Re: temp worker work made for hire?

On 8/27/1999, Carol Ruth Shepherd <shepherd[_at_]arborlaw.com> wrote:
>
> 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 is certainly on target in adding the possibility of joint authorship to the analysis, but proving joint authorship requires more than "any input at all from anyone other than Helen." There must be an understanding at the outset that each party will contribute to the copyrightable expression with the objective of forming a unitary whole. Just contributing ideas doesn't do it; there has to be a contribution to the expression based on the preexisting understanding.

John Allison
<allisonj[_at_]mail.utexas.edu> Received on Sat Aug 28 1999 - 14:24:16 GMT