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Authors made a statement of position on the occurrence of
abuses of "Work Made for Hire" (see attached copy).
Our members began to report the receipt of contracts that
were coercive in tone, forcing writers to sign over all rights
including the copyright itself, or lose the sale of the proposed manuscript (see attached examples of "work for hire" contracts).
The American Society of Journalists and Authors' premonition
of emerging problems caused by the loophole found by some publishers has become a reality. The loophole has been used as
major financial obstacle to the fair and equitable reward for
creative talent in the four years since that statement was issued.
In our view, these publishers' demands that our free-lance 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 fervently hope that Bill #2044 will correct this unfortunate situation, and we urge affirmative action on this bill by the Committee and by the full congress.
AMERICAN SOCIETY OF JOURNALISTS AND AUTHORS, INC. 1501 Broadway, Suite 1907, New York NY 10036 • (212) 997-0947
On "Work Made for Hire": A Statement of Position
ANNOUNCED APRIL 28, 1978
It has long been the established practice for responsible periodicals, in commissioning anticles by free-lance writers, to purchase only one-time publication rights -commonly known as “'first North American rights" -10 such articles, the author retaining all other rights exclusively and all revenues received from the subsequent sale of other rights reverting to the author.
This practice is affirmed by the Code of Ethics and Fair Practices of the American Society of Journalists and Authors (ASJA), the national organization of independent nonfiction writers. The philosophy underlying this tradition has been further reaffirmed by the Copyright Law of 1976, which took effect in January of 1978 and states explicitly that copyright is vested in the author of a work and commences at the moment of creation of that work. "Copyright" is, literally, the "right to copy' -i.e., to publish in any form; that right is the author's, transferable only by written agreement and only to the degree, and under the terms, specified by such agreement.
It has come to the attention of the ASJA that certain periodical publishers have recently sought to circumvent the clear intent of the law by requiring independent writers, as a condition of article assignment, to sign so-called "all rights transferred" or "work made for hire" agreements. "All rights transferred" signifies that the author, the recognized copyright owner, transfers that ownership and the right to all future revenues that may accrue therefrom-to the publisher. A "work made for hire" agreement specifically relegates the independent writer, so far as the article under consideration is concerned, to the status of an employee and creates a mythical-but nonetheless presumably legally binding-relationship in which the author agrees to function as a hired hand, while the publisher assumes the mantle of "creator" of the work, with all the rights of ownership vested in the creator under the law.
Both types of agreement clearly presume that the work being produced has an inherent value beyond one-time publication. Both the law and the ASJA Code of Ethics recognize that presumption, and it is the intent of both documents that the transfer of any rights beyond one-time publication take place only as the result of negotiation that assigns a monetary value to each such specific right a publisher seeks to acquire. Both types of agreement described above deny the author's basic role as owner and creator and seek to wrest from the writer, even before the work has been produced, all future interest in revenues that may derive from that work.
This effort, subverting the intent of the law and contrary to ethical publishing trade practices, is condemned by the American Society of Journalists and Authors. The demand for blanket assignment of all future right and interest in an article or other creative work simply will not be met by responsible independent writers. Publishers who persist in issuing such inequitable agreements in connection with commissioned works will find that they have done so at the certain risk of losing a healthy flow of superior professional material. The result, for those periodicals, is likely to be a sharp and inevitable decline in editorial quality-an erosion and debasement of the standards on which periodicals must rely in order to attract readers and maintain their own reputations.
745 Filih Aicnuc. New York New York 10022 (212) PLX 3800
RE: CONTRIBUTOR'S AGREEMENT
Because of the new Copyright Act effective January 1st. 1978, we wish to enter into a written agi emene with you as one of our contributors, having the following terms:
1. Each of us agrees that the terms of this agreement will be applicable to all the anicles that you write (or have written) and that are published in ROLLING STONE. alier January 1 st. 1978 (the "Works"), it being agreed that we are purchasing from you all righasisle and interest in ihe Works and that these are works made for hire and have been or will have been commissioned by us as a contribution to a collecı ve work.
2. At the time of each assignment we will agree upon the ler to be paid if she resulting Work is pi blished, the amount of the kill see if it is not, as well as any expenses that will be reimbursed.
3. You warrant the originality, authorship and your sole ownership of cach Work and all rights in that Work, that the Work will not have been previously published. that the contents of the Work will be truthful and that publication of the Work will not infringe upon any copyright, proprietary right, or any other right.
