Freelancer

“ See 17 U.S.C. § 26 (repealed) (stating that the word ‘author’ shall include an employer in the case of works made for hire) . This circuit has summarized the work for hire doctrine as follows: “ [W] hen one person engages another, whether as employee or as an independent contractor, to produce a work of an artistic nature, . . . in the absence of an express contractual reservation of the copyright in the artist, the presumption arises that the mutual intent of the parties is that the title to the copyright shall be in the person at whose instance and expense the work is done.” ”

“ Such men, if carried on his regular payroll, are among the “high-salaried” human units which make up the operating, managing and service personnel of his business. If they are not on regular salary the publisher must pay such men a liberal commission on the contracts secured, a commission seldom or never as low as 10 per cent and I have known them to range as high as 40 or 50 per cent of the gross price received on the first or initial contract, “just to show the advertiser what we can do for him,” as the publisher frequently reasons. ”

“ Well, I'll be frank with you, Miss Mary, and I'm going to tell you something that may be to your interest. Now if you had gone to—we'll say to Webster and Bright, across the street, they, no doubt, would expect you to pay and pay big whether you needed a lawyer or not. Old law firms have strict rules on that line, I understand. Everything is 'grist that comes to their mill,' as the saying is, for they will tell anybody that they are not paying office rent for fun. But it is different with a young chap that is just getting on his feet in the profession. ”

“ How, we ask, can a private enterprise hope to enter the lists against the vested interests of printer and publisher and bookseller. If the editor has a number of friends, he can produce two or three good numbers. But if his contributors are paid at all, they receive remuneration at a rate so low as to amount practically to insult. And however much the artificers of the new world, the evangelists of the dawn of brotherhood, may speak of the sacred trusts of art, a man is loath to sell for three guineas a commodity for which elsewhere he can obtain fifteen. ”

“ I might argue for my comfort that there was greater liberty in being a free lance, but how wonderful to do work that an editor wanted every week, was willing to pay for every week!—wonderful to me, anyway, who had just had my first taste of earning an income, but not of earning it regularly and without fail. ”

“ The employe who can set type and also run a press is a decided advantage to the employer. The writer knows a certain publishing house whose every employe is doubly equipped. The rule of the proprietor is that every job or branch of the business must have more than one person competent to run it, and that every person must know how to do two things. ”

“ The proprietor of a newspaper, when he employs a person to inquire and report, engages personal service. I suppose no one would deny that he is entitled to the exclusive use of the report rendered as a result of the service for which he contracts and pays. I suppose that one rendering such service is free to contract with his employer that the pr duct of his inquiries-the news he furnishes his employer shall be used solely by the employer and not imparted to another. ”

“ The very phrase 'free-lance' appealed to my sense of the romantic. 'All the clever fellows are free-lances, you know, in the Old Country.' I recalled many such statements made to me in Sydney. Prudence might have led me to offer myself for a post of some kind, if the editor to whom my letter of introduction was addressed had been visible. But he was not in London; and, in my heart, I was rather glad. It should be as a free agent, an unknown adventurer in Grub Street, that I would win my journalistic and literary spurs in the Old World. Other men had succeeded.... ”

“ Having been employed, like hundreds of his co-employees, without any individual employment contract, by an employer whose good reputation made it so attractive, the employee is given this one document that purports to set forth the terms and conditions of his employment, a document obviously carefully prepared by the company with all of the appearances of corporate legitimacy that one could imagine. ”

“ You thank whatever gods there be for having made you a writer. The book or the play finished, the artist takes his departure, to dream of fresh triumphs. The shopkeeper—possibly a married shopkeeper with a family—comes into the study, finds the manuscript upon the desk. Then follows the selling, bargaining, advertising. It is a pretty hateful business, even with the help of agents. The book or the play you thought so fine, you thought that every one was bound to like it. Your publisher, your manager, is doubtful. ”

“ No, sir; the shoe doesn't pinch at all. I am paid by this company for my services, paid the same as my fellow-workers are paid. If, in the course of my employment, I am able to make any improvements or to suggest improvements that will better the service, I consider that such suggestions or improvements are wholly the property of my employer. ”

“ The work for hire concept isn’t limited to formal employment because a functionally identical relationship can be created by skillful drafting of contracts that purport to treat the (de facto) employee as an independent contractor. ”

“ And apart from exceptional cases of a working proprietor who is both editor and manager, or of a managing-editor, or of a great manager who exercises editorial functions, or a great editor who exercises managerial functions, the ordinary course is to keep them fairly distinct. The managerial side involves the business work of a paper, including the obtaining of advertisements and all the operations directly connected with producing it and making it pay as a commercial enterprise. ”

“ That which he has been employed and paid to accomplish becomes, when accomplished, the property of his employer. Whatever rights, as an individual, he may have had in and to his inventive powers, and that which they are able to accomplish, he has sold in advance to his employer. ”

“ When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case as if something was still in prospect for you as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note,—at least not before the consideration service is performed. ”

“ If the creator is an independent contractor, the work is considered a “work made for hire” if it comes within one of nine categories listed in section 101 of the Act and if there is also a written agreement specifying that the work is a “work made for hire.” ”

