October 15, 1982 The Honorable Charles Mathias Committee on the Judiciary United States Senate Dear Senator Mathias: Harcourt Brace Jovanovich, Inc., appreciates this opportunity to make additional comments in opposition to S. 2044, as introduced by Senator Cochran, to amend the work made for hire provision of the Copyright Act of 1976. We respectfully request that this letter be included in the transcript of the hearings of October 1. We listened with great care to the positions presented by the author and artist representatives in support of the proposed Cochran amendment, as well as to the representatives of the various publishers. There appeared to be little testimony in support of that section of Senator Cochran's bill which seeks to prevent and prohibit work made for hire agreements with respect to instructional texts. It appeared to us that one of the proponents' major concerns was with that portion of the amendment dealing with periodicals, and that the only type of periodical seriously discussed was the general consumer magazine. As a major publisher of literally hundreds of different periodicals in diverse categories, most of which are not general consumer magazines, we appreciate the opportunity to comment with respect to that issue. Harcourt Brace Jovanovich, Inc., is among the many publishers - large and small- that publish numerous types of periodicals and collective works. Our periodicals range from highly technical scientific journals, such as Theoretical Population Biology with a world-wide subscription just under 600, to Instructor Magazine which has a readership of 800,000, primarily of elementary school teachers and principals. Some HBJ publications are as contemporary as Computer Graphics and Image Processing, and others like the Pipeline and Gas Journal have been in continuous publication since 1859. Between this range of audiences and ages is an even wider range of practices with respect to editorial policies, reliance on freelance contributors, use of by-lines, use of columnists, solicitation of advice or recommendations from boards of advisors and experts or from committees of scholars and reviewers. Some periodicals may have more than 100 contributors per issue, while some newsletters may be the product of only a few people The diversity represented by Harcourt Brace Jovanovich's periodical publishing The Copyright Act of 1976, for the very reason that it is prospective, permits that flexibility which is essential to adapt to the needs of the marketplace and the opportunities of technological change. Despite the almost infinite variety of periodicals, newsletters, directories, and other collective works Harcourt Brace Jovanovich publishes, there is a constant. In all instances Harcourt Brace Jovanovich, as publisher, assumes responsibility for the creation of the concept, for the on-going financial commitment, and for editorial direction of the publication. The work made for hire section of the Copyright Act of 1976 recognizes We respectfully urge that the work made for hire section of the Copyright Respectfully Submitted, Bella 2. Leiden Bella L. Linden Linden and Deutsch 110 East 59th Street New York, New York 10022 Christine Moore association and the largest local organization of freelance Barbara Raskin Marilynne R. Rudick Philip Shandler writers in the United States. WIW presents this statement Robert Ellis Smith Judith Axler Turner Michael J. Whelan in support of S.2044. Our 1,400 members in the District of Beryl Lieff Benderly Howard Bray Charles N. Conconi Columbia, Maryland and Virginia encompass the full range of experience and commercial success in writing. We represent Joseph Foote part-time freelancers supporting themselves through other Derek V. Goodwin Joseph C. Goulden Morton H. Halperin salaried employment and full-time freelancers living on the Kitty Kelley Mary Lynn Kotz Saul Landau edge of poverty, as well as established independents contrac Milton Lomask Abigail Q. McCarthy Emily Malino tors with regular clients and best-selling authors commanding Peter J. Ognibene Isolde Chapin Executive Director Publishers, however, cite the successes of the few to justify their demands that developing and mid-level writers give up all rights to their works under work for hire. Publishers argue that writers should welcome A professional association for independent writers the broad exposure that work for hire provides. A writer soon discovers, however, that while the publisher benefits from the sale of subsidiary rights, "exposure" does not pay the writer's bills. Our cultural history is blemished by the way the marketplace has treated men and women of letters. Some of today's most revered literary heroes and heroines went unrecognized and unrewarded during their lifetimes. Yet, today's writers may face a greater crisis. These times of high inflation, recession, and shrinking markets for writing threaten the survival of the independent writer as never before. In 1977, Daniel Rapoport (now WIW's President) reported in the Washington Journalism Review that some national magazines paid the same fees as they did back in 1870, when Henry James was a freelance writer. The general economic outlook for writers has improved little since 1977. As noted by a Columbia Journalism Review article in the fall of 1981: "Whether they rely on savings, the income of a spouse, or a full- or part-time job, most freelancers cannot get by on what they make." Too many publishers pay as low as 8 to 10 cents a word for a freelance written article. A 4,000 word feature-length magazine piece, which took four weeks to research, write, and revise, might earn its author $400 after publication, or $100 per week. If the commissioned article is not published due to vagaries of the marketplace, a "kill fee" of 25 per cent of the agreed-upon payment, or a sum equal to a $25 per week wage, would be this writer's Capricious publishing fee schedules and other practices force freelance writers to depend upon the sale of subsidiary rights the recycling of a work to additional buyers in order to recoup the initial investment of time and resources. In a "work made for hire" situation, however, that opportunity is denied to freelance writers. In demanding work for hire, publishers use their unequal economic bargaining power in the marketplace to extract a blanket assignment of all rights from the work's creator, usually in exchange for the equivalent of an one-time publishing fee. WIW affirms the concept that each author should have the opportunity to negotiate in separate contracts the resale of every right accruing from a creative work. This organization, therefore, supports S.2044, which Sen. Cochran has introduced, as a means of closing loopholes in the "work made for hire" provision of Sec. 101 of the Copyright Act that perpetuate these publishing abuses. WIW is grateful to the Members of the Committee, especially Sen. Mathias, for the opportunity to present the following specific concerns and experiences of its members regarding "works made for hire." According to the legislative history of the 1976 Copyright Act, the concept of "work made for hire" was intended to be "a |