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Senator DECONCINI. Thank you, Mr. Weisgrau.
Mr. Maisel.


Mr. MAISEL. My name is Jay Maisel. I have been a freelance photographer for 36 years. When you last this long, you get your share of clients, awards, and honors. I have had exhibitions; I've had books on me; I have had great assignments. I teach and lecture.

Finally, I want to show you a few photographs from my stock file. This file brings in income that would not be possible under work for hire and this work would disappear forever.

Slide projection.] These pictures have been reproduced nationally and internationally, and in this book. They were all done on assignments with clients who did not ask for work for hire and they would not exist if it were not for the possibility that I had residual rights on these things.

When one starts off in a creative field one has to be very, very concerned-not about one's own self, but about the younger people who are in the field who will be your contemporaries. My concern is that, like me, they photograph for love as well as for money. Creators are always in love with their art. It's something they do on their days off.

When you start in the field, one of the major problems you have to overcome is the cries of parents who ask you, “When are you going to get a real job?" But you persist, and you train for the career despite everything. What keeps you going is faith and a driving urge to create a body of work. It's a labor of love.

Work for hire means that creators lose their rights to their work piece by piece, job by job, until they finally realize that it's all gone and there is nothing left to show for all the effort. They see others, who did not create the work, making money from it-or worse, they find out the work has been discarded or destroyed by the neglect or incompetence of people who had no emotional investment in it.

Work for hire removes from the negotiating table the crucial issue of how, where, and how often the work will be used.

I certainly think the profit motive is a noble one. I am aware that unless publishers profit, they will perish. But up until now, they have prospered very well. I wish them well. We are mutually in need of each other. However, the creators on whom the publishers depend for their content must not be excluded from the fruits of their labor. Creators who never wanted a real job find themselves classed as manufacturers, unable to use collective bargaining, unprotected by unions. Pitted against each other economically, they require costly space, expensive support staff, and huge sums of money for equipment, then they find themselves given a "take it or leave it" ultimatum and risk being blackballed by those who know they won't do work for hire.

Why are these creators so stubborn? Why don't they just sell their pictures and be done with it? Because in determining a fair fee, it must be based on how the work is to be used-once, next week, or once every week for the next 7 years in every magazine and newspaper in the country? Will it be a trademark, to be used forever? If our clients can tell us that our contribution can be used in any way, and that there is no difference between one usage and a thousand usages, then there is something distinctly wrong with the system.

If I do a great job on a work for hire and a new usage comes out of it, the printer, typographer, paper supplier, trucker, designer will all be paid. If it's an ad, the magazine will be paid and the ad agency will take its commission. Who comes up empty? The photographer.

So why doesn't the client hire these creators, pay them a salary, give them benefits, and own everything? Because they tried it and it doesn't work. The creative spirit is a fragile thing and it dries up when faced with steady employment. [Laughter.]

So the employer ends up hiring freelancers anyway. This is not conjecture; these are my clients. The fresh, unique vision of the freelancer is what they want. Fine. The problem is that they want to treat them as employees but without the benefit of employment. They want it both ways. They want to own and use the work forever, but they won't assume the financial obligation of the employer. No Social Security, no unemployment insurance, no medical, no workmen's compensation, no insurance. If I am hurt or die on the job, they are not responsible. And of course, if I live, their contribution to my retirement or pension fund is zero.

The right of estimating usage is the essence of copyright. Time magazine charges advertisers for space for their ads. They don't charge the same rates for local, regional, national, or international editions; they charge according to usage. It's understood. Yet under work for hire usage is irrelevant. The fee paid is for time and materials without consideration of the total economic value of the contribution.

If a photographer must relinquish his right to his photograph once the shutter closes, his horizons shrink to the diameter of his current paycheck. The attitude that kept America's creative hori. zons unlimited and made us a dominant force in international art has been to excel.

What I hope you will look at, beyond the monumental inequity, is the larger issue. If you allow this disparity in bargaining power, the terms of employment will become so unattractive as to not attract people of a higher caliber. You risk forfeiting our position as global leaders in the arts. Every day you read of another American industry, business, or institution losing out on the international field of competition. I am concerned, especially at a time in our history when our national creative community holds the vanguard.

I am neither a doomsayer, nor do I mean to belabor the obvious, but if we lose in this field, another field and allied fields-electronics, automobiles, and others--will follow into decline.

I urge you, Mr. Chairman, to restore the ability of freelancers to survive and prosper by limiting work for hire to the limits proposed by S. 1253. I am convinced that the country's full creative potential will only be restored if freelancers reap the benefits of their labors. Work for hire makes that goal difficult, if not impossible, to attain.

[The prepared statement of Mr. Maisel follows:



A Bill to Amend the Copyright Law

Regarding Work Made for Hire

Before the Senate Subcommittee on Patents, Copyrights, and Trademarks

September 20, 1989



My name is Jay Maisel.

I'm a freelance photographer.

I've been a member of ASMP for 35 years, and I serve on

its Board of Directors.

I'm 58 years old and I've been in this business for 36


When you stay in one field for that long you have many

clients, awards, and honors.

I've had my share.

I've got gold

medals, photographer of the year awards, books of my work, gallery and museum exhibitions, an eight year advertising campaign for United Technologies, and fourteen years of annual reports for Chesebrough Ponds. I work on assignment for other

major corporations and advertising agencies. I sell prints to private and corporate collectors, and I teach workshops and lecture extensively. Finally, I have stock picture files that bring in income that would not be possible if "work for hire" had been the rule these last 36 years.

My concern is with younger photographers, those with less success or experience, those already in this field or about to enter it. Like me they photograph for love as well as for money. Creators are always in love with their art. It's something they do on their days off also.

When one starts a career as a photographer or in any other creative field, the first obstacle is the anguished cries


of parents who want to know "When are you going to get a real job?" But you persist, and while training for your life's work, the refrain continues. "Who does such a thing? What are your prospects? Can you make a living at it?"

What keeps you going? For one thing enormous faith that you're going to make it, maybe make it big. And behind it all

there is the desire to create, to put together a body of work.

It is a labor of love.

"Work for hire" means that creators lose the rights to

their work piece by piece, job by job, until they arrive at a

point where they look back and say "it's all gone and there's nothing left to show for all the effort". If they sign away their copyright through work for hire, they see their work discarded or destroyed by the neglect or incompetence of people who have no emotional interest in it.

"Work for hire" means I lose control forever over the

pictures I take.

In 1986 an exhibit and book of my photographs

called "Light of America" was displayed at the International Center of Photography. Had I been required to "work for hire" during the years of shooting it took to assemble that body of work, many of those images would have been lost to me and to the


Work for hire is divisive, destructive and insidious for photographers, whether they have been in the business thirty

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