“ It is usual for the publisher, when he is employed as agent between the author and printer, to charge a commission of ten per cent, on all payments he makes. If the author is informed of this custom previously to his commencing the work, as was the case in the present instance, he can have no just cause of complaint; for it is optional whether he himself employs the printer, or communicates with him through the intervention of his publisher. ”

“ If I commission a work from a man, ordering a work specially for my purposes, and I pay for it, what difference does it make whether I put him under an employment contract or establish an independent contractor relationship? ”

“ Free-lance writers, who are not regularly employed by newspapers or magazines as staff members, submit articles for the editor's consideration and are paid at space rates. Sometimes a free lance will outline an article in a letter or in personal conference with an editor in order to get his approval before writing it, but, unless the editor knows the writer's work, he is not likely to promise to accept the completed article. ”

“ It often happens that when an editor walks out of an office in the exercise of free-will, the staff follows him under compulsion. In Fleet Street there is no security of tenure unless one is ingenious enough to be the proprietor of one's paper. ”

“ All they know is that it's something rather vulgar out of which you can make money. Old Vincent used to talk impressively about my being 'in business'--once, I remember, he had a slip of the tongue and said 'in trade'--and obviously didn't grasp the difference between being in business as an employee and being there on your own account. ”

“ An employee, performing all the duties assigned to him in his department of service, may exercise his inventive faculties in any direction he chooses with the assurance that whatever invention he may thus conceive and perfect is his individual [208] property. The company, however, has an implied license to make, use and sell the invention. ”

“ The business of securing employment for those seeking work and employees for those seeking workers is essentially that of a broker; that is, of an intermediary. While we do not undertake to say that there may not be a deeper concern on the part of the public in the business of an employment agency, that business does not differ in substantial character from the business of a real estate broker, ship broker, merchandise broker or ticket broker. ”

“ I shall leave masterpieces alone and do hack-work—jokes, paragraphs, feature articles, humorous verse, and society verse—all the rot for which there seems so much demand. Then there are the newspaper syndicates, and the newspaper short-story syndicates, and the syndicates for the Sunday supplements. I can go ahead and hammer out the stuff they want, and earn the equivalent of a good salary by it. There are free-lances, you know, who earn as much as four or five hundred a month. I don't care to become as they ”

“ A majority of existing law reports have been compiled by the reporters in the expectation of taking out a copyright and realizing a profit upon sales. The practice of paying a reporter a salary, now very common, is of recent introduction. ”

“ In one, as a book or patent agency, the agent works for one or two persons at a fixed commission and needs no capital. In the other, as that of servants and of supply companies, the agent is also in a certain sense a principal; he obeys no one’s orders, fixes his own commissions, and makes his profits directly from the public. Here are a few points for agents:
287. Book Agency.—The book agency depends partly upon the kind of book, but chiefly upon the kind of man. The right man selling the right book can make enormous wages. ”

“ If any one wants a copyist, he will be more saddened than annoyed by the overwhelming applications for the position. The advertisements which are to be found242 in the newspapers of widest circulation, offering a genteel occupation to be carried on at home, not requiring any previous training, by which two or three dollars a day may be earned, are a proof of the existence of a class to which they appeal. How many thousand people in the United States want just that kind of employment! What a beautiful world this would be if there were any such employment! ”

“ There were his employers, the editors and proprietors of the magazines for which he worked; all busy over-burdened workers in the great mill, spending the sunny hours of their lives between a pile of unanswered letters and a waste-paper basket; men who would tell him to look in the Post-office Directory, without lifting their eyes from the paper over which their restless pens were speeding. ”

“ The freelance agreements that writers are asked to sign are shocking. Bear in mind that freelance writers are paid very little. They turn over all their future rights - reuse rights - to the publisher and very little in exchange. Publishers are fighting for control and ownership of product, because they are seeing the future. ”

“ We let you run a fine tooth comb through our whole organization, thousands and thousands of employees. You took out of every department the very best they had; three or four out of hundreds, and they are the only ones out of thousands who amount to anything after years of training at our expense. And then you put your very best licks into it yourself. Now, who are you? You’re the first [Pg 207] stenographer we’ve had in ten years, who took enough interest in the business as a whole to have a single idea about it. ”

“ Even the one Court of Appeals to adopt what it termed a formal, salaried employee test in fact embraced an approach incorporating numerous factors drawn from the agency law definition of employee which we endorse. See Dumas, 865 F.2d, at 1104.↑ The concept of works made for hire first arose in controversies over copyright ownership involving works produced by persons whom all parties agreed were employees. ”

“ The library may choose to subsidize document delivery to the non-profit sector, but it cannot profit from its services to the for-profit sector.
Example 4
The University of Freedonia Law Library has a minimum copying charge of $15 for individuals and non-profit institutions, and $20 for businesses. To that it adds a $.50 per-page photocopying charge. For business requests it also adds a $1 per-minute labor fee, with a minimum labor charge of $15.00. In other words, a ten-page article costs a business at least $40.00. ”