paramnesia
April 24th, 2008, 04:10 AM
I know the issue of freelance work has come up many times before, but I’d like clarification on how one defines freelance versus an employee. First, assume the absence of a contract just to make things more difficult. Having a contract would just make this too easy!
Now, according to Section 101 of the US copyright law a “work made for hire” is:
1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use as:
* a contribution to a collective work
* a part of a motion picture or other audiovisual work
* a translation
* a supplementary work
* a compilation
* an instructional text
* a test
* answer material for a test
* an atlas
if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Focus on #1. Again, since we’re assuming there is no contract, so what if the client insists the artist was an employee? Some parties I’ve encountered believe that because one pays an artist it automatically makes them an employee. Moreover, these people argue, because they put forth a schedule and regular wage, page or hourly or monthly, that further backs their argument. But is that enough? What freelancer isn't given a schedule of some sort or deadline? I think I read once that who provides the materials, i.e. computer, software, working area, etc. could also be taken into account. Moreover, by characterizing a work as a "work for hire" might it impose upon the "employer" certain obligations relating to state worker's compensation coverage, unemployment compensation, and other benefits for workers?
Also, according to one UK site:
In employment law there is no such thing as a 'sub-contractor', a person will largely either be an employee or a person 'conducting business on his own account', namely a freelancer, who will be self-employed.
You can create a contract where the person provides labour-only based on a fixed hourly rate / X number of weeks/days/or as when and required. In this kind of contract you need to make it clear that their is no mutual obligation to provide work and other clauses need to be incorporated to ensure it falls in the category of contract worker/agency worker (some agency workers can be employees! wording/relationship is crucial here!)
The term 'sub-contractor' is heavily used by the Inland Revenue for tax purposes, but in law one has to look at the actual relationship and intention of parties to determine which category they fall under.
If you 'sub-contract' someone to do a project for you and you pay them an hourly rate, pay their PAYE and NI, then it is more than likely they will be construed as employees, this have employment rights, including holiday pay. It also depends how much control you will have over the person i.e. how work is done, when, where etc
If you are looking to avoid being entangled in employment law and do not wish to assign any employment rights to anyone then you should offer the person a contract for services for a fixed period etc
Employment lawyers make their money when employers/contractors create a 'contract' that falls into the grey areas mentioned above
link (http://www.ukbusinessforums.co.uk/forums/showthread.php?t=14277)
Now, according to Section 101 of the US copyright law a “work made for hire” is:
1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use as:
* a contribution to a collective work
* a part of a motion picture or other audiovisual work
* a translation
* a supplementary work
* a compilation
* an instructional text
* a test
* answer material for a test
* an atlas
if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Focus on #1. Again, since we’re assuming there is no contract, so what if the client insists the artist was an employee? Some parties I’ve encountered believe that because one pays an artist it automatically makes them an employee. Moreover, these people argue, because they put forth a schedule and regular wage, page or hourly or monthly, that further backs their argument. But is that enough? What freelancer isn't given a schedule of some sort or deadline? I think I read once that who provides the materials, i.e. computer, software, working area, etc. could also be taken into account. Moreover, by characterizing a work as a "work for hire" might it impose upon the "employer" certain obligations relating to state worker's compensation coverage, unemployment compensation, and other benefits for workers?
Also, according to one UK site:
In employment law there is no such thing as a 'sub-contractor', a person will largely either be an employee or a person 'conducting business on his own account', namely a freelancer, who will be self-employed.
You can create a contract where the person provides labour-only based on a fixed hourly rate / X number of weeks/days/or as when and required. In this kind of contract you need to make it clear that their is no mutual obligation to provide work and other clauses need to be incorporated to ensure it falls in the category of contract worker/agency worker (some agency workers can be employees! wording/relationship is crucial here!)
The term 'sub-contractor' is heavily used by the Inland Revenue for tax purposes, but in law one has to look at the actual relationship and intention of parties to determine which category they fall under.
If you 'sub-contract' someone to do a project for you and you pay them an hourly rate, pay their PAYE and NI, then it is more than likely they will be construed as employees, this have employment rights, including holiday pay. It also depends how much control you will have over the person i.e. how work is done, when, where etc
If you are looking to avoid being entangled in employment law and do not wish to assign any employment rights to anyone then you should offer the person a contract for services for a fixed period etc
Employment lawyers make their money when employers/contractors create a 'contract' that falls into the grey areas mentioned above
link (http://www.ukbusinessforums.co.uk/forums/showthread.php?t=14277)