Thanks, Robert, for your careful analysis.  The goal of this bill is to allow any two or more creatives (writers, photographers, graphic artists) the opportunity to come together and discuss setting prices and work conditions (copyright retention, royalties etc).

It would allow ad hoc groups in a particular locale (Boston or Dallas, for example) or who all work for a particular media client (Conde Nast, for example) to form a collective bargaining unit on the spot, no membership in any existing group required.

That said, the Graphic Artists Guild always encourages working visual artists to join the Guild.  Not for bargaining power alone but for the myriad benefits of being part of a community.  In fact, "experience the power of community" is the best description of why someone comes on board.  

The Guild will not presume to bargain on behalf of anyone, member or non-member, unless that individual specifically chooses to be part of an action. We will, as always, continue to advocate for the highest standards of artists' protection for all visual artists. Where groups of artists seek technical assistance and support in order to form ad-hoc bargaining groups, the Guild will be there to help, whether the seekers are Guild members or not.  

The Guild currently does have one collective bargaining unit: WNET, channel 13 PBS in NYC, a small group of six designers. We are active in representing them with management in contract negotiations, as well as helping coordinate their efforts with the other Guilds such as the directors and engineers at WNET.  For the rest of the graphic arts universe, the Guild is a resource but not the bargaining agent.

I hope this answers your questions, and I extend my personal invitation to you to join us at any time.

Best regards,

Steven R. Schubert
National Executive Director
Graphic Artists Guild
90 John St., Ste 403
New York, NY 10038-3202
212-791-3400 x 106
execdir@gag.org
http://www.gag.org

On 9/24/02 6:39:34 PM, John Hersey wrote:
>in response:
>I completely agree with robert
>zimmerman.
>
>john hersey
>



Me too.
robert hunt

I continue to read an on-going dialog
here that doesn't address any of the core
issues in this type of legislation.

As an aside - I'm also extremely
disappointed in the chief spokesperson,
Daniel Abraham. As a professional, I
would expect him to treat his opposition
with more respect. Instead, he resorts to
senseless name calling which I'm sure
most people find offensive. I find it very
disturbing, and I am a student of history,
that Abraham publicly debases the IPA (
of which I am not a member ) and
dictatorially concludes this group of
professionals as unfit to have a voice in
the process. Abraham's language and
his continued crude references to other
professionals in the opposition should be
a warning sign to right thinking people.

To the point - The competitive process, in
my and many others opinion, fuels
innovation and creativity. It is exactly why
modern antitrust laws are in place.
Revised anti-trust laws since the mid
20th century have been widely
acknowledged as fundamental to the
creativity that fuels innovation.

This is the point and make no mistake
about it. The antitrust laws that are in
place are there for a reason. Market
economies grow and prosper on
innovation. Exemptions from anti-trust
laws are granted very rarely because of
this simple concept. They are rightly
viewed as anti-competitive in nature.

Setting aside the remarkable insult
implying we artists are victimized by big
media that I waxed on earlier in
responding to the Conyers statement, I
also find it remarkable that no one here
has brought up the obvious problems,
and improbability of passing ANY sort of
anti-trust exemption for independent
contractors. Physicians have had a
similar initiative attempting to exempt their
profession from anti-trust laws for years
with no real results. There are MAYBE
one or two groups acknowledged as
independent contractors in the nation
that are allowed to set prices and I think
they are both farm related.

The issues might seem complex, but they
basically boil down to some fairly simple
concepts. The fundamental problem with
this type of legislation is that it runs
against the grain of the way free markets
operate. New to the business? Willing to
work for cheap to build a portfolio? Built a
reputation? Charging a premium for it?
That's the nature of a free market
economy.

Instead, the nature of the debate here
seems to circle endlessly around how
poorly independent contractors are
treated by "big media" and the notion that
an exemption from anti-trust laws is a
panacea for the problem. The reality is that
the right to collective bargaining offers no
such relief unless you are willing to
operate under the guidelines of an
organized labor force.

