Re: Article on Contracting vs Employee

Subject: Re: Article on Contracting vs Employee
From: Andrew Plato <intrepid_es -at- yahoo -dot- com>
To: Techwrl-l <techwr-l -at- lists -dot- raycomm -dot- com>
Date: Sun, 27 Feb 2000 02:36:29 -0800 (PST)

This is incorrect...

> Although the article provides some excellent material on the financial
> side of employment v. contracting, it does not discuss a very important
> topic, particularly for writers: intellectual property ownership. In
> general (although every situation may be different and should be evaluated
> by a lawyer), the copyright in work prepared by an employee within the
> scope of his or her employment is owned by the employer under U.S. law --
> but work performed by an independent contractor is owned by the independent
> contractor (absent an agreement/contract to the contrary).
>

The work of an independent contractor is owned by the party or individual who
requested (the client) the work. Nearly every court in the US will recognize a
client as the rightful owner in the absence of a written agreement. A roofer
does not own the roof he puts on your house any more than you own the document
you write for a company.

Nearly all contracts signed by independent contractors will (or should) spell
this out.

The only work you implicitly own is work you do and sell for yourself. If you
wrote a short story and slapped your name on it and tried to sell it to a
magazine, you own the work.

Just because you are not an employee does not grant you rights to the material
you write. If a company engages you to work for them and provides you the means
to document their products, the information rightly belongs to them. Your
non-employee status is irrelevant.

This does not mean you cannot show off your work. Companies cannot restrain
you from practicing your trade (this is a federal law which has some
interesting history behind it). Part of practicing your trade is showing
samples of your work. All courts would respect such an arrangement. The only
time you can get into trouble is when you transfer information or unique
corporate designs across clients.

Just think of it this way: the person who pays the bills, owns the goods.

Andrew Plato




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