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 11:34:29 -0800 (PST)

Mr. Hoffman's site is rather vague in this area. They cite some letter of the
law information but do not address the intent of the law. I think you are
interpreting his information improperly.

First, the particular page where you obtained this information is focused
mostly on book publishing - where the laws and rules are a bit different.
Second, read the Playboy and Work for Hire page
http://www.ivanhoffman.com/work2.html. This describes a situation where the
parties did not have a formal agreement. It explains how the rule of thumb is
that if a commissioning party asks for something once the a body work has
already been started, then it is a licensing agreement. Otherwise, it is a
work for hire agreement.

In the example on this page, an artist already had a body of work in this area
(drawings) when Playboy magazine approached the artist to do some drawings.
The court ruled that this was a licensing deal and not a work for hire
situation. Had the artist not had a body of work of a similar nature, then
Playboy could have made the argument that they had provided the nature and
scope of work and therefore were entitled to the rights.

It is HIGHLY unlikely any tech writer has a manual 1/4 written when they go
meet a new client. A company could claim that without their information there
is no way you could write such a manual. Therefore, the situation would default
to a "work for hire" arrangement where you own nothing.

Since the grand, overwhelming majority of technical documentation projects will
be commissioned from another company and not part of a collective body of
personal work, it is almost certain that in the absence of an agreement, a
company would be able to successfully argue that you had a "work for hire"
agreement.

What Hoffman's site does say is that there is some room for negotiation with
independent contractors. Companies are not going to allow you to do squat for
them as an independent consultant without signing a contract that gives them
the rights to the material. Furthermore, in the ABSENCE of any agreement a
court is more likely to see a technical documentation project as a "work for
hire" situation and grant rights to the company.

What it comes down to is: don't assume you own anything. Always have a
contract. And don't expect a company to give you rights to the documents. They
won't, they shouldn't, and demanding them is a super-great way to get
terminated off a contract and get yourself into a costly court battle.

Andrew Plato
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