>I'm not an attorney, nor do I want to be. I can't cite any case law. I can give you my attorney's name. He is considered a Patent/Copyright attorney and specializes in Computer Law and is also a mechanical engineer. When I need his advice I call him. Maybe I'm using the wrong words, but from the gist my conversations with him creating computer software, by contract with a company, is not the same thing as a "work for hire".
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So long as elements of the Reid test are not met, this may be true. The idea behind the Reid test is to determine if in reality, you are acting in the capacity of an employee. Even if you "indendent", you can still be considered an employee for purposes of determining whether work for hire is involved. Anything an employee does is work for hire for the most part. There are exceptions in cases where what the employee works in is not part of their job and on their own time.

Also, regardless of whether you are an employee or an independent contractor, if the nature of your work adds to an existing product, it will most likely be considered work for hire.

Clearly, there is a gaping loophole in the copyright act. This means that we are left to judicial interpretation. We can thank the Supreme Court for forumulating the Reid Test in 1989. However, it is not an inclusive test. You could meet only 1 of the elements and still be considered an employee. It is up to judicial interpretation.

Software elements are not in the 8 cateagories of the work for hire definition that was enacted in 1976. There is a catagory that relates to adding to an existing work. That is why some software work can be classified as work for hire from a strict interpretation of the statute.

This is why the the classification of employee vs. indpendent contractor is so important. If you are an employee, game/set/match. If you are an independent contractor, and absent an express agreement, then chances are it is not work for hire.

As an indendent, one has to be careful about using the client's equipment and resources. One has to be mindful of just how indendent one really is.

The fact is, most companies will have you sign an express agreement. Therefore, much of this is moot. In cases where no agreement exists, the vast majority don't hit the courts.

< JVP >