I am speaking to you on behalf of the illustration community and as a member of the Illustrator’s Partnership of America. I am a freelance illustrator, furniture maker and independent contractor living in Marshfield MA.
Over the past ten years the artist’s community, comprised of photographers, illustrators, artists, musicians and other similar fields have seen their intellectual property become the commerce for corporations who wish to seize control of this property and profit without compensation to the creators of the work. This attempted corporate takeover of our industry has resulted in a loss of revenue to artists as well as a loss of taxable revenue to states such as our own.
The Massachusetts Independent Contractors Law reclassifies freelance creators who produce intellectual property as employees. This creates two dramatically illegal effects to freelance creators. Both result in the illegal confiscation of a creator's property and copyright licensing revenue.
1) It wrongly imposes an USC 17, §106(a) Work-for-Hire copyright status upon freelance creators - who are also known as "authors". Copyright is the law of authorship. It is quite simply a creator’s exclusive right to make copies of his or her work, authorize others to make copies, and stop those who make unauthorized copies. Copyright automatically protects an original work of authorship the moment the creator fixes an idea in a tangible medium of expression. Copyright ownership automatically vests with the author; an author's right is based upon the act of creation itself. The copyright grants a specific set of exclusive rights to the author, and to others authorized by author, to reproduce the work, prepare derivatives based on the work, distribute the work under the creator's terms, perform the work, or display the work publicly.
The USC 17, §106(a) Work-for-Hire Doctrine is an exception to the vesting of exclusive rights with the creator, which strictly applies to the employer/employee relationship. It vests copyright with the employer of staff artists, writers and musicians by default because the employer provides the overhead, tools of the trade, training, retirement, health care, insurance, facilities and assumes all the risks and uncertainties normally borne by a freelance creator. Since the employer is taking all the risks and providing risk-free conditions for creators to create, the employer is granted the copyrights the employees create and the renewable wealth from the licensing of those copyrights.
2) It imposes an illegal employee status upon freelance creators - also known as independent contractors.
This violates Title 29, Chapter 7, Subchapter II of the United States Code the Wagner Act or the National Labor Relations Act. Freelance creators, who are independent contractors, are strictly prohibited from unionizing or collective bargaining. Independent contractors are also protected from unwanted unionization by the National Labor Relations Act. It is illegal for unions to interfere with the business affairs of self-employed independent contractors yet this law allows that interference to exist.
In 2004, the Conyers bill (c) was a national attempt by one union (the UAW/GAG Local 3030) to forcibly legislate an unwanted freelance artists union by re-classifying freelance artists as employees for the purpose of collective bargaining. It was defeated when IPA exposed its irreconcilable legal conflicts with U.S. Copyright Law and the National Labor Relations Act.
There have been other recent federal and state attempts to weaken creators' exclusive rights in order to gain a financial stake in their copyrights. The Orphan Works Bill is one example of corporations trying to gain control of our domestic royalties. Artists have already seen their earned foreign royalties diverted to non-profit organizations that have claimed to represent independent contractors' copyrights. These losses not only deprive artists from their earned income, but deprive states and the US Treasury from revenue by diverting taxable royalties to nonprofits.
I ask that this group take heed of the concerns of our industry to prevent any further erosion of our rights and listen more closely to the artist community. I believe an amendment to the Independent Contractors Law to those who produce intellectual property is needed immediately. I feel that by working jointly with the artist community, our state could use this industry to help create new markets and much needed revenue to a depleted economy.
Thank you
(a) Title 17 of the United States Code, also known as U.S. Copyright Law.
(b) USC 17, §106a is the Work-for-Hire Doctrine. It is an exception to the vesting of exclusive rights with the creator. §106a Work-For-Hire strictly applies to the employer/employee relationship.
(c) H.R.4643 Freelance Writers and Artists Protection Act of 2002
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