After our recent discussion on WC revolving around whether or not a company commissioning work automatically owns copyright to the work, I posted some questions to the SpiderWoman list in hopes that NY copyright attorney Scott Fine would respond. He did, and has given me permission to post his response to the list. Scott also phoned me, because he didn't have time to fully address the questions I had raised in his email. In our conversation, he confirmed that there is no distinction in how US Copyright Law applies work for hire concepts to writers, programmers and graphic designers. Also, that the only circumstance under which a company might automatically own copyright might be one in which the contractor worked in-house under the employer's direct supervision control much as an employee might work, thereby creating an employee/employer relationship. He emphasized that the US Copyright Act of 1976 supercedes any local state laws. Scott also expressed an interest in joining the WC list, and I hope you'll join me in welcoming him if, indeed, he is lurking out there somewhere. Suz ********************************** Date: Wed, 09 Sep 1998 08:59:01 -0400 From: "Scott J. Fine" <[EMAIL PROTECTED]> Subject: Re: *SW* work for hire questions <disclaimer> This is not legal advice and nothing in this message should be construed as creating any attorney-client relationship. Please seek legal advice from a competent attorney who is duly licensed in your jurisdiction. </disclaimer> Suzanne writes: >My understanding of work for hire as it pertains to graphic design is that >a project is not work for hire unless [usually] the designer has signed a >work for hire contract and unless it fits into one of the nine categories >of work for hire defined by US copyright law. Not exactly. "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 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 A WORK MADE FOR HIRE." (17 U.S.C. 101) >My questions concern how US copyright law differs in its application to >writers' work from its application to a visual artist's work. There are subtleties in the Act regarding visual arts, but they fall outside the scope of your "work for hire" context. (For example, Sec. 106-A provides for Berne Amendment "moral rights" in visual art, but visual art does _not_ include things such as electronic publications, databases, merchandising or advertising items, or, interestingly, works for hire.) >1) How does the law differ concerning work by writers (such as copywriters >or writers of software instruction manuals)? It doesn't, at least not in this context. There are many things to consider, however, such as licenses to use materials, non-competition and trade secret clauses in an agreement and joint authorship, to name a few. >2) How does the law differ concerning writing software code: true coding >such as writing code for programs, writing Javascripts, etc. or >text-formatting such as HTML? Again, it doesn't. >3) Are there ever circumstances under which work by either of these types >of writers would *automatically* default to the company commissioning the >work? Or are they subject to the same restrictions that a graphic >designer's work would be subject to? Yes. The question refers to a wrinkle in the law regarding the tension between being an employee and being an independent sub-contractor. The objective test in the Second Circuit (followed from what I can tell on the left coast also) rests on whether the "employer" exercised control over the "employee." "The court [Second Circuit Court of Appeals] found that the proper issue was not, as CSS [Defendant/Appellant] maintain, whether the defendant was an employee of an independent contractor, but rather '[was] the contractor 'independent' or [was] the contractor so controlled and supervised in the creation of the particular work by the employing party that an employer-employee relationship exist[ed].'" (Evans Newton, Inc. v. Chicago Systems Software, 193 F.2d 889, 894 (7th Cir. 1986), quoting Aldon Accessories v. Spiegel, 738 F.2d 584 (2d Cir.), cert. den. ___ U.S. ___, 105 S.Ct. 387, 83, L.Ed.2d 321 (1984). >I realized that I may have opened a big can of worms here, but would sure >appreciate it if a brief summary or answer in a nutshell could be >supplied. Law? Brief? Law, brief, get it - get it?? wink wink, nudge nudge - -- sjf - --- Scott J. Fine Fine Hummel, P.C. Attorneys At Law 7 High Street, Huntington, New York 11743 516.351.2100 <http://www.finehummel.com> <http://www.ipcafe.net> ____________________________________________________________________ -------------------------------------------------------------------- Join The Web Consultants Association : Register on our web site Now Web Consultants Web Site : http://just4u.com/webconsultants If you lose the instructions All subscription/unsubscribing can be done directly from our website for all our lists. ---------------------------------------------------------------------
