Employees and Subcontractors

twalters84 Peon

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#1

Greetings,

I found the following quote here: Employees and Subcontractors

If your employees are creating your website then, in the absence of any agreement to the contrary, copyright automatically vests in you as the employer. This is not the case if you are commissioning contractors (e.g. external web developers) to create your website. This is a common misunderstanding. In the absence of agreement, the contractor will own the copyright in whatever he creates.

Accordingly, you should agree in advance that the copyright in anything created by the contractor for you will be owned by you, so that you are able to do what you want with it. You might have paid someone to produce pictures for a brochure â€“ if you are granted a licence to use the pictures in the brochure, this does not necessarily mean that you can use the pictures on your website.
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It looks like this guide is based in the UK.

I would like to know if the same law applies to the US, particular Maryland and California?

Thanks in advance for any information.

Sincerely,
Travis Walters

twalters84, Feb 22, 2009 IP

Nonny Notable Member

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#2

Travis, IANAL, but the information you are interested in I believe falls under the "work for hire" laws.

This information from the US Copyright office might help:

http://www.copyright.gov/help/faq/faq-definitions.html#made_for_hire
What is a work made for hire?
Although the general rule is that the person who creates the work is its author, there is an exception to that principle; the exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer, or commissioning party, is considered to be the author.
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There are details about what constitutes a work for hire here:
http://www.copyright.gov/circs/circ9.html

This is what constitutes an employer-employee relationship:

To help determine who is an employee, the Supreme Court in CCNV v. Reid identified certain factors that characterize an â€œemployeremployeeâ€ relationship as defined by agency law:

1) Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employerâ€™s location, and provides equipment or other means to create work)

2) Control by employer over the employee (e.g., the employer controls the employeeâ€™s schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/ or has the right to hire the employeeâ€™s assistants)

3) Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employeeâ€™s payment)

These factors are not exhaustive. The court left un-clear which of these factors must be present to establish the employment relationship under the work for hire definition, but held that supervision or control over creation of the work alone is not controlling.

All or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise).

Examples of works for hire created in an employment relationship are:

* A software program created within the scope of his or her duties by a staff programmer for Creative Computer Corporation.
* A newspaper article written by a staff journalist for publication in the newspaper that employs him.
* A musical arrangement written for XYZ Music Company by a salaried arranger on its staff.
* A sound recording created by the salaried staff engineers of ABC Record Company.

The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment would be a work made for hire.
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If the person is not an "employee" under the definition, different rules apply:

If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.
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[follow the link for the categories of works that are included]

Nonny, Feb 22, 2009 IP

twalters84 Peon

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#3

Hey there,

Is this work made for hire?

- The freelance programmer worked on website code for an individual.

- The freelance programmer worked from his own home.

- The freelance programmer could do the work anytime he wanted.

- The freelance programmer provided the tools necessary to work on the website.

- The freelance programmer received no benefits and no tax was withheld from the paychecks.

- The freelance programmer suggested 95% of the ideas which were added to the website.

- There was no written agreement stating that this was work for hire.

Thanks for any comments.

Sincerely,
Travis Walters

twalters84, Feb 22, 2009 IP

Nonny Notable Member

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#4

It doesn't sound like "work for hire" to me, but IANAL.

Nonny, Feb 22, 2009 IP

twalters84 likes this.

twalters84 Peon

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#5

Thanks for the replies Nonny.

I actually have my first legal meeting with an attorney on Tuesday.

I will let ya know how it turns out.

I am hoping it is not work for hire myself

twalters84, Feb 22, 2009 IP

tobycoke Well-Known Member

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#6

Unless there is an agreement to the contrary, essentially the client owns the copy that independent contractor made for him but the contractor owns the code and can sell copies & variations.

tobycoke, Feb 22, 2009 IP

enrico1999 Peon

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#7

The issue of who owns the copyright in computer code is a very common one. Copyright infringement complaints can only be brought by the true copyright owner.

Here is an article which addresses your copyright issue directly, discussing the difference between work done by employees and work done by independent contractors: "Works Made For Hire Under the Copyright Act: Employee v Independent Contractor?"

enrico1999, Feb 23, 2009 IP

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Employees and Subcontractors

twalters84 Peon

Nonny Notable Member

twalters84 Peon

Nonny Notable Member

twalters84 Peon

tobycoke Well-Known Member

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