Apart from all of this, I also see no
mention of states rights or enforcement
contained in any post on this board. That
aside for now - I still haven't read anything
here that convinces me that this would be
beneficial to our profession in any way, or
that such legislation even stands a
shadow of chance of passing based on
it's current advocates and arguments.

Thanks again to Gerald Rapp for
providing this soapbox of democracy in
his lovely little park.

On 10/21/02 11:31:40 PM, Robert Zimmerman wrote:
>
>I continue to read an on-going dialog
>here that doesn't address any of the core
>issues in this type of legislation.
>
>As an aside - I'm also extremely
>disappointed in the chief spokesperson,
>Daniel Abraham. As a professional, I
>would expect him to treat his opposition
>with more respect. Instead, he resorts to
>senseless name calling which I'm sure
>most people find offensive. I find it very
>disturbing, and I am a student
>of history, that Abraham publicly debases
>the IPA (of which I am not a member )
>and dictatorially concludes this
>group of professionals as unfit to have
>a voice in the process. Abraham's
>language and his continued crude references
>to other professionals in the
>opposition should be a warning sign to right
>thinking people.

Robert, you are incorrect in your belief that I am a "spokesperson," let alone "chief" spokesperson, for anyone or anything--a fact I have made clear in this folder many times.  In discussing the issues raised by the Conyers bill, I have addressed its various drafting and political flaws in detail.  My observations here are based upon my many years of experience in the successful furtherance of artists' issues, including the drafting and passing of artist-friendly legislation, not upon being a "spokesperson."

In discussing the bill I have also spent time debunking the phony scare stories about it which the IPA has focused its energies on creating and disseminating, because that organization's avid retailing of such scare stories has done much to prevent discussion of the actual issues.  The IPA has debased itself by its behavior, and continues to do so. Debunking such scare stories is not the same thing as supporting the current bill.

Regardless of the artistic professionalism of its members, the IPA has demonstrated that its leadership is woefully out of its depth when reading statutory language, and in its understanding of the legal and political systems.  Unfortunately, the IPA leadership continues to avoid open discussion of the bill and related issues.  When its misrepresentations are addressed, the organization's supporters routinely avoid the issue in favor of posts combining defense of that organization with personal attacks--many of them anonymous. This orchestrated pattern of disrespectful behavior has never elicited the slightest objection from persons such as yourself.

>To the point - The competitive process, in
>my and many others opinion, fuels
>innovation and creativity. It is exactly why
>modern antitrust laws are in place.
>Revised anti-trust laws since the mid
>20th century have been widely
>acknowledged as fundamental to
>the creativity that fuels
>innovation.

The antitrust laws have been a dead letter for the last twenty years, as regards the behavior they were originally intended to prevent.  Mergers such as those between Time and Warner Brothers, and then between AOL and Time Warner, have permitted the formation of empires which include media formerly kept under separate ownership in the interests of competition.  It is not so long ago that a single media company could not own newspapers, television, and radio in the same market, so as to ensure that there would be competing voices among news organs.  It has been years since such separations have been even nominally enforced, with the result that formerly competitive markets have been neatly divvied up among ever-fewer media trusts.

Antitrust is now primarily invoked against small "combinations in restraint of trade"--such as artists who dare to engage in "collusive" behavior by acting in concert when dealing with the media trusts.  That does not prevent the media trusts from individually treating all independent contractor artists in the same way by demanding each sign an identical master contract as a condition of being hired.

>This is the point and make no mistake
>about it. The antitrust laws that are in
>place are there for a reason. Market
>economies grow and prosper on
>innovation. Exemptions from
>anti-trust laws are granted very rarely
>because of this simple concept. They are
>rightly viewed as anti-competitive in
>nature.

Exemptions from the antitrust laws are not at all unusual. They are granted practically every time there is a large corporate merger.  But an exemption for a single act such as a merger can be--is--done administratively, whereas an exemption which will permit a particular class of business such as independent contractor creatives to act in an ongoing manner formerly deemed collusive must be done by legislation.

