The Scope of Employment Test Under the Work-Made-for-Hire Doctrine Revisited: How Covid-19, Remote Working, and the Restatement (Third) of Agency Could Change It

Abstract

Covid-19 has impacted almost every facet of our lives, but has it impacted intellectual property rights? Possibly. This article explores the intersection between the work-made-for-hire doctrine under the Copyright Act of 1976, agency theory, the updated Restatement (Third) of Agency, and our changing workforce in a post-Covid-19 world. Specifically, as of now, whether an employee was “in the scope of employment” at the time a work was created is evaluated, in part, by whether the work occurred “substantially within time and space limits.” But this test is derived from the Restatement (Second) of Agency, which has been amended, and the Restatement (Third) no longer includes this as a factor. On top of the changing Restatement, employment conditions for many in this country have also changed dramatically. Now, where home is not only where the heart is but where the office is, this raises complex issues about whether the test for scope of employment should change and discusses the implications of such a change.

Keywords: Copyright, intellectual property, work-made-for-hire, Covid-19, Restatement of Agency