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Last Post 04/07/2007 8:48 PM by  Ray Hall
Work Product Ownership
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davidgdye
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03/21/2007 5:17 PM

    After all these years, I have an unaswered question:

    Of course when working as an employee, ownership of your work product passes to the adjusting company and client immediately.

    I have always "heard and been told" that an IA, when working as an independent contractor retains ownership of his/her work product until such time as they are compensated for the work product.

    Can anyone provide any statute(s) or cites on case law?

     

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    Tom Toll
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    03/21/2007 7:13 PM

     

     Authorship

    Sometimes the identification of a work's "author" is unclear, and there are many court rulings applying to those situations as well. For example, by § 201, work done "for hire", that is, specifically at the direction of an employer who pays for the work, is, by default, the property of the employer. In other words, if a company hires a writer to write something specific, the company, not the writer, is considered the "author" of that work and owns the copyrights. Any other work done by that writer on his own without compensation and without using company resources usually is still owned by the writer (though employers often try to claim ownership of such work).

    The author of a works is the initial owner of the copyright in it, and may exploit the work herself or transfer some or all the rights conferred by the copyright to others. (Copyright Act &201). The author generally is the person who conceives of the copyrightable expression and fixes it or causes it to be fixed in a tangible form. "Works made for hire" are an important exception of this rule: When a work is "made for hire", within the meaning of the Copyright Act, the employer or commissioning party, who pays for creation of the work, is deemed the author, rather than the employee or commissioned party who actually conceives and fixes the expression (or causes its fixation).

    1. Ownership of copyright in joint works. The authors of a "joint works" are co-owners of a single copyright in the work. Copyright Act &101 defines a joint work as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or independent parts of a unitary whole."

    2. Works for hire: If a work is made "for hire" within the meaning of the Copyright Act, the employer or commissioning party, aho paid for the work and took the economic risk of it, is deemed the author for copyright purposes and is the initial owner of the copyright. Copyright Act &101 sets forth the two circunstances under which a work may be found to be a work for hire.

    a) Work prepared by an employee within the scope of his employment. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court held that the term "employee" in this context should be interpreted according to common law agency principles. If the person doing the work is an "employee" within the meaning of the common law, and the work was done within the scope of his employment (whether the work is the kind he was employed prepare; whether the preparation takes place primarily within the employer's time and place specifications; and whether the work was activated, at least in part, by a purpose to serve the employer), then the work is a work for hire and the employer is the initial owner of the copyright, rather than the employee who actually conceived and fixed the expression.

    b) Specially ordered or commissioned works. Works created by independent contractors (rather than employees) can be deemed works for hire only if two conditions are satisfied. First, the work must fit into one of nine categories of works enumerated in Copyright Act &101. Second, the parties must expresly agree in a written, signed instrument that the work will be considered a work made for hire.

    3. Ownership of copyright in collective works: a collective work is a collection of independent, separately copyrightable works of authorship, such as a newspaper, magazine, or encyclopedia. In the absence of an express assigment of copyright, the author of each individual work in the collection retains copyright in that work. The compiler, or author of the collection, owns copyright in the expression he or she contributed, which is primarily the selection and arrangement of the separate contributions, but may include such things as a preface, advertisements, etc., that the collective author created.

    Success is not final, failure is not fatal: it is the courage to continue that counts.
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    rickhans
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    04/07/2007 5:26 PM

    Tom,

    I just saw your answer and have a couple of questions.  Until I loaded a demo version of Xactimate last week and read their licensing agreement I had not really thought about this topic. 

    Based on the definitions you posted, I assume that an independent adjuster has at least partial ownership of the work product  under certain circumstances.  If working on a fee schedule and not hourly, the adjuster can be at risk and not fully compensated for the hours if it is complex but a small fee paid.  The adjusting firm, it seems, may also have some ownership since they take a portion of the fee.  This brings me to my main concern:

    The Xactimate licensing agreement has wording (without going back and quoting it) that seems to say that they have work product ownership for all claims written with Xactimate and that the adjuster is under a contractual requirement to furnish them with a copy of all claims (with privacy data redacted) but does not specify any payment terms to the adjuster for doing so.  It appears that if their website is used to upload a claim to the insurance carrier that  they have the right to take control of the claim data for their own purposes.  Do you know anything about this, or the legalities?  Does this mean that they can require an adjuster, who is paying them for the right to use the software, to do extra work to redact the private information then send them all of the claims done if XactNet is not being utilized?  Or, am I misunderstanding  the terms?

    This also raises a another issue that is new to me.  When using software such as this or Integraclaim, and the carrier requires the claim data to be exported and transmitted to them, what happens with work product ownership and liability.  If the carrier (or anyone in the middle)  takes the claim as completed by the adjuster, opens the file and makes changes to suit their criteria, it seems like their could be legal issues down the road if the insured protests or files a suit on the claim.  Of course the adjuster will keep a copy of the claim turned in, but does the adjuster relinquish all ownership and liability if the changes result in a fight with the insured?  Who's e&o comes in to play?

     

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    Ray Hall
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    04/07/2007 8:48 PM

    Very good topic, Some adjusters feel an estimate is subject to the copywrite laws. This seems to go against common law as not any line item  estimate using software programs as a document processer  will fit a definition of unique.

    As temp employees and 1099 sub contractors I think the vendor/carrier is the owner of all documents.

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