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Senator DECONCINI. Thank you, Mr. Martin.
Mr. Clancy, I see that we're not going to get any pictorial de scriptions of your work, but I have read several of your books and you don't need a picture because you create such a picture in everybody's mind, whether it's a Soviet helicopter or Backfire bomber or what have you.
So we look forward to your testimony. I understand the pictures are about ready to come, though.
Mr. CLANCY. Yes, the movie form of “Red October" is going to be released next March unless the plans change again.
STATEMENT OF TOM CLANCY, AUTHOR, HUNTINGTON, MD Mr. CLANCY. Good morning. My name is Tom Clancy. I am the author of five novels—“The Hunt for Red October," "Red Storm Rising," "Patriot Games," "The Cardinal of the Kremlin," and "Clear and Present Danger.”
My purpose in being here is to speak in support of Senator Cochran's proposed changes in the copyright statute.
I spent much of last week in Baltimore in my role as national chairman of the Patriots of Fort McHenry, a private group celebrating the 175th anniversary of the Battle of Baltimore and the writing of our national anthem. Last Tuesday evening I had the honor to address 175 new citizens, naturalized right under the replica of the battle flag that now resides in the Smithsonian.
I told them that they had come to the right place. Each of them had a dream, and each had chosen to come to a country built by dreamers, for dreamers. I told them that because of that simple fact, the flag that only 200 years ago flew over a narrow coastal strip soon spanned the continent and now even rests on the Moon, not a bad record for a country that began with little more than a set of rules that we call a Constitution.
One of the reasons we have accomplished so much is that this is the place that harnesses dreams, that allows dreamers to reshape the world. We call America a land of opportunity because dreams that succeed are rewarded. That is what opportunity means; and as with so many things that have shaped America, it was mandated by our Federal Constitution.
The purpose of patent and copyright law is to protect and encourage the creator. From that constitutional guidance we have prospered.
Artists, inventors, and writers need such protection. I can quote Thomas Edison for the reason. When a new man arrived at his research laboratory-itself an Edison invention-and asked what the rules were, Edison told him, “Hell, we don't have rules here; we're trying to accomplish something."
Rules, Mr. Chairman, are the province of lawyers and legislators and have little application to creativity. I offer myself as an example.
It is a matter of public record that I was myself embroiled in a nasty copyright dispute only 1 year ago. I regret to say that the terms of the settlement preclude me from discussing it in public, but I can say the following:
In November 1983, when I signed the contract for "The Hunt for Red October," I was an independent insurance agent with a working knowledge of contracts. On reading the book contract I questioned a clause and was given what seemed to be a reasonable answer. Since I was signing up with a publisher which purports to be the unofficial spokesman for the U.S. Navy, and whose board of control is composed almost exclusively of naval officers—the president, by the way, is the Chief of Naval Operations-I assumed that I could take the Naval Institute at its word. That proved not to be the case. In fact, I was repeatedly lied to, and even now the Institute continues to lie about the nature of the dispute while cravenly hiding behind a wall of confidentiality.
To settle that dispute cost me $150,000 in legal fees. Principles cost money, and even a small publisher like the Naval Institute is a multimillion dollar corporation with assets to hire several law firms. And even when an attorney knows that the law may not be entirely on his side, he can use dilatory tactics to pervert what we like to call the American system of justice. Despite all that, I was very fortunate. I had the ability to fight back.
Nr. Chairman, had I not had the resources to defend myself, my ability to use the characters of my own creation would have been impeded or even lost, all because I asked a simple question and mistook a reasonable-sounding lie for an honest answer.
Mr. Chairman, the nature of publishing is fairly simple. Writers create ideas; publishers publish them. Writers are paid royalties in proportion to the success of those ideas. Publishers gamble their money but make a far greater profit in the event of success, be cause they make the rules under which the business of publishing operates. That's all the advantage they need.
People hire writers and artists to do that which they cannot do themselves. They have told you, and they will tell you, that they are part of the creative process. Mr. Chairman, if that's true, what do they need us for?