>Setting aside the remarkable insult
>implying we artists are victimized by big
>media that I waxed on earlier in
>responding to the Conyers statement, I
>also find it remarkable that no one here
>has brought up the obvious problems,
>and improbability of passing ANY sort of
>anti-trust exemption for independent
>contractors. Physicians have had a
>similar initiative attempting to exempt their
>profession from anti-trust laws for years
>with no real results. There are MAYBE
>one or two groups acknowledged as
>independent contractors in the nation
>that are allowed to set prices and I think
>they are both farm related.

You raise two issues here; the inequality of bargaining power between a media trust and the individual artist negotiating with it, and the probability of passing legislation to address that inequality.  

The inequality of bargaining power between the individual and the media trust is inarguable. A prime example of such inequality is the Boston Globe, which continues to insist that any independent contractor working for it sign its rights-grab contract.  I have recently learned that British author Arundhati Roy, a winner of the Booker Literary Prize (the British equivalent of the Pulitzer), was solicited by the Globe to write a column, but refused when she was unable to alter the Globe's rights-grab contract.  To the best of my knowledge illustrator Michael Wertz remains the sole freelancer to have worked for the Boston Globe without being subjected to its master contract since that contract was imposed, an occurrence due entirely to my representing his interests in that single negotiation.  

Freelancers' inability to individually negotiate favorable changes to media trust master contracts such as that offered by the Globe argues that it is a necessity for them to act in concert when dealing with the media trusts, for it is only by acting in concert that they will have a chance of negotiating changes.  To be able to act in concert legally, they must have an exemption from antitrust restrictions.  Such an exemption would in no way affect competition; illustrators will still compete on style, quality, price, speed and similar criteria, just as they do now.  But they will have what they do not have now; the right to combine their market power in negotiation, and thus the opportunity to establish better contract terms.

There is no innate reason why passing an antitrust exemption should be improbable.  Difficult, yes; it may take more than one term of Congress to do it, but it can be done with a well-drafted bill, an able lobbyist and properly-orchestrated grassroots pressure.  You appear to have missed my discussion of these issues in the folder; I will be happy to discuss them with you further.

>The issues might seem complex, but they
>basically boil down to some fairly simple
>concepts. The fundamental problem with
>this type of legislation is that it runs
>against the grain of the way free markets
>operate. New to the business?
>Willing to work for cheap to build a
>portfolio? Built a reputation? Charging a premium
>for it? That's the nature of a free
>market economy.
>
>Instead, the nature of the debate here
>seems to circle endlessly around how
>poorly independent contractors
>are treated by "big media" and the
>notion that an exemption from anti-trust
>laws is a panacea for the problem. The
>reality is that the right to collective
>bargaining offers no such relief unless you are
>willing to operate under the guidelines
>of an organized labor force.
>
>Apart from all of this, I also see no
>mention of states rights or enforcement
>contained in any post on this board. That
>aside for now - I still haven't read anything
>here that convinces me that
>this would be beneficial to our profession
>in any way, or that such legislation even
>stands a shadow of chance of passing
>based on it's current advocates and
>arguments.

I have no idea what you mean by "states rights or enforcement," so I will leave that alone pending your elaboration.  I will merely point out that you seem to have missed the fact that illustrators are being "organized" by their media trust clients according to contract terms favorable to the media trusts; static prices and uncompensated transfers of secondary rights.  I have seen illustrators at all levels of the profession complain of these things; an antitrust exemption provides a tool which illustrators can use to fight them.  

You may offer all the paeans to a free market economy that you wish, but if one of the two parties is not willing to negotiate there is no free market economy.  Media trusts do not have master contracts for the purpose of negotiation, but for the purpose of avoiding negotiation; if illustrators wish to negotiate in a free market economy, they must gain the legal right to exert the leverage which will convince their clients to negotiate.  There is no way this can be achieved other than by an antitrust exemption.

__________________________
Daniel Abraham, Esq.

Debating the fine points of the Conyers Bill in its original form is no longer relevant, as the bill is currently under massive revision.  When details of its new form emerge, you will certainly find them available for analysis here.

