that is specially commissioned or ordered by the publisher in

2/

1 Nimmer on Copyright Law p. 5-14; see cases cited in
footnote 18.

advance of the work's creation.

3/

Nimmer states that typically

a

commission' involves a request by the publisher that the author

prepare a specific copyrightable work, with the publisher's request being the "motivating factor" in producing the work./

The

Magazine Publishers Association, in its testimony before this

Committee, goes so far as to suggest that "work for hire" applies only to works conceived by the publisher. 5/

However, the reality of the publishing world, as experienced

by WIW members, is contrary to these lofty notions.

For example,

some WIW members have been presented "work for hire" agreements,

even though they had completed the particular work before they had

any contact with the publisher. In other instances, authors were coerced into endorsing checks with "work made for hire" agreements

stamped on the back, in order to get payment for work already

accepted by the publisher without such an agreement.

Other publishers

use "work for hire" agreements, even when the idea for the work originated with and was suggested by the author. 6/

In none of these instances was the publisher the "motivating

force" behind the work; yet in each case, the freelance writer

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1 Nimmer on Copyright Law at p. 5-14 ("a work created by an
author prior to any relationship with the putative employer
could not under any view be regarded as falling within the
'for hire' doctrine").

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See e.g., Omni Magazine author contract attached to the
testimony of the American Society of Journalists and Authors,
Inc.

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