The Graphic Artists Guild supports adding twenty years to the copyright term:

• To protect the works of American authors-in-fact, and secure the benefits of their work for them and their heirs;
• To safeguard the United States balance of trade by conforming the American copyright term with that of the European Union;
• To encourage American creativity and innovation;
• To increase the copyright term in recognition of the greater life expectancy of creators;
• To counteract the threat posed to the American creative community by work-for-hire.

 

However, the Guild membership is deeply concerned that copyright term extension as currently contemplated will exacerbate the use of work-for-hire contracts, denying creators a share in the wealth generated by their works. Extending term extension to works-made-for-hire will increase the incidence of these contracts. Work-for-hire contracts, imposed on independent contractors by large clients on a take-it-or-leave-it basis, threaten the commercial viability of the independent creators whose work is vital to Americaâs global pre-eminence in intellectual property.

 

THE GRAPHIC ARTISTS GUILD

The Graphic Artists Guild promotes and protects the economic interests of its members. It is committed to improving conditions for all creators of graphic art and raising standards for the entire industry. The Guild is a union that embraces creators of graphic art intended for presentation as originals or reproductions at all levels of skill and expertise.

Graphic artists create a wide variety of intellectual property: company and product logos; illustrations for media and advertising; posters for political and sales campaigns; merchandise in the apparel, home decorative and stationery markets; and computer graphics that enhance and drive the digital marketplace.

 

THE COPYRIGHT EXTENSION ACT

The Copyright Extension Act seeks to bring US copyright law in line with the rule of the lesser term in the European Union by adding twenty years across the board to all copyright terms. Twenty years is added not only to the term held by the individual creator, or author-in-fact, but to the term held by a corporate entity which becomes an author-in-law, through purchase of authorship from the author-in-fact under a work for hire contract.

 

Under this plan, corporate entities as authors-in-law receive a disproportionate benefit. The 20-year term extension for copyrights retained by authors-in-fact is an increase of only 16%, assuming an average lifetime of 75 years (20/(75+50)=.16). The term for works made for hire, however, will increase more than 26%, from the current seventy-five years to ninety-five years. This over-generous increase in the work for hire term has grave implications for the future of American creative work.

 

Creators today face intense pressure to sign contracts relinquishing authorship. The digital revolution offers lucrative prospects for reuse and repurposing of copyrighted work. Companies eager to profit from expanded markets and products resist paying creators royalties for such use, even though royalties are paid out of revenue the creatorâs work produces. Work for hire contracts, which strip authors-in-fact of their authorship, are routinely proffered to independent creative contractors on a take it or leave it basis. Such contracts are unjust in themselves because authors lose any future share in the earnings their works generate. In addition, these contracts typically offer rates of compensation that are below market even for limited use. Concentration in the media industry leaves the creator who resists signing these contracts with few options and few markets.

 

Work for hire purchase of independent contractorsâ work is a feature of US copyright law that is not replicated throughout the European community . The work for hire term does not therefore need to be extended in order to bring US law into line with the European Union. The domestic film industry does benefit from the extension, as films are produced as works for hire. Protection for the film industry, however, does not justify extending the work for hire term twenty years in all areas.

 

Term extension legislation must be considered in light of the intent of the original legislative intent of the 1978 copyright law to increase protection for authors-in-fact, rather than authors-in-law. Even a small increase in client pressure could make it impossible for an author-in-fact to retain authorship of commissioned works. The additional twenty years of unlimited royalty-free use granted authors-in-law under a ninety-five year work for hire term will increase client pressure on creators. The public benefits when creators have a continuous share in the wealth their creativity produces. Continuous payment for continuous use encourages both use and additional creativity.

 

The copyright term was originally extended in part to ensure the benefits of an authorâs work would benefit two generations. Increasing life expectancy suggests the need for an increased term if the two-generation rule is to continue to apply. While no living creator benefits directly from copyright term extension, the twenty years added to the current term of life plus fifty will rightly benefit creatorsâ heirs. But creators must retain authorship today for their descendants to reap any benefits from their creativity. Term extension must therefore work to help creators retain their authorship, not divest them of it.

 

True Life Plus Seventy

To conform American copyright law more closely to European Union rules and to safeguard individual creators, the copyright term should become a true life plus seventy. Only copyrights held by authors-in-fact should increase their terms by twenty years, while works made for hire should retain their current seventy-five year term. If a creator retaining authorship lived only six years beyond the workâs creation, the workâs copyright term would surpass the seventy-five year work for hire maximum. The potentially longer copyright term for works where the creator retained authorship would offer clients a strong incentive to eschew work for hire in favor of the creator retaining authorship, and to work with the creator in order to exploit a workâs commercial possibilities for the longest possible term. Such a selective lengthening of the copyright term would be an intelligent way to safeguard for the future the creative community which is the source of Americaâs global dominance in cultural exports.

 

CONCLUSION

The Graphic Artists Guild urges the Committee to pass a copyright term extension which is in keeping with the original legislative purpose of the copyright law. Term extension should be true life plus seventy, restricted to copyrights held by actual creators or their heirs. The term for works made for hire should not be extended, but should remain at seventy-five years. Distinguishing between authors-in-fact and authors-in-law will provide an incentive for client companies to work in partnership with creators so that both can benefit from the exploitation of creative work. Extension of the work for hire term will aggravate the current trend in copyright negotiations, where the independent creator often must sell authorship for a fraction of its value. True life plus seventy will bring American copyright law in closer compliance with the European Union than mere undifferentiated extension of all copyright terms.

 

Copyright is created, defined, protected and controlled by statute and treaty. It does not exist in a truly free market. A free market most nearly exists when creator and client interests are balanced. Only when continuous payment is encouraged for continuous use of copyrighted work does the public receive full benefit from the power of American creativity and American commercial exploitation. To further the goal of a free market among equals, Congress must protect the individual creator, the author-in-fact, in the marketplace.

---

© copyright 1997 - Graphic Artists Guild