Very interesting information!! Law is certainly open to "interpretation" as shown by your examples. I guess the bottom line is to be as clear and precise as possible with all your written contracts.

Cathy

>This is an interesting issue. I took a few moments to go on WestLaw to research work for hire. Here is the summary of a few cases. As you will see, one of the the issues is whether the person is classified as an independent contracter. If there is no contract, Agency Law applies. However, courts will bend over backwards to find a contract since that is the basis of the mutual promises made by each party.
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>The issue can be summarized as follows:
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>If you are deemed to be an employee for copyright purposes, there needs to be an agreement that specifically states the author retains ownership.
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>If you are an IC for copyright purposes, there needs to be language that specifies the client/customer owns the copyright.
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>The twist is that a person who is an employee could conceivably be an IC for copyright purposes. And, an IC could be considered an employee for copyright purposes. It depends on the result of the various tests the courts apply.
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>I would also go as far to say that what a contract says is not necessarily dispositive. There are other issues at work...
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>Montgomery v. Alcoa, Inc., 11 Fed.Appx. 471
>C.A.6 (Mich.),2001
>Under the "work for hire doctrine," an employer owns the copyright on a product prepared by an employee within the scope of his employment, absent a written agreement to the contrary. 17 U.S.C.A. § 201(b).
>See publication Words and Phrases for other judicial constructions and definitions.
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>Kirk v. Harter, 188 F.3d 1005
>C.A.8 (Mo.),1999
>Under Copyright Act, an employer is the author of a copyrighted work when the item is considered a work made for hire. 17 U.S.C.A. §§ 101, 201(b).
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>Kirk v. Harter, 188 F.3d 1005
>C.A.8 (Mo.),1999
>To determine the employment status of an individual under the copyright statutes when there is no written employment agreement, court looks to the common-law rules of agency. 17 U.S.C.A. §§ 101, 201(b).
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>Kirk v. Harter, 188 F.3d 1005
>C.A.8 (Mo.),1999
>In applying common-law test of agency to determine individual's employment status under copyright statutes, court examines several factors, including hiring party's right to control manner and means by which product is accomplished, although no single factor is determinative; other factors to be taken into account include skill required, source of instrumentalities and tools, location of the work, duration of relationship between parties, extent of hired party's discretion over when and how long to work, method of payment, hired party's role in hiring and paying assistants, whether work is part of hiring party's regular business, whether hiring party is in business, provision of employee benefits, and tax treatment of hired party. 17 U.S.C.A. §§ 101, 201(b).
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>Kirk v. Harter, 188 F.3d 1005
>C.A.8 (Mo.),1999
>Developer of computer program for business was "independent contractor," not employee of business, so developer was owner of copyright in program and was not liable for copyright infringement when he began to service users of program directly, rather than on behalf of business; although developer travelled extensively with business owner and had his projects and hours directed by owner, business failed to provide employment benefits or withhold any payroll taxes, and developer received payments on irregular basis, continued to consult with other companies, and, at one point, hired a subcontractor. 17 U.S.C.A. §§ 101, 201(b).
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>Marco v. Accent Pub. Co., Inc., 969 F.2d 1547
>C.A.3.Pa.,1992
>Freelance photographer who photographed jewelry for magazine was an independent contractor of publisher and thus photographs were not works for hire for copyright purposes, where photographer used his own equipment, paid his own taxes, supplied his own studio, did not receive employee benefits, worked in a distinct occupation and was paid by the job. 17 U.S.C.A. § 101.
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