Many Americans might assume that copyright is a simple equation: someone creates a work, and then they own it. Of course, most creative workers in contemporary capitalism do not experience intellectual property law in this way, whether they work as a sitcom writer in Hollywood or an IBM employee developing a patentable new technology. More often than not, ownership of such rights ends up in the hands of the employer, since the product is a “work for hire” under United States copyright law.
Berkeley law professor Catherine Fisk explores the rich cultural, legal, and political implications of this seeming contradiction in her fascinating new book Writing for Hire: Unions, Hollywood, and Madison Avenue. By examining screenwriting and advertising in the twentieth century, Fisk shows how two dramatically different cultures of work and property rights emerged among creative people who, in many ways, appeared to be doing fundamentally similar kinds of work. Writers in film made a decisive choice in the 1930s to pursue unionization as “employees” under labor law, in order to extract the best and fairest deal with studios. Meanwhile, the men and women who wrote ads on Madison Avenue saw themselves as high-status professionals (akin to doctors or lawyers) who provided a service for their clients.
The result was stark: film and TV writers were able to assert some ownership of their works, if rarely outright copyright, while the inventors of ads remained almost completely uncredited, invisible behind the brand of the product. Writing for Hire provides a compelling account of the many skirmishes that led to writers unions, residuals, and other features of the entertainment industry now taken for granted. It chronicles the long struggle of the Writers Guild of America (WGA) to work out a dizzying array of deals and workarounds that divvied up credit among writers and ensured them a degree of stable income. The book also shows how canny ad agencies maneuvered to deny their employees ownership of their work or union representation. For example, Madison Avenue firms hid behind the legal fiction that copywriters actually worked for their clients—say, Kellogg’s cereal—and thus were not technically employees of the agency.
Along the way, Fisk makes an innovative argument about the way mass media in the twentieth century gave rise to new forms of property and value, distinct from traditional types of intellectual property like copyright or patent. A screenwriter, for instance, might be willing to eschew greater monetary payment in order to get a screen credit (i.e. “written by…), since attribution had a value of its own in the churning world of popular entertainment. A credit was a kind of property that could result in further employment—not to mention the basic artistic recognition that writers craved.
The book is somewhat less convincing when it emphasizes the importance of writers’ own self-conceptions and workplace cultures. For instance, Fisk ascribes too much agency to advertising writers in discussing how they defined their own class identity; Madison Avenue bosses held broad powers to dictate the form that writers’ attribution, compensation, and legal status took. Nevertheless, this book is a truly valuable entry in the literature on white-collar class consciousness—the perennial question of whether a writer or a teacher is labor, management, or a bit of both—and it is especially salient today as workers in online media wage new battles for unionization.