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would unnecessarily involve publishers in innumerable time-consuming and expensive negotiations.
Similarly, s. 1253 would eliminate the practice under
which a contributor contracts to provide the commissioning
party with a set number of works over a prescribed period of
As noted in CACC's written statement, this practice is
common in the motion picture and magazine industries. serves the important purpose of permitting both the
commissioning party and the contributor to engage in advance
planning that is important to to the proper functioning of our
Finally, this provision of s. 1253 is certain to engender much litigation as courts would be regularly called upon to resolve disputes over what constitutes a "separate
Questions from Senator Leahy
Editors and publishers often must balance sometimes
conflicting responsibilities and concerns. They are faced with the task of melding together a large number and variety of contributions in a way that best conveys a story or message,
and of doing so quite often within demanding time constraints.
Ultimately, however, they are responsible for overseeing their
publications, and they are held accountable for the contents.
In this context, editors and publishers must make tough
decisions about how best to use various contributions in a
manner consistent with a publication's own standards, style,
and space limitations.
In making these decisions, it may be
necessary for an editor to crop a photograph in a way that he
or she believes best complements an accompanying story.
We do not believe any legislative changes to the
work-made-for-hire doctrine are warranted at this time, for the
First, the practical impact of the work-made-for-hire
doctrine has just been dramatically changed by the decision of
the Supreme Court in CCNV v. Reid.
That decision rejected the
broad definition of "employee" previously adopted by most
federal courts, in favor of a much narrower definition that
will make work-made-for-hire inapplicable in many instances in
which it was previously employed. Legislative tinkering with
the balance between contributors and publishers would be
particularly unwise at this time, when all interested parties
are just beginning to assess the post-CCNV environment.
Second, the practices identified by proponents of
s. 1253 as abuses of the work-made-for-hire system appear far
narrower than the sweep of the remedies proposed in that
Moreover, while abuses may occur in the
work-made-for-hire field, they are isolated aberrations, not
the norm, and they are overwhelmingly outweighed by the
literally thousands of non-controversial work-made-for-hire
agreements that have been used over the years and which have
helped make many creative works available to the public. Attention to correcting isolated abuses must not obscure the
fact that overall, the work-made-for-hire system functions
well. It provides both contributors and publishers with sufficient flexibility to fulfill the constitutional goal of promoting the creation of innovative new works. A11 participants in the systems, and society as a whole, benefit from the availability of work-made-for-hire under the Copyright
In sum, while the current work-made-for-hire system is
not perfect, it is in no sense "broken," and certainly not to the extent of the drastic and imprudent "fix" proposed by S. 1253. Moreover, legislative change would be particularly untimely now, on the heels of the significant changes wrought by last spring's CCNV decision.
Senator DECONCINI. Thank you, Mr. Klipper.
STATEMENT OF VICTOR KOVNER, CHAIRMAN, LEGAL AFFAIRS
COMMITTEE, MAGAZINE PUBLISHERS OF AMERICA, NEW YORK, NY
Mr. KOVNER. Mr. Chairman, I appreciate the opportunity to appear here on behalf of the Magazine Publishers of America. I do so as chairman of their legal affairs committee, and with your permission I will simply ask that my testimony be included as part of the record-
Senator DECONCINI. Without objection.
Mr. KOVNER [continuing]. And instead, I will take the opportunity to respond to some of the comments that were made by the prior panel and to some of the questions posed by you and by Senator Hatch.
First, with respect to the endorsement stamp. Those stamps on the checks are simply unenforceable as a matter of State law. To my knowledge, responsible publishers do not use them. If they do use them, they are simply ineffective. People may strike them from the back, and they may be deposited. They do not, as a matter of State contract law, create a contract. There is simply no reason to address them in the Copyright Act.
I might add, as you yourself noted, those principles apply--
Mr. KOVNER. I can't say to a certainty, Senator, that that's true in all 50 States, but I am not aware of a single State where they are enforceable today. And I believe that their usage is extremely rare. To my knowledge, they are just not used by members of the Magazine Publishers of America, which include thousands of publications, the largest consumer publications in the country.
Second, in terms of the notion that we should bar multiwork agreements, I ask you to focus on the basic nature of contributing editors to magazine publishers today. People generally sign up for a series of articles-or perhaps a series of photographs. To require that there be a separate agreement made for each one is simply more work for lawyers, more paperwork, more burden on all parties, and the effective life of any of these agreements lasts only to the next agreement, because each assignment is going to have a, separate fee applicable to it. If a writer or photographer or illustrator does not wish to render that service at that defined fee, they simply won't do so.
The entire structure that was presented, I suggest, is a misconception of the basic bargaining arrangements. Creators can offer for sale one-time rights. They can offer for sale a multiplicity of rights. They can offer for sale all rights. They can offer it on a work for hire basis, and there are different prices that will be paid. The mere fact that you use a work for hire agreement doesn't mean that there aren't going to be subsequent payments. As Mr. Klipper pointed out, indeed, there are plenty of work for hire agreements which involve sharing of income from subsequent uses. And indeed, work for hire agreements involve reassignment of a whole panoply of rights, as negotiated and defined.
The groups you heard from previously include some of the very fine trade associations, such as the American Society of Magazine Photographers, which forcefully represents the finest photographers in this country. Their members do not, as Mr. Weisgrau said, routinely sign-they very rarely sign-work for hire agreements. They usually sign very limited rights agreements. They are closely negotiated by a series of sophisticated experts. But there are instances where "work for hire" agreements are appropriate and are negotiated in the marketplace, and ought not be barred across the board.
There is less here than meets the eye. They are really troubled by being asked to grant all rights, not the work for hire agreement per se because work for hire agreements can involve a reassignment of a series of rights. The only significant issue, I submit, is the so-called termination transfer after the 35th year, which would be eliminated under a work for hire framework.
But there are uses appropriate to the magazine industry. We've seen it just recently with the commemorative publications involving the 50th anniversary of World War II where lots of creative work has been republished. If a magazine is in the position of having to renegotiate after the 35th year with the heirs of the multiplicity of creators-because many, many people contribute to these works—the public will be deprived of publications. Just as in the moral rights area which we are really not addressing, since it wasn't raised this morning, these proposals limit speech, limit the availability of information to the public rather than encourage the use of freelancers, which is a vital part of our industry.
[The prepared statement of Mr. Kovner and a letter to Senator DeConcini follow: