Senator DECONCINI. Senator Cochran, we are pleased to have you here. You may proceed; if you would summarize your testimony, please.

STATEMENT OF HON. THAD COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI

Senator COCHRAN. Thank you, Mr. Chairman.

I appreciate very much the opportunity to appear before this subcommittee to discuss a very serious problem with our Federal copyright law.

Shortly after I came to the Senate, a freelance writer from my State, Bern Keating of Greenville, MS, brought to my attention a problem facing all freelance writers, artists, and photographers under the Copyright Act's definition of work made for hire. At that time, Mr. Keating was president of the Travel Journalists Guild and was also a member of the Authors Guild, the American Society of Journalists and Authors, the Society of American Travel Writers, and the Overseas Press Guild.

It became clear to me that Mr. Keating's views reflected a genuine and widespread concern of writers, artists, and photographers that the work made for hire provisions of the copyright law were not operating as they were originally intended, and should be amended.

When the current copyright law was passed in 1976, the Congress tried to strike the proper balance between providing incentives to artists and other creators to produce their works, and protecting the interests of disseminators of those works. Unfortunately the proper balance has not been achieved and the root cause of the problem has been the application of the work made for hire doctrine.

The basic premise of the copyright law is that the creator of a work of art is the owner of the copyright in that work. If the creator decides to part with his right, to sell it or give it away, of course, he may do so. But the copyright remains the property right of the creator in the absence of such an act.

Work made for hire was intended to be a narrow exception to this basic rule. As defined in the 1976 act, the author and owner of all copyright rights in a work made for hire is not the creator but is the employer-cr, in some cases, the party who commissions the freelance artist to do the work. This presumption was made applicable only to certain specifically described situations in the definition of work made for hire. It applies when an employee produces a work entitled to copyright protection within the scope of his employment. And it applies to certain enumerated types of commissioned works where the creator confirms his agreement in writing. Despite its intended limited applicability, work made for hire has become a pervasive and destructive practice in many creative fields, especially in the areas of photography and graphic art produced for publishers. Work made for hire has disrupted the delicate balance between the rights of creators and those who commission and distribute their works.

Freelance artists, writers, and photographers are often presented with overreaching work made for hire contracts in situations that

are contrary to the intent of the Copyright Act. Because they do not acquire the status of an employee under such contracts, they receive none of the benefits that employees normally receive as compensation for surrendering copyright ownership to the publisher. Very often publishers demand that work for hire contracts be signed with no opportunity to the creator for meaningful negotiation.

It is very difficult for freelance creators to survive in this atmosphere. It is a situation that does not encourage creativity and productivity.

Since 1982, I have urged passage of legislation in the Senate to clarify the copyright law to ensure that one who actually creates a work of art be considered its author and able to claim the benefits of copyright protection in that work. My bill does not propose a drastic realignment of the relationship between creators and publishers. Instead, it is a corrective measure designed to restore a more appropriate balance to that relationship.

Work made for hire would still be a useful doctrine if my bill were enacted. My bill would assure that work made for hire is confined to the limits that Congress intended when it enacted the 1976 amendments. This must be done to stop the corruption of our copyright system.

Mr. Chairman, I am aware that this subject is a difficult one because it brings under scrutiny fundamental questions of authorship and ownership of copyright. And, there are powerful forces on the other side of the argument. But that is precisely why this subcommittee should address these concerns. Work made for hire strikes at the heart of the relationship between creators and publishers, and it has been abused and now disrupts that relationship to the detriment of the public.

The creative artists of America are being robbed of their incentive to work and their rewards for working. We are all poorer because of it. If we are to have in this Nation a healthy and thriving creative community, these issues can no longer be put aside and left for another day. I urge the subcommittee to act favorably and quickly on S. 1253 and restore the balance in our copyright law. [The prepared statement of Senator Cochran foilows:]

Statement of Senator Thad Cochran

before the

Subcommittee on Patents, Copyrights and Trademarks September 20, 1989

S. 1253, the Artists' Bill of Rights

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Mr. Chairman, I appreciate the opportunity to appear before your Subcommittee to discuss a very serious problem with our federal copyright law.

Shortly after I came to the Senate, a freelance writer from my state, Bern Keating of Greenville, Mississippi, brought to my attention a problem facing all freelance writers, artists and photographers under the Copyright Act's definition of "work made for hire." At that time, Mr. Keating was president of the Travel Journalists Guild, and was also a member of the Authors Guild, the American Society of Journalists and Authors, the Society of American Travel Writers, and the Overseas Press Guild.

It became clear to me that Mr. Keating's views reflected a genuine and widespread concern of writers, artists and photographers that the work made for hire provisions of the copyright law were not operating as they were originally intended, and should be amended.

When the current copyright law was enacted in 1976, the Congress tried to strike the proper balance between providing incentives to artists and other creators to produce their work, and protecting the interests of disseminators of those works. Unfortunately, the proper balance has not been

achieved and the root cause of the problem has been the application of the work made for hire doctrine.

3

The basic premise of the copyright law is that the creator of a work of art is the owner of the copyright in that work. If the creator decides to part with this right, to sell it or give it away, he may do so, but the copyright remains the property right of the creator in absence of such

act.

Work made for hire was intended to be a narrow exception to this basic rule. As defined in the 1976 Act, the "author" and owner of all copyright rights in a work made for hire is not the creator, but is the employer or in some cases the party that commissions the freelance artist to do the work. This presumption was made applicable to only certain specifically described situations in the definition of "work made for hire." It applies when an employee produces a work entitled to copyright protection within the scope of his employment. And it applies to certain enumerated types of commissioned works where the creator confirms his agreement in writing.

Despite its intended limited applicability, work made for hire has become a pervasive and destructive practice in many creative fields, especially in the areas of photography and graphic art produced for publishers. Work made for hire