4. (a) Six months after initial publication in ROLLING STONE, we will. ar written request, assign to you on our standard form all rights in a Work except perforinance rights and the following rights, which we shall retain: (i) caclusive worldwide periodical and syndication rights in all languages, in either lull or condensed version (with the net revenues from republication of the Work pursuant to a syndication agreement to be shared equally): (ii) exclusive worldwide reprint rights in all forms for any whole or part edition(s) of ROLLING STONE: (ii) nonexclusive worldwide reprint rights for any anthology or collection of ROLLING STONE material (an additional payment to be made to you for such republication at our then-prevailing rates); (iv) worldwide rights for advertising and publicity purposes in all meria by or for ROLLING STONE or any foreign edition(s) of ROLLING STONE; and (v) exclusive worldwide rights in all languages to publish or to license the publication of a full or condensed vension in any other print media (with the revenues derived therefrom to be shared equally.).
(b) Nine months after inital publication, we will. at your request, assign to you performance rights, c.g.. motion picture, TV, theatrical rights, in the Work on our siandard form. it being understood tl at the revenues from such rights (whether derived before or after such assignment) shall be divided letween us pursuant to mutual agreement.
5. You agree thar ROLLING STONE will receive suitable credit upon the exercise of any of the riglots assigned to you. You hereby authorize us to use your name for advertising and publicity purposes in connection with ROLLING STONE.
6. This letter contains the entire and complete understanding of the panies and shall be construed under the laws of New York. Any amendment must be in writing and signed by both of us.
If the foregoing correctly sets forth our agreement, please sign and return one copy to us.
Very truly yours,
I hereby agree to the foregoing. which will be applicable to all articles supplied by me and sublished by ROLLING STONE after January 1st, 1978.
This is to confirm your agreement with us effective as of the date of this letter, with regard to
you 1. You hereby (a) agree to create the Work for us based on the theme originated and suggested by or bt represent that you have created the Work independently of all other agreements between you and any other person.
2. You hereby sell to us and we hereby purchase from you, as a work made for hire, all right, title, and interest in and to the Work, including (a) its title and theme, and (b) all the right to copyright the Work, and any adaptation or version of it in the United States or anywhere throughout the World, in our name or otherwise for our sole benefit, and to secure renewals or extensions of such copyrights in our name or otherwise.
3. We agree to pay to you a fee of $
(the "Fee"), after final acceptance by us of the Work. If the Work is to be created by you under paragraph 1 (a) above, you shall deliver the completed Work to us no later than
, time being of the essence. If we in our sole discretion decide not to accept the Work, you shall receive 25% of the Fee and we shall return the Work and assign all rights in it to you. 4. In order to induce us to make this purchase, you represent and warrant that: (a) you are or will be the sole author of the Work and have made no commitments with any others with respect to it or its use; (b) the Work is original, and does not infringe upon any statutory or common law copyright, proprietary right, or any other right of any other person; (c) the statements in the Work are or will be true (unless the work is described above as fiction); and (d) the Work has not heretofore been published or used in any medium for any purpose.
5. You shall indemnify and hold us harmless from any and all loss, damage, and/or expense (including reasonable attorneys' fees) that we may suffer or incur by reason of any claim or the defense of any claim, arising from the falsity, or alleged falsity, or the breach or alleged breach, of any of the foregoing representations or warranties made by you in this agreement
6. We have the right to edit or otherwise change the Work. You also agree to make such changes in the Work as we may. from time to time, reasonably request prior to publication. We are under no obligation to publish the Work in our magazine or otherwise apply the work to any specific purpose. You hereby agree to our using your name, pseudonym, photograph or other likeness in connection with the advertisement and promotion of the Work or any adaptation or versions thereof or the magazine in which it appears.
7. This Agreement constitutes our entire agreement with respect to the Work and supersedes any prior agreements. It may not be modified without the prior written consent of each of us.
8. If this Agreement is signed on behalf of the author by an agent or publisher, such agent or publisher independently represents and warrants that such signature has been duly and validly authorized by the author and that this agreement will constitute a binding obligation of the author as a result of such signature.
If the foregoing correctly sets forth our understanding, please indicate by signing in the space provided below. This contract shall be effective when having been signed by you it is received and then signed on our behalf.
Very truly yours,
OMNI Publications International, Ltd.
I hereby approve and confirm the foregoing.
Signature of Author/AgentPublisher