Negotiations composition thereunder after the date of ́ermination or expiration of dus contract Should the Punisher thereafter receive or be credited with any royalties or other monies so camed, it shall pay the same to the Writer. (c) The Writer shall not be obligated to return or pay in the Publisher any advance or indebtedness condition of the (d) Publisher shall pay any and all royalties which may have accrued to the Wnter prior to such termination or expiration If the Publisher desires to exercise a right in and to the composition now known or which may hereafter become known, but for for New or which no specific provision has been made herein, the Publisher shall give written notice to the Writer thereof Negotiations respecting L'especified all the terms and conditions of any such disposition shall thereupon be entered into between the Publisher and the Writer and no such L'ses right shall be exercised until specific agreement has been made. Royalty 10. The Publisher shall render to the Writer, hereafter, royaky statements accompanied by remittance of the amount due at the Statement times such statements and reminances are customarily rendered by the Puhlisher, provided, however, that such statements and and Payments remittances shall be rendered either semi-annually or quarterly and not more than forty-five days after the end of each such semi-annual e quarterly period, as the case may be. The Writer may at any time, or from time to time, make written request for a detailed royalty statement, and the Publisher shall, within sixty days, comply therewith Such royalty statements shall set forth in detail the various items, foreign and domestic, for which royalties are payable thereunder and the amounts thereof, including, but not limited to the number of copies sold and the number of uses made in each myalty category if a use is made in a publication of the character provided in Paragraph 4, subdivision (8) hereof, there shall be included in said royalty statement the title of said publication, the publisher of issuer thereof, the date of and number of uses, the gross license fee recensed in connection with each publication, the share therein of all the writers under contract with the Publisher, and the Writer's share thereof There shall likewise be included in said statement a description of every other use of the composition, and if by a licensee or licensees their name or names, and if said use is upon a part of an instrumen serving to reproduce the composition mechanically, the type of mochanical reproduction, the title of the label thereon. the name or names of the artists performing the same, together with the gross license fees received, and the Writer's there therent. Examination I! (a) The Publisher shall from time to time, upon written demand of the Writer or his representative, permit the Writer or his of Books representative to inspect at the place of business of the Publisher, all books, records and documents relating to the composition and all licenses granted, uses had and payments made the refur, such right of inspection to include, but not by way of limitation, the night to examine all original accountings and records relating to uses and payments by manufacturer of commercial sound recordings and music rolls, and the Writer or his representative may appoint an accountant who shall at any time during usual business hours have access to all records of the Publisher relating to the composition for the purpose of verifying royalty statements rendered or which are delinquent under the terms hereol Default in (b) The Publisher shall, upon written demand of the Writer or his representative, cause any licensing agent in the United States and Canaria to furnish to the Writer or his representative, statements showing in detail all licenses granted, uses had and payments made in connection with the composition, which hiponses or permits were granted, or payments were received, by or through said licensing agent, and to permit the Writer or his representative to inspect at the place of business of such licensing agent, all brinks, records and documents of such licensing agent, relating thareto Any and all agreements made by the Publisher with any such licensing agent shall provide that any such licensing agent will comply with the terms and provisions hereof. In the event that the Publisher shall instruct such licensing agent to furnish to the Writer or his representative statements as provided for herein, and to permit the inspection of the books, records and documents as herein provided, then if such licensing agent should refuse to comply with the said instructions, or any of them, the Publisher agrees to institute and prosecute diligently and in good faith such action or proceedings as may be necessary to compel compliance with the said instructions. (c) With respect to foreign licensing agents, the Publisher shall make available the books or records of said licensing agents in countries outside of the United States and Canada to the extent such books or records are available to the Publisher, except that tho Publisher may in lieu thereof make available any accountants' reports and audits which the Publisher is able to ohrain. (d) if as a result of any examination of books, records or decuments pursuant to Paragraphs 11(8), 11(b) or 11(c) hereof, it is determined that, with respect to any royalty statemem rendered by or on hehalf of the Publisher to the Writer, the Writer is owed a sum equal to or greater than five percent of the sum shown on that royalty statement as being due to the Writer, then the Publisher shall pay to the Writer the entire cost of such examination, not to exceed 50% of the amount shown to be due the Writer. (a) (i) In the event the Publisher administers its own licenses for the manufacture of parts of instruments serving to mechanically reproduce the composition rather than employing a licensing agent for that purpose, the Publisher shall include in each license agreement a provision permining the Publisher, the Writer or their