On 10/19/99, Barbara L. Friedman <blfriedman[_at_]bryancavellp.com> wrote:
>
> 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.
The court held that Favela was an employee of both Fritz, the company
and Remedytemps ("RT"), the temp agency, but it did not say that the
copyright for the software belonged to both. Apparently, only Fritz
was asserting copyright ownership, and the court found that the
software was a work made for hire. One has to then infer that the
copyright belonged solely to Fritz.
The doctrine on which the court based its holding is called the "loaned servant doctrine," which, according to the Restatement of Agency (Second), sec. 227 is:
"An employee directed or permitted to perform services for another 'special' employer may become that employer's employee while performing those services."
Favela argued that the court should apply the Reid factors, but the court rejected that argument with the following curious assertion:
"Plaintiff has misconstrued the Dumas and Reid cases. The factors set forth in those cases need only be considered when determining whether an artist qualifies as an employee or an independent contractor within the meaning of the work-for-hire provisions of the Copyright Act. In the instant action, Plaintiff claims that he was neither an independent contractor nor an employee of Fritz, arguing instead that he was, at all times, solely an employee of Remedytemps. As already discussed, Plaintiff's position is inconsistent with the common law of agency and the loaned servant doctrine."
What is most bizarre is the court's perhaps inadvertent use of the word "artist," as if to say that if plaintiff isn't an artist, then the Reid factors don't apply.
It's not clear to me where RT was in this motion for summary judgment. I don't know much about the loaned servant doctrine, but it seems to me that the court had a better way to go.
"In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."
Fritz can be the "other person for whom the work was prepared." All the court has to do is find that Favela was an employee of RT and acting within the scope of that employment.
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