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supplier and American Television & Communications Corporation, one of the largest cable television operators in the country.

I have been intimately concerned with and active in copyright matters for many years. President Ford appointed me a member of the National Commission on New Technological Uses of Copyrighted Works (known as CONTU) which was created by Congress in 1974 as part of the effort to revise comprehensively our copyright laws. I have served as president and am presently an honorary trustee of The Copyright Society of the U.S.A. I have served as chairman of the Copyright Division of the Patent, Trademark and Copyright Section of the American Bar Association as well as chairing many committees of that Section. I am on the advisory board of several publications concered with copyright and intellectual property and I am a member of the Advisory Committee for Copyright Office affairs. I am also a member of the Board of Directors and of the Executive Committee of the American Arbitration Association.

MPA is categorically opposed to S. 2044. That bill represents an unwarranted interference with the literary marketplace and the right of the parties to bargain freely within that marketplace. And it is an unnecessary effort to correct a non-existent problem.

There is a sense of deja vu in the proceedings today. For almost a generation prior to 1976, copyright experts carefully studied, comprehensively discussed and thoroughly debated all sides of all copyright issues as part of the Copyright Law Revision effort. Work made for hire was specifically the subject of a great deal of debate and testimony before the Register, in the Senate and in the House. It was also thoroughly investigated by the Panel of Consultants to the then Register of Copyrights, Abraham L. Kamenstein, on which Panel Mr. Wasserstrom, Irwin Karp and I were all privileged to serve.

The work made for hire provisions of the Copyright Law Law Revision bill, according to Senate Report No. 94-473, at page 104, represented a "carefully balanced compromise." The statutory definition of work made for hire was carefully constructed in order to deal with and reconcile the respective interests of contributors and publishers. Indeed on page 105

of Senate Report No. 94-473, the statement was made that:

"The status of works prepared on special order or
commission was a major issue in the development

of the definition of 'works made for hire' in section
101, which has undergone extensive revision during the
legislative process. The basic problem is how to draw
a statutory line between those works written on
special order or commission that should be considered
as 'works made for hire,' and those that should not.
The definition now provided by the bill represents
a compromise which, in effect, spells out those
specific categories of commissioned works that

can be considered 'works made for hire' under certain
circumstances." [Emphasis supplied]

The work made for hire provisions adopted after all this effort have been in effect for fewer than five years. Neither the MPA nor this witness is aware of any development or occurrence since January 1, 1978, when the new law went into effect, that justifies any change whatever in the work made for hire provisions of the law and the carefully balanced compromise they represent.

Other provisions of the Copyright Act were drafted to be in harmony with the very definitions which S. 2044 would drastically change. A magazine is, according to the definition in Section 101, a "collective work." Under Clause 2 of the definition of "work made for hire" in Section 101, a collective work is one category of work which, if specially ordered or commissioned, can be under certain circumstances a work made for hire. Section 201 then deals, among other things, with the respective rights of the parties to a work made for hire agreement. Section 201(a) provides that copyright vests initially in the author of the work. Section 201(b) provides that, in the case of a work made for hire, the employer or other person for whom

the work was prepared is considered the author for purposes of copyright and owns all of the rights comprised in the copyright unless the parties have expressly agreed otherwise in a written instrument signed by them. Section 201(c) then provides that copyright in each separate contribution to a collective work is distinct from copyright in a collective work and vests initially in the author of a contribution. Since the persons for whom the work was prepared--the magazine publisher--is the "author" under Section 201(b), all that Section 201(c) does is confirm that the publisher is the owner of the contribution. It is evident that the

Section 101 definition of work made for hire and the provisions of Section 201, are totally compatible and "in line" with each other.

The statutory provisions for work made for hire in the 1976 Copyright Law are incapable of becoming a mechanism for oppressing individual contributors. The very definition in Clause 2 of Section 101 grants substantial safeguards to the individual contributor: first, only the enumerated categories

of material can be work made for hire; second, the work must be "specially ordered or commissioned for use as a contribution...;" and third, the parties must "expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." Parenthetically it should be noted that this solicitude shown for the contributor in the Copyright Act is even greater than that provided by the Statute of Frauds. The Statute of Frauds requires that an instrument be signed only by the party to be charged. The Copyright Act requires that both parties sign in order to evidence their mutual intent that work specially ordered or commissioned be work made for hire.

S. 2044, running willy-nilly over existing statutory provisions without any good cause shown, would preclude magazine publishers from ever, under any circumstances,

specially ordering or commissioning any article.

Let me put work made for hire in the magazine field in context. Let us suppose that a magazine publisher wishes to have a particular writer "cover" the wedding of Prince Charles and Lady Diana. The publisher knows that he wishes to publish the article at the time of the wedding and republish it on the 50th Anniversary of the wedding.

He also knows that he may desire to republish the article in a special issue of his magazine devoted to newsworthy weddings over the years. The publisher can retain that writer to write the piece, agreeing with the writer that there be conveyed to the publisher sufficient rights to enable him to fulfill his publishing plan, at a mutually agreed upon price. But the publisher cannot be assured of the right to utilize the article on the 50th Anniversary of the wedding because the writer or his or her representatives may terminate the grant of rights under Section 203 (a) of the Copyright Act prior to the 50th Anniversary. The only way the publisher can be assured of obtaining the rights he needs in the article which he is specially ordering or commissioning is on a work made for hire basis. So publisher and writer may, under the present law, bargain on that basis. If S. 2044 were to be enacted, there would not be any way the publisher could be sure he could lawfully republish fifty years later.

It is not accurate to say that an author is in a weak bargaining position vis-a-vis the magazine publisher who might commission the work. The writers assigned or commissioned to write articles for recognized magazines are almost invariably part of a comparatively small group of well-known freelancers who have and exercise bargaining

power on an equal level with that of the editor or publisher. The writer demands and receives his quid pro quo. Where

the agreement is on a work made for hire basis, the writer, photographer or artist demands and receives what he or she regards as adequate compensation or he or she refuses the assignment and turns his or her talents elsewhere.

Some people have advanced the fatuous argument that the use of the phrase "work made for hire" turns the freelance writer into a "hireling" and therefore the very use of that phrase is repugnant. Of course the use of the phrase "work made for hire" does not make the writer a "hireling" or employee. Clause 2 of the definition of work made for

hire clearly applies to an independent contractor situation. Irwin Karp, Esq. speaking for the Authors League of America, during a 1963 meeting held by the Register of Copyrights in connection with a preliminary draft of a revised copyright law, acknowledged this in saying:

"It just doesn't make a particle of difference, in
the case of a work written on commission, whether
you call a man an employee for hire or not. You
can always get an assignment of his rights if you
are actually paying him a lump sum. You can take
them away from him; they do it right now. Your
problem is whether he is going to get them back
after twenty-five years under a reversion clause.
I think that the semantics of "on commission,"
of 'works made for hire,' and so forth aren't really
the issue. The issue is reversion." Copyright
Revision Part 3 Preliminary Draft for Revised U.S.
Copyright Law and Discussions and Comments on the
Draft, September, 1964, P. 262,263.

Indeed reversion is the issue. An analysis of works made for hire as they relate to magazines reveals that the sina qua non of a work made for hire is that it would not have been created except for the individual or entity which commissioned that work. As opposed to a work created by an individual who chooses to create as a result of either an artistic need to create, or an expectation of profit based upon what the individual believes may have commercial value, work made for hire will be created only to fill the needs of a specific employer or market. The compensation

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