Re: Volunteers & copyright (was:Consideration required for work made for hire)

From: Tyler Ochoa <tochoa[_at_]law.whittier.edu>
Date: Wed, 13 Feb 2002 10:22:33 -0800


Under U.S. law: In CCNV v. Reid, the U.S. Supreme Court rejected the position that "employee" should be interpreted to mean "formal, salaried employee," and instead adopted a multi-factor balancing test from the Restatement of Agency. Under this test, providing salary and benefits to the person remains a very important consideration, but I think it would be possible to be deemed an employee even if one worked on a purely volunteer basis, if one was otherwise sufficiently like an employee, i.e., was part of the regular volunteer staff of the museum, worked regular hours, could be assigned additional projects as needed, regularly prepared works of the type needed by the museum in its ordinary business.

Having said that, the original question posed (below) does not seem to meet that standard. The translators are not regular volunteer staff, but outside experts who volunteered to provide translations for a specific project on a one-time basis. I think they would be considered independent contractors, and would be entitled to the protection provided by the work-made-for-hire statute: The work could be work-made-for-hire only if it fell within one the nine categories and there was a signed written agreement stating it was a work-made-for-hire. If that was the case, I do not think the absence of consideration would matter; although it might be prudent to recite some nominal consideration, such as an agreement to provide credit, or payment of a dollar.

In both cases: if the work is considered a work made for hire, the term in the U.S. is currently 95 years from first publication, or 120 years from creation, whichever is shorter; and no termination of assignment is possible.

Tyler T. Ochoa
Associate Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School

Visiting Associate Professor
University of California
Hastings College of the Law

> At 10:36 AM 1/28/2002 -0500, Kevin Grierson wrote:
> >I represent a client that is a local nonprofit, which has received
offers
> >from local translators to provide translations of some of its
> >informational brochures. The translators have agreed to work for
free,
in
> >support of the nonprofit's charitable endeavours.
> >
> >Here's my question: I assume that a written assignment of copyright
can
> >be given for no consideration, in much the same way as real property
can
> >be deeded. But can work that's done on a volunteer basis be
considered a
> >work for hire? ...
>

S. Martin Keleti <keleti[_at_]manifesto.com> replied:
> ...What are the consequences? If it's a gratuitous assignnment of
copyright,
> the translators will be the authors, their lives will be used to
measure
> the copyright term, and there will be a window of opportunity for them
to
> get the copyrights back. If they are works for hire, they'll have
fixed
> copyright terms; the NPO will be the author...

>>> akeshet[_at_]imj.org.il 02/10/02 23:53 PM >>> replied:
Two questions: 1) what is used to measure the copyright term for the NPO?
And 2) what about volunteers who work in an NPO as part of the volunteer staff? Is the NPO their
"employer" and therefore holder of copyright on their works? Received on Wed Feb 13 2002 - 18:32:42 GMT

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