Determining the Employer-Employee Relationship
A 1989 Supreme Court decision provided the groundwork on which work-for-hire (WFH) is established. That groundwork is whether the creator agreed to contribute as an employee or as an independent contractor.
The Innovator as an Employee
An employee who performs work in his capacity as originator or innovator for any of the aforementioned categories or similar works is technically providing services under the “agency theory." The latter is defined as a business, entity or actor who intervenes to facilitate the creation or production of a particular result or effect.
The employee here is being selected on the basis of his ability to provide a particular creative service in accordance with the specifications or preferences of the hirer. This stands opposed to a regular employee whose skills or talents are being applied for a generic field or purpose.
In a work-for-hire arrangement, the employer can add his or her own input so that results will reflect the business image or brand in order to serve an intended purpose. Thus the created outcome will be identified or associated with the employer’s business.
Whereas the work of an independent contractor carries the innovator’s own style or distinction, it adds value to the outcome of the work performed. The contracted work provided is only for the viability of the product, which in this case is deemed by the service buyer as suitable for his purpose. Normally, the produced outcome will still carry the independent contractor’s brand or registered trade name.
The Employer Becomes the Official Innovator
The hirer as employer has control over the outcome of the innovator-employee’s work. The employer may approve or disapprove the creation or may ask the innovator-employee to incorporate ideas based on the employer’s own standards of what is lucrative for the business.
This is by virtue of the employer’s greater contribution as the capitalist, since he provides the venue, the materials, the utilities, the equipment, the additional workforce and the marketing tools.
These premises establish the fact that in an employer-employee relationship, the employer becomes the official copyright holder of the original creation.