EmployerEmployee Relationship Under Agency Law
If a work is created by an employee, part 1 of the copyright codes definition of a work made for hire applies. To help determine who is an employee, the Supreme Court in CCNV v. Reid identified certain factors that characterize an employer-employee relationship as defined by agency law:
1 Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employers location, and provides equipment or other means to create work)
2 Control by employer over the employee (e.g., the employer controls the employees schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employees assistants)
3 Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employees payment)
These factors are not exhaustive. The court left unclear which of these factors must be present to establish the employment relationship under the work for hire definition,
but held that supervision or control over creation of the work alone is not controlling. All or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is work made for hire (unless the parties involved agree otherwise).