Comments on: Garcia and the AP http://www.burnsautoparts.com/blog/2009/07/13/garcia-and-the-ap/ Leslie Burns writes on the photo business and marketing Tue, 07 Feb 2012 04:43:54 +0000 hourly 1 http://wordpress.org/?v=3.3 By: MarcW http://www.burnsautoparts.com/blog/2009/07/13/garcia-and-the-ap/comment-page-1/#comment-40440 MarcW Wed, 15 Jul 2009 18:48:53 +0000 http://www.burnsautoparts.com/blog/?p=1206#comment-40440 As you probably know, "employee" means one thing to the IRS and another to the Copyright Office: the two definitions overlap but are not synonymous. A work need not be by an "employee" to be a Work for Hire, but if the creator was not an employee, the burden of proof shifts to the party claiming WFH, and the elements necessary to prove the work was made for hire, while not a legal Mt. Everest, are far from de minimis to establish. "We told him to go take a picture of the President for us" is not going to cut it. However, what I think is really going to cost AP some toes here is that written contract, or lack thereof. No written contract, and either Garcia was an employee entitled to full benefits and requiring withholding and reporting, or he was a totally independent individual and there was no assignment. To heck with intervening in the case, Garcia should be suing AP for copyright infringement! . Since the Copyright Act requires that all transfers other than those as a matter of law be in writing - and the only possible transfer as a matter of law is that this is a WFH which in practical terms requires Garcia to be an employee - without that contract AP is going to come out of this bloody. They might even WITH it, but without it, they're sunk. As you probably know, “employee” means one thing to the IRS and another to the Copyright Office: the two definitions overlap but are not synonymous. A work need not be by an “employee” to be a Work for Hire, but if the creator was not an employee, the burden of proof shifts to the party claiming WFH, and the elements necessary to prove the work was made for hire, while not a legal Mt. Everest, are far from de minimis to establish. “We told him to go take a picture of the President for us” is not going to cut it.

However, what I think is really going to cost AP some toes here is that written contract, or lack thereof. No written contract, and either Garcia was an employee entitled to full benefits and requiring withholding and reporting, or he was a totally independent individual and there was no assignment. To heck with intervening in the case, Garcia should be suing AP for copyright infringement!
.
Since the Copyright Act requires that all transfers other than those as a matter of law be in writing – and the only possible transfer as a matter of law is that this is a WFH which in practical terms requires Garcia to be an employee – without that contract AP is going to come out of this bloody. They might even WITH it, but without it, they’re sunk.

]]> By: Martha Retallick http://www.burnsautoparts.com/blog/2009/07/13/garcia-and-the-ap/comment-page-1/#comment-40421 Martha Retallick Tue, 14 Jul 2009 15:05:10 +0000 http://www.burnsautoparts.com/blog/?p=1206#comment-40421 Here in Tucson, an ad agency recently decided to cut costs by making its employees into independent contractors. I'm not sure how the IRS is going to view this decision, but here's how the local media covered the story: http://www.azstarnet.com/sn/biz-topheadlines/284971 The story's headline noted that most of the agency's employees would lose their benefits. Here in Tucson, an ad agency recently decided to cut costs by making its employees into independent contractors. I’m not sure how the IRS is going to view this decision, but here’s how the local media covered the story:

http://www.azstarnet.com/sn/biz-topheadlines/284971

The story’s headline noted that most of the agency’s employees would lose their benefits.

]]> By: Adrien Bisson http://www.burnsautoparts.com/blog/2009/07/13/garcia-and-the-ap/comment-page-1/#comment-40420 Adrien Bisson Tue, 14 Jul 2009 13:00:56 +0000 http://www.burnsautoparts.com/blog/?p=1206#comment-40420 Exactly. I thought being an "employee" was clearly defined as a taxation category. I heard Garcia on Fresh Air a few months ago and he insists he was never an employee. I don't understand what the AP is trying to do. Adrien Exactly. I thought being an “employee” was clearly defined as a taxation category. I heard Garcia on Fresh Air a few months ago and he insists he was never an employee. I don’t understand what the AP is trying to do.
Adrien

]]>