Q: If there is no written employment agreement, is the work for hire doctrine still valid? Is the employer still the author
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A: If you were an independent contractor as opposed to an employee, the work for hire doctrine wouldn’t apply absent a signed writing to that effect executed by both parties to the contract. However, whether you would be considered an “employee” for the purposes of copyright law is not as simple as reviewing your pay arrangement (I.e. 1099 vs W2). The Supreme Court has established a fact specific test where a court must weigh all the evidence to determine degree of control over the work, degree of control over the employee, and the pay structure, along with other factors. An experienced IP attorney would need to gather the evidence and the facts in your particular situation to determine which case precedents most closely match your situation, and will opine on the likely determination of the court regarding ownership of your creative output on that basis. Consider obtaining a professional evaluation before putting yourself in a potentially expensive litigation situation by reusing your creative work in another project that may become subject to a court injunction and lengthy litigation.
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