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DEFINITION OF WORK MADE FOR HIRE IN THE

COPYRIGHT ACT OF 1976

FRIDAY, OCTOBER 1, 1982

U.S. SENATE,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The committee met, pursuant to notice, at 9:45 a.m., in room 2228, Dirksen Senate Office Building, Hon. Charles McC. Mathias, Jr. (acting chairman of the committee) presiding.

Staff present: Ralph Oman, staff director; Charles Borden, professional staff member; Linda Colancecco, chief clerk; and Martin Kobren, legal intern.

OPENING STATEMENT OF SENATOR MATHIAS Senator MATHIAS. The committee will come to order.

I apologize for starting late, but I have been talking with the Architect on new construction which we have just unveiled by opening the curtains; and that is a very difficult subject.

Today we are going to hear testimony on Senate bill 2044, which is a bill introduced by the distinguished Senator from Mississippi, Mr. Cochran, which amends the work made for hire provisions of the Copyright Act of 1976. Currently, the Copyright Act includes within the definition of work made for hire certain works which are specially ordered or commissioned. S. 2044 would prevent works commissioned for use in a collection, works commissioned for use in a motion picture or other audiovisual works, and works commissioned for use as educational texts from being considered to be works made for hire.

Under current law, a work made for hire belongs entirely to the buyer of the work and not to the work's creator. Once artists or writers agree to sell their creations as works made for hire, they retain no rights whatsoever in the work; indeed, the law regards the buyer as the true creator of the work.

Recently, freelance artists and writers—those people most affected by the work made for hire provisions of the law-have expressed dissatisfaction with the present situation. They believe that buyers of creative work are using raw marketplace power to force artists and authors to give up their future rights to their creations at bargain prices.

Artists and writers believe that S. 2044 would alter the balance of power between buyer and seller by removing the work of most freelance authors and artists from coverage under the act. Since the works exempted by S. 2044 would no longer be subject to the

(1)

work made for hire provisions of the Copyright Act, artists and writers think that buyers would be forced to negotiate for only the rights they need. This, the artists believe, would allow the buyers to obtain freelance work inexpensively while also allowing artists to retain some negotiated control over their creations.

The bill, as it has been introduced by Senator Cochran, deals with both printed and audiovisual material. So, we have followed that division of the bill into what we believe is an appropriate division of testimony today by inviting two panels to discuss the bill, one as it relates to the printed material and one as it relates to the film industry, the audiovisual.

At this point I wish a copy of the text of S. 2044 by placed into the record. [The Senate bill follows:)

(S. 2044, 97th Cong. 2d sess.)

A BILL To amend the copyright law regarding work for hire Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 101 of title 17, United States Code, is amended in clause (2) of the definition of "work made for hire" by

(1) striking out “as a contribution to a collective work, as a part of a motion picture or other audiovisual work,";

(2) striking out “as an instructional text”; and

(3) striking out "indexes,” through the end of such clause and inserting in lieu thereof “indexes.”. Senator MATHIAS. The hearing record will be kept open for 2 weeks for any additional testimony which may be submitted.

We are asking each witness to restrict testimony to 5 minutes. Additional material may be submitted for the record. The first panel will now please come to the table.

The first panel consists of Ms. Robin Brickman, Ms. June Roth, and Mr. Irwin Karp.

We will ask Ms. Robin Brickman, representing the Graphic Artists Guild, to proceed.

STATEMENTS OF A PANEL CONSISTING OF ROBIN BRICKMAN,

GRAPHIC ARTISTS GUILD, PROVIDENCE, R.I., ACCOMPANIED BY TAD CRAWFORD, COUNSEL; JUNE ROTH, PRESIDENT, AMERICAN SOCIETY OF JOURNALISTS AND AUTHORS; AND IRWIN KARP, AUTHORS LEAGUE OF AMERICA

Ms. BRICKMAN. Mr. Chairman, I am accompanied by Tad Crawford, who is counsel for the Graphic Artists Guild.

Mr. Chairman and distinguished members of the committee, my name is Robin Brickman. I am here as an illustrator and member of the Graphic Artists Guild. I am here to tell you how my career has been hurt by work for hire.

I have been a self-employed freelance illustrator since June 1976. Most of my illustrations are for trade and textbooks, periodicals, and newspapers. The field I work in is extremely competitive, and payment is generally low. It is necessary for me to use all the reuse rights of the art I create in order to stay in business. As a professional, I have had to learn the business side of art, negotiating contracts, budgeting, and career planning. Work for hire prevents me from meeting my goals as an artist and a businessperson.

In 1979, my gross income was $6,995. Work for hire represented 83 percent of that income. In 1980, my gross income was $8,455. Work for hire represented 59 percent of that income.

It is clear to me that, if work for hire continues to be the standard contract in my industry, I will never be able to make a comfortable living or advance significantly in my field. In fact, work for hire by its nature denies my skill, my creativity, my professional savvy, and my livelihood. As my career progresses, I am trying to leave work for hire behind me.

I would like to tell you about one job I did under work for hire that continues to haunt me. I was approached by Doubleday Books to do interior illustrations for the Wildlife Stories of Faith McNulty. Doubleday contracted with me to do 27 black and white illustrations in a 2-month period for $2,000. I negotiated for either more money or a limited-use contract. The art director made it clear to me that I either sign work for hire or I do not get the job. Given my income at that time, I knew that the $2,000 offered would make the difference in keeping me afloat. I was doing more work for hire then. I knew that there were no future reuse payments coming in that would allow me to refuse the job. I had no choice. I had to accept their terms.