A debate on the merits of an anti-trust exemption for visual artists is a much broader, more conceptual discussion and I am glad to see it moving forward in Art Talk.  I am also confident that all participants will be able to argue their points without personal criticism and/or references to organizations whose members choose not to participate here.

Jami G.
Vice President
Theispot-Showcase
The Illustration Internet Site      

On 10/22/02 9:33:33 AM, Jami G. wrote:
>Debating the fine points of
>the Conyers Bill in its
>original form is no longer
>relevant, as the bill is
>currently under massive
>revision.  When details of its
>new form emerge, you will
>certainly find them available
>for analysis here.
>
>A debate on the merits of an
>anti-trust exemption for
>visual artists is a much
>broader, more conceptual
>discussion and I am glad to
>see it moving forward in Art
>Talk.  I am also confident
>that all participants will be
>able to argue their points
>without personal criticism
>and/or references to
>organizations whose members
>choose not to participate
>here.

Regrettably, Jami, it will be most difficult to engage in the desirable broader debate without the references you would rather avoid.  

There is very little debate as to the need for an antitrust exemption; even the Unreferenceable Organization agrees on its necessity.  In fact, the UO has posted a "Case for a Simple Antitrust Exemption" on its Unreferenceable Site which--for the first seven paragraphs--is a quite lucid statement of the reasons such an exemption is necessary.

The cogency of the statement is unfortunately destroyed by inclusion of the last five paragraphs,  which veer off into the reflexive anti-union paranoia, wholly ungrounded in fact or law, that remains the UO's sole contribution to discussion of the issue to date.

The UO's wholly ideological opposition to anything remotely attached to the word "union"--except, of course, obtaining the right to act like a union itself--underlies virtually all of the disagreement on the antitrust issue.  The constant throbbing presence of that ideology renders discussion of the political practicalities necessary to actually achieve the desired exemption virtually impossible--and certainly impossible without occasionally referencing the Unreferenceable.

__________________________
Daniel Abraham, Esq.

On 10/22/02 2:27:50 PM, Daniel Abraham wrote:
>There is very little debate as to the
>need for an antitrust exemption;

Apparently not, Daniel.  Robert Zimmerman has just made an impassioned case for the exact opposite.  To which you responded.  That is what we are discussing.

>...The constant throbbing presence of that
>ideology renders discussion of the
>political practicalities necessary to
>actually achieve the desired exemption
>virtually impossible--and certainly
>impossible without occasionally
>referencing the Unreferenceable.

Take a deep breath and do your best.

Jami G.
Vice President
Theispot-Showcase
The Illustration Internet Site      

I believe Abraham is confusing the issue
even further and the examples he uses to
bolster his argument are sometimes
inaccurate, and in other cases I sense
they are intentionally misleading.

Abraham writes as if it is a matter of
undisputed fact that mergers such as
AOL Time Warner run contrary to anti-trust
laws established since the mid 20th
century. He states that it has been years
since these laws have been enforced and
this has allowed the formation of giant
media trusts, and as a consequence of
this, the Conyer's Bill is made
necessary.

The famous AOL Time Warner merger
was never really questioned by the FCC
as potentially violating anti-trust laws
except on details regarding broadband
access. The agency approved the merger
unanimously with these ISP related
provisions agreed to without any
administrative exemption from anti-trust
laws.

Additionally, The Department of Justice
and the Federal Trade commission have
always allowed firms to integrate
complementary means of production, and
it is widely viewed as pro-competitive.
This is the reason that the AOL Time
Warner Merger was never really in
question.

The DOJ and the FTC do not, and never
have assumed that market power in itself
raises anti-trust issues. These are the
simple facts whether anyone likes them
or doesn't.

Abraham states as if it were a known fact
that there were some good old days now
long past when  no single corporate
concern could own radio, television and  
newspaper in a single market.  This is
not an anti-trust issue. This falls under
the Federal Communications act
regarding cross ownership. The FCC
still vigorously preserves independent
views within the same geographic location,
and cross ownership of information
providers (not to be mistaken with
entertainment providers) is to this very
day, heavily regulated.

