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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 publisher 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 invested 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 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 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 themselves 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 Photographers and the Graphic Artists Guild cannot negotiate collectively on behalf of their respective professional memberships. If our members cannot individually negotiate on a value for value basis, why can't our organizations collectively obtain better contractual terms? Quite simply, both the American Society of Magazine Photographers and the Graphic Artists Guild have members including a substantial proportion of free These photographers and artists are highly skilled, work from their studios without close supervision, have deadlines, 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 antitrust restraints and adverse N.L.R.B. rulings in seeking to bar

lancers.

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 language 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."

Revision, Part 5, p.145)

(Copyright Law

In many cases we find publishers wait until after work on an assignment is underway or completed before presenting the author with a work-for-hire contract. This is done even when no discussion of a work-for-hire contract has taken place and the creator has never previously done work for hire for the client. In fact, some publishers go so far as to put the work-for hire contract on the back of a check. The effect of this is to further attenuate the free lancer's power to bargain. Since payment is usually made 30 to 90 days after satisfactory completion of the assignment and sometimes not until publication, the photographer or other creator is faced with simply losing all the time invested in the project if the work-for-hire contract is not signed.

We would therefore propose that this clause be amended to read as follows: "if the parties expressly agree in a written instrument signed by them prior to the commencement of any work that the work shall be considered a work made for hire."

B. WHO OWNS THE PHYSICAL WORK OF ART?

It is unclear under a work-for-hire contract who owns the

physical work that is created. While the commissioning party is the author for purposes of copyright, the copyright law does not definitively determine whether the commissioning party or the creator should retain ownership of the physical chrome, illustration, manuscript, etc. Section 202 provides that, "nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object." However, work for hire does not require the transfer of a copyright or an exclusive right, since the commissioning party is vested with the copyright as an author.

valuable.

Original photography, art, and even manuscripts can be very There are thriving markets for original photography and art. Nor is there any compelling reason why parties using

work-for-hire contracts should own originals when parties using all rights contracts do not. Loss of the original is simply the loss of yet another source of future income for the creator. For this reason, we believe that the sale of an original should have to be embodied in a written agreement. We would therefore modify Section 202 to read: "nor, in the absence of a written agreement expressly conveying property rights in a material object, does transfer of ownership of a copyright or of any exclusive rights under a copyright or the entering into of an express agreement in a written instrument that a work shall be considered a work made for hire convey property rights in any material object." The states of California and Oregon have enacted legislation to require a written transfer of originals wher. creators are selling reproduction rights.

C. WHO IS AN EMPLOYEE?

Essentially,

Another constant problem is the question of who is an "employee" in clause (1) of the work-for-hire definition. common law standards for distinguishing between an employee and an independent contractor must be used. This causes great uncertainty, since each case must be determined on its own facts. This issue is discussed in the recent case of Aitken, Hazen, Hoffman, Miller v. Empire Construction Company, 542 F. Supp. 252, 257-58 (U.S. District Court, Nebraska) in which an architect was found not to be an employee of a commissioning party.

An employee who receives a salary knows that he or she is an employee. However, someone paid on a fee basis or in royalty form would not normally be aware that he or she might be an employee. For this reason, clause (2) of the work-for-hire definition requires a written contract if work is to be considered as done for hire. We believe that no third category of work for hire should be possible. That is, anyone other than a salaried employee should always have to sign a written instrument in order to do work for hire.

Otherwise, the employer is

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