By Bruce Lehman, Esq.
The collective rights licensing mechanism reaches its highest form in this country, and, indeed, throughout the world, in the form of organizations such as ASCAP (American Society of Composers, Authors, & Publishers) and BMI (Broadcast Music Incorporated), both music rights organizations. ASCAP was formed on the cusp of a technological revolution. Radio came along about 1920. Radio stations initially broadcast music performed live by studio orchestras. ASCAP extended the same licensing system that they had developed for vaudeville theaters, saloons and restaurants—to radio. So, with radio, a whole new industry, a whole new source of revenue, opened up to them.
Today, ASCAP, and BMI, a similar organization formed in the 1940’s, collect and distribute over one billion dollars of licensing revenue to composers and lyricists and their music publishers in the United States.
Illustrators are a lot like composers at the turn of the century. You get most of your money from commissioned work. And traditionally you have been able to make a nice living that way. But the world has gotten very big and I don’t think there is a single situation in which a professional illustrator is at a competitive advantage when dealing with any client. Under copyright law, it is very easy for a client to say, “If you want any more work from us, you have to sign a work-for-hire contract.” Yet, if you want to band together with other illustrators and demand a standard collective bargaining agreement, you are told “no.” Under the National Labor Relations Act, independent contractors don’t have a right to form a union. You would have to change the National Labor Relations Act to permit you to have a collective bargaining agency.
But there is something you can do. The technology that is evolving permits a wider use of secondary use of your work. It wasn’t that long ago that you needed a professional printer to make a good copy of a professional illustration. Now we have copying technologies that have become easier and ubiquitous. In fact, we are on the verge of a seismic shift—comparable to radio in the 1920’s—that is the Internet. The Internet has the capacity to seize images and send them around the world in digital form so they can be produced with original quality.
Now, that is a scary thing if you can’t control your rights. But if you can, it may be an opportunity. You need to create an artist-controlled mechanism to enforce those copyrights, so that however the work is licensed, the artist retains control.
This is excerpted from a speech given in July 2000 to the Association of Medical Illustrators at the Mayo Clinic in Rochester Minnesota. Bruce Lehman is a former Assistant Secretary of Commerce and U.S. Commissioner of Patents and Trademarks. He was principal legal advisor to Congress in the drafting of the 1976 Copyright Act.
Copyright 2000 Bruce Lehman