The suggestion we are living in a new
scary world where the rules have
changed regarding how businesses can
operate is Abraham's opinion. It is a
belief shared by some, and not shared by
others, including myself. However, when
Abraham makes his case, it is not put
forth as his opinion, but rather as a
known fact. I find this style of persuasion to
be disturbing.

Abraham sites the AOL Time Warner
"monster" again and again as a center
piece of how our negotiating power is
being drained away. I am yet to see the
evidence of this. I very recently completed
a series of illustrations for a division of
Time Warner and never saw a contract
from them. instead, my terms of first time
usage rights were agreed to by the client
from the moment I accepted the
assignment. My terms appeared on my
invoice, which was paid promptly.

This lays waste to his proclamation of
inequality of bargaining power between
the individual and the media trust fairly
sharply. It is not inarguable at all.
Abraham suggests that we need
collective bargaining rights in order to say
no to bad contracts. I say no to them often
and without hesitation. I just said no to
one yesterday from a monster "media
trust". It went back to legal for revisions
based on my comments and I'll look it
over again when it comes back.

Abraham is correct when he says that
every media company has its standard
boilerplate contract. Say no to it, and very
often as is the case with Scholastic for
example, you'll see another one. Hey,
when I negotiate I always ask for the sky
at first too and then come down from
there. It's business, get used to it.

I'll admit this - I love constructive
exchange and I've enjoyed knowing my
subject matter ever since I was on my
highschool debate team. When Abraham
puts forth as a statement of fact that
antitrust actions are primarily invoked
"against small concerns such as artists"
my index cards come out. This claim has
no records to support it, and the records
are very easy to obtain from the
wondrous DOJ website. These people
are real packrats of information, as you
might expect. They catalog, sort and
display every sort of statistic you can
imagine, including the number of
anti-trust cases based on restraint of
trade, filed against both businesses and
individuals. I have compared the
numbers and you can too. They disprove
Abrahams statement and his implication
that independent contractors are being
disproportionately singled out in one easy
to read chart.

I'm concerned that Abraham is able to
make statements which he phrases as
factual here and do so without anyone
questioning his research. He is certainly
a fine writer, and perhaps it's that he
simply commands respect because of
his authoritative style. A simple search of
the records however reveal that the
information used in building his case is
often inaccurate and in my opinion, very
misleading.

I can not find any evidence to support the
notion that exemptions from anti-trust
laws are granted regularly. The FTC
strongly opposes the bill (also with
Conyers name on it) exempting
physicians from the same regulations
that apply to our field. The DOJ also
strongly opposes this proposed
exemption. I can find MAYBE two groups
in the US who are non-employee or not a
member of an organized labor group
which are allowed collective bargaining
rights and again, I think they are in some
strange farm related insurance field.

If Daniel really wants me to explain how
states rights play into this, I will
elaborate. It's not too complex.

Cheers all. Sorry for the length of this
post. Thanks again to the wondrous
Gerald Rapp and theispot for this forum.
Thanks also to the many who have
emailed me since I started posting my
viewpoints here.

Robert,

You make some thought provoking points, which is the purpose of this forum.  However, I would like to request once more that personalities be left out of these posts, as I do not believe that personalizing an argument contributes to its clarity.  Rather, it tends to cloud the issues and derail genuine dialog.

You mention that you are receiving quite a bit of private support for your posts here.  Please tell your friends that they, too, are welcome to contribute to the discussion about the Conyers Bill and the broader issues it raises. I can think of no better use for Art Talk.

JERRY RAPP
g e r a l d  &  c u l l e n  r a p p, I n c.  
http://www.theispot.com/rep/rapp
gerald@rappart.com
   

On 10/23/02 11:50:03 PM, Robert Zimmerman wrote:
>I believe Abraham is confusing the issue
>even further and the examples he uses to
>bolster his argument are sometimes
>inaccurate, and in other cases I sense
>they are intentionally misleading.
>
>Abraham writes as if it is a matter of
>undisputed fact that mergers such as
>AOL Time Warner run contrary to anti-trust
>laws established since the mid 20th
>century. He states that it has been years
>since these laws have been enforced and
>this has allowed the formation of giant
>media trusts, and as a consequence of
>this, the Conyer's Bill is made necessary.

