Re: Work Made by Business Owner (for Hire?)

I am assuming from your question, your owner is either not the sole owner of the company or that something has happened where your client wants to separate the claim of the copyright work from the business due to some attachment that could possibly make a claim to this copyright. I do not think the employment status for tax purposes controls the designation as an employee for copyright purpose. For copyright purpose the entire relationship will be viewed to determine the relation, not just tax status.    

17 U.S.C. § 201(b) states:
"Works made for hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."
I would assume that your owner would be impugned to have the dual designation of being both an owner and an employee.As an owner he has the right to transfer outside claims of other owners and creditors. As an employee, if this copyright creation is outside the employment relationship (like created at night and weekends on his time and it was not one of his employment duties), then a claim could be made that the copyright is owned by him personally. It is too bad there was no written agreement as the alternative solution could have been that your owner/employee had entered into an written agreement with his company either pre or post creation, expressly designating the ownership of this copyrighted work in him rather than ownership in the company, subject to the right of the company to use the work. Otherwise, I think the company owns the copyright.
Respectfully submitted,
Gary Poe JD University of South Florida, Department of Management Information Science Received on Sat Apr 23 2005 - 00:39:59 GMT