Re: temp worker work made for hire?

On Thu, 19 Aug 1999, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
>
> On Wed, Aug 18, 1999, Ari Kahan <akahan[_at_]netcom.com> wrote:
> >
> > Assuming no written agreement (either between Helen and the temp
> > agency, or between the temp agency and the temporary "employer")
> > covering anything remotely related to intellectual property, who
> > owns Helen's work? Helen? The temp agency? The temporary
> > "employer"? Does the temporary "employer" have shop rights?
>
> It's a two-step analysis. First, determine whether or not Helen is
> an "employee" by applying a fairly complex set of factors. A good
> place to start is with the IRS 20-facor test, to be found many places
> on the Web, one of them at <http://www.mindsrc.com/20rules_body.html>.
> You have to do this analysis twice, once to determine if she is an
> employee of her temporary employer, and once to determine if she is
> an employee of the temp-agency.
>
> If the analysis indicates that she is NOT an employee, then Helen
> owns the copyright.
>
> If the analysis indicates that she IS an employee of either
> organization, then you do the second step: Was the creation of
> the work "within the scope of her employment"? That is, was it
> something she was assigned or reasonably expected to do in the
> course of her paid duties? If so, then the work is a "work made
> for hire", and the employer owns the copyright. If not, Helen owns
> the copyright.

I agree with Bob's excellent summary and analysis, except to add that there is always a possibility of joint ownership of copyright to consider as well, if there is any input at all from anyone other than Helen. Determining "work for hire" status is heavily fact-dependent and one slight factual nuance can easily result in a different answer.

-- 
Carol Ruth Shepherd
Arborlaw Associates PLLC
Ann Arbor, Michigan USA
+1 734 668 4646 tel   +1 734 663 9361 fax
business, technology, entertainment and new media law
year2000[_at_]arborlaw.com