respective representatives to inspect, at the place of business of such licensee, all books, records and documents of such licensee relating to such license. Within 30 days after written demand by the Writer, the Publisher shall commence to inspect such license's books, records and documents and shall furnish a written report of such Inspection to the Writer within 90 days following such demand. If the Publisher fails, after written demand by the Writer, to so inspect the licensee's books, records and documents, or fails to furnish such repon, the Writer or his representative may inspect such licensee's books, records and documents at his own expense. (ii) in the further event that the Publisher and the licenses referred to in subdivision (i) above are subsidlasies or affiliates of the same entity or one is a subsidiary or affiliate of the other, then, unless the Publisher employs a licensing agent to administer the licenses referred to in subdivision (1) above, the Writer shall have the right to make the inspection referred to in subdivision (i) shove without the necessity of making written demand on the Publisher as provided in ruhdivision (1) above. (i) If as a result of any inspection by the Writer pursuant to divisions (1) and (ii) of this subparagraph (2) the Writer recovers additional monies from the licensee, the Publisher and the Writer shall share equally in the cost of such inspection. 12. If the Publisher shall fail or refuse, within sixty days after written demand, to furnich or cause to be furnished, such Payment or statements, books, records or documents, or to permit inspection thereof, as provided for in Paragraphs 10 and 11 hereof, or within Prevention of thirty days after writica demand, to make the payment of any royalties due under this contract, then the Writer shall be entitled, upon Examination ten days' written notice, to terminate this contract. However if the Publisher shaft Derivative Works Notices (a) Within the said ten-day period serve upon the Writer a written notice demanding arbitration; and (b) Subrak to arbitration its claim that it has complied with its obligation to furnish statements, books, records or documenis, or permitted inspection thereof or to pay royalties, as the case may be, or both, and thereafter comply with any award of the arbitrator within ten days after such award or within such time as the artibrator may specify: then this contract shall continue is full force and effect as if the Writer had not sent such notice of termination. If the Publisher shall fail to comply with the foregoing provisions, then this contract shall be deemed to have bren terminated as of the date of the Writer's written notics of termination. 13. No derivative work prepared under authority of Publisher during the terms of this contract may be utilized by Puhlisher or any other party after termination or expiration of this contract. 14. All written demands and notices provided for herein shall be sem by certified mail, return receipt requeried. Sule for 15. Any legal action brought by the Publisher against any alleged infringer of the composition shall be initiated and prosecuted at Infringement its sole cost and expense, but if the Publisher should fail, within thirty days after written demand, to instine such action, the Writer shall be entitled to institute such suit at his cost and expense. All sums recovered as a result of any such action shall, after the deduction of the reasonable expense thereof, be divided equally between the Publisher and the Writer No settlement of any such action may be made by either party without first antifying the other, in the event that either party should object to such settlement, then such seriement shall not be made if the party objecting assumes the prosecution of the action and all expenses thereof, except that any suma thereafter recovered shall be divided equally between the Publisher and the Writer after the deduction of the reasonable expenses thereof. Infringement 16. (a) If a claim is presented against the Publisher alleging that the composition is an infringement upon some other work or a Claims violation of any other right of another, and because therof the Publisher is janpard red, it shall forth with serve a written notice upon the Writer setting forth the full details of such claim. The pendency of said claim shall not relieve the Publisher of the obligation to make payment of the royalties to the Writer hereunder, unless the Publisher shall deposit said royalties as and when they would otherwise be payable, in an account in the joint names of the Publisher and the Writer in a bank or trust company in New York, New York, if the Writer on the date of execution of this contract resides East of the Mississippi River, or in Los Angeles, California, if the Writer on the date of execution of this contract resides West of the Mississippi River If no suit be filed within ning months after said written notice from the Publisher to the Writer, all monies deposited in said joint account shall be paid over to the Writer phas any interest which may have been earned therson. Arbitration Assignment (b) Should an action be instituted again the Publisher claiming that the enigmiinin is an unfringement upon some other work or a violation of any other right of another, the Publisher shall forthwith serve written notice upon the Writer containing the full details of such claim Norwithstanding the commencement of such action, the Publisher shall continue to pay the royalties hereunder to the Writer unless it shall, from and after the date of the service nf the summons, deposit said royalties as and when they would otherwise be payable, in an account in the joint names of the Publisher and the Writer in a bank or trust company in New York. New York, if the Writer on the date of execution of this contract resides East of the Mississippi River, or in Los Angeles, California, if the Writer on the date of execution of this contract resides West of the Mississippi River If the said suit shall be finally adjudicated in