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[Isaac]

Isaac, you can respectfully disagree, but you are wrong based on the overwhelming weight of case law.  The courts look in part to see if the work of authorship "is of the kind he is employed to perform".  Run a Westlaw search on that phrase and you'll find scores of recent cases applying that test.

I understand that Jeff, but for most employees the description of work to be performed is not specified in such detail that taking some photos when asked to do so by the boss is outside the realm of the employers duties.   If your aware of a case showing the opposite, I'd like to hear about it.  For photos taken without such a request, I'd expect the answer to be different.

For example if I asked my legal assistant to snap some photos for me related to one of my cases, I don't think she could claim that doing so is outside of her duties.

So, your assessment that the employee's case would be "weak" is contrary to law.

I suppose that's what you meant to say in the previous message.  I'll admit to some confusion over that point.

[Smokin]

For example if I asked my legal assistant to snap some photos for me related to one of my cases, I don't think she could claim that doing so is outside of her duties.

Taking photos of evidence is within the scope of a legal assistant's job. If however you asked your assistant to take portrait shots of you and your family for you personal X-mas cards because you know he/she takes great pictures, then your assistant would own the rights to the work and its not much different if you were to ask your assistant to paint your portrait.

[JSonnabend]

Taking photos of evidence is within the scope of a legal assistant's job. If however you asked your assistant to take portrait shots of you and your family for you personal X-mas cards because you know he/she takes great pictures, then your assistant would own the rights to the work and its not much different if you were to ask your assistant to paint your portrait.

Those are factual conclusions and may or may not be correct.

- Jeff

[Isaac]

For example if I asked my legal assistant to snap some photos for me related to one of my cases, I don't think she could claim that doing so is outside of her duties.

Taking photos of evidence is within the scope of a legal assistant's job.
 If however you asked your assistant to take portrait shots of you and your family for you personal X-mas cards because you know he/she takes great pictures

What if I asked her to take portrait shots of me and my family for Christmas cards to send to clients because I know she does a great job?

I'm guessing that we're on the same page about this.  I'm just saying that for many employees there are job related task that move inside the scope of the employment the instant the boss asks them to do them.   Taking photos of clients for work purposes sounds like such a task.  There are other tasks that are within the scope of employment because they are closely related to the tasks in the employees job description.  Writing software that helps an engineer do an assigned task sounds might result in the software being a work for hire. 

[Isaac]

Those are factual conclusions and may or may not be correct.

- Jeff

Okay.  I can agree with that.

[JSonnabend]

I'm just saying that for many employees there are job related task that move inside the scope of the employment the instant the boss asks them to do them.

That's exactly not what the law says.

- Jeff

[Isaac]

I'm just saying that for many employees there are job related task that move inside the scope of the employment the instant the boss asks them to do them.

That's exactly not what the law says.

- Jeff

I'd appreciate a pointer or a cite supporting your position.  In particular, I'd like some hint narrower than 'Search Westlaw'.  Not sure who really has the burden of persuasion here, but I don't have access to Westlaw for the purpose of satisfying my curiousity and I cannot find any free online stuff supporting your position.

In my experience it is common for job descriptions include clauses to the effect that an employee's duties include company related tasks that a boss might reasonable ask employees to perform from time to time.  Are you saying that such clauses are ineffective with respect to work for hire?

[JSonnabend]

For example:

• Shaul v. Cherry Valley-Springfield Cent. School Dist., 363 F.3d 177, 185-86 (2d Cir. 2004) ("It is clear that preparing materials for class was the kind of work that he was employed to perform as a teacher (satisfying the first prong) [of the test]")
  
• Avtec Systems, Inc. v. Peiffer, 21 F.3d 568, 571 (4th Cir. 1994) ("We agree with the district court that creation of the Program was 'of the kind' of work Peiffer was employed to perform. . . . copyright does not vest in the employer solely because 'the subject matter of the work . . . bears upon or arises out of the employee's activities for his employer.'" (citing Nimmer))
  
• TAP Worldwide, LLC v. Becker, 2010 WL 2757354 at *3 (C.D.Cal. July 12, 2010) ("With regard to the first prong, the Court finds that developing computer software is not the kind of work plaintiff was employed to perform. Plaintiff was hired as a labor economist, not as a computer programmer.")

How's that?

- Jeff

[Isaac]

Thanks Jeff.  Those cases look very helpful.  From the summaries, Avtec Systems seems to be on point, and to possibly support my position, but I'll take some time to look at all of the cases.

I appreciate your patience.