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Subject: Re: FLASH: OT: revisiting ownership of flash files
From: Gahlord Dewald
Date: Wed, 18 Oct 2000 21:41:37 +0100

Another way to view this topic is in light of copyright laws. Copyright laws are
different all over so your mileage may vary. Good news for non-US folks is that
the US has some of the crumbiest copyright laws in the world.

The key issue is whether you are a contractor or whether you are doing "work for
hire." This is not as clear cut as it may appear. Merely calling yourself a
contractor doesn't make you one. There are specific rules which make a project a
"work for hire." The following criteria are all of equal weight:

- The skill required: The greater the skill required to accomplish the task the
more likely you will be considered a contractor. In the case of Flash I think
it's safe to say that this particular test can weigh in your favor.

- The source of instrumentalities and tools: Basically, on whose machine do you
work. If you work on your gear then you are more likely to be considered a
contractor. Keep this in mind next time a big corporate client wants you to work
"on site."

- The location of the work: same as above but the location of your physical
body. Again, think about how this relates to "on site" work.

- Duration of relationship: The longer the relationship the more likely that you
are doing "work for hire." Anything over 1 or 2 years puts you at risk.

- The hiring party's option to assign additional projects: If the client has
written in specific terms for assigning future projects then you may end up
doing "work for hire."

- The extent of the hiring party's discretion over when and how to work: If the
client says what you wear, what time you show up to work, etc. you could be
doing "work for hire."

- The method of payment: If you're getting anything resembling a salary you may
be doing "work for hire."

- The hired party's role in hiring and paying assistants: If you have control
over this then you may be a contractor.

- Whether the hiring party is in business: Sort of a moot point, I'm assuming
you're all in business.

- Whether the work is part of the regular business of the hiring party: Doing
sub-contracting? You may be doing "work for hire."

The above list was developed in Community for Creative Nonviolence et al. v.
Reid, 109 Sup. Ct. 2166 (1989)

In short, if you are really concerned about your copyrights: take care of it in
your contracts and don't hesitate to stipulate outright what the relationship
is, what the client is buying etc. Better clear up front than in court later.

g


Gahlord Dewald
Weeds Media Consortium
Hoops of Fire. Dancing Bears.
Interactive Designers.
http://www.weedsmedia.com

v: 802.658.4267 x 1
f: 800.863.9606
e: gahlordatweedsmedia [dot] com

Weeds Media Consortium
416 Pine Street
Burlington, VT 05401
USA



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