favor of the Publisher or shall he terried, there shall be released and paid to the Writer all of such sums held in escrow less any amount paid out of the Writer's share with the Writer's written consent in sentement of said action. Should the sand sunt finally result adversely to the Publisher, the said amount on deposit shall be released to the Publisher to the extent of any expense or damage it incurs and the balance shall be paid over to the Writer. (c) in any of the foregoing events, however, the Writer shall be entitled to payment of said royalties or the money so deposited at and after such time as he files with the Publisher a surety company bond, or a bond in other form acceptable to the Publisher. In the sum of such payments to secure the return thereof to the extent that the Publisher may be entitled to such return. The foregoing payments of deposits or the filing of a bond shall be without prejudice to the rights of the Publisher or Writer in the premises. 17 Any and all differences, disputes or controversies arising out of or in connection with this contract shall be submitted to arbitration before a sole arbitrainr under the then prevailing rules of the American Arbitration Association. The location of the arbitration shaft be New York, New York, if the Writer on the date of execution of this contract resides East of the Mississippi River. or Los Angeles, California, if the Writer on the date of execution of this contract revides West of the Mississippi River. The parties hereby individually and jointly agree to abide by and perform any award rendered in such arbitration Judgment upon any such award rendered may be entered in any court having jurisdiction thereof. 18. Except to the extent herein otherwise expressly provided, the Publisher shall not sell, transfer, assign, convey, encumber or otherwise dispose of the composition or the copyright or copyrights secured thereon without the prior written consent of the Writer The Writer has been induced to enter into this contract in reliance upon the value to him of the personal service and ability of the Publisher in the exploitation of the composition, and by reason thereof it is the intention of the parties and the essence of the relationship between them that the rights here in granted to the Publisher shall remain with the Publisher and that the same shall not pass to any other person, including, without limitations, successors to or receivers or trustees of the property of the Publisher, either by act or deed of the Publisher or by operation of law, and in the event of the voluntary or involuntary bankruptcy of the Publisher, this contract shaß terminate, provided, however, that the composition may be included by the Publisher in a bona fide voluntary sale of its music business or its entire caraing of musical compositions, or in a merger or consolidation of the Publisher with another corporation, in which event the Publisher shall immediately give written notice thereof to the Writer; and provided further that the composition and the copyright therein may be assigned by the Publisher to a subsidiary or affiliated company generally engaged in the music publishing business if the Publisher is an individual, the composition may pass to a legatce or distributes as part of the inheritance of the Publisher's music business and entire caraing of musical compositions. Any such transfer or assignment shall, however, be conditioned upon the execution and delivery by the transferee or assignee to the Writer of an agreement to be bound by and to perform all of the term and conditions of this contract to be performed on the part of the Publisher. Subsidiary 19. A subsidiary, affiliate, or any person, firm or corporation controlled by the Publisher or by such subsidiary or affiliate, as used Defined in this contract, shall be deemed to include any person, firm or corporation, under common control with, or the majority of whoe unck or capital contribution is owned or controlled by the Publisher or by any of its officers, directors, partners or associates, or whose policies and actions are subject to domination or control hy the Publisher or any of its officers, directors, partners or associates. Amounts Modifications Paragraph Special Provisions 20. The amounts and percentages specified in this contract shall be deemed to be the amounts and percentages agreed upon by the parties hereto, unless other amounts or percentages are inserted in the blank spaces provided therefor. 21. This contract is binding upon and shall enure to the benefit of the parties hereto and their respective successors in interest (20 hereinbefore limited). If the Writer (or one or more of them) shall not be living, any notices may be given to, or consents given by, his or their successors in interest. No change or modification of this contract shall be effective unless reduced to writing and signed by the parties hereto. The words in this contract shall be so construed that the singular shall include the plural and the plural shall include the singular where the context so requires and the masculine shall include the feminine and the feminine shall include the masculine where the context so requires. 