Re: temp worker work made for hire?

On Mon, Aug 30, 1999, Ari Kahan <akahan[_at_]netcom.com> wrote:
>
> On 08/28/1999, John R. Allison <allisonj[_at_]mail.utexas.edu> wrote:
> >
> > 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.
>
> Without meaning to minimize Robert's response, which cogently explains
> the standard work-for-hire analysis, I had kind of thought that that
> was the easy part, and it was assumed in the question; the harder part,
> and what I had thought made the problem interesting, and what I still
> haven't gotten any feedback on, or seen any caselaw on, is the wrinkle
> in which the temporary employee is not an employee of the company for
> whom the work is performed, but is an employee of the temp agency that
> sent her. Even if it is assumed that the work is a work for hire
> (worker is clearly an employee of SOMEONE, and the work is done within
> the scope of the contemplated work assignment), it's not clear to me
> whether the copyright in the work belongs to the temp agency or the
> client of the temp agency for whom the work was ultimately performed,
> in the absence of any agreement regarding such things between the temp
> agency and the client.

Assuming that the worker is, as you say, clearly an employee of SOMEONE, then the work is a wmfh under 101, which defines a wmfh as "a work prepared by an employee within the scope of his or her employment." So who owns the work? 201(b) says "In the case of a work made for hire, the employer OR OTHER PERSON FOR WHOM THE WORK WAS PREPARED is considered the author ..." So in your case it looks as if the work is a wmfh, but the temporary employer, not the temp agency or the temp employee, is the author. I'm not sure 201(b) was meant to have that result; but I think that's the way it comes out.

Bob

Robert C. Cumbow
> Graham & Dunn, P.C.
> 1420 Fifth Avenue, 33rd Floor
> Seattle, Washington 98101-2390
> Phone: 206-340-9619
> Fax: 206-340-9599
> E-mail: rcumbow[_at_]grahamdunn.com
> Website: http://www.grahamdunn.com/
Received on Tue Aug 31 1999 - 16:18:36 GMT