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.

The IRS 20-factor test (thanks to Bob Cumbow for providing the link, although it is also published as Rev. Rul. 87-41, in 1987-1 Cum. Bull. 296, 298-99), may be replaced with a statutory three-factor analysis, if the "Independent Contractor Clarification Act of 1999," H.R. 1525, introduced April 22, 1999 by Rep. Kleczka, D-Wis., is enacted. This bill would set forth three statutory criteria for determining whether a "service provider" is an employee or an independent contractor of the "service recipient."

Although this bill would only directly amend the tax code, to the extent that courts faced with the independent contractor analysis in other contexts, including the Copyright Act, have hitherto looked to the IRS 20-factor analysis, then the effect of this bill could be more widespread.

Since the determination is so fact-specific, I cannot readily state whether a given individual (e.g., author claiming copyright ownership) would be more or less likely to be classified as an independent contractor under this bill than under the 20-factor analysis. In any event, it does create another wrinkle into this area.

Alan Kabat
(Washington, D.C.)
<alankabat[_at_]aol.com> Received on Sun Aug 29 1999 - 20:52:16 GMT