22. The paragraph headings are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope or intent of this contract nor in any way affect this contract. SEND A COPY OF THE FULLY SIGNED CONTRACT TO THE GUILD. which is the subject of an agreement between the parties dated Motion Picture Night Club Revue a copy of which is hereto annexed Unless said agreement requires complimos with Paragraph 6 in respect of a greater number of musical compositions, the Publisher shall be deemed to have complied with sand Paragraph with respect to the composition if it fully performs the terms of sand Paragraph 6 in respect of any one musical composition included ia said score. Senator DECONCINI. Thank you, Mr. Weisgrau. Mr. Maisel. STATEMENT OF JAY MAISEL, PHOTOGRAPHER, NEW YORK, NY Mr. MAISEL. My name is Jay Maisel. I have been a freelance photographer for 36 years. When you last this long, you get your share of clients, awards, and honors. I have had exhibitions; I've had books on me; I have had great assignments. I teach and lecture. Finally, I want to show you a few photographs from my stock file. This file brings in income that would not be possible under work for hire and this work would disappear forever. [Slide projection.] These pictures have been reproduced nationally and internationally, and in this book. They were all done on assignments with clients who did not ask for work for hire and they would not exist if it were not for the possibility that I had residual rights on these things. When one starts off in a creative field one has to be very, very concerned-not about one's own self, but about the younger people who are in the field who will be your contemporaries. My concern is that, like me, they photograph for love as well as for money. Creators are always in love with their art. It's something they do on their days off. When you start in the field, one of the major problems you have to overcome is the cries of parents who ask you, "When are you going to get a real job?" But you persist, and you train for the career despite everything. What keeps you going is faith and a driving urge to create a body of work. It's a labor of love. Work for hire means that creators lose their rights to their work piece by piece, job by job, until they finally realize that it's all gone and there is nothing left to show for all the effort. They see others, who did not create the work, making money from it-or worse, they find out the work has been discarded or destroyed by the neglect or incompetence of people who had no emotional investment in it. Work for hire removes from the negotiating table the crucial issue of how, where, and how often the work will be used. I certainly think the profit motive is a noble one. I am aware that unless publishers profit, they will perish. But up until now, they have prospered very well. I wish them well. We are mutually in need of each other. However, the creators on whom the publishers depend for their content must not be excluded from the fruits of their labor. Creators who never wanted a real job find themselves classed as manufacturers, unable to use collective bargaining, unprotected by unions. Pitted against each other economically, they require costly space, expensive support staff, and huge sums of money for equipment, then they find themselves given a "take it or leave it" ultimatum and risk being blackballed by those who know they won't do work for hire. Why are these creators so stubborn? Why don't they just sell their pictures and be done with it? Because in determining a fair fee, it must be based on how the work is to be used-once, next week, or once every week for the next 7 years in every magazine and newspaper in the country? Will it be a trademark, to be used forever? If our clients can tell us that our contribution can be used in any way, and that there is no difference between one usage and a thousand usages, then there is something distinctly wrong with the system. If I do a great job on a work for hire and a new usage comes out of it, the printer, typographer, paper supplier, trucker, designer will all be paid. If it's an ad, the magazine will be paid and the ad agency will take its commission. Who comes up empty? The photographer. So why doesn't the client hire these creators, pay them a salary, give them benefits, and own everything? Because they tried it and it doesn't work. The creative spirit is a fragile thing and it dries up when faced with steady employment. [Laughter.] So the employer ends up hiring freelancers anyway. This is not conjecture; these are my clients. The fresh, unique vision of the freelancer is what they want. Fine. The problem is that they want to treat them as employees but without the benefit of employment. They want it both ways. They want to own and use the work forever, but they won't assume the financial obligation of the employer. No Social Security, no unemployment insurance, no medical, no workmen's compensation, no insurance. If I am hurt or die on the job, they are not responsible. And of course, if I live, their contribution to my retirement or pension fund is zero. The right of estimating usage is the essence of copyright. Time magazine charges advertisers for space for their ads. They don't charge the same rates for local, regional, national, or international editions; they charge according to usage. It's understood. Yet under work for hire usage is irrelevant. The fee paid is for time and materials without consideration of the total economic value of the contribution. If a photographer must relinquish his right to his photograph once the shutter closes, his horizons shrink to the diameter of his current paycheck. The attitude that kept America's creative horizons unlimited and made us a dominant force in international art has been to excel. What I hope you will look at, beyond the monumental inequity, is the larger issue. If you allow this disparity in bargaining power, the terms of employment will become so unattractive as to not attract people of a higher caliber. You risk forfeiting our position as global leaders in the arts. Every day you read of another American industry, business, or institution losing out on the international field of competition. I am concerned, especially at a time in our history when our national creative community holds the vanguard. I am neither a doomsayer, nor do I mean to belabor the obvious, but if we lose in this field, another field and allied fields-electronics, automobiles, and others-will follow into decline. I urge you, Mr. Chairman, to restore the ability of freelancers to survive and prosper by limiting work for hire to the limits proposed by S. 1253. I am convinced that the country's full creative potential will only be restored if freelancers reap the benefits of their labors. Work for hire makes that goal difficult, if not impossible, to attain. [The prepared statement of Mr. Maisel follows:] |