Once again, Robert, you are laboring under the erroneous impression that I am somehow endorsing, or have endorsed, the Conyers bill.  This belief of yours is of a piece with your earlier erroneous claim that I am "chief spokesman" for that bill.  

Both these beliefs of yours are wholly unsupported by anything I have written on the subject. I have opposed the Conyers bill since prior to its having been drafted--a fact clearly and repeatedly stated in this folder.  If that reality continues to elude you, along with the many grounds I have given for not supporting it, the value of your exposition on antitrust matters below is rendered questionable at best.

>The famous AOL Time Warner merger
>was never really questioned by the FCC
>as potentially violating anti-trust laws
>except on details regarding broadband
>access. The agency approved the merger
>unanimously with these ISP related
>provisions agreed to without any
>administrative exemption from anti-trust
>laws.

Antitrust issues are primarily considered by the Federal Trade Commission (FTC), not the Federal Communications Commission (FCC) as you incorrectly suggest above.  And antitrust issues were considered before the AOL Time Warner merger was permitted.  That they were in the end dismissed by the relevant government bodies says more about the nature of political appointees to regulatory agencies than about whether the antitrust laws are being properly enforced.

>Additionally, The Department of Justice
>and the Federal Trade commission have
>always allowed firms to integrate
>complementary means of production, and
>it is widely viewed as pro-competitive.
>This is the reason that the AOL Time
>Warner Merger was never really in
>question.

Always, Robert?  Hardly.  The reason movie studios were divested of their theatre chains in the 1950s was that their ownership of the distribution networks that "complemented" their production facilities was deemed to be anti-competitive.  

Competition, and what makes for it, is very much in the eye of the beholder; given a five-minute head start, it is possible to argue either that the creation of a media behemoth like AOL Time Warner is necessary for US media to compete with similar foreign media behemoths--or to argue that the conglomeration of so many media entities under a single corporate umbrella will squelch competition by handing over entire markets to one provider.  It depends entirely upon which of the many facts you wish to accentuate, and which you prefer to soft-pedal.  Clearly, you prefer to rely upon the behemoth-friendly conclusions of the political appointees to various agencies as being dispositive, rather than consider for even the briefest moment that the appointees were chosen for the purpose of rubber-stamping approval of corporate activity that other appointees would have disallowed.

>The DOJ and the FTC do not, and never
>have assumed that market power in itself
>raises anti-trust issues. These are the
>simple facts whether anyone likes them
>or doesn't.

Who said they did?  Not I.  However, just as ownership of movie studios, which produce films, and movie theatre chains, which distribute them, was deemed anti-competitive back in the day, so ownership of media content, and ownership of the means by which that content is distributed may be deemed anti-competitive.  The media trusts that acquire ownership of content through their master contracts, and then distribute that content through their various subsidiaries, are remarkably similar in their operation to the movie studios prior to the forced divestment of their theatre chains.

>Abraham states as if it were a known fact
>that there were some good old days now
>long past when  no single corporate
>concern could own radio, television and
>newspaper in a single market. This is
>not an anti-trust issue. This falls under
>the Federal Communications act
>regarding cross ownership. The
>FCC still vigorously preserves
>independent views within the same
>geographic location, and cross ownership of
>information providers (not to be mistaken
>with entertainment providers) is to
>this very day, heavily regulated.

It is an anti-trust issue, though not solely one; it is also a First Amendment issue, which is part of the reason why it is still heavily regulated.  Of course, regulation is actually a substitute for competition; it is an attempt to simulate competition where no competition actually exists, as in cross-ownership of information providers.

