[linux-elitists] Courtney Love article in Salon

Deirdre Saoirse deirdre@deirdre.net
Fri Jul 14 11:12:43 PDT 2000


On Fri, 14 Jul 2000 kmself@ix.netcom.com wrote:

> The relevant portion of the ruling is:
> 
>     Sculpture does not fit within any of the nine categories of "specially
>     ordered or commissioned" works enumerated in that subsection, and
>     no written agreement between the parties establishes "Third World
>     America" as a work for hire.
> 
>     The dispositive inquiry in this case therefore is whether "Third
>     World America" is "a work prepared by an employee within the scope
>     of his or her employment" under 101(1).
> 
> Note that while software may not be a work for hire, typically a
> contracting agreement will specify copyright assignment for works
> created in the course of the contract.  All that the court ruling says
> is that such disposition of copyright isn't automatic under the "work
> for hire" rule.

Actually, most contracting agreements, being drafted by idiots, state that
the work is a work made for hire. Believe it or not, I had to use this
supreme court ruling in 1997 when I was involved in a contract dispute
with a customer who hadn't paid. My contract said that all works were made
for hire. I used the fact that I had known, prior to signing the contract,
that this wasn't valid as the basis for my response.

I was, believe it or not, the ONLY person ever in a contract dispute with
that company to be paid. Others had cases of $100k against them.

> Also, for programmers who are employees of a contracting firm, works
> produced by the programmer are then works for hire of the *contracting
> firm*, further disposition of which is negotiated between the
> contracting firm and its clients.

True, if they do in fact fit the definition of "employer." Note that there
are nine elements to be considered and the typical "job shop" approach may
well NOT be enough to pass for copyright purposes. Just because one is an
employer in an IRS sense doesn't mean they are for the purposes of
copyright.

In fact, a regular employer, if one is part-time or doesn't get typical
benefits, may not be considered an "employer" for purposes of copyright.

> Does make me want to take a close look at how companies such as
> Collab.net are set up.

Yep!

-- 
_Deirdre   *   http://www.sfknit.org   *   http://www.deirdre.net
"Trust me, I'm a science fiction writer" -- Larry Niven @ Conolulu





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