for the individual's efforts and expenses will be fixed and agreed to in advance. who conceived of the need for a specific work, who commissioned the work, who assumed the entire entrepreneurial risk in connection with that work, and who removed any economic risk on the part of the contributor should be allowed to own what he has caused to come into being and, indeed, to own what he and the contributor mutually agreed that he, the commissioning party, should own.

Thus it is only fair that the party

In closing, may I respectfully submit that the Copyright Law is a well-designed, well-engineered and well-working instrument. It achieved a balance between the interests of many parties with conflicting interests and, at least in the field of relations between writer and publisher, it works. The carefully balanced compromise provided with respect to work made for hire should not be altered or changed unless there is compelling evidence that the Law is somehow inequitable or wrong. I repeat that, to the best knowledge of MPA and this witness, there is no such evidence.

As a homespun philosopher once remarked, "If it ain't busted, don't fix it."

The Magazine Publishers Association is opposed to S. 2044.

The provisions of the Copyright Act of 1976 regarding work made for hire were the product of years of study, consultation and debate. Those provisions carefully balance and reconcile the respective interests of the parties to work made for hire relationships.

The present law provides ample safeguards which protect writers, photographers and artists who contribute to magazines from being dealt with unfairly.

Nothing has occurred since the effectiveness of the Copyright Act of 1976 which justifies any change in the work made for hire provisions of that law.

S. 2044 would constitute an unwarranted interference with the literary marketplace and the right of parties to bargain freely within that marketplace.

S. 2044 is an unnecessary effort to correct a non-existent
problem.

STATEMENT OF THE

ASSOCIATION OF AMERICAN PUBLISHERS, INC.

Before The

SENATE COMMITTEE ON THE JUDICIARY

On

S. 2044

October 1, 1982

The Association of American Publishers, Inc. ("AAP") is pleased to accept the invitation of the Committee to express its views on S. 2044, as introduced by Senator Cochran on February 22, 1982. The AAP is the trade association of United States book publishers and (together with its predecessor organizations) represented the American book publishing industry during the long and delicate process of copyright law revision and implementation of the new Copyright Act. The AAP membership includes publishers of all types of books; of particular pertinence to the matter before you today, it includes principal publishers of our country's "instructional texts and "collective works" (such as encyclopedias and dictionaries). From the AAP's point of view, the major impact of S. 2044 would be to remove these two types of books from eligibility for treatment, with the individual author's* agreement, as "works made for hire" under the 1976 Copyright Act. We emphasize the phrase "with the individual author's agreement" quite purposefully, for it appears to us that S. 2044 is based on a faulty premise.

*"Individual author," as used herein, includes artists, photographers, and others, as well as writers of text.

A. The Stated Objectives of S. 2044 Are Met
By the Existing Copyright Act

In his statement accompanying the

introduction of S. 2044

(Cong. Rec. February 2, 1982 at S. 292), Senator Cochran stated

However, consideration of the 1976 Copyright Act clearly shows

that this safeguard for the individual author's interest is

already present in the law. Thus, clause (2) of the definition of "works made for hire" in section 101 of the Act

-

the clause

-

states that commissioned

that would be amended by the bill
instructional texts and contributions to collective works can
only qualify as "works made for hire":

"if the parties expressly agree in a written
instrument signed by them that the work shall
be considered a work made for hire." [Emphasis
added]

Moreover, the existing Copyright Act further assures the

objectives of S. 2044 by providing that, even where a commissioned work is considered to be "made for hire" by agreement, the

commissioning publisher and individual author may expressly agree as to the ownership and allocation of rights among them (Sec. 201(b)).* In sum, we believe that S. 2044 is based on the mistaken assumption that the Copyright Act somehow automatically divests

*Additional safeguards for the interests of individual authors are noted in D, below.

the individual authors of commissioned works of their rights. As we have shown, however, that is not the case. The Act now provides that the individual author's copyright in a commissioned work

is wholly preserved unless the author expressly agrees, in writing, that the work shall be considered as one made for hire; and, even if the author does so agree, he or she may still reserve all or some of his or her rights by written agreement.

It may also be noted that the 1976 Act represents a fundamental change in our copyright law. Under the law in effect prior to January 1, 1978 (the effective date of the 1976 revision), copyright in commissioned works was generally presumed to reside automatically in the publisher or other commissioning party.* Publishers agreed

to the changes effected in clause (2) of section 101 as part of a
thoroughly reviewed compromise that takes into account effects
and business needs going beyond the labels and definitions of
section 101.** Again, then, the change in law that we understand to
be the objective of S. 2044 has already been accomplished and is
reflected in the current Copyright Act.

B. The Effects of "Works Made For Hire"

For present purposes, the principal effects of a commissioned work being considered to be "made for hire" are:

*See, e.g., Nimmer, Copyright $5.03 [B] at 5-21; Angel & Tannenbaum, Works Made For Hire Under S. 22, 22 N.Y.L.S.L. Rev. 209, 228-229 (1976). **See, generally, Angel & Tannenbaum, supra and ¶B. and C. below. As this Committee noted in its Report on the 1976 Act: "The work-made-for hire provisions of this bill represent a carefully balanced compromise .

"

S. Rep. No. 94-473, 94th Cong., 1st Sess. at 104, 105 (1975); accord, H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. at 121 (1976).