Free-Lance Artists Press for Control of Their Work

IF, as Marcel DuChamp said, the artist defines art, who defines artist? In the area of commercial art, legislators and the United States courts may be the ones. Courts all over the country have been hearing cases about whether commercial artists who do specific work for publishing companies, advertising agencies, and other firms are really ``employees.''

The difference between being a free-lance artist and an employee is that an artist may sell the original work while retaining copyright, or vice versa; an employee gives up both the work and all rights to it.

The latter instance reflects the meaning of ``work for hire,'' a section of the 1976 Copyright Act that permits the employer to claim authorship of the work as well as own all worldwide rights. The cases that have been brought to court reflect disputes between the artists and those who commissioned work from them as to their legal status.

``Companies have twisted the definition of employee to mean anyone you have the right to control,'' says Paul Bassista, director of the Graphic Artists Guild. ``These companies want the best of both worlds. They want free-lance artists to be employees, but they don't want to pay employee benefits. We define employee as the traditional salaried person on staff but, unless you are on staff, we don't feel that any work you do for that company is work for hire.''

The US Supreme Court has entered this issue, hearing the case of James Earl Reid, a Baltimore sculptor who created a figurative sculpture entitled ``Third World American'' for the Community for Creative Nonviolence, a nonprofit advocacy group on behalf of the homeless. The agreement was sealed with a handshake. After receiving the work, Community for Creative Nonviolence began reproducing the sculpture's image on calendars and greeting cards as a means of raising money for the homeless. It also planned to make a copy of the piece to be displayed in Washington.

Mr. Reid contended that, under copyright law, he retains copyright unless he signs it away. The nonprofit group has argued that, according to a 1984 appellate court decision, any patron that exercises substantial control over an artist's work becomes an employer who may collect the piece and assume all copyrights.

Because lower courts have made conflicting rulings in this area, the Supreme Court agreed to hear the case. An appellate court in California ruled as recently as January just the opposite of the 1984 decision, claiming that an advertising agency had incorrectly believed that it owned the copyright to four works it had contracted for with a graphic artist.

``The artist here was not a formal employee. ... Therefore, the works were not works made for hire,'' that court decided, noting that various other courts had made other interpretations of the copyright law. The Supreme Court's decision is expected by July.

``A decision by the Supreme Court in favor of the artist would greatly broaden the commercial artist's rights vis-`a-vis his own work,'' says Marin Bressler, counsel to the New York-based Visual Artists and Galleries Association, which monitors the use of an artist's copyright. ``Then, an artist will only give up those rights which he agrees to, based on negotiations and, presumably, some extra money.''

Meanwhile, Sen. Thad Cochran (R) of Mississippi is expected to introduce a bill saying that a free-lance artist is not an employee. There will also be hearings on the entire issue of copyright and the arts before Congress this summer.

Sen. Dennis DeConcini (D) of Arizona, chairman of the Subcommittee on Patents, Copyrights, and Trademarks, has announced three sets of hearings: one on still visual art forms, the second on publishing, photography, and graphics (including work for hire), and the last on film, television, and the performing arts.

Besides Senator Cochran's expected bill, the hearings will have a bearing on other legislation, such as a bill by Sen. Edward Kennedy's (D) of Massachusetts to amend the copyright law to provide for ``moral rights'' (prohibiting someone from altering or mutilating an artist's work) and legislation of Rep. Howard Berman (D) of California to guarantee legal fees to any artist who wins a copyright-infringement suit.