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United States Supreme Court Digest - Lawyers' Edition

TITLE 228. MASTER AND SERVANT

228 L Ed Digest §8

§ 8 As between employer and one working under contract.

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CASE-NOTES:
Persons subject to the direction or control of public boards or officers under contracts with the state for services, the
performance of which involve the use of judgment and discretion and the use of their best professional skill to bring
about the desired result, do not have the status of employees of the state, but are more in the nature of independent
contractors. Metcalf & Eddy v Mitchell (1925) 269 US 514, 46 S Ct 172, 70 L Ed 384

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Both the modern common law as reflected in the Restatement of Agency and the law of Texas make the distinction
between the servant or agent relationship and that of independent contractor turn on the absence of authority in the
principal to control the physical conduct of the contractor in performance of the contract. Logue v United States, 412
US 521, 93 S Ct 2215, 37 L Ed 2d 121

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Under Ohio law, the test for determining whether a party is an employee or independent contractor is whether there
is supervision of the day-to-day operations of the party. United States v Orleans, 425 US 807, 96 S Ct 1971, 48 L Ed 2d
390

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Under the "work for hire" provisions of the Copyright Act of 1976 which provide, in 17 USCS § 201(b), that if a
work is for hire, the employer or other person for whom the work was prepared is considered the author and owns the
copyright unless there is a written agreement to the contrary, and which further provide, in 17 USCS § 101, that a work
is for hire if (1) the work is prepared by an employee within the scope of his or her employment, or (2) the work is
specially ordered or commissioned for use in one of nine specified categories and there is a written agreement that the
work is considered for hire a court, in order to determine whether a work is a work for hire, should first ascertain, using
principles of the general common law of agency, whether the work was prepared by an employee or by an independent
contractor and, after making this determination, can then apply the appropriate subsection of § 101, where (1) although
the Act does not define "employee" or "scope of employment," it has been concluded, with respect to other federal
statutes with similar undefined terms, that Congress intended to describe the conventional master-servant relationship
understood by the common-law agency doctrine; (2) nothing in the text of the work for hire provisions indicates that
Congress used the terms "employee" and "employer" to describe anything other than the conventional relationship; (3)
Congress' intent to incorporate the agency law definition is suggested by the use of "scope of employment," a widely
used term of art in agency law; and (4) establishment of a federal rule of agency, rather than reliance on state agency
law, is particularly appropriate in such circumstances, given the Act's express objective (17 USCS § 301(a)) of creating
national uniform copyright law by broadly pre-empting state statutory and common-law copyright regulation.
Community for Creative Non-Violence v Reid, 490 US 730, 109 S Ct 2166, 104 L Ed 2d 811

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Under the general common law of agency which determines whether a person is an "employee" for purposes of the
"work for hire" copyright ownership provisions of the Copyright Act of 1976 (17 USCS §§ 101, 201(b)) with respect to
a sculpture on homelessness, which sculpture was commissioned by a nonprofit unincorporated association dedicated to
eliminating homelessness, the sculptor is not an employee of the association but an independent contractor, even though
association members directed enough of the sculptor's work to insure that he produced a sculpture that met their
specifications, because the extent of the control that the hiring party exercises over the details of the product is not
dispositive, and because all the other circumstances weigh heavily against a finding of an employment relationship,
where (1) sculpting is a skilled occupation; (2) the sculptor supplied his own tools; (3) the sculptor worked in his own
studio in Baltimore, Maryland, making the association's daily supervision of his activities from Washington, D. C.,
practically impossible; (3) the sculptor was retained for less than 2 months, a relatively short period of time; (4) during
and after this time, the association had no right to assign additional projects to the sculptor; (5) apart from the deadline
for completing the sculpture, the sculptor had absolute freedom to decide when and how long to work; (6) the
association paid the sculptor 15,000, a sum which was dependent upon completion of the specific job, and thus used a
method by which independent contractors are often compensated; (7) the sculptor had total discretion in hiring and
paying assistants; (8) creating sculptures was not a regular business for the association, which was not a business at all;
and (9) the association did not pay payroll or Social Security taxes, provide employee benefits, or contribute to
unemployment insurance or workers' compensation funds. Community for Creative Non-Violence v Reid, 490 US 730,
109 S Ct 2166, 104 L Ed 2d 811

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A court, in determining whether a hired party is an employee or an independent contractor under the general
common law of agency, must consider the hiring party's right to control the manner and means by which the product is
accomplished; among the other factors relative to this inquiry are (1) the skill required, (2) the source of the
instrumentalities and tools, (3) the location of the work, (4) the duration of the relationship between the parties, (5)
whether the hiring party has the right to assign additional projects to the hired party, (6) the extent of the hired party's
discretion over when and how long to work, (7) the method of payment, (8) the hired party's role in hiring and paying
assistants, (9) whether the work is part of the regular business of the hiring party, (10) whether the hiring party is in
business, (11) the provision of employee benefits, and (12) the tax treatment of the hired party; no one of these factors is
determinative. Community for Creative Non-Violence v Reid, 490 US 730, 109 S Ct 2166, 104 L Ed 2d 811

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A court, in determining whether a hired party is an employee or an independent contractor under the general
common law of agency, must consider the hiring party's right to control the manner and means by which the product is
accomplished; among the other factors relevant to this inquiry are (1) the skill required, (2) the source of the
instrumentalities and tools, (3) the location of the work, (4) the duration of the relationship between the parties, (5)
whether the hiring party has the right to assign additional projects to the hired party, (6) the extent of the hired party's
discretion over when and how long to work, (7) the method of payment, (8) the hired party's role in hiring and paying
assistants, (9) whether the work is part of the regular business of the hired party, (10) whether the hiring party is in
business, (11) the provision of employee benefits, and (12) the tax treatment of the hired party; since the common-law
test contains no shorthand formula or magic phrase that can be applied to find the answer, all of the incidents of the
relationship must be assessed and weighed with no one factor's being decisive. Nationwide Mut. Ins. Co. v Darden, 503
US 318, 112 S Ct 1344, 117 L Ed 2d 581

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RESEARCH REFERENCES:
Application of "works for hire" doctrine under Copyright Act of 1976 (17 USCS §§ 101 et seq.). 132 ALR Fed
301.

CROSS REFERENCES:
Under Employee Retirement Income Security Act, see Pensions and Retirement Funds @ 1.
Under Federal Employers Liability Act, see Federal Employers' Liability and Workers' Compensation Acts.