STATEMENT OF JAY MAISEL

IN SUPPORT OF S.1253

BEFORE THE SUBCOMMITTEE ON

PATENTS, COPYRIGHTS AND TRADEMARKS

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 years. 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

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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 public.

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

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years or thirty days. It deprives us of future earnings from our work, because it robs us of our authorship.

We see our creative

efforts exploited in contexts we never envisioned by third parties we've never met. In the worst case, we may never know when and how our work appears.

Work for hire means that when a photographer negotiates his fee the crucial issue of how the photograph will be used is taken out of the negotiating process. If work for hire becomes the rule then "take it or leave it" will follow. It's already happening and is reminiscent of the phrase once written in factories: "If you don't come in on Sunday, don't bother coming in on Monday".

It happens even at my level.

Recently I've had to turn

down more than half of the work offered to me because it comes with the work for hire proviso. I've always refused to sign these agreements. Not only because I believe they are dead ends for me, but because they are intrinsically damaging to the client and my relationship with the client. Why? Because the client will NEVER get the degree of commitment, the extra something from someone who has nothing to gain for doing more.

My clients understand this and they get that extra mile.

Some clients try to bully photographers into signing

"work for hire" agreements after the photographs have been taken by withholding payment. I've had that happen and with experience

and proper paperwork, I've been able to avoid it. Less experienced photographers, however, find themselves unable to deal with this and though they start with the best intentions they eventually end up victimized.

I've always thought (rather naively) that copyright laws were meant to protect the individual creator against the overwhelming economic power held by giant corporations and advertising agencies. These agencies and corporations have in the last few years merged and re-merged into still larger entities, concentrating power into fewer and fewer hands.

I am not against "bigness".

I certainly think that the

profit motive is a noble one. I'm aware that unless the publishers profit, they perish, so in order to have clients I wish them well and have no problem with them making a profit. I'm even agreeable to them making obscene profits (a paradoxical phrase if ever I've heard one, in our capitalist society). However, the creators on whose work publishers depend for their content and existence must not be excluded from those profits. Creators are people who opted not to get "a real job". They have prepared themselves for years and now are at their creative peak. They represent an extremely valuable resource, a talent pool for their clients. They are "craftsmen worthy of their hire". They are necessary to maintain the quality that these clients demand.

Creators are unique small businesses, unprotected by

unions, classed as manufacturers, and unable to use collective

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bargaining. Pitted against each other economically, they need expensive space in overpriced metropolitan areas where their clients are located. They pay support staffs, invest huge sums in equipment, and then they are told "take it or leave it" or risk being blackballed by agencies which demand "work for hire" as a contingency for being hired at all. This, by the way, is not conjecture; this is not happening in some imagined future, it is happening NOW.

You may ask two questions, why are these people, these creators so stubborn, why don't they just sell their pictures outright and be done with it?

Because when creators determine a fee for an assignment, they consider more than the degree of difficulty. In fairness to themselves and their clients, they must base their price on how their work is to be used. Will it be used only once? Will it be used once in every magazine and newspaper in the country or for 7 weeks, or 7 years? Will it become a trademark to be used forever? To estimate a fair price you must know the usage. If our clients can tell us that our contribution can be used in any way and that there's no difference if it's used for a week or for a year, then there's something distinctly wrong with the system.

If "work for hire" is the law, when the photograph is used in the future, in some other context, there will be no question that the printer, engraver, paper supplier, designer, type house, trucker and messengers will get paid. The magazine