There is a story from antiquity about the King of Petra. He commissioned an architect to build his tomb, demanding that it should be the finest ever made. When complete, the King was so satisfied with that work for hire that he had someone put the architect's eyes out. After all, the King had what he wanted; what did he care about everybody else?
Mr. Chairman, that's the issue. Does the Government of our country wish to promote the progress of science and useful arts or does it not? By an unintended accident, the copyright statute has been perverted out of the shape explicitly intended by the framers of our Constitution and ratified by case law throughout our history. You will be told that correcting this inequity is interference with the marketplace, but the marketplace we address here is the marketplace of ideas.
As the Constitution recognizes and as our history has proven, the good of society comes from protecting those who produce ideas, not those who exploit them. We are a nation of dreamers, Mr. Chairman. Our dreams have built a country. Dreams that began here are changing the world, even while we sit in this room. Protect the dreamers, Mr. Chairman, because we are America.
Senator DECONCINI. Thank you, Mr. Clancy. Let me ask one question that came to my mind. You talked, Mr. Weisgrau and Mr. Martin, I believe, in your testimony where you left the impression that if you don't sign that check that has the contract printed on the back of it, or if you resist-in fact, I got the impression that certain things would happen to you, mainly, that you wouldn't get further work.
Mr. MAISEL. Or paid.
Senator DECONCINI. Well, yes. That's the second question. If you have a contract or an agreement, you are entitled to go to court and get your money, like you would if you were a bricklayer or a house painter and didn't get paid. But the problem that really troubles me is, do you have any examples—and are they frequent, or do you know anybody we could talk to—of people who have experienced blackballing or whatever you would refer to it as in your trade?
Mr. WEISGRAU. Well, I think there certainly are people who have been blackballed. Of course, the problem you have is creating a legal proof of that.
Senator DECONCINI. But the fact that they resisted and didn't get any more contracts
Mr. WEISGRAU. Senator, I'll give you an example. I was addressing a seminar at Financial Worlds; I do a program each year on corporate annual reports, and I was speaking from a photographer's point of view on the copyright issues. A particular communications director from a drug firm came to me and said, “Do you know Jay Maisel?" And of course, I've known Jay for a number of years. I said, “Yes, I do; why?" He said, “Well, I wish he would change his position because I'm forbidden from working with him because he won't sign a 'work for hire' agreement."
We have many cases reported to us, certainly, where photographers are presented with "work for hire" agreements after the fact on the back of checks. In effect, it is a contract that is imposed after the fact.
Senator DECONCINI. In your opinion, is that a boycott of Mr. Maisel?
Mr. WEISGRAU. I'm sorry?
Senator DECONCINI. In your interpretation, is that a boycott of Mr. Maisel, what that person told you?
Mr. WEISGRAU. I believe so. I believe that when you exclude
Senator DECONCINI. Are you familiar with that? Or have you had any experiences like that?
Mr. MAISEL. With this issue?
Mr. MAISEL. There are certain people who just won't have anything to do with me because they know that I'm going to request that I don't sell all rights. I would assume that I and people in my
Senator DECONCINI. Have they told you that? Are they that bold, to just say, "Hey, as long as you're insisting, we're not going to use you; we're going to find somebody else"?
Mr. MAISEL. People call up and say, "If you're not going to do 'work for hire' don't even send your portfolio up here because you're now out of the review process.
Senator DECONCINI. How many times has that happened to you, would you say?
Mr. MAISEL. Well, it has happened to me two or three times, but I don't usually handle that kind of call. The people who work with me handle those calls. It has been reported to me more times than that.
Senator DECONCINI. And how about you, Mr. Martin? Do you have any firsthand experience with that, or know of some people?
Mr. MARTIN. I have similar things. People call and want to know if I do buyouts, which is a similar thing, just taking all the rights for a character. I say, "No, I don't work that way," and that's the last I hear from them.
Mr. BASISTA. Mr. Chairman, I think I have an example of the kind that you are looking for.
