On Jul 23, 2009, at 4:00 AM, Jared Spool wrote:
Employment law is mostly dictated at the state level, not federal. It is my understanding that many if not most states default to a "work for hire" agreement, which would mean that the company that pays owns the work unless explicitly excluded in a hire agreement.
Are you confusing "work for hire" with "at will" employment? One relates specifically to copyright, which is a federal issue, while the other relates to labor rights, which is a state issue. There is some overlap in concept, however, which is determining who is an "employee" for the purposes of determining whether a "work" created by an "employee" is a "work for hire" or not.
The Supreme Court in CCNV v. Reid (1989) laid out a somewhat complicated test for whether an employment relationship constitutes a "work for hire" situation. The short version of the test is whether the employee was paid traditionally (i.e. the tax treatment of the employee), had regular hours controlled by the company, had a supervisory or directing role over the work, had control over hiring and paying assistants, and if the employer is in the business of producing the type of "work" in question. It's a "balancing" type test which is to say, failing to meet one component of the test does not automatically make you a non-employee, rather, on balance the tests are to help determine "agency."
The easy example is a copy writer for an ad agency that works a 9-5 job. In this case the employee is paid traditionally, has hours set by the employer, and the company is in the business of producing the "work" created. The problem with the creative industries is that many people are working on long-term contract rather than as a traditional employee. Under such a scenario it invites the question as to whether the contractor is an "employee" for the purposes of section 101(1) of the 1976 Copyright Act. For example, a bank may "hire" you on a two- year contract to revamp its website. Your tax status, benefits, work hours, control over the work product, and ability to hire and pay assistants help determine whether you are an "employee" of the bank for the purposes of 101(1).
If you are determined _not_ to be an "employee" for the purposes of section 101(1) then you are automatically treated under section 101(2). In that situation, the test is two part: first, the work / must/ fall into one of the ten enumerated categories. Second, there must be a formal agreement stipulating that the work is a "work for hire." All of which is to say that as employers it is important to ensure that we are explicit in our employment and contract agreements and don't just assume that we have authorship or ownership in the work (at minimum, however, we can assume we have an implicit license to the work, even if it is determined not to be a work for hire).
Illegally harboring copies of work that belong to someone else would border on unethical behavior and I don't think we, as a community, should be encouraging that. (After all, we'd be all up in arms if the situation were reversed.)
Whether it is "illegal" or not is determined by the authorship and ownership rights for the purposes of copyright law. (And if it is illegal harboring I would say it doesn't just "border" on unethical.) The safest route, when there is question about authorship/ownership, is to store the copies of work with counsel in escrow until there is a determination made or agreement between parties.
I think it would be an awesome service of the IxDA to hire an employment lawyer to put together general guidance on this issue. It would be especially awesome to have said lawyer help with some boilerplate contract clauses that we, as a community, could add to our hiring agreements, so that we can protect our rights to demonstrate our work to future employers and clients.
There may be something out there already, it might be useful to check some of the free legal boilerplate websites. Of course this would all be US-specific.
All this talk about law and such has me wishing I'd stuck with law school instead of going the software route. Maybe it's not too late...
Cheers, -corn Corn Walker Hatfield, MA ________________________________________________________________ Welcome to the Interaction Design Association (IxDA)! To post to this list ....... [email protected] Unsubscribe ................ http://www.ixda.org/unsubscribe List Guidelines ............ http://www.ixda.org/guidelines List Help .................. http://www.ixda.org/help
