RE: Article on Contracting vs Employee

Subject: RE: Article on Contracting vs Employee
From: "John Locke" <mail -at- freelock -dot- com>
To: "TECHWR-L" <techwr-l -at- lists -dot- raycomm -dot- com>
Date: Sun, 27 Feb 2000 09:47:43 -0800

Not quite true, Andrew...

Andrew wrote:
>
> 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.

Ivan Hoffman, a copyright attorney has a great site dealing with legal
issues writers face at http://www.ivanhoffman.com. Specifically, he quotes
US Copyright statutes on http://www.ivanhoffman.com/work.html:

<<A "work made for hire" is-
(1) a work prepared by an employee within the scope of his or her
employment; or
(2) a work specially ordered or commissioned for use as a contribution to a
collective work, as a part of a motion picture or other audiovisual work, as
a translation, as a supplementary work, as a compilation, as an
instructional text, as a test, as answer material for a test, or as an
atlas, if the parties expressly agree in a written instrument signed by them
that the work shall be considered a work made for hire. For the purpose of
the foregoing sentence, a "supplementary work" is a work prepared for
publication as a secondary adjunct to a work by another author for the
purpose of introducing, concluding, illustrating, explaining, revising,
commenting upon, or assisting in the use of the other work, such as
forewords, afterwords, pictorial illustrations, maps, charts, tables,
editorial notes, musical arrangements, answer material for tests,
bibliographies, appendixes, and indexes, and an "instructional text" is a
literary, pictorial, or graphic work prepared for publication and with the
purpose of use in systematic instructional activities.>>

And then Ivan Hoffman adds the following comments:

<<Under (1) above, the creator must be an actual employee at the time the
work was created and merely attempting to superimpose upon an independent
contractor the category of employee for the purposes of this doctrine runs
the risk of invalidating the transfer of rights. Furthermore, the work must
have been created "within the scope" of the employment, meaning that it was
part of the job duties of the creator to create the work. Merely because an
actual employee creates a work that is then acquired by the employer is not
sufficient.

Under (2), a person who is not an employee but an independent contractor can
still fall within the work made for hire concept but only within the express
examples above and then only if the parties have executed a written
agreement declaring a work for hire contract. >>

Just about everywhere I've run across, if you are an independent contractor,
and your contract does not explicitly state that you are writing a "work
made for hire," you do automatically own the copyright. You can transfer all
rights to your client (my preferred method), or only those they need (if the
work is more general in nature), but in either case, maintaining your
copyright until you've received payment in full gives you good leverage.

Andrew wrote:
> 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.

Again, not true. (see above!)

I do sometimes sign Work for Hire contracts, but negotiate something else in
my favor, like a higher rate, a tighter payment schedule, etc.

About the only court issues that have contradictory case histories in this
area have to do with when you sign the Work for Hire contracts--in some
cases, the courts have maintained that a contract signed after the work was
begun is binding if the Work for Hire nature was clear to both parties up
front... in other cases, they have dismissed the Work for Hire clause. Read
Ivan Hoffman's site!

John Locke
http://www.freelock.com







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