• Login
    View Item 
    •   Home
    • Yale
    • Yale Journal of Law and Technology
    • View Item
    •   Home
    • Yale
    • Yale Journal of Law and Technology
    • View Item
    JavaScript is disabled for your browser. Some features of this site may not work without it.

    Browse

    All of openYLSCommunitiesPublication DateAuthorsTitlesSubjectsThis CollectionPublication DateAuthorsTitlesSubjects

    My Account

    LoginRegister

    Statistics

    Display statistics

    TORT MADE FOR HIRE - RECONSIDERING THE CCNV CASE

    • CSV
    • RefMan
    • EndNote
    • BibTex
    • RefWorks
    Thumbnail
    Name:
    04_11YaleJL_Tech96_2008_2009_.pdf
    Size:
    3.745Mb
    Format:
    PDF
    Download
    Author
    Jacob, Assaf
    
    Metadata
    Show full item record
    URI
    http://hdl.handle.net/20.500.13051/7758
    Abstract
    It has been more than 15 years since the U.S. Supreme Court, in its landmark decision in Community for Creative Non- Violence v. Reid adopted the common law of agency for the interpretation of the term "employee" in the context of "work made for hire ". Since then, despite some criticism, the agency test has become the norm. This paper argues the Supreme Court's inclination to apply the work for hire doctrine through agency law is misguided. The agency test, which is based on tort law principles, is clearly anomalous in the context of copyright law, which differs significantly from tort law in its underlying rationales. This paper further argues that, lacking clear guidelines, the workfor hire case law has failed in its objective to achieve consistency and certainty. My proposal is that the "work made for hire" doctrine should be decided from the vantage point of copyright law. The test should focus on incentives to create on the one hand and public access to created works on the other. These are the goals of copyright law as stated in the Constitution. Thus, the test should re-interpret the term "employee" in a manner that complies with the needs of copyright law. Most importantly, "employee" should be interpreted to give the first entitlement to the party most apt to achieve the goals of the Constitution: Instead of using agency test factors such as employee benefits and tax treatment, the courts should consider factors such as the parties' relative incentive to create new works, public accessibility, transaction costs, and the parties relative ability and motivation to disseminate works to the public. The partnership of individual creativity with the employer's resources yields a significant engine for creative production in society. Revising the "work made for hire" test would re-align this important issue with the rest of intellectual property law.
    Collections
    Yale Journal of Law and Technology

    entitlement

     
    DSpace software (copyright © 2002 - 2023)  DuraSpace
    Quick Guide | Contact Us
    Open Repository is a service operated by 
    Atmire NV
     

    Export search results

    The export option will allow you to export the current search results of the entered query to a file. Different formats are available for download. To export the items, click on the button corresponding with the preferred download format.

    By default, clicking on the export buttons will result in a download of the allowed maximum amount of items.

    To select a subset of the search results, click "Selective Export" button and make a selection of the items you want to export. The amount of items that can be exported at once is similarly restricted as the full export.

    After making a selection, click one of the export format buttons. The amount of items that will be exported is indicated in the bubble next to export format.