FinePrint January 2011

FinePrint January 2011

In this issue:

The True Parent of the Brainchild

Protecting Work Product Through ‘Work-for-Hire’

By Ryan Kaplan

As an employer with employees or a contractor that utilizes subcontractors, it is vital that you own the work product your employees and subcontractors create. Never assume you automatically have the rights to their work. Under copyright law, under Title 17 Section 202(a) of the United States Code, the individual creator is presumed to own the copyright in the work it creates. However, the employer or contractor (Hiring Party) can create a work-for-hire relationship, which provides that the Hiring Party steps into the shoes of the employee or subcontractor (Creator) and owns all of the rights for copyright purposes.

So how does a Hiring Party protect work created by a Creator? Using the work-for-hire doctrine, the Hiring Party can claim to be the owner of a work product by one of two methods: (1) within the scope of the employer/employee relationship, or (2) an agreement in writing specifying that the work created is a “work for hire.”

The Employee Method

Generally speaking, if the Creator of the work is an employee of the Hiring Party, it is presumed that the Hiring Party owns the copyright to the work. However it is important to keep in mind the following:

1. To avoid any ambiguity, it is advised to include a well-drafted statement in the employment agreement acknowledging that any work created in the scope of employment will be considered a work for hire.

2. Work prepared after hours or outside the scope of employment is not generally considered a work for hire product. Therefore, such terms would have to be separately negotiated.

3. If there is uncertainty as to whether a Creator is an employee or contractor, the courts, as enumerated in the case of Community for Creative Non-Violence v. Reid (490 U.S. 730, 1989), have considered the following nine factors derived from common agency law:

• To what extent did the Hiring Party control the manner and means of creation
• Who provided the materials and tools
• The skill required by the Creator
• Where was the work created
• The length of relationship between the Hiring Party and Creator
• How was the Creator paid (in regular increments or commissioned)
• Who hired and paid the Creator’s assistants
• Was the work part of the regular work of the Creator and
• What was the tax treatment of the Creator

The Independent Contractor Method

An independent contractor as the Hiring Party can own the copyrights to the work as long as three requirements are satisfied:

1. Prior to the commencement of the work, the parties must agree in writing that the work is considered work-for-hire. To avoid potential dispute, make sure the writing is signed before any work starts.

2. The work must be commissioned or specially ordered. In other words, the Creator must be working on something new, not on something that already exists.

3. The work must fall under one of nine categories:

• Translation
• Audiovisual work
• Contribution to a collective work (such as a magazine)
• Atlas
• Compilation
• Instructional text
• Test
• Answer material for a test
• A secondary adjunct work (i.e. bibliography, illustration, foreword, etc.)

Ryan Kaplan is an Attorney at Law for Kaplan Legal Services, LLC.

2011 Minnesota Magazine Mingle

An evening of casual networking for editors and writers

Don’t miss out on the Minnesota Magazine Mingle; your opportunity to connect with professionals from the magazine world in a casual setting.

Hosted by the Loft Literary Center and the Minnesota Magazine and Publishing Association, the event will take place on January 27, 2011 at Open Book in Minneapolis, from 5:30-7:30 p.m.

One of the event’s most popular features is the showcase of magazines, which exhibits the breadth of publishing in Minnesota.

Attendees will also have electronic access to:

• The list of magazine professionals that attended the event

• Writers’ résumés

• Editors’ insider information on how to write for their magazines

“This event is unique. As a writer, I take advantage of this casual networking and tell my students to do the same,” says Nolan Zavoral.

Galynn Nordstrom, senior editor at the Industrial Fabrics Association Intl., says, “Food, wine and editors … it’s probably illegal in some states. It’s a great location, we get to catch up with old friends and co-workers, find out how other publications are handling similar challenges, pick up some new ideas and meet some of the people who’d like to write for us. And I can see what kind of wines they like to drink, not that that makes any difference, of course.”

Light refreshments and a cash bar will be available. Discounts apply for early registration and for registering more than one staff member from a single magazine or organization.

  Co-sponsors include the America Society of Journalists and Authors (ASJA) and the Professional Editors Network (PEN).

 Click here for more information and to register for the event.

MMPA Summit & Expo: From Gutenberg to Google

The 2011 MMPA Summit and Expo: From Gutenberg to Google will be held April 28 th at the Earle Brown Heritage Center in Brooklyn Center, Minn.

Register for the event by March 15 to take advantage of an early registration discount, or register a group of 5 or more to save another $20 per attendee. Online registration is available.

The Summit & Expo’s four tracks offer an action-packed agenda for everyone involved in the magazine business. Whether you work in editorial, sales, circulation/audience development, or art, design, and production, the event gives you access to a slice of the industry’s best minds and its hottest trends.

Vendors exhibiting at the Summit & Expo showcase the latest in media services and offer practical advice on applying the techniques described in current trends.

Register today, or risk falling behind in the rapidly changing world of publishing!

 Click here for more information and to register for the event.

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