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WORK FOR HIRE UNDER THE COPYRIGHT ACT
GRAPHIC ARTISTS GUILD MEMBER
There were several statements made at the hearings after
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
THE AMERICAN SOCIETY OF MAGAZINE PHOTOGRAPHERS
THE GRAPHIC ARTISTS GUILD
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
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
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
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.
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
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.
photographer does not get paid prior to commencement of the
as an employee would certainly expect.
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
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.
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
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
Independent contractors like these face anti
trust restraints and adverse N.L.R.B. rulings in seeking to bar
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
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.
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.
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."
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
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
after the work was written, for example."
Revision, Part 5, p.145)