>The suggestion we are living in a new
>scary world where the rules have
>changed regarding how businesses can
>operate is Abraham's opinion. It is a
>belief shared by some, and not shared by
>others, including myself. However, when
>Abraham makes his case, it is not put
>forth as his opinion, but rather as a
>known fact. I find this style of persuasion to
>be disturbing.

Not my suggestion, Robert.  Complaints as to the increased incidence of non-negotiable master contracts, as to the flatlining of prices, and as to the increased rights demands by clients for the same money even without a master contract, come from illustrators posting here and elsewhere, not from me.  If you have managed to avoid these problems, I congratulate you--but if so, you are one of very, very few.

>Abraham sites (sic) the AOL Time Warner
>"monster" again and again as a center
>piece of how our negotiating power is
>being drained away. I am yet to see the
>evidence of this. I very recently completed
>a series of illustrations for a division of
>Time Warner and never saw a contract
>from them. instead, my terms of first time
>usage rights were agreed to by the client
>from the moment I accepted the
>assignment. My terms appeared on my
>invoice, which was paid promptly.
>
>This lays waste to his proclamation of
>inequality of bargaining power between
>the individual and the media trust fairly
>sharply. It is not inarguable at all.

Once again, you have my congratulations on your superb negotiating skills.  However, before we break out the champagne, allow me to speculate that the work you did was not for AOL Time Warner organs Ski or Skiing, both of which went to a work for hire contract last year and have refused to negotiate terms with any freelancer.  Have you accepted the Boston Globe rights-grab contract recently?  How many other jobs from large media entities have you refused in the last year or two because of their refusal to negotiate master contract terms?  I am sure that you are prospering on your tropical island paradise of personal negotiation, but 'fess up--don't you find that the beach erosion is of just a little concern, and has shrunk the size of your domain just a little bit in recent years?  

Given the number of queries I have had in Legal Easel regarding contracts--particularly master contracts--imposed ex post facto and even (like the Conde Nast contract) retroactively, I would suggest that you hold the celebration and consider that you are not immune from such tactics.  Even if you are one of the favored very few who has thus far escaped the reality which many of your colleagues confront daily, you may want to consider how long your run of luck will hold--and how many former clients you will have to jettison as the pool of clients that does not insist on your signing their master contracts grows smaller.

>Abraham suggests that we need
>collective bargaining rights in order to say
>no to bad contracts. I say no to them often
>and without hesitation. I just said no to
>one yesterday from a monster "media
>trust". It went back to legal for revisions
>based on my comments and I'll look it
>over again when it comes back.

Once again, I congratulate you on your ability to say "no."  Most illustrators would like to be able to say "yes" to as many commissions they have time for--but increasingly say "no" because of the non-negotiable terms they are offered.  So far, you have maintained some options, so are luckier than many.  How long do you think that luck will hold?  What will you do when it gives out?  Why are you opposed to other illustrators making their own luck?

>Abraham is correct when he says that
>every media company has its standard
>boilerplate contract. Say no to it, and very
>often as is the case with Scholastic for
>example, you'll see another one. Hey,
>when I negotiate I always ask for the sky
>at first too and then come down from
>there. It's business, get used to it.

The alternate contract system which was routine when I began work in the illustration field has now largely been replaced by the non-negotiable master contract.  It may still exist in pockets, and it may still be granted occasionally as an indulgence to certain favored suppliers like yourself, but it is not the industry trend.  

Regardless of whether or not you want to read the handwriting on the wall--or agree with the message--there is no reason why independent contractors should not seek to take control of their own lives and insert a little certainty.  There is no reason why "standard boilerplate contracts" should not be negotiated as an industry standard that everyone is aware of in advance, instead of being a brand-new game of negotiation each time a job is on the table.  

>I'll admit this - I love constructive
>exchange and I've enjoyed knowing my
>subject matter ever since I was on my
>highschool debate team. When Abraham
>puts forth as a statement of fact that
>antitrust actions are primarily invoked
>"against small concerns such as artists"
>my index cards come out. This claim has
>no records to support it, and the records
>are very easy to obtain from the
>wondrous DOJ website. These people
>are real packrats of information, as you
>might expect. They catalog, sort and
>display every sort of statistic you can
>imagine, including the number of
>anti-trust cases based on restraint of
>trade, filed against both businesses and
>individuals. I have compared the
>numbers and you can too. They disprove
>Abrahams statement and his implication
>that independent contractors are being
>disproportionately singled out in one easy
>to read chart.

