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ROBERT J KLEIN Senior Editor

Money

TIME & LIFE BUILDING ROCKEFELLER CENTER
NEW YORK, NY 10020 JUDSON 6 1212

December 4, 1979

=

Dear

I'm enclosing a new set of contracts because our
attorneys advise us not to accept your revisions.
Our position is this: MONEY magazine makes a con-
siderable investment in freelance assignments and
contributes quite significantly to the published
article. We guarantee half the fee and all rea-
sonable expenses whether an article is published
or not. We commit ourselves to the production of
graphics (photos, drawings etc.). More than many
other magazines, our editorial staff also puts much
time and effort into the preparation, editing and
fact-checking of each article. The published ar-
ticle is often considerably improved by staff ef-
forts.

This is at some variance with the implications in
the position paper of the American Society of Jour-
nalists and Authors. It characterizes the author
as the sole creator of the work. In our experience,
at least, the magazine staff collaborates in creat-
ing the published article.

If you aren't willing to sign the contract as writ-
ten, I'd appreciate hearing from you right away, so
that we can make other arrangements.

With best wishes,

Завой

Bob Klein

RJK/ncr

OUTLINE OF EVENTS with "Money" magazine and agreement letter.

December 1979. Evelyn Kaye

1. On September 19 I sent "Money" three ideas. After a follow-up
phonecall, Robert Klein, an editor there, called me and asked
me to do an article on one of them, on religion and taxes.
We discussed the arrangements and it was a pleasant talk.

2. I made a few preliminary calls for the piece. Then the enclosed agreement letter arrived. I called Klein and asked about two things:

a) all rights whatsoever

b) the rights to my reference materials

He said that they "like to have " all rights, though they treat writers fairly if there are reprints. They want to keep the research to stop the writer doing the same piece for a rival magazine.

3. I crossed out "all rights", wrote in "first North American
rights", decided that the reference materials clause would
be immaterial because he would like the piece, and signed.
4. Klein called back. The lawyers would not accept an altered
letter of agreement. We talked about it again, and I said
I really didn't know what to do, because I really wanted to
do the piece. He sent me two more agreement letters.

5. I spoke to Grace Weinstein, Julian Block and Norman Schreiber
who have written for "Money." Apparently this is a new

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development and they had not seen this letter before, though Time/Life magazines are always tough with freelancers. It is also possible to negotiate around the agreement "in real life," even if you sign.

I called Klein again, and tried to persuade him that it would be more in keeping with the new Copyright Law if I amended my letter. He said "I hate that letter but we have to live with it. We need all rights in case we reprint in our annual journal, and if you won't sign, I'll give the story to another writer." I thought about it overnight and called him back. "I don't like the thought of that piece of paper lying in some lawyer's file with my name on it." He said "Then I'll give the piece to someone else."

6. I made one call back, pointing out it was my idea in the first place, but he said "ideas are in the public domain and this one has been around for a couple of years, though your suggestion did spark it off." End of saga: December 7.

DATE:

TO:

This will confirm our arrangement for you to write for MONEY magazine an original, unpublished 1,200-word article about

For all rights of whatever sort including copyright throughout the world to the manuscript and supporting material, which shall be delivered by December 19, 1979, MONEY will pay you $1000, to be paid half on delivery and half when your contribution has been set in type for publication. In addition, we will reimburse you for reasonable expenses incurred in preparing the article; receipts for items of $25 or more should be sent along with your expense account.

In the event that the manuscript is not set in type for publication, it is expressly acknowledged that, nevertheless, MONEY shall be the sole proprietor of all rights to all material created by you under this agreement, and shall have the right to utilize it as source or reference material as it may determine.

Signed:

outside contributor

:

editor

SUPPLEMENTARY TESTIMONY

REGARDING

WORK FOR HIRE UNDER THE COPYRIGHT ACT

PRESENTED BY

ROBIN BRICKMAN

GRAPHIC ARTISTS GUILD MEMBER

There were several statements made at the hearings after
my panel was heard, that, both as an individual artist
and a member of a professional artists' organization, I can't
let pass.

I stand by my illustrations. They speak for themselves in
terms of my talent, professionalism, and artistic integrity.
They are viable entities that can be sold in the marketplace.
They are in no way insignificant contributions to the work
that they grace. I should not be prevented from claiming

my own creations.

The great majority of artists are not stars. The fact that James Michener can negotiate any contract that he wants is not only debatable but also irrelevant to the problems faced by professionals at all levels. I resent the implication that I am a neophyte. My credentials include work successfully completed for satisfied clients such as Doubleday, Houghton Mifflin, the New Yorker, Horticulture Magazine, Rodale Books, the New York Times, and Little Brown.

The idea of practice makes perfect would be acceptable, though insulting, if it applied to negotiations on a limited use contract. However, in my experience and the experience of my colleagues, work for hire obliterates the opportunity to bargain. If the buyer becomes the creator, what is left to negotiate?

Work for hire is used for jobs that do require a lot of creativity. For example, in my Doubleday job, the publisher simply asked for two illustrations for each chapter, one for the title page and one for the epilogue. I was told the sizes and given a of the manuscript. I had to decide what to draw and how to draw it. All creative aspects of the work left to me, yet the contract called this work for hire.

Even on assignments where the art director does rough sketches inhouse, the reason they seek an outside illustrator is the skill and creativity that I as a professional visual communicator bring to my work. If the inhouse art were completed to such a degree there would be no reason to come to me at all. case, the art director seeks me out because of the creative expression I bring to the assignment.

In every

Work for hire is an unconscionable interference in the marketplace. It absolutely prevents me from negotiating a value for value exchange. Rather than carefully balancing and reconciling the respective interests of buyer and creator, it puts all the eggs in the buyer's basket.

When the copyright law was originally debated, neither I nor the organizations representing my interests were present. То contend that the "debate" was a complete and exhaustive review, as was contended, is a specious argument since artists like myself were not represented at that time. In fact, the Graphic Artists Guild did not exist at that time. Its remarkable growth over the last five years is a product of work for hire and other survival issues that affect people like me.

My understanding is that the copyright law derives from the Constitutional requirement for protection for creators. Work for hire is a provision of that law that clearly provides windfalls and protections for the buyers of art.

It is hard to believe that a billion dollar company like Time, Inc. would suffer financial ruin by offering me and my colleagues an equitable opportunity to bargain. It should hardly be necessary for me to point out that the most skilled negotiator would fail when faced with the standard 'take it or leave it' work for hire contract.

To assume, as representatives of the mult-billion dollar publishing industry appear to, that once a law is written, it cannot be evaluated and amended, is to ignore two hundred years of lawmaking.

SUPPLEMENTAL TESTIMONY REGARDING

WORK FOR HIRE UNDER THE COPYRIGHT ACT

PRESENTED BY

THE AMERICAN SOCIETY OF MAGAZINE PHOTOGRAPHERS

&

THE GRAPHIC ARTISTS GUILD

I. INTRODUCTION

The American Society of Magazine Photographers and the Graphic Artists Guild would like to thank the Judiciary Committee and Senator Mathias for the opportunity to address the problem of work for hire. Our Constitution provides that, "the Congress shall have the power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries..." In practice, work for hire has been used to secure these exclusive rights for commissioning parties instead of the true free-lance creator. S.2044, introduced by Senator Cochran, represents a valuable initiative in returning to the intent of our Founding Fathers.

A number of different abusive practices under work for hire were documented in our prior written submissions and the testimony given at the hearing itself on October 1, 1982. In this additional submission, we wish to deal mainly with what we believe would be a fair elaboration of S.2044. Any bill must, of course, satisfy not only the needs of the creators, but also the needs of the purchasers of rights of usage.

II. WHO BEARS THE RISK?

Before discussing remedies, we would like to examine more closely one of the publishers' central arguments that they deserve to own the copyrights in commissioned works because such

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