Answer:

Certainty in the law will give the parties an opportunity to anticipate this issue. The commissioning party could obtain a preliminary agreement from the contributor which could address whether or not any substantial preliminary work exists. If such work exists, the agreement would assign appropriate rights to the commissioning party. If no preliminary work has been done, the agreement would acknowledge this fact and then make suitable provision to constitute the future work as a work made for hire. As a practical matter, I anticipate few instances when the time work commences will be at issue, once the law is clarified. Since the question would only arise where there is a signed agreement and the creator of the work seeks to defeat the contract, the common assumption would be that the creator became dissatisfied with the agreement after the fact. With ordinary parol evidence rules, and appropriate consideration of who has control of circumstances surrounding commencement of work, the creator would bear a substantial burden of proof to overturn an agreement.

Question 3:

What effect would the requirement that work-for-hire agreements be signed in advance have on time-sensitive industries, such as the news media, that would find it difficult to draw up agreements with one-time contributors during coverage of fast-breaking news stories?

Answer:

General agreements to transfer can always be drawn up in advance, with further provisions specified in supplementary documents. High-tech communication methods such as faxes and telexes belie the conclusion that news organizations would not be able to transmit and receive signed agreements through agents as easily as they can transmit the fast-breaking

news stories themselves.

Senator DECONCINI. The original act lists the nine categories. Have you given any thought to a need to expand those categories? We have had testimony here by computer lawyers and others saying that computer software should be added to the list, and that maybe other things should be added to the list. Have you ever given any consideration to that list, in and of itself, in the existing law? Or if we do something with Senator Cochran's list, expanding that list at this time?

Mr. OMAN. Mr. Chairman, we have not formally considered that possibility but we have discussed it informally within the office. Certainly, the copyright laws are always being updated to accommodate new technologies and new forms of expression, and certainly we would want to examine the implications of work made for hire and this provision of the law in regard to those new technologies, particularly in the computer software area.

Senator DECONCINI. Could I ask you to submit to us your analysis of that list and whether or not there should be any additions, or if you have any recommendations?

Mr. OMAN. We'd be happy to do that.

Senator DECONCINI. Thank you. I will submit the balance of my questions. Thank you very much.

Mr. OMAN. Thank you.

Senator DECONCINI. We will now go to the first panel: Mr. Richard Weisgrau, executive director, American Society of Magazine Photographers; Mr. Jay Maisel, a photographer from New York; Mr. Don Martin, a cartoonist, representing the Graphic Artists Guild; and Mr. Tom Clancy, an author.

Gentlemen, we have a busy schedule here. We want to hear from all of you, but we are going to ask that you summarize your statements in about 3 minutes, if you can. Your full statements will be included in the record.

We will start with you, Mr. Weisgrau. Please proceed.

STATEMENT OF RICHARD WEISGRAU, EXECUTIVE DIRECTOR, AMERICAN SOCIETY OF MAGAZINE PHOTOGRAPHERS, NEW YORK, NY

Mr. WEISGRAU. Thank you, Mr. Chairman. My name is Richard Weisgrau and I am the executive director of the American Society of Magazine Photographers, an organization of over 5,000 freelance photographers who produce the best in photography for publishers, advertising agencies, and corporate clients.

The Copyright Justice Coalition, of which ASMP is a part, consists of 50 organizations whose over 100,000 individual members comprise the vast majority of freelance creative talent in the United States. In addition to these remarks, I am submitting detailed documentation on the need for corrective legislation through personal statements drawn from creators' experience and through sample contracts showing the types of abusive practices perpetuated by those who commission freelancers.

Mr. Chairman, I have noticed, in reading the statements of many of the publishing associations, that they seem to be very, very concerned about moral rights. I want to make it clear that we are not here to address moral rights. We are here to speak about the exist

ing rights under the Copyright Act and what we consider to be reasonable adjustments to the work for hire provision.

We have been seeking changes in work made for hire and those provisions of the copyright law for the past 10 years. The rules governing the right of authorship and ownership of copyright have been twisted beyond recognition by publishers and other users and disseminators of creative works. Twelve years of rather bitter experience with work for hire has proved that it has been extended far beyond the limits that Congress intended and has severely disrupted the delicate balance between the rights of true authors, and publishers who seek to capture the title of author.

Work for hire has been used to deprive creators of their fundamental right to claim authorship of their work and to take away from creators any right to profit from the multiplicity of uses of their creative works. It has been used by those, publishers included, who tried in vain to convince the Supreme Court that freelance creators are the employees of the parties who commissioned them. It has been used to take unconscionable advantage of freelancers by forcing them to sign work for hire agreements stamped as endorsements on the backs of checks which constitute payment. It has been abused by the proliferation of blanket work for hire agreements that take, but do not pay for, all the rights-not only for the work being commissioned, but for all works created in the future by the freelancer.

