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When upon the advice of an attorney I asked for a $1,500 fee

for the use of my image in the display, the ad agency responded that their purchase order had established the photographs as

works for hire and no additional fees were due.

In fact, the

agency had never issued a purchase order to me, but I had not

registered the photographs, and knew that legal fees for pressing

my claim would be more than $1,500, so I abandoned my efforts to

seek payment.

As a practical matter, I am simply unable to register

all of my photographs or to know which ones I should register.

It is impossible to guess which images might be targets for

infringement, and registration of every single inage would send

me into bankruptcy.

I often send out my rolls of film to clients

and consequently lack even the required deposits for registration or proofs of what has been infringed. By the time I receive my film back from clients, often the three months from publication has already elapsed and infringements may have already occurred, thus foreclosing opportunities to register in tine to secure the rights to damages and legal fees. Until the law is changed. I will be unable to protect ay copyrighe right from unscrupulous

clients and others, who, under the current schene, may make

infringing uses of creative works with impunity.

STATHIRT OT PRESTON LYON
KKBR, MERICAN SOCIETY OF MEDIA PHOTOGRAPHERE

I SUPPORT OF 1.R. 897

Mr. Chairman,

My name is Preston Lyon.

I have been a professional

photographer since 1975.

Hardships imposed by the present copyright laws have forestalled my attempts to protect my works from infringement or to object to known instances of infringement.

For example, six months ago, a leading advertising agency commissioned me to create an original photograph to accompany

clever lines of copy in an advertisement for Schneider camera

lenses.

The resulting photograph, a humorous view of a large dog

delicately taking a hot dog fron a pile of wieners in buns, involved a painstaking set-up with a trained dog. Under the terms of my agreenent with the advertising agency, for $1,500 the agency retained exclusive rights for two years usage of the photograph bearing my credit line in that particular

advertisenent.

Several weeks after the Schneider ads began to appear in a nuaber of publications, the advertising agency advised me that a Florida Lexus dealership had placed an unauthorized variation of the ad featuring my photograph in the Fort Lauderdale Sun Sentinel. Attorneys fron Schneider contacted the Lexus dealer

and denanded a fee of $1,000 for the infringenent which they

received with the dealer's apologetic explanation that an entrant

in an in-house advertising contest at his business had submitted

the copy and photograph as original work.

Schneider declined to share the proceeds of the infringement

demand with me or the advertising agency because the $1,000 fee

was not even enough to cover the $4,000 attorney's fee incurred in pressing the demand.

My options to redress this infringement were discouragingly limited. I had not registered the "dog eat dog" photograph; having taken more than 40,000 pictures during last year alone, I am not in a position to manage the paperwork or absorb the costs of registering each of my works. As a result, I have no hope of

recovering attorneys fees or statutory damages if infringers

steal my work.

Had I pursued my first option to file suit against the Lexus dealership, my legal fees certainly would have outstripped any potential court award. My other option to insist on a share of Schneider's settlement money would have alienated a good

client for a negligible sum.

Though angered by the infringement

of a highly original photograph, I have reluctantly dropped the

matter.

This is not first time I have faced such a situation.

Three

years ago, I produced a distinctive photograph of a sumo wrestler on a skateboard for an advertising agency representing an international shipping company. A different advertising agency later reproduced the photograph in a promotional flyer illustrating their creative work. They did not ask permission to use the photograph, I received no credit or compensation for the damage to the connercial value of my work, and there were no

promising remedies available to ne. Again, legal fees would have more than offset any award resulting from cease and desist

denands or a lawsuit.

I have no doubt that I will face other infringenents of this kind during my career, and will be virtually powerless to guard against then, unless you pass the bill now under consideration.

Mr. HUGHES. Mr. Rogers, welcome. STATEMENT OF ART ROGERS, PROFESSIONAL PHOTOGRAPHER,

ON BEHALF OF THE AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, ACCOMPANIED BY DONALD PRUTZMAN, ESQ. Mr. ROGERS. Mr. Chairman, my name is Art Rogers, and it is my pleasure and honor to appear before you today to testify on behalf of the American Society of Media Photographers, known as ASMP, in support of H.R. 897, the Copyright Reform Act of 1993.

I am a professional photographer working and living out of Point Reyes, CA, for the past 22 years. Like most ASMP members, I make my living solely by photography and, in particular, from the exercise of my copyright rights. I have been fortunate enough to achieve a degree of professional success in my career. I have had exhibitions of my photographs, and they have been shown in many parts of the United States. My work is widely published in magazines and journals in this country and abroad. Several of my photographs are included in the permanent collections of the San Francisco Museum of Modern Art, the Center for Creative Photography at the University of Arizona, and the Joseph Seagrams & Sons California Collection in New York City. I have taught photography at, among other places, the San Francisco Art Institute.

Í have brought with me today several examples of my work—you should have in front of you a recent piece published in Life magazine-to give you an idea and some insight into the nature and quality of my work. There are also several note cards that are currently in print.

But it is not my success as a professional photographer that has led me to appear today before the subcommittee, but the story I have to tell you about my experience in the Federal courts over the past 342 years trying to protect the copyright in a single photograph entitled “Puppies,” which is over there. I believe that my experience, despite its favorable outcome on the merits, demonstrates the pressing need to make statutory damages and attorneys' fees recoverable by all successful copyright plaintiffs.

Like most photographers, I have neither the time nor the staff to register the thousands of images that I create each year, but as a result of my not having registered just one of the many thousands of photographs I have created over the course of my career, I have been put through a long and difficult travail as I have attempted to vindicate my rights against a blatantly willful infringer. I am here to tell you how difficult that process has been despite my victory in the courts and to ask that the law be changed so that no one will be forced to make the sacrifices I have had to make to enforce my copyright rights.

My story begins in 1980 when I was asked to photograph eight new German Shepherd puppies by a client named Jim Scanlon. As is always the case when asked to create an image interpreting some aspect of the world, I exercised considerable creative judgment in deciding how the photograph should be composed and executed, including the arrangement of the models—which I decided in this case to expand to include both Jim and Mary Scanlon-also deciding on the lighting to be used and the photographic details. I made approximately 50 exposures to accomplish this, and after

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