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rejected the "formal, salaried" test.

Instead, the Court

endorsed the interpretation made by the D.C. Circuit and Fifth Circuit: that principles of the general common law of agency should be used to determine whether the work was prepared by an employee and that no one factor is determinative.

We believe CCNV v. Reid requires significant adjustments in the way many magazines do business. Nonetheless, we will abide

by the Court's decision and we do not come here today to ask you to overturn it. Unfortunately, it seems that our friends on the other side of this issue are not satisfied by their victory before the Court. Now they want you to give them the one form of relief denied them by the Court.

2. S. 1253

S. 1253 would rewrite the work for hire doctrine and overturn the Supreme Court's decision in CCNV v. Reid by amending paragraph (1) of the Copyright Act's work for hire provision. The rigid "formal, salaried" test of whether a person is an "employee" would be enacted. This approach voids the Court's agency law standard and adopts the very same "formal, salaried" test unanimously rejected by the Court. By casting aside the well-known principles of agency law for a standard that is new and unfamiliar, S. 1253 is likely to prompt even more litigation. What does "formal, salaried" mean? The bill is silent.

Moreover, the "formal, salaried" employee standard conflicts with nearly a century of American copyright case law and

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statutory development.

Since the work for hire doctrine's first articulation in 1903, there has been general agreement that an "employee" for purposes of our copyright law is a term whose meaning cannot and should not be determined only by whether the person receives a "salary." As the Supreme Court said in CCNV, "Even the one Court of Appeals to adopt what is termed a formal, salaried employee test in fact embraced an approach incorporating numerous factors drawn from the agency law definition of employee which we endorse." CCNV, et. al. v. Reid, 57 U.S.L.W. 4607, 4610 (June 5, 1989). It should be noted that the world's most renowned authority on American copyright law, the late Professor Nimmer, suggested the use of agency law principles in determining whether a person is an employee. Nimmer on Copyright, Section

5.03 [B] [1], at 5-12 and n.13.1 (1986).

S. 1253's re-writing of the work for hire provision is no mere "clarification." It is a radical revision, and totally

unwarranted.

Prohibition of Multi-Work Agreements. The proposed insertion of the phrase "with respect to each such work" in Paragraph (2) .ɔf the 1976 Act's work for hire provision is plainly

inappropriate. Common practice in the magazine industry includes entering into a single agreement with a contributing editor in which anywhere from four to twelve articles might be commissioned to be delivered over a year on specific subjects (e.g., food, beauty, health, fashion, travel), with informal discussions before work on each article commences. Such agreements serve the

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interest of both the publisher and the writer, permitting

rationality in planning and guaranteeing the terms of

compensation.

Yet, S. 1253 would outlaw these agreements.

I am

at a loss to understand why.

Also, under existing law, publishers commonly commission freelance writers or photographers on a work for hire basis to cover events such as the Olympics and submit a series of photographs or articles over the course of many days. Typically, a writer's commission might be to cover the Olympics and provide the publisher with a feature length story and two smaller pieces each week. Naturally, because neither the publisher nor the writer can predict the course of events at the Olympics, they would operate today with a single, flexible work for hire agreement that provides for coverage of issues that arise unexpectedly. The desirability of such agreements should be clear to everyone. Regrettably, for example, we have seen the focus of recent Olympics shift swiftly and dramatically from the action on the playing field to the activities of terrorists, from the results of the 100-meter dash to the results of the winner's drug test. Does S. 1253 require that a written agreement be executed as each story "breaks" before it can be covered on a work for hire basis? Such a requirement would serve no one's certainly not that of the reading public.

interest

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The Proposed Requirement of Execution of a Written Agreement Before the Commencement of the Work. The proposal to add the words, "before the commencement of the work," in Paragraph (2) of

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the 1976 Act's work for hire provision is perplexing.

What is

the moment of " commencement" of a "work"? The bill offers no guidance. Courts will spend years sorting this out. But, draftsmanship aside, this provision serves no one's interest. Let me give you an example from our industry. Magazine editors frequently use the telephone to handle the commissioning of articles on fast-breaking stories, as well as to provide additional commissions to writers or photographers already on assignment in remote locations. If a writer is in Bonn, Germany and is asked on the telephone to cover an ecological disaster in Southern France on a work for hire basis, why should the fact that a written agreement is not signed (indeed, cannot be signed) until after the writer has begun the article preclude enforceability of that agreement? Again, everyone loses. The publisher does not get the story; the writer does not get the assignment; the public does not get the information.

Conclusion

Mr. Chairman the past year has seen two momentous events in the world of American copyright law: adherence to the Berne Convention and issuance of the Supreme Court's decision in CCNV v. Reid. Still, the integrity of the 1976 Act and its carefully crafted balancing of interests remain intact.

As you observed in opening this series of hearings on June 20: "It is incumbent on those advocating change in the copyright law to show that such change is necessary." Those who would have you make radical changes such as introducing "moral rights"

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into our copyright law or rewriting the principles of the "work should be required to bear the requisite

for hire" doctrine

burden of proof.

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The case for such radical change has not been made and, we submit, cannot be made. The law which the Congress wrote in 1976 works.

Let's not tamper with success.