Some recent blanket work for hire agreements demand a work for hire in both future and past works. After the Reid decision one ASMP member received a letter from Fairchild Publications requesting that “all photographers, as per the copyright law, sign the attached contract to cover all future assignments.'

This statement's deception in suggesting that the copyright law requires the agreement to be signed is compounded by the actual language of the agreement: "You hereby agree that all photographs taken by you at any time for Fairchild Publications shall be deemed 'work made for hire.'" This language effectively makes all past and future images taken by the photographer work for hire, all without the payment of any compensation.

Unfortunately, Mr. Chairman, this outrageous expression of a publisher's superior bargaining power is typical of what is happening to creators. Work for hire is abused by those who refuse to negotiate with creators and who blackball those who will not sign. This abuse by those who reap vast profits from the commercial exploitation of the rights of freelancers forces many to live at subsistence levels.

Mr. Chairman, work for hire is at odds with the fundamental purposes of copyright law. Our copyright system is designed to reward creativity and thereby ensure the availability of creative works to the public. Our system seeks to protect the individuals who truly are the lifeblood of America's imagination and innovation from the excesses of those far wealthier entities that, although they claim to create, do not create but simply bring the products of the true creative genius to the public.

I am here today on behalf of freelance creators regardless of whether they use a pen, a brush, or a camera. From the many individual experiences described in the written statements of ASMP

that the CJC uses to illustrate that this is so, let me give one telling example.

[Slide projection.]

Mr. WEISGRAU. These slides represent the brilliant work of an ASMP member, Ellen Schuster, a photographer well known for her multiple exposure surrealistic images. These images have been resold dozens of times, and the copyrights on them are worth many thousands of dollars. Ms. Schuster was commissioned by Time magazine in late 1987 to create a photographic illustration for a cover story on the greenhouse effect. She negotiated a fee of $3,000, commensurate with the value of one-time use for the image on the cover. Time agreed to pay that amount and never mentioned work for hire.

This is the image that Ms. Schuster produced that was ultimately seen by millions of Time subscribers. After it was received by Time, she was sent a work for hire agreement in which, of course, she has no rights. The price paid by Time, of course, bore no relationship to the value of this work over the life of the copyright. After incurring all the expenses necessary to produce the image, and not having received her fee for the time invested in the project, even a photographer of Ms. Schuster's stature had no choice but to sign the work for hire agreement or litigate the issue in court. Since the statute does not clearly bar such after-the-fact agreements, Time succeeded in extrasting all the rights from Ms. Schuster, while avoiding paying for them.

Companies like Time-now Time-Warner-have made their intent to deprive creators of their rights abundantly clear. Time's latest annual report states as follows: "In the media and entertainment business of the future, the winners"-those are their words, "the winners"-"will own the copyrights to creative products, as well as the avenues of distribution. We intend to increase our ownership of both." That closes the statement.

That seems to me like a prime ground for creating an information monopoly. That seems to be their intent.

This stance arises from progress in technology that has greatly enhanced the value of copyright rights. Photographic images, for example, can be easily manipulated by computer and adapted for innumerable uses. Whoever owns the copyright will be able to control and profit from these multiple uses. Work for hire has become an epidemic in the creative field and has ironically facilitated its proliferation, to the great detriment of the intended beneficiaries of the copyright laws.

Mr. Chairman, S. 1253 is not a panacea for all of these problems, but it is a necessary and constructive step forward toward the achievement of a fair balance between creators' and publishers' rights. The bill would for the first time establish a clear and objective definition of employee, and I might mention that the Court did not reject "formal salaried employee;" they said there was not enough evidence for them to draw that conclusion.

The bill, in forbidding blanket work for hire agreements, would stop the undermining of and increase the bargaining power of freelance creators. It would forestall the slide toward endless litigation over the meaning of joint work. The bill would establish a clear,

objective standard for determining whether commissioned works qualify as joint works.

Mr. Chairman, the vagueness of the current definition of joint work permits the publisher to argue that their directions or suggestions to creators are sufficient to make the publisher a joint author of the resulting work. The exhibit set up in this hearing room, I think, clearly shows what happens when you give 10 different artists the same assignment. I think it is very, very telling. I know you can't see it from where you sit, but I hope you will have an opportunity to look at it.

If the joint work problem is not addressed, any progress made in the work for hire area will be undermined as publishers claim coauthorship of virtually any creative product in which they have a passing involvement.

We believe that the vesting of the creator's authorship and copyright rights in a publisher through the work for hire agreements is morally offensive and is contrary to one of the fundamental purposes of the copyright law, to foster and encourage creativity. The publishers like to refer to us as contributors. The truth is that we are the authors, and they are the producers and distributors.

While S. 1253 would not bar work for hire agreements, it would at least afford creators a meaningful opportunity to avoid them. S. 1253 would help preserve this Nation's creative resources, and I urge its prompt enactment.

[The prepared statement of Mr. Weisgrau with attachments follow:]