-6 will get paid its space rate and the advertising agency will take its percentage. Guess who gets cut out? The guy who created the image in the first place the photographer. - So why don't the corporations, the agencies, the So magazines hire these unique people, put them on staff, pay them a salary, give them the fringe benefits and then own all the work outright? Because they tried it and it just doesn't work. The creative spirit is a fragile thing and seems to dry up when faced with steady employment and no chance to control its future. employers go outside their staff and hire freelancers anyway to get the creative work they want. This is not fantasy, this is a fact of life in major corporations all over the world. These are my clients. Most clients must rely on the fresh and unique vision of the freelancer to get the qualilty of work they demand. The only problem is they want to treat them as employees, but without providing the fringe benefits of employment. They want it both ways. They want to own and use the work forever but they will not assume the financial obligations of an employer they don't want to put anything in the pot for social security, - unemployment, medical, dental, workman's compensation, or insurance. If I'm hurt or die on the job, my clients are not responsible. And of course, their contribution to my pension or retirement is an even zero. -7 At the same time, clients want the work, forever. They say that they pay a premium for "work for hire" but let's think it through. If work for hire becomes universal, prices will continue their downward spiral - because the biggest negotiation chip, usage, will be gone from the table until freelancers will be unable to make a decent living from their work. If a photographer must relinquish the rights to his photographs once the shutter closes, his horizons shrink to the diameter of his current paycheck. But, if he retains the rights to his work, he has the incentive to work an extra day, shoot an extra roll or risk an innovation. This also benefits the client, and in years to come it may pay off for both parties artistically and financially. That attitude has kept America's creative horizons unlimited and made us the dominant force in international art. We cannot afford to discourage young talent from entering the creative field nor allow established talent to be forced out by the artistic and economic disincentives "work for hire" creates. - must be to The intent of the laws protecting the rights of individual artists no matter what the language bring the negotiating power of those individuals into greater parity with the power of huge agencies and corporations. If the spirit of that intent is circumvented, the letter of the law will be unable to prevent the exploitation and ultimate deterioration of America's creative community. -8 What I hope you will look at beyond the monumental inequity is the larger issue. If you allow the disparity in bargaining power between huge corporations and the creative community to continue to skew the terms of employment, then you risk forfeiting our position as global leaders in the arts. Every day one reads of another American industry, business, or institution losing out on the international field of competition. As an American photographer, I am concerned, especially at a time in our history when our national creative community holds the vanguard. That position is threatened by "work for hire". I am neither a doomsayer nor do I mean to belabor the obvious, but if terms of employment become terribly unattractive there will be an inevitable decline in the caliber of people and work in this area. Thus another field in which we lead the world, another entire field and all its allied industries will follow electronics, automobiles, and others into decline in a national and global sense. 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. Thank you for giving me the opportunity to testify on behalf of photographers. Senator DECONCINI. Thank you. I want to ask Senator Cochran-I didn't realize you had stayed here would you like to join us up here, Senator Cochran? Senator COCHRAN. I'm happy out here, sir. I appreciate the courtesy. Senator DECONCINI. OK. Fine. [Laughter.] Mr. Martin. STATEMENT OF DON MARTIN, CARTOONIST, STUDIOS OF DON MARTIN, MIAMI, FL, REPRESENTING THE GRAPHIC ARTISTS GUILD Mr. MARTIN. Mr. Chairman, my name is Don Martin, and I am representing the Graphic Artists Guild. Thank you for giving me the opportunity to voice our support of S. 1253, Senator Cochran's artists bill of rights. I have been a freelance cartoonist for 35 years. My work was featured in MAD magazine. It now appears in my own German and Scandinavian comics, in Cracked magazine, books, advertising, and a comic strip. [Slide projection.] Mr. MARTIN. Here are some samples of the work I have produced over the past 35 years. You will see that it is a very distinctive style of drawing and humor, and it has influenced a lot of cartoonists and people in other areas of comedy. This was done for the Swedish Confederation of Labor Unions. It's a cover for educational material for the younger members. Senator DECONCINI. You left out the political cartoons. Is there any particular reason? [Laughter.] Mr. MARTIN. In the mid-1950's when I started, I took MAD's company-owned rights for granted. I was grateful to be working, and believed the company would be fair about original artwork and copyright_rights. I was wrong. During my entire working history with MAD, it used its economic muscle to force me to accept a legal fiction that deprived me of a basic intellectual property right-the right to continuing payment for continuing use of my original artistic concepts. It has always been standard industry practice for fees to be linked to a work's intended usage. I accepted a low payment for my cartoons and gags because they were supposed to appear one time only in a comic magazine. The fact is, anyone who wanted their work to appear in the magazine had to do it on the magazine's terms. After 1976, the following text was stamped on the back of all payment checks: The signature hereto by the payee of this check and the signature on behalf of E.C. Creations, Inc. on the front of this check, shall constitute their agreement that the work... is a "work made for hire" as that term is defined in section 101 of the Copyright Act of 1976; that payment in full for all of the rights conveyed, including ownership of any physical property, has been received; and that E.C. Creations, Inc., its successors and assigns have all rights to use and re-use the work, in whole or in part, in any language or medium, worldwide, without further consideration. End of paragraph. Right underneath was a printed line for the payee to sign on. Although I firmly believe that this arrangement is a legal fiction, if I wanted to get paid I had to sign. For years I could not negotiate a better deal for myself. My checks always had this block of text on the back. I had to sign or ship out. It was simple. I needed the money, so I signed. During my association with them, E.C. Creations reprinted my work in special editions of their magazine; put it into book form, into a calendar and stickers and who knows what else, in English and many other languages. These products were sold worldwide and I never made a cent from these re-uses. That wasn't what I contracted for or was paid for. These exploitations of my work are above and beyond what I did the work for. The economic leverage and the legal fiction imposed upon me has deprived me of 35 years' royalty income, and even the right to profit from the sale of my original artwork or gags. My work can be exploited without my earning anything, without my approving anything, without my knowledge, without anything. I firmly believe that the way I have been treated by E.C. Creations is contrary to the original concept of work for hire as it appears in the 1976 Copyright Act which, at the time, was called the Creators' Act. By severely limiting the conditions by which commissioned works could be works for hire, Congress attempted to make the bargaining positions of creators and distributors of works more equitable, but the abuses have only gotten worse. Mr. Chairman, we need a copyright law that is fair to all interested parties, as it was originally intended. That is why the Graphic Artists Guild and I wholeheartedly support Senator Cochran's proposed legislation. Clarifying the need for work for hire agreements to be signed before work has begun will certainly correct the kind of abuse that I and many others like me have suffered when work for hire is presented on the back of a check as a condition of payment. Senator Cochran's bill of rights is a very positive step toward returning to the original concept of work for hire described by the 1976 Copyright Act and rectifying the injustices which have developed. On behalf of the Graphic Artists Guild and myself, I again express my gratitude for the opportunity to present our position on this issue. Thank you again for your attention. [The prepared statement of Mr. Martin follows:] |