Re: temp worker work made for hire?

On 08/29/99, Alan Kabat <alankabat[_at_]aol.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.
>
> 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.

I realize this thread has not been active for a while, but I just found this case, in which a California district court found that a software program created by a temp was a work made for hire belonging to both the temp agency and the employer under a loaned employee theory. The case is:

FAVELA v. FRITZ COS. 29 U.S.P.Q.2D 1694, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA. --Barbara Friedman
  <blfriedman[_at_]bryancavellp.com> Received on Tue Oct 19 1999 - 21:41:24 GMT