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I'm not a lawyer so this isn't legal advice but that's very interesting about English law, because in the USA employees have the "in the course of employment" a

• cookiecaper 10y ago
  >because in the USA employees have the "in the course of employment" as you state but USA independent contractors retain copyright unless they assign it as part of their contract, so about 99% of contracts have a clause to assign ownership and copyright to the client. I'm not a lawyer either but this is not true in the US afaik. "Works made for hire" are automatically copyrighted by the hirer, not the contractor. Copyright assignment clauses in contracts exist to remove any potential ambiguity over whether anything supplied to the hirer is technically "specially ordered or commissioned" or otherwise legally qualified as a "work made for hire". It's to prevent situations where someone claims "Well, I actually did that important part of the work without billing for it, so I've retained the copyright and if you use it, I'll sue you." (I've actually had a contractor tell me this before!) See this circulation from the Copyright Office for more discussion. [0] [PDF] [0] https://www.copyright.gov/circs/circ09.pdf https://www.copyright.gov/circs/circ09.pdf
  • TheCoelacanth 10y ago
    Actually, it's the opposite. Works done by independent contractors are only works for hire if they fall into a narrow range of categories and are explicitly agreed to be a work for hire. If you want copyright of contracted work, you should have the contractor explicitly assign copyright to you. From that circulation, > A work created by an independent contractor can be a work made for hire only if (a) it falls within one of the nine categories of works listed in part 2 above and (b) there is a written agreement between parties specifying that the work is a work made for hire. The nine categories are > as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas
    • cookiecaper 10y ago
      The nuance here is that they're using an unconventional definition for "employee" and "independent contractor". Under the heading "Supreme Court Interpretation": > If an employee created the work, part 1 of the definition > above applies, and the work will generally be considered a > work made for hire. > But note that the term “employee” in the definition differs > from the common understanding of the term. For copyright > purposes, “employee” means an employee under the general > common law of agency. See the subheading “Agency Law” > below. > If an independent contractor created the work, and the > work was “specially ordered or commissioned,” part 2 of the > definition above applies. An “independent contractor” is > someone who is not an employee under the general common > law of agency. That is, for purposes of determining whether or not a work was "made for hire", an independent contractor is considered an "employee" under the "common law of agency", because he is acting as an agent on behalf of an employer. This is discussed further under the heading "Agency Law", where three points are given for consideration of whether the contractor is acting as an "agent" of the employer or whether the contractor is acting independently. The phrasing of the law probably would've been better if it said "external vendor" instead of "independent contractor", since it seems intended to protect vendors that are providing a simple product to the employer rather than contractors that are used like temporary employees. Regardless, a copyright assignment is a simple and important way to clear any ambiguity and prevent hairy disputes over the status of a work from going to court. Again, I am not a lawyer.