Senator DECONCINI. Yes, sir. Would you identify yourself for the record,
please? Mr. BASISTA. My name is Paul Basista. I am the executive director of the Graphic Artists Guild.
In compiling the information in preparation for the hearings today, we solicited statements from members of the Graphic Artists Guild. I received one from a man called Rick Bryan, who is an inker; in the comic book industry there are various artists that produce work in various stages of the comic book production. He was known as an inker, working for Marvel Comics.
For years he had received his paycheck with work for hire language stamped on the back, and for years he had crossed it out, until one day he needed to get his check cashed the same day he received it and walked into the executive offices. When his boss saw that he had crossed out the work for hire language, he became outraged and said, "How dare you do this?" And he said, “Well, you can't do this anyway; this is really illegal."
That afternoon he was discharged from the employment of Marvel and for several years basically could not work. The comic book industry is really dominated by two or three publishers, and when they spread the word out, he was unable to find further employment. Now that he is working again, even though he has been in the business for 10 or 15 years, he is only getting beginner's rates.
Senator DECONCINI. Thank you.
Mr. Weisgrau, let me ask you-you mentioned the case of Ms. Schuster.
Mr. WEISGRAU. Yes.
Senator DECONCINI. She was employed under a contract to do this work, and the fee was $3,000? Is that what I understood your testimony to say?
Mr. WEISGRAU. She would have been employed under an oral contract, Senator.
Senator DECONCINI. Under an oral contract?
Mr. WEISGRAU. Usually that type of business is transacted by phone. She is in Texas; the art director for the magazine is in New York.
Senator DECONCINI. So after she submitted the work- she did it all without any advance-
Mr. WEISGRAU. No advance payments.
Senator DECONCINI. I see. So her only recourse was to go to court to enforce the oral contract?
Mr. WEISGRAU. That's right, Senator.
Senator DECONCINI. And for $3,000, it is obvious that that was not a very-
Mr. WEISGRAU. I have cases come across my desk continually for $1,500 or $2,000 or $800 or $600, where the only recourse of the photographer is to go to court. Obviously, they can't afford to do it.
Senator DECONCINI. I'm just going to ask one last question because of time, and I want to yield to my friend from Utah.
We have other panelists after you, representing many of the publishers of America that testify in opposition to this bill, or with some problems with it. Several of the witnesses will testify that they might have to curtail their publishing ventures in the face of economic burdens.
I'm serious; I'm looking for you to be as objective as you can be to these responses, because they're following you. If you were following them, then I would respond to them-as artists, you have publishers who disseminate your work, just as publishers must have you and have your work for publication. It doesn't seem like you can operate without somebody. Our job in Congress is to attempt to balance and not see that one group under this economic artistic system has an advantage. Would you as artists and authors be willing to accept fewer opportunities to publish your work in return for the greater control over your work that it appears to me that S. 1253 would provide?
Mr. CLANCY. Senator, could I respond to that?
Mr. CLANCY. In the case of book publishing, which I know a little bit about, “The Hunt for Red October" had a retail price when published of $14.95. It was wholesaled out by the publisher for $7.50-between $7.50 and $7.75, depending on how many books they shipped out.
Now, the book cost $1.55 to print. The royalty paid me per hard cover copy was about $1.50, so that's $3.00. The gross profit, therefore, from the book was $4.50, or three times what I made. Now, how much more advantage do they need?
Senator DECONCINI. Well, to me you beg the question, Mr. Clancy, in all due respect-it's a market system. If the book couldn't be sold, if you weren't so talented, and it was so enticing and passed on by people who read it, and if the publisher hadn't done, I suspect, a magnificent job of selling the book, maybe they could only sell it for $10.00 or maybe they could only sell it for $8.50.
My point-and I take it the answer is no-but is there any credence to the argument that they have to invest a lot and they have to have a return, or they're not going to be around? That is what we're going to hear. And I don't say that to take sides here; I'm just trying to get your response.
Mr. MAISEL. There's a great deal of credence, but what we're talking about here is a matter of degree and water seeking its lowest level.