On April 30, 2018, the California Supreme Court redefined when a worker is an employee and when a worker is an independent contractor (Dynamex Operations West, Inc. v. Superior Court of Los Angeles, No. S222732 (Cal. Sup. Ct. Apr. 30, 2018)). Essentially, all workers are assumed to be employees unless the employer can meet a three-part test that proves that the worker is actually an independent contractor.

I’m not going to get too far into this case, because this article is about copyright law, not employment law. Plus, the opinion was 82 pages long, and even I don’t want to read that much legalese in one sitting. What interests me are the potential implications on the work-for-hire doctrine.

For those who are unfamiliar with the term, the work-for-hire doctrine is the exception to the general rule that the creator of the copyrighted work is the “author” for copyright purposes. The author of a copyrighted work has certain perks – they are the original owners of the copyright to the work, and they are the only ones who can exercise the termination right, allowing them to get their copyright back after they’ve given it away (more on that in a later article). Basically, being the author is a good thing.

Under the work-for-hire doctrine (17 U.S.C. Section 101), there are two exceptions to the rule that the creator is the author. The creator’s employer is considered the author when:

  • The work is created by the employee within the scope of his or her employment OR
  • The work is specially ordered or commissioned as a work for hire for use
    • 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 (e.g. forewords, afterwords, illustrations, maps, charts, tables, editorial notes, musical arrangements, bibliographies, etc.)
    • As a compilation
    • As an instructional text
    • As a test
    • As answer material for a test
    • As an atlas

The second exception is actually easier to apply than the first one. For the second exception, the person who ordered or commissioned the work is considered the author if a) the work falls into one of the categories I listed above and b) the contract specifically states that it is a work-for-hire. Both must apply, otherwise the author is the person who actually did the work and created the material protected by copyright.

Since the second exception is clear and straightforward, the first exception gets all the attention. The statute doesn’t actually say when someone is considered an employee, nor does it require a clear statement that “The Employer is the author of all copyrights.” That means that companies will almost always argue an employer-employee relationship when there is a question of who owns the copyright (or when they want to avoid a termination notice from an alleged author, like Marvel did with artist Jack Kirby).

Which brings us back to the Dynamex case. In this case, the Dynamex drivers were found to be employees even though they had signed a contract stating they were independent contractors. If this case applies to copyright ownership, then there may be a case where an artist works for a company as an independent contractor, but she is later deemed an employee and loses ownership of her copyrights. Which brings us to the question: does the Dynamex case apply to copyright ownership?

At this time, it’s generally believed that the Dynamex case is limited to wage orders. It’s possible that it will have a broader reach, but we’ll have to wait for some follow-up lawsuits before we know for sure. In addition, copyright is governed primarily by federal law, and the Supreme Court of the United States came up with its own test for when a creator is an employee under the work-for-hire doctrine (Community for Creative Non-Violence v. Reid, 490 US 730). Unfortunately, the test is rather long, and so is this article, so suffice it to say that it is much more nuanced than the Dynamex test, and relies heavily on the circumstances. In short, the Dynamex case probably doesn’t apply to copyright ownership, but only time will tell for certain.

If you would like to learn more about the work-for-hire doctrine, and whether it might apply to your situation, please contact me at kaway@kawaylaw.com.