Re: work for hire or joint authorship??

From: Vance R. Koven <vrkoven[_at_]world.std.com>
Date: Mon, 16 Sep 1996 09:34:37 -0500

On 9/13/96, W M Abel wrote:
>
> 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.'
>

[snip]
>
> Is Jones design work, 'work for hire'?
> or
> 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.

One case you should look at is Marshburn v. US, 29 CtCl 706, 1990 Copr. L. Dec. para. 26,599. In that one, a Postal Service employee painted murals in the employee cafeteria on her "off" hours and was held not to have done that as work for hire. That represents, I think, a minority response, and can perhaps be distinguished because the employee was never hired for the purpose of painting murals (or even office walls!), but on your state of facts I think you'll need all the help you can get.

Vance R. Koven
<vrkoven[_at_]world.std.com> Received on Mon Sep 16 1996 - 13:45:46 GMT

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