Re: Work for Hire

On Thu, 24 Sep 1998, Marilyn Alan <malan[_at_]mkp.com> wrote:
>
> On 9/22/98, Bruce E. Hayden <bhayden[_at_]ieee.org> wrote:
> >
> > there is some caselaw that it can't be prospective (i.e. assign
> > something now that doesn't exist yet). So, it is best to get the
> > assignment in writing after the fact.
>
> It's interesting that just the opposite condition is cited in "Kirsch's
> Handbook of Publishing Law" by Jonathan Kirsch:
>
> "The work must be 'specially ordered or commissioned,' that is, a
> work-for-hire cannot be an existing work that is transferred from one
> party to another after its creation.

Assignment of rights and work for hire are two different things. It makes sense that assignment should be made after the creation, whereas WFH before, especially WFH.

It's logically impossible (who said the law was logical?) to make a work a WFH after the fact, because there will already be an author who holds the rights to the work. It will be too late to make the employer the author.

• Mike Bradley National Writers Union <mike[_at_]sphinx.com>

PS
Here are the California statutes relating to employee benfits for WFH creators of copyrighted works. You'll note that Terry Carroll first posted them.

Date: Tue, 21 Mar 1995 13:02:31 -0500
From: carrollt[_at_]netcom.netcom.com (Terry Carroll) To: Multiple recipients of list <cni-copyright[_at_]cni.org> Subject: Work Made For Hire & Unemployment Insurance

In my last post, I mentioned that under California law, a contract for a work made for hire may implicate state labor law issues. For those interested, here are the statutes to which I was referring. I've also included the URLs to California legislature's official Internet site.

>CALIFORNIA CODES
>UNEMPLOYMENT INSURANCE CODE
>SECTION 686
>
>686. "Employer" also means any person contracting for the creation
>of a specially ordered or commissioned work of authorship when the
>parties expressly agree in a written instrument signed by them that
>the work shall be considered a work made for hire, as defined in
>Section 101 of Title 17 of the United States Code, and the ordering
>or commissioning party obtains ownership of all of the rights
>comprised in the copyright in the work. The ordering or
>commissioning party shall be the employer of the author of the work
>for the purposes of this part.

ftp://leginfo.public.ca.gov/pub/code/uic/00001-01000/00601-00700/686

>CALIFORNIA CODES
>LABOR CODE
>SECTION 3351.5
>
>3351.5. "Employee" includes:

     . . .
> (c) Any person while engaged by contract for the creation of a
>specially ordered or commissioned work of authorship in which the
>parties expressly agree in a written instrument signed by them that
>the work shall be considered a work made for hire, as defined in
>Section 101 of Title 17 of the United States Code, and the ordering
>or commissioning party obtains ownership of all the rights comprised
>in the copyright in the work.

ftp://leginfo.public.ca.gov/pub/code/lab/03001-04000/03301-03400/3351.5

--
Terry Carroll        |   "Clearly, this invention provides the world's
Santa Clara, CA      |   first weapons simulator for use by motorists."
carrollt[_at_]netcom.com  |     - U.S. Patent No. 5,314,371 (May 24, 1994)