Abstract

http://ssrn.com/abstract=2405015
 


 



Work Made for Hire – Analyzing the Multifactor Balancing Test


Ryan G. Vacca


University of Akron School of Law

March 5, 2014

42 Florida State University Law Review ___ (2015 Forthcoming)
U of Akron Legal Studies Research Paper No. 14-03

Abstract:     
Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on how to balance these factors. Three years later, in 1992, the Court of Appeals for the Second Circuit decided Aymes v. Bonelli and noted that not all factors are equally weighted and that five of the factors would “be significant in virtually every situation.” This analysis was supported by looking at all the work made for hire cases decided in the three year period since Reid – six cases in total. This Article expands in both scope and time what the Second Circuit did in Aymes and systematically analyzes how courts have utilized the factors in the twenty-five years since Reid. In particular, this study has identified the universe of cases where the courts have decided whether a hired party was an employee or independent contractor and uses the data from these cases to describe what factors appear to be the most and least important in reaching these conclusions. Based on the results of this study, this Article proposes a continuum of importance, which graphically illustrates the relative importance of each factor.

Number of Pages in PDF File: 62

Keywords: work made for hire, work for hire, Reid, CCNV, copyright, multifactor, Aymes, Bonelli, ownership, author, authorship, employee, independent contractor, factors, continuum, right to control

JEL Classification: J3, J30, K12, M52, M59, O34

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Date posted: March 7, 2014  

Suggested Citation

Vacca, Ryan G., Work Made for Hire – Analyzing the Multifactor Balancing Test (March 5, 2014). 42 Florida State University Law Review ___ (2015 Forthcoming); U of Akron Legal Studies Research Paper No. 14-03. Available at SSRN: http://ssrn.com/abstract=2405015

Contact Information

Ryan G. Vacca (Contact Author)
University of Akron School of Law ( email )
150 University Ave.
Akron, OH 44325-2901
United States
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