IPA - Protecting Your Rights Collectively


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Protecting Your Rights Collectively

by Bruce Lehman

July, 2000

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 and BMI, both music rights organizations.

ASCAP was formed by two individuals, creator Victor Herbert, and his lawyer, Nathan Burkheim. Legend has it that somewhere around 1909, Herbert, who was then a successful writer of Broadway productions, was having dinner at Del Monico’s in Lower Manhattan and the band was striking up one of his tunes. Herbert turned to Mr. Burkheim, his lawyer and dinner partner, and said, "That's my music. I didn't give them permission to play that!" This incident led to the foundation of ASCAP, the American Society of Authors Composers and Publishers.

If you think back to that period, creators had both an opportunity and a problem.

Victor Herbert made his living from producing and writing music for Broadway shows. At that time, composers made most of their money selling sheet music. The sheet music was picked up and used by people in places--like here in Rochester.

There was more live music in those days than today and no such thing as recorded music. Scandinavian immigrant farmers coming in from the plains to the Grand Hotel for their honeymoon, might have asked the local band playing in the dining room to strike up a famous tune. Obviously the bandleader could not telephone New York City and arrange for clearance of the song. So you had a problem of vast unauthorized use. But you also had an opportunity.

The opportunity was to figure out a method for getting paid for that use. And the method was a blanket license. Victor Herbert recruited other composers to sign up with ASCAP, and they went to places like the hotels in Rochester and said, "We could sue you, but we are not going to. You can just license this use from us, pay us a flat fee and we will distribute the money to the creators." That is how ASCAP was founded.

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.

Now, consider the contrast to music performers.

In 1910, there were a lot of people in little towns like Rochester who made a lot of money as musicians. That's because there weren't any records to buy. If you wanted to hear music, you had to hear it live, and, in fact, little towns everywhere had vaudeville theaters. I wouldn't be surprised if Rochester had a couple of them. There were people riding these vaudeville circuits, families and touring companies -- not big Broadway stars — making money that way. Technology hit them too.

At first, it provided them with some new opportunities. Movie theaters sprang up everywhere in the silent era. They had to have piano players, or, in big city theaters, even orchestras to accompany the film. That created jobs. But when the sound recording came along, musicians had (1) not gotten copyright on their performances and (2) they never became aggressive enough to figure out a mechanism to license that work, as did authors and composers. So the music business in small town America, basically doesn't exist anymore.

We all know people--a high school music teacher, perhaps--who for a couple of years after high school managed to make a business playing bar mitzvahs or something like that. But then, typically, they find a "real" job. And that is a tragedy.

The contrast between composers and musicians should be important for you because illustrators are in a situation like that now. You could go in one of these two directions. And, I think it goes without saying that you would rather go in the direction where you could foresee a billion-dollar revenue flow, split among members of the profession.

But there are two problems facing professional illustrators. The first is that life has gotten more competitive and tougher. You are a lot like Victor Herbert and his comrades 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.

Even in my hometown of Beloit, Wisconsin, a small town of about 30,000 people, we had an advertising agency. It placed all the ads in the local paper. It was not a big agency--they had only four employees. But that advertising agency was big in Beloit, and it had more clout than the local artists. That is reality. This is something that should be addressed.

It could be addressed by the collective bargaining mechanism. But under copyright law it is very easy for that little advertising agency 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. So, you are caught.

That is a problem that can only be addressed by a change in federal legislation. You would have to change the National Labor Relations Act to permit you to have a collective bargaining agency.

That should be a long-term objective of illustrator groups. But, it requires a change in legislation and the other side has tremendous resources.

But there is something you can do in the meantime.

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.

The worst thing in the world for you would be to have what happened to those small town bands and local musicians happen to you--to be put out of business.

There is a way of dealing with that. I don't believe that it is too late. But you need to create an artist-controlled mechanism to enforce those copyrights, so that however the work is licensed, the artist retains control.

That is the objective of the Illustrators Partnership.

[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 is President of the International Intellectual Property Institute based in Washington DC and a Founding Board Member of the Illustrators Partnership of America. Copyright 2000, Bruce Lehman]