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The Work-Made-for-Hire Doctrine Revisited: Startup and Technology Employees and the Use of Contracts in a Hiring Relationship

28 Pages Posted: 11 Feb 2011  

Jon Garon

Shepard Broad College of Law

Elaine D. Ziff

Skadden, Arps, Slate, Meagher & Flom LLP - New York Office

Date Written: February 10, 2011

Abstract

Often, a copyrighted work is not created by one or even two authors but, instead, by a multitude of authors. Corporate brochures include text drafted by copywriters working in conjunction with other staff members, graphic designers, photographers and others. Most business works are created as a work made for hire, which vests the copyright in the employer rather than the employee. In most situations, the employment relationship will depend on an existing common law agency relationship between the parties. If an employer-employee relationship cannot be established, then the work for hire doctrine may still have a role for those works that fall into enumerated categories, as long as a proper written agreement is executed by both parties. With the advent of high-tech start-ups, virtual companies, and recent economic tensions, the courts have been rethinking the traditional rules developed by the Supreme Court in Committee for Creative Non-Violence v. Reid. Under these high-profile decisions, the common law rules of agency have been reconsidered and business owners need to adjust their practices to respond to this new reality.

Keywords: Copyright, Work for Hire, Start Up, Employment, Specially Commissioned Work, Law, Reid

JEL Classification: k00, k2, k31, L86, M13, O3, O34

Suggested Citation

Garon, Jon and Ziff, Elaine D., The Work-Made-for-Hire Doctrine Revisited: Startup and Technology Employees and the Use of Contracts in a Hiring Relationship (February 10, 2011). Available at SSRN: https://ssrn.com/abstract=1759381 or http://dx.doi.org/10.2139/ssrn.1759381

Jon M. Garon (Contact Author)

Shepard Broad College of Law ( email )

3301 College Avenue
Ft. Lauderdale, FL 33314
United States

Elaine D. Ziff

Skadden, Arps, Slate, Meagher & Flom LLP - New York Office ( email )

Four Times Square
NY 10036
United States

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