Testimony Regarding S. 1253, The Artists Bill of Rights Before the Subcommittee on Patents, Copyrights and Trademarks Presented by Don Martin, Cartoonist On Behalf of The Graphic Artists Guild 11 West 20th Street, 8th Floor Summary of Testimony of The Artists' Bill of Rights Mr. Martin, a professional cartoonist for almost thirty-five years, strongly supports the enactment of S. 1253, the Artists' Bill of Rights. Representing the Graphic Artists Guild, Mr. Martin states that Sen. Thad Cochran's bill will stem some of the abusive work-for-hire practices that freelance creators have endured since the passage of the 1976 Copyright Act, specifically work-for-hire agreements stamped on the back of paychecks. This abusive practice requires freelance creators to accept work-for-hire terms as a condition of payment for work already completed, and consequently forces the creator to relinquish authorship and all rights connected with the sale and/or reproduction of the original artwork. Despite his firm belief that this practice is a legal fiction, he presents his own experience at MAD Magazine to illustrate the economic deprivation freelance creators have endured due to the current misinterpretation of the Act. During his long association with this publication, Mr. Martin's work has been reprinted in magazine special editions, books, calendars and in other ways; translated into many languages and distributed worldwide. Since he never received any additional compensation for these uses, he was denied the basic intellectual property right to continuing payment for use of his original artistic concepts. Mr. Martin stresses that the kinds of abuses he's endured is contrary to Congress' original concept of work-for-hire in the 1976 Copyright Act, which was known as the "Creator's Act." He emphasizes that Sen. Cochran's Bill of Rights is a positive step towards returning the law to the original work-for-hire concept described in the 1976 Copyright Act. In conclusion, Mr. Martin requests the committee to carefully consider the provisions of S. 1253 and realize that similar to the "Copyright Remedies Clarification Act," this bill is not a new legislative initiative, but is actually only an effort to return the law to where Congress originally intended it to be. ### Mr. Chairman, my name is Don Martin, and I am representing the Graphic Artists Guild. Thank you for giving me the opportunity to voice our support of S. 1253, Sen. Cochran's Artists Bill of Rights. As the world's largest advocacy organization representing professional graphic artists, the Guild has a proven track record protecting and advancing the legitimate interests of illustrators, graphic and surface designers, cartoonists, computer artists and other graphic artists. It has been closely monitoring the work-for-hire issue since the 1976 Copyright Act became effective. I have been a freelance cartoonist for almost thirty-five years. My work was featured in MAD Magazine; it now appears in my own German and Scandinavian comic books, in CRACKED Magazine, books, advertising and a comic strip. In the mid 1950's, when I started, I took MAD's company-owned rights for granted. I was grateful to be working; and believed the company would be fair about orginal artwork and copyright rights. I was wrong. During my entire working history with MAD, it consistently used its economic muscle to force me to accept a legal fiction that deprived me of a basic intellectual property right the right to continuing payment for continuing use of my original artistic concepts. Although I may not have realized it at the time, I was used by my major client mainly because of my high degree of creative talent and my popularity with young readers. About eighty-five percent of my cartoons are based on my own ideas and are products of my own creativity. I have always had complete control over what I drew and how I drew it. I have always worked in my own studio when I chose to work, providing my own tools and equipment. I invoiced clients and was paid as each job was completed, and was never paid a salary. I did not enjoy any of the benefits that salaried employees enjoy, such as unemployment insurance, disability insurance, social security or workers' compensation. And, like any other business, I paid my own overhead and expenses. That's the way I ran my business in the past and the way I still run it today. It has always been standard industry practice for fees to be linked to a work's intended usage. I accepted a low payment for my cartoons and gags because they were supposed to appear one-time only in a comic magazine. The fact is, anyone who wanted their work to appear in the magazine had to do it on the magazine's terms. After 1976, the following text was stamped on the back of all payment checks: The signature hereto by the payee of this check and the signature on behalf of E.C. Creations, Inc. on the front of this check, shall constitute their agreement that the work, labor, services and/or materials (all of which are described as the "Work") described on the face hereof were performed in accordance with a commission from E.C. Creations, Inc., and that the Work is a work made for hire as that term is defined in Section 101 of the Copyright Act of 1976; that payment in full for all of the rights conveyed including ownership of any physical property has been received; and that E.C. Creations, Inc., its successors and assigns have all rights to use and re-use the Work, in whole or in part, in any language or medium, worldwide, without further consideration. End of paragraph. Right underneath was a printed line for the payee to sign on. Although I firmly believe that this arrangement is a legal fiction, if I wanted to get paid, I had to sign. For years I could not negotiate a better deal for myself; my checks always had this block of text on the back. I had to sign or ship out. It was simple. I needed the money, so I signed. Those words are still being stamped on the back of E.C. Creations checks. And artists and writers are still signing on the line. During my association with them, E. C. Creations reprinted my in work special editions of their magazine; put it into book form, into a calendar and stickers (and who knows what else), in English and many other languages. These products were sold worldwide and I never made a cent for these reuses. That wasn't what I contracted for, or was paid for. These exploitations of my work, are above and beyond what I did the work for. I never had a written contract with MAD, and unless some court finds that the kind of check endorsement I had to sign does not make something a work-for-hire, then I will be prevented from enjoying the fruits of a great deal of my own labor. |