A little honesty, please. "Singled out?" Hardly; independent contractor illustrators know enough not to act in an overtly collusive fashion.  But the lengthy FTC investigation of the Guild's Pricing and Ethical Guidelines in the early '90s, which came down in the end to a ruling that telling people not to work on speculation (i.e., for free) was "price fixing," argues that the antitrust regulators are far more concerned with appearance than with substance, at least as far as this industry is concerned.

>I'm concerned that Abraham is able to
>make statements which he phrases as
>factual here and do so without anyone
>questioning his research. He is certainly
>a fine writer, and perhaps it's that he
>simply commands respect because of
>his authoritative style. A simple search of
>the records however reveal that the
>information used in building his case is
>often inaccurate and in my opinion, very
>misleading.

Basically, Robert, your entire post comes down to the declaration, "I'm all right, Jack."  We can only applaud your all-rightness, but it is not shared by the bulk of the industry.  Whether artists are members of the Guild, the IPA, both, or neither, most are deeply concerned by the increasing proliferation of master contracts, by the increasing rights demands, by the flatlined prices--and they want to address the problem.  An antitrust exemption, which would allow greater freedom of action, is the sole means by which such greater freedom of action could be legal.  

Granting your status as an industry titan, have you any suggestion other than the antitrust exemption which you oppose for the illustrators who have not yet achieved your titan status, and who are looking for something other than, "I'm fine, and too bad for you"?

>I can not find any evidence to support the
>notion that exemptions from anti-trust
>laws are granted regularly. The FTC
>strongly opposes the bill (also with
>Conyers name on it) exempting
>physicians from the same regulations
>that apply to our field. The DOJ also
>strongly opposes this proposed
>exemption. I can find MAYBE two groups
>in the US who are non-employee or not a
>member of an organized labor group
>which are allowed collective bargaining
>rights and again, I think they are in some
>strange farm related insurance field.

Your point?  Antitrust exemptions for mergers are not uncommon; they may exist simply by virtue of the regulatory agency refusing to find an antitrust problem.  Antitrust exemptions for classes of independent contractors are rare, and must be done legislatively; I said as much upthread.  The notion that independent contractors should be able to combine in certain instances is new to the current legal structure, so opposition by the current bureaucracy is no surprise.

However, 100 years ago all workers were considered to be "independent contractors," whether they were what we now call "employees" or were truly independent contractors.  The law finally recognized that "employees" were not truly independent contractors, and employees were granted the right to act in concert when dealing with their "clients"--their employers.  Independent contractor illustrators who are offered non-negotiable master contracts by their clients are treated identically, just as "employees" were treated identically by "employers" when they were granted the right to act in concert.  

Independent contractor illustrators want to stay independent contractors. That does not mean they should not have the right to act in concert when confronted by master contracts which treat them in an identical manner, which is what an antitrust exemption is all about.

>If Daniel really wants me to explain how
>states rights play into this, I will
>elaborate. It's not too complex.

Good; explain what you are talking about.

>Cheers all. Sorry for the length of this
>post. Thanks again to the wondrous
>Gerald Rapp and theispot for this forum.
>Thanks also to the many who have
>emailed me since I started posting my
>viewpoints here.

Yes indeed; Jerry deserves great credit for maintaining an open forum, unlike certain other entities, and for ensuring that, unlike certain other entities, a base level of civility is maintained.

I am sure your email correspondence offers a welcome relief from everyday spam. I hope for your own sake that you do not mistake the endorsements of your cheering section for anything like actual cogency in your arguments; you still have not provided any reason why an antitrust exemption should not be sought, or why it would not benefit illustrators.  

__________________________
Daniel Abraham, Esq.