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AMERICAN SOCIETY OF JOURNALISTS AND AUTHORS, INC. 1501 Broadway, Suite 1907, New York NY 10036 • (212) 997-0947

STATEMENT FOR U.S. SENATE JUDICIARY COMMITTEE HEARING

RE:

BILL IS. 2044

The American Society of Journalists and Authors, a nationwide

organization of independent nonfiction writers, representing 660

leading professional free lancers, is deeply concerned with the

"Work for Hire" loophole that has emerged in Public Law 94-553.

As independent creators whose livelihood depends on copyright

protection, we urge you to approve the amendment to that law as proposed in Senate Bill 2044 which will put a stop to the coercion

of writers to sign away all rights to their copyrighted works or,

if unwilling to do so, be denied the opportunity to sell their

creations.

Under the old copyright law, publishers frequently registered

the copyright under the name of the publisher rather than the name

of the author.

It was the intent of the 1976 copyright law 94-553

to stop that and assure that writers can and will enjoy the

rightful fruits of their labors.

The copyright can be considered

to represent a bundle of separate rights which can be sold or

licensed, either separately or all at one time.

Customarily, a

free lance magazine writer sells the first North American

publication rights to a magazine publisher, and negotiates

whatever additional rights the publisher may wish to purchase for

additional remuneration.

The author retains the copyright and all

other rights such as foreign reprint rights, movie and television

rights, audio tape rights, future reprint rights, and possible

newspaper syndication or reworking of the material which could

assure financial security for the self-employed creator.

The revised copyright law of 1976, which took effect on

January 1, 1978, clearly intended ownership of a work to be vested

in the creator of that work, who would then be able to sell as

many publication rights as he or she sees fit.

Usual practice in

the magazine publishing industry calls for the sale of first North

American publication rights only by the author.

If other rights

are desired by the publisher, it is customary for negotiation to

take place, with additional payment for any additional rights that

are sold by the holder of the copyright, the author.

Instead, some publishers have seized the wording of part (2)

of the "work made for hire" explanation dealing with "a work that is specially ordered or commissioned for use as a contribution to a collective work" as an excuse to write contracts that give

themselves the copyright and all the inherent rights therein.

The

contracts that are offered by these publishers are considered by

our membership to be an act of piracy.

These contracts demand

that the author warrant that he or she is the sole creator of the

work but provide that all rights, including the copyright, be turned over to the publisher forevermore, with no further

negotiations or financial interest by the creator in the creation

permitted. In such contracts, the publisher claims to be considering the writer an employee, while other paragraphs in the same contract declare that the employer is not responsible for

customary benefits to employees

such as weekly pay checks,

contributions to Social Security payments, paid vacations,

sick-leave benefits, group insurance, unemployment insurance, worker's compensation insurance, pension plans, and other perquisites of hired workers. In these contracts, the supposed employee is often required to indemnify the publisher for the

defense of any claim arising from the publication of the article.

Thus, while the 1976 Public Law 94-553 rightfully revised the copyright law to improve protections for the creative community, self-interested and self-serving companies lost no time in finding a loophole they could twist to deny that intended protection.

One magazine worded such a paragraph this way,' In all respects other than under the copyright law, you shall function as

an independent free-lance contributor, not as an employee of the

company.

The sane magazine contract reads this way on work for hire: ....commissions you to prepare the above-described work, which shall be considered 'work made for hire' and will be used as a contribution to a collective work. That means the magazine will be the owner of all rights to your material throughout the world

in all languages. The magazine and its licensees shall also have the right to use your materials and your name, likeness, biography, and photograph for editorial, advertising, trade and/or promotional purposes."

Several of our members reported receiving a memorandum to regular contributors from The New York Times, herein quoted verbatim: *The copyright law requires that we spell out the basis for transactions with you. This memorandum governs all assignments, whether we make them over the telephone or in writing. This is necessarily an all-inclusive statement and

covers those who write for the daily paper, the Sunday magazine, the Book Review, etc. Our standard agreement with contributors is

that all their material accepted by The New York Times is

considered *work made for hire".

