Senator DECONCINI. Thank you, Mr. Klipper. Mr. Kovner. STATEMENT OF VICTOR KOVNER, CHAIRMAN, LEGAL AFFAIRS MAGAZINE PUBLISHERS OF AMERICA, NEW COMMITTEE, 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. Thank you. [The prepared statement of Mr. Kovner and a letter to Senator DeConcini follow:] STATEMENT OF VICTOR A. KOVNER MAGAZINE PUBLISHERS OF AMERICA SUMMARY MPA opposes the enactment of a uniform federal law of "moral rights" and opposes the enactment of S. 1253, the "work for hire" bill introduced by Senator Cochran. - -- and The United States has a copyright system that works. It is a system that has served publishers, editors, creators most importantly, the American public extremely well for two centuries. The Copyright Act of 1976 was built upon the principles of balance and compromise, and enacted only after decades of weighing and considering the interests and arguments of all sides of all issues. Those who would fundamentally alter this system or disrupt that balance bear an extraordinarily heavy burden of proof. MPA respectfully submits that neither the advocates of "moral rights" nor the proponents of Senator Cochran's "work for hire" bill can make the case for the radical changes they propose. Moral Rights. The actions of the 100th Congress cannot accurately be construed by anyone as an explicit or implicit endorsement of the proposition that the doctrine of "moral rights" has become, or should become, part of our Copyright Act, or that the enactment of comprehensive "moral rights" legislation would serve a meritorious public purpose. Last year Congress concluded that enactment of a federal "moral rights" statute was not necessary for the United States to satisfy its obligations under Article 6 bis of the Berne Convention. This year, apparently, the question is whether Congress should enact such a statute even though our nation is under no obligation to do so. The answer, clearly, is "no." Such a statute would impede the timely dissemination of information to the public, inhibit editorial freedom, and in cinge upon the freedom of contract. Work for Hire. S. 1253's rewriting of the Copyright Act's work for hire provision is no mere "clarification. It is a radical and unwarranted revision. Apparently not satisfied by their substantial victory in CCNV v. Reid (in which the Court rejected the test of employment favored by MPA), the proponents of S. 1253 now seek the one form of relief denied them by the Court. S. 1253 would overturn the Court's reliance on the well-known principles of agency law and adopt the same "formal, salaried" test which the Court rejected. Such a test would likely prompt even more litigation. MPA also objects to the S. 1253's prohibition of multi-work agreements and S. 1253's requirement that a written agreement be executed prior to commencement of each work. These provisions serve no one's interest certainly not that of the reading public. - STATEMENT OF VICTOR A. KOVNER MAGAZINE PUBLISHERS OF AMERICA BEFORE THE SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS COMMITTEE ON THE JUDICIARY UNITED STATES SENATE SEPTEMBER 20, 1989 Mr. Chairman and Members of the Subcommittee: My name is Victor A. Kovner. I appear here today in my capacity of Chairman of the Legal Affairs Committee of the Magazine Publishers of America (MPA). The message which I am authorized to bring on behalf of MPA is straightforward: (1) we oppose the enactment of a uniform federal law of "moral rights"; and (2) we oppose the enactment of S. 1253, the "work for hire" bill introduced by Senator Cochran. As you know, MPA is the trade association representing the interests of approximately 200 firms which publish more than 1000 consumer-interest magazines annually. Over the years we have been recognized as the voice of the American magazine industry on numerous issues of public policy. I am an attorney engaged in the private practice of law as a partner in the New York City firm of Lankenau, Kovner & Bickford, specializing in media law. Among the clients we regularly represent are the publishers of Rolling Stone, Us, Harper's, Lear's, 7 Days and many other members of MPA. I will summarize our views on "moral rights" and "work for hire" in a moment, but please note at the outset that the theme of MPA's message today is essentially the same as it was during last year's debate over the Berne Convention and during the consideration of the bills introduced in past Congresses by Senator Cochran. - We have a copyright system that works. It is a system that has served publishers, editors, creators and most importantly, the American public Copyright Act of 1976 was built upon the principles of balance and compromise, and enacted only after decades of weighing and considering the interests and arguments of all sides of all issues. Those who would fundamentally alter this system or disrupt that balance bear an extraordinarily heavy burden of proof. extremely well for two centuries. The MPA respectfully submits that neither the advocates of "moral rights" nor the proponents of Senator Cochran's "work for hire" bill can make the case for the radical changes they propose. A. Moral Rights As you know, MPA was an active participant in the debate over Berne adherence. Our involvement was triggered by one factor: the spectre of "moral rights" in American copyright law. MPA initially opposed U.S. adherence to the Berne Convention solely because of "moral rights." Our firm conviction was (and www |