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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 con-
tract. 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. every case, the art director seeks me out because of the creative expression I bring to the assignment.

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. Το 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 fais 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 works would never come into existence except for the capital

risk taken by the publishers.

However, photographers and other creators take a risk also.

They form a highly skilled pool of authors willing to risk the

absence of a regular paycheck each week in order to pursue their own special artistry. Each photographer or other creator has his or her own style, gained after years of training and professional work. The photographs, illustrations and articles

created by such a professional are hardly the result of a pub

lisher deciding to pursue one project or another.

They are the

result of that creator's training and talent and may be far more valuable than their use on the publisher's single project might indicate. Most photograhers and other creators resell their

work.

For photographers, stock houses represent a ready way to

transmit images to the market for resale.

A stock house is

like an archive or library of images.

When an image is licensed,

the stock house and the photographer split the fee equally.

A

photographer who works for hire will never have this extra value

to support him or her.

In fairness, it might be more accurate

to call the publisher the immediate cause for a photograph being

taken, but the genius of the photographer or other creator is

the ultimate and more profound cause for the existence of the

creative work.

Even in mundane terms, it is incorrect to say that the publisher

takes all the risk.

The free-lance photographer may have inves

ted tens of thousands of dollars in equipment, pays rent in a

studio, has other overhead costs such as insurance, etc.

The

photographer does not get paid prior to commencement of the

assignment

as an employee would certainly expect.

The

photographer or other creator is usually paid 30 to 90 days

after work is turned in to the publisher

and sometimes the

creators must wait even longer if they are paid on publication.

Also, the assignment must be satisfactory to the publisher who

has commissioned it.

Unlike the employee who will be paid even if

work must be redone, usually the photographer or other creator

must do the work until it is satisfactory.

But the risk does

not end when the assignment is accepted by the publisher and

when payment is finally made.

Invariably, the publisher has

used its bargaining strength to force the creator to indemnify

the publisher against risks of copyright infringement and other

lawsuits, including the payment by the creator of the publisher's

costs and legal fees.

So the creator's risk continues for as

long as the publisher continues to exploit its book or other

product.

In fact, in terms of artistry, training and performance at professional standards, we don't understand why there should

be any difference at all between creators who work for them

selves and those who work on assignment.

We accept such a

distinction because it is so deeply ingrained in the structure

of our present copyright law, but the evidence does not support

the distinction that the publishers have sought to establish.

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We have been asked why the American Society of Magazine Photo

graphers and the Graphic Artists Guild cannot negotiate collec

tively on behalf of their respective professional memberships.

If our members cannot individually negotiate on a value for

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work from their studios without close supervision, have dead

lines, are usually paid only if their work is satisfactory, and often have to indemnify users against copyright infringement or

other lawsuits.

Independent contractors like these face anti

trust restraints and adverse N.L.R.B. rulings in seeking to bar

gain collectively.

Thus, while our members receive no employee

benefits when they are treated as employees under work for hire for copyright purposes, our organizations likewise do not have

union status when our members are treated as employees for

copyright purposes.

The best place to treat this problem is in

the copyright law, both because this law is intended to protect

authors' rights and because the work for hire provisions are

part of the copyright law.

IV. REMEDIES

Work for hire has created a number of abuses, some of which are

more easily corrected than others.

our basic goal is to see that

the creator's concerns are respected when the needs of creators

are balanced with those of purchasers of usage rights.

We will

discuss each problem in turn, proposing specific amendatory lan

guage when appropriate.

The sections of the copyright law that

would be affected appear without any modifications in Appendix A.

In our proposals in the text, we will underline new matter and

put dashes through matter to be deleted.

A. WHEN MUST A WORK-FOR-HIRE CONTRACT BE SIGNED ?

Clause (2) of the work-for-hire definition requires that "the

parties expressly agree in a written instrument signed by them

that the work shall be considered a work made for hire."

The

word "shall" implies that the contract should be signed prior

to commencement of work, but this implication has not been clear

enough to prevent certain buyers from refraining from signing or

even offering a written contract until after the commencement of

work.

The drafters of the 1976 law clearly believed work-for-hire

contracts would have to be signed prior to commencement of work.

Thus, Barbara Ringer of the Copyright Office stated in Discussions

and Comments on the 1964 Revision Bill that, "It would not be

considered a 'work made for hire' if the contract were signed later

on

after the work was written, for example."

(Copyright Law

Revision, Part 5, p.145)

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