This gives us all rights in the

as

material throughout the world for which they are paid the regular fee, per diem page rate or whatever is agreed at the time of the assignment. This does not change the fact that when you write for The Times you do so an independent free-lance contributor, not as an employee of The Times. Acceptance of your next check constitutes acceptance of this policy. Please refer any questions to the editor with whom you regularly deal."

Another contract of a popular magazine has a simple letter form to sign. The first paragraph names the assigned article. The second paragraph distorts the law's intent in this way: 'In order to comply with the new Copyright Law's technical requirements, please sign and return the enclosed copy of this letter to signify your agreement that this contribution will be considered a "work made for hire, which means that we own all rights, title and interest in it throughout the world, and that

you will receive $

in full payment of your services in

writing this contribution."

At this point, any sensible business person might well ask,

"Why deal with such a publisher?" Our members have been cautioned not to sign such an agreement for their own good and for the good

of their fellow creative writers.

But, rent must be paid,

children must be fed and clothed, and frequently despite the knowledge that to sign once is to give away all rights forever

the writer is forced to sign or lose the opportunity to sell the

manuscript. Once such a contract is signed, the writer is never to

have a chance to negotiate, never to have a chance to reprint or

resell, or even to use in a book of one's own, material that may

have taken many more research and writing hours than has been

included in the payment. This is just the situation that the revised copyright law was intended to correct.

It has also come to our attention that a number of publishers

have actually made up two different contracts.

One is a work-for

hire agreement such as has been described, and when that is

bravely refused by wise writers, another contract is offered which contains the proper wording of copyright ownership by the writer

and the ability to negotiate the numerous rights that the

publisher may desire to purchase for extra payment.

It takes an

xperienced writer with clout in the marketplace to refuse the

first contract. While many of our members enjoy such status,

there

are a lot of talented beginners who are unaffiliated and

understandably afraid to reject what they are told to be standard

contracts. It is important that this first unfair contract

offering be eliminated so that inexperienced writers are not

bilked of their assortment of rights

or their entire copyright.

Several of our members have been told that they had to sign a work-for-hire contract or no longer be given assignments. The insidious element here is that while a contract is supposed to be a negotiated conclusion to an agreement, such action by these unscrupulous publishers is an act of coercion. Sign, or no work!

This puts the self-employed, non-union, non-organized writer in an unequal and unfair bargaining position. A small number of publishers have the entire industry tied up, while a large and relatively unorganized population of free-lance writers, artists,

and photographers need an outlet for their creative efforts.

Thus

there is a specialized, concentrated industry on one side, and on the other a highly competitive and unorganized population of talented people who need the protection of a just law to be able

to continue to create and survive financially.

The continuing and increasing specialization of periodicals

suggests that writers have a limited number of markets for article

ideas.

In certain cases this may mean that the only buyers for

some writers or for certain ideas may be publications that use

unfair practices.

We are also concerned that as more publishers

consider entering the lucrative area of electronic publishing,

they may feel a greater desire to own full rights to material they

publish.

More and more publishers may apply economic pressure to

acquire the copyrights for their own use without fair compensation

to the author.

Writers will need protection to assure that their

rights are sold rather than given away.

The American Society of Journalists and Authors does not

believe that it was the intent of the revised copyright law to

turn creative workers into hirelings who must turn over their

inherent rights upon demand.

We urge you to take the necessary

steps to remove the wording that is causing this problem, as

specified in the bill known as S. 2044,

introduced by Senator Thad

Cochran. This will limit work-for-hire to the supplementary

material in a publication and enable the creative writer to be

able to negotiate the sale and transfer of rights without economic

coercion.

Writers who rejoiced over the new copyright law's enactment

and looked forward to its taking effect in January 1978 learned,

As

to their dismay, that their protection might be short-lived. early as April, 1978, the American Society of Journalists and

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