PREPARED STATEMENT OF PAUL BASISTA, EXECUTIVE DIRECTOR, GRAPHIC ARTISTS GUILD, INC. Mr. Chairman and Members of the Subcommittee, my name is Paul Basista and I am the National Executive Director of the Graphic Artists Guild. Thank you for the opportunity to voice our support of H.R. 897, The Copyright Reform Act of 1993. As the country's foremost advocacy organization representing professional graphic artists, the Guild has a proven track record protecting and advancing the legitimate interests of illustrators, graphic designers, surface and textile designers, computer artists and other graphic artists. Approximately ninety per cent of Guild members are independent, working free lance in the advertising, publishing, consumer, corporate and other markets. The Graphic Artists Guild strongly supports H.R. 897, The Copyright Reform Act of 1993. If the bill is enacted, individual creators will be able to effectively protect the fruits of their creative efforts from infringement. The Practical Effects of Current Law Do Not Reflect the Intent of Congress infringement in federal court, because their work was not formally registered with the Library of Congress. Current law bars them from recouping attorney's fees or statutory damages if a work has not been timely registered. The practical consequence of this situation is to punish the victims of theft while rewarding the thieves, a result Congress did not intend. As Ralph Oman, the Register of Copyrights once said, "... Congress indicates that attorney's fees are closely associated with penalizing wrong doing."1 1 Statement of Ralph Oman, Register of Copyrights and Librarian for Copyright Mr. Chairman, you and your colleagues may not be aware that most copyright attorneys will not pursue a copyright infringement case unless attorney's fees and statutory damages are possible. Since actual damages in the majority of cases are negligible, there is little incentive for an attorney to take on a case on contingency, and artists can rarely afford or justify the hourly fees accrued in litigation. The circumstances described by Graphic Artists Guild member Mona Kiely, whose statement is attached for the record, is typical of the kind of infringements that occur. The changes proposed in H.R. 897 will bring a welcome change to the visual communication industries. Removing the requirement to formally register a work to be eligible to bring suit in federal court or to receive attorney's fees or statutory damages will finally take the burden away from the injured party and will force infringers to change their behavior. Copyright infringement is on the rise and new technologies now affect all kinds of intellectual property: video recorders and digital audio tape recorders; photocopiers and computer scanners. As it becomes easier to rip off copyrighted material, more and more consumers tend to think it's permissible to do so. For example. "Dak Industries" boasts a full catalog page headlined "Rip Off Artist," advertising a computer scanner. In its efforts to "Be a Rip-Off Artist Risk Free," it encourages the scanning and alteration of visual material. Buried within an entire page of advertising copy is one sentence that reads, "Be sure you get legal permission before you print copyrighted images for commercial purposes." A copy of this advertisement is attached to my statement. In this age of more and more advanced technology, the misappropriation of protected works becomes easier and easier. As it becomes easier for works to be stolen, copyright owners must have the ability to protect their creative material. Removing the registration requirement is an important step towards that goal. Registration is Not Required For the Library of Congress to Acquire Works The underlying premise for requiring registrations is for the Library of Congress to acquire works. Yet, the Library has the authority and the wherewithal to demand its acquisitions without preventing artists from effectively protecting their work. Foe example, in 1987 the Graphic Artists Guild inadvertently neglected to formally register the copyright of the 6th edition of the Graphic Artists Guild Handbook, Pricing & Ethical Guidelines. In March, 1990, we received a "Notice for Mandatory Deposit of Copies" from the Copyright Acquisitions Librarian which demanded "two complete copies of the best edition" of a Guild work. The notice further stated that "the obligation to deposit exists independently of whether the copyright owner decides to seek copyright registration with the Copyright Office". Further, we were warned that the Guild's failure to comply with the Library's demand would have made the Guild liable for $250.00 for the work plus the retail price of the two copies demanded. Clearly, the Library has effective administrative systems and procedures to accomplish its objectives without penalizing creators for not registering their works. A copy of this demand letter is attached to this statement. Despite So-Called Incentives. The Vast Majority of Graphic Artists Do Not Register Their Works As the publisher of the Graphic Artists Guild Handbook, Pricing & Ethical Guidelines, the Guild extensively researches the various markets of the visual communications industries, including advertising, publishing, editorial, the corporate markets, retail and others. The attached tabular information indicates that nearly 79% of all graphic artists never register their copyrights. Yet, nearly 32% have had work reproduced without the author's permission, and an even higher percentage have had work altered without permission. Despite the so-called incentives designed to encourage the registration of works, the simple truth is that copyright registration is an administrative and financial burden for graphic artists and other individual creators. Graphic artists run high-volume, short deadline businesses. Their primary responsibility is to solve a client's problem creatively, on time and within budget. Working on tight deadlines, they must devote the bulk of their time to produce their creative work. Yet, to remain in business, they must still develop and execute a marketing plan; negotiate their own fees and terms; bill and collect on accounts receivable; remit payments on accounts payable and track the location of artwork. Once the artwork is returned (or published), the artist must then formally register the work. In many cases, the work is not returned soon enough to register the work in a timely manner, or the artist may not be informed that the work has even been published. For example, a magazine publisher plans to publish a piece in next July's issue, three months away, but actually publishes it in August. The artist is rarely informed of the actual publication date, and normally is not supplied with tear sheets. It is not uncommon for another three months to pass until the publisher finally gets around to returning the artwork. By then, the opportunity to register the work within the three-month window from publication has already closed. Because the artist did not have access to his or her own work in time to register it in a timely manner, the artist is prevented from receiving the protections Congress intended. Many jobs are initially commissioned for limited use for relatively small fees. A quarter-page illustration, for example, commissioned for one-time editorial use in a magazine could conceivably sell for only $300. Registering that work for $20.00 reflects an additional seven per cent tax on gross income. Contrast this to a newspaper publisher, for example, who projects revenues in the hundreds of thousands of dollars or more for each issue. As a business expense, registration reflects an insignificant fraction of expenses. The current system clearly penalizes the victim. The proposed legislation will make it easier for the victim to place the blame where it belongs. Permissive Registration Should Be Encouraged Our support of this Bill does not imply our opposition of the copyright registration process. On the contrary, the Graphic Artists Guild believes that registration is the surest safeguard against any potential confusion over a work's origination or ownership. Registration provides a "record of ownership," making it the surest provenance of one's claim to a work, and enactment of the proposed legislation will not change that. However, we believe it is better to provide additional incentives to encourage the formal registration of copyright, rather than punish those who do not comply. For years the Guild has been using its best efforts to educate graphic artists (and their clients) to the importance of formal copyright registration, primarily through the publication of the Graphic Artists Guild Handbook, Pricing & Ethical Guidelines. Now in its 7th edition, the Handbook explains the advantages of registration and provides detailed instructions on how to comply with all the necessary registration requirements. With nearly 52,000 copies of the current edition in circulation today, we are confident that our educational message is being received. Mr. Chairman, I am happy to present you and the members of the Subcommittee with copies of the Handbook for your files. In addition, we supply copyright registration forms to every member of the Guild upon their joining and provide additional copies upon request. In our view, positively reinforcing the voluntary registration of works will go a long way towards achieving the Library's goal, as stated by the Register, "... to encourage prompt registration for creation of a complete registration record in the |