I saw the assignment as a chance to do a creative body of art and to work with an author of Faith McNulty's quality. The exposure of this work would be good for my portfolio, but it did not compensate for the loss of control of my art and for future income.

Publishers often trade good exposure for low pay and work for hire contracts. Exposure is great, but it does not pay the bills. I resent being forced to accept work for hire in exchange for projects that will be good for my portfolio.

The Doubleday job was a tremendous amount of work in a short period of time. I got angrier and angrier about the contract terms, the more I got into the work. After the drawings were accepted, my worst fears about the terms of the job were realized. Without my knowledge or consent, which is not necessary with work for hire, Doubleday chose one of the interior drawings as the illustration for the book jacket. Although a book jacket illustration may bring $500 to $800, Doubleday had paid only $75 for that interior illustration. I felt that I had been robbed of extra payment. To make matters worse, they decided to color the illustration in.

I was not at all happy about the way it was colored. I certainly would like to have been involved in any decision to alter my illustration.

After the book was published, two major reviews in the Washington Post and Orion Nature magazine used reprints of my illustrations extensively as a selling point for the book. The recognition was nice, but I could not think about it much because the low pay, loss of control, and reuse kept nagging me. When I figured out the reuse possibilities on the book cover alone, I realized I had lost what amounts to 1/2 year's income.

Doubleday is not alone. Houghton Mifflin is another major client that I cannot afford to work for because of work for hire. When I worked for them, I gave up all future rights, never saw my original pieces again, and was paid some of the lowest rates in the textbook industry: $50 to $150, half the current rate.

It is important for you to understand what work for hire means to me. I do not have any of the usual benefits an employee can expect. I have to pay for my studio, utilities, art supplies, and equipment. I do not get group health insurance, paid vacations, sick leave, or unemployment insurance. I feel trapped.

Work for hire is a convenient loophole in a law that was drafted to protect me in my work. The minimal pay I get for work for hire means that I have to take any job that I can get. Every time I do a job under work for hire, I feel like I am working against myself. No matter how high the quality of my work, I will not receive adequate compensation. I cannot claim my own creations. I cannot protect the integrity of my work.

When I think of all my art that is lost to me now, I realize that, in signing work for hire, I signed away part of my future. The theft of my income was sanctioned by the copyright law. Please help us to change this law.

Thank you for allowing me to tell my story. I sincerely hope that this testimony illuminated one more corner of the work for hire trap.

Senator MATHIAS. Thank you very much, Ms. Brickman.

I neglected to point out this little graphic gadget that we have, this video aid that we have, that encourages adherence to the 5minute law. Let me explain it to the other witnesses. The green light means you are going full speed, but when the red light comes on the gavel falls. I did not drop it on Ms. Brickman because I had not explained that to her. In order to give a fair chance to all the witnesses, I am going to have to adhere to that rule.

Next we will hear from Ms. Roth.

Ms. Roth. Mr. Chairman and distinguished members of the committee, my name is June Roth. I am the author of 29 books. I have written numerous magazine articles. I am a syndicated newspaper columnist. As president of the American Society of Journalists and Authors, representing 660 leading professional freelancers and as a delegate for the Council of Writers organization, representing 21 writers organizations with over 20,000 members, I appreciate the opportunity to report our members' concern with the work for hire loophole that has emerged in the revised copyright law of 1976.

It was the intent of the revised law to stop publishers from taking ownership of the copyright that should belong to the creating author. 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 freelance 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 insure financial security for the selfemployed creator. Some publishers have seized the wording of part 2 of the work made for hire definition dealing with a work that is specially ordered or commissioned for use as a contribution to 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. 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 paychecks, contributions to social security, et cetera.

One magazine worded such a paragraph this way: "In all respects other than under the copyright law, you shall function as an independent freelance contributor, not as an employee of the company," unquote. It goes on to say, “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,

unquote. In this instance, the publisher pockets all future revenues from reprint of the work.

In a recent survey of rates paid to ASJA members, one factor stood out. We cannot survive with one-time payments for well-researched and well-written articles that have future resale potential that is denied by the work for hire coercion. Yet, many writers cannot refuse to sign or not accept work; it is an ultimatum. This puts the self-employed, nonunion, nonorganized writer in an unequal and an unfair bargaining position. A small number of publishers have the entire industry tied up while a large and relatively unorganized population of freelance 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. We are also concerned that, as more publishers consider entering the lucrative area of electronic publishing, they may apply economic pressure to acquire the copyrights for their own use without fair compensation to the author. In our view, these publishers' demands that our freelance members perform work for hire as employees in the eyes of the law but without any of the benefits or protections of employees is unconscionable.

We also believe that these practices could ultimately inhibit the free flow of ideas and information, which is so precious to all Americans.

We urge affirmative action on this bill by the committee and by the full Congress. Thank you.

Senator MATHIAS. Thank you very much, Ms. Roth.
Mr. Karp?

Mr. KARP. Mr. Chairman, my name is Irwin Karp. I am attorney for the Authors League of America, the national society of professional authors.

The league appreciates this opportunity to testify in support of Senator Cochran's bill.

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