work for hire or joint authorship??

From: W M Abel <abel[_at_]>
Date: Fri, 13 Sep 1996 00:21:41 -0600

Here is a potential case concerning 'work for hire.' This case relies strongly on whether the work in question was done within the 'scope of employment.'

Jones is hired by a company to take care of daily office work, shipping and computer production work (preparing artwork for the press.) Jones is given a low salary of $13k with no benifits, there is no overtime pay and he is expected to work from 8:30 to 5:00 five days a week with half an hour off for lunch. There are no written contracts signed between the employer and the employee.

Jones works the regular hours fufilling the described duties. He also chooses to design work jointly with the owner of the business occasionally on evenings and on weekends. Most of the time he is alone while working on the jobs. He works at home on his own computer as well as in the business's studio. The work is usually jobs which the business is doing for its clients although some of the work is for the business itself. Ideas for the work come from both the owner and Jones. All the design work is done with a computer and Jones is the only one with his 'hands-on' the work because the owner lacks the skills needed to operate the computer.

Because the work is jobs going through the business Jones also works on them during regular business hours. Still the majority of the work is done after normal business hours or on weekends.

Not all the tools used at the business location are supplied by the employer. Jones uses computer software which belongs to him.

Is Jones design work, 'work for hire'?
Does Jones and the Owner share the authorship jointly?

My opinions are:

<1>Since Jones is an employee of the business, any work he does for
the business is considered work for hire. Therefore he does not hold any of the copyright to the work.

<2>Jones was not hired to do design work as part of his duties nor
was he paid the salary of a designer. He was not paid in anyway for the design work he did. He did not receive overtime or bonuses. Jones used his own equipment and tools, which required a personal investment. Jones chose when he wanted to work on the design jobs they were not a regular part of his job. Jones recieved no benifits or insurance. Therefore the work in question was not performed in the 'scope of employment' and Jones was at the time not acting as an employee for the business as defined in 101(1). The work in question does not satisfy 101(2) either as there were no mutual contracts. Jones should be entitled to the copyright of the work in question. The business should also retain the copyright as well.

Please email me with some opinions. Is this second opinion sound? What would a court rule on this case?



W M Abel Design Co
410 Macon Drive
Glencoe AL 35905
(205) 492-7229

Received on Fri Sep 13 1996 - 05:20:00 GMT

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