carefully balanced compromise," 1/ a compromise between the presumption 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. A freelancer pro Typically, a publisher provides a freelance writer with none of the traditional benefits of employees. 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 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 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.4/ 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. 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 37 1 Nimmer on Copyright Law at p. 5-14 ("a work created by an 6/ Summary of MPA Statement at p. 9. See e.g., Omni Magazine author contract attached to the lost all rights to his or her creation. These situations are clear examples of the publishing industry going beyond the intent of Congress in demanding that freelancers agree to work for hire. Another clear abuse of work for hire is the ongoing work for hire agreement. Generally, these agreements apply not only to the particular work that the author is creating at the time the agreement is signed, but to "all articles written by [the author] and pub7/ lished by [the publisher]" in the future. Under these agree ments, the magazine is claiming the copyright to all the author's future work that it publishes, even though the publication is commissioning only a single work. Often, a freelancer will conceive of an idea for a work and query one publisher at a time, with either a proposal or a finished manuscript, until he or she finds a buyer. In this situation, the work was the author's idea: the work was not specifically commissioned or ordered in advance by anyone, and was not "created to fill the needs of a specific employer or a market. Therefore, work for hire clearly should not apply. However, if the writer previously signed an ongoing "work for hire" agreement with a publisher, that publisher likely will claim that it owns the copyright to the work, even though its actions are contrary to the letter and spirit of the law. 1/ Signature line of Rolling Stone Magazine contributor's agreement, attached to the testimony of ASJA. 8/ Summary of MPA testimony, p. 9 Faced with these apparent attempts to circumvent the law, one might ask why a freelance writer would agree to the various arrangements described in this statement. The answer is clear: unequal economic bargaining power in the marketplace. The nature of the publishing industry is such that all but the most prominent freelancers must agree to relinquish all rights to their work under questionable circumstances, or not see their works in print. Challenging a publisher in court is expensive and time consuming, and many freelancers fear retaliation if they publicly challenge a publisher's actions. The widespread abuses of "work for hire" require Congress to act to protect the legitimate property interests of freelance writers in their work. Because most freelance writers face "work for hire" in writing for collective works, WIW strongly supports S.2044's deletion of this category from the definition of "work made for hire." If this deletion is made, the presumption contained in Sec. 201(c) of the Act, that the author of each separate contribution to a collective works owns the copyright to that contribution, would apply. In addition, WIW recommends that the concept of commissioned "work for hire" be clarified, to assure that it applies only to a single work, conceived by the publisher, and specifically ordered by the publisher in advance of any work by the writer. |