A dozen of the world's most respected photographers withheld their services. It took three years to arrange an uneasy truce. The photographers who had grown up in photojournalism went into other fields to replace the work no longer available or amenable with magazines notably into advertising and corporate work. We found that compensation was set almost entirely by the contemplated first usage. Except for a few superstars, a tyro (whom the client deemed good enough to be able to execute the assignment) would be paid the same as a photographer of established reputation in any given situation. We brought with us our expectations of limiting the grant of rights to those used in calculation of the creative fees by contract. The last twenty years have seen a refinement of these arrangements with a number of other factors entering into the calculation of fees, but in almost all cases the reproduction rights to be granted have remained the determining factor for compensation within each photographer's price range. In the more sophisticated national markets, the incidence of specialization has also increased, so that photographers have come to be identified and distinguished from each other by the use of a number of modifying terms that describe 1) employment status: "free-lance (independent contractor); 2) level of fixed overhead: a "studio photographer" is presumed 3) the type of media or client served: magazine, newspaper, 4) subject specialty: still life, fashion, architecture, food, beauty, people illustration, portrait... The list is endless. Naming a subject is only the first step to finding a photographer who specializes in it. The narrowest specialty descriptions are associated with the most cosmopolitan marketplaces, where a large number of potential users choose from a large population of photographers. In areas where fewer choices. are available, a "free-lance" may have a specialty preference, but normally must be a generalist in order to make a living. Ultimately the process ends with the identification, by name, of the photographer best equipped and most suitable for a specific assignment, not only by expertise, but for that photographer's unique photographic expression. Using this lexicon, I can at present be described as a free-lance studio photographer specializing in the photography of motion in time/space modes and in stroboscopic and multiple imagery. My primary market is advertising illustration though over sixty pages of my work has appeared editorially in the last twelve months. This degree of specialization in a fairly esoteric area means that a very high proportion of my business is with "first time" clients, so I have become acutely aware of the need for and process of establishing clear terms and conditions for specially commissioned work at the outset of a business transaction. Consequently it is not surprising that I took an early interest (for a photographer) in the impact of the Copyright Act of 1976, and in 1977 found myself in a leadership position in disseminating information to free-lance photographers about the new law and the ways it would affect the business of photography. It turned out to be a relatively easy task, because the law as written so closely paralleled our trade practice at its best. Or, as one photographer said to me at the end of a seminar on copyright, "How come Congress knows our business so well?" I was much taken during these hearings with Senator Mathias' reference to that classic adage, "To each cow its calf." It has stood the test of ages by virtue of the superiority of the original "author's expression." Somehow "To each author his or her work" does not communicate as well. The 1976 revision expresses the same thought at greater length in Section 201 (a): "Copyright in a work protected under this title vests initially in the author or authors of the work..." Section 201 (b) covers the only exception to 201 (a) defines "work made for hire" in two mutually exclusive clauses.' - works for hire. Section 101 Clause (1) states that a work made for hire is "a work prepared by an employee within the scope of his or her employment" which is discussed in the House Report along with Section 201(b).2 Clause (2) of Section 101 with which we are concerned in these hearings defines the legal fiction which allows certain categories of specially ordered or commissioned work to be designated "work made for hire." It is the product of compromise. Both legal fiction and compromise are necessary and reasonable tools if law more just and reasonable than that which preceded it is to be written. Unhappily, the usefulness of legal fiction is cold comfort to ordinary citizens attempting to conduct the business of their lives on a rational basis, and compromise is all too often a temporary solution. Such is the case with clause (2). It has sometimes seemed to me that since January 1st, 1978, when the 1976 act took effect, every user and potential user of photography has pounced on clause (2) as their salvation from the "dire" effects of the new copyright law, whether they are eligible for the exception or not. Rarely is there any attempt to provide or negotiate additional compensation for the additional rights involved. Less than a year ago, for example, a New York photographer's representative visiting a major Chicago advertising agency found herself closeted with the agency's art buyer who, after carefully closing the door, whispered, "Now tell me what is this New York plot called copyright?" I have even found the phrase "work made for hire" in a trade secrecy agreement which a photographer was required to sign by IBM 1 Plus a third, "Work of the United States Government" which incorporates the definition of "work made for hire" by reference in House Report 94-1476, p.58 before receiving an assignment to do publicity photos. Obviously, disseminating information about copyright to clients is a much more difficult and challenging project than it has been to photographers. "Work made for hire" has become an issue charged with emotion on both sides of the table. On the one hand, it does not seem fair and reasonable to creators that someone other than the actual author can be designated the legal author of an independent work. On the other, clients feel that they have "lost" something under the new law which, in many cases, they had never been aware they'd had. Both sides feel their rights are being "taken." In this atmosphere of mutual moral indignation, reasonable negotiation becomes almost impossible. Clause (2) of Section 101 is working against the best interests of the author, the publisher and the public. The young, who are most vulnerable to its routine application in its most onerous form -- the open-ended agreement, have their future prospects dimmed. Working professionals, denied the aftermarkets, must find other sources of continuing income to cushion themselves against dry periods. The acquisition of unlimited rights by those who commission work provides them with a store of material which can be used at will without additional payment, and reduces the opportunity for future employment not only for the photographer or other creator who signs a "work for hire" agreement, but for all photographers and creators. Reduction of demand inevitably reduces the pool of talent available to publishers. This results in a thinning of the texture and richness of the nation's publications, and the impoverishment of our culture. It is heartening to observe this Committee's continued pursuit of the Constitutional mandate "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." I look forward to further hearings on this important subject. Respectfully submitted, Philip Leonian October 1, 1982 о |