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the broad exposure that work for hire provides.
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
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.
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
the recycling of a work to additional buyers
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
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
According to the legislative history of the 1976 Copyright
Act, the concept of "work made for hire" was intended to be "a
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.
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.
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
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.
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
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
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
1 Nimmer on Copyright Law p. 5-14; see cases cited in
advance of the work's creation.
Nimmer states that typically
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./
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.
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.
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
1 Nimmer on Copyright Law at p. 5-14 ("a work created by an
See e.g., Omni Magazine author contract attached to the