Monthly Archives: September 2013

The Work-For-Hire Question

As opportunities for employment continue to dwindle, many people have turned to freelancing as a source of supplementary income. Although these opportunities have often kept households afloat, there are some legalities surrounding them that are confusing and can lead to protracted legal battles if not properly addressed.

T. Leverett – Elance Logo Shot

The “work-for-hire” concept provides the context for freelance and independent contracting opportunities. CopyLaw.com, describes this doctrine as a scenario in which, “all of the attributes of copyright ownership — including credit and control — vest in the hiring party, not the creator.”

There are only two instances in which this law applies; the work must be completed by an independent contractor or by an employee performing work that falls within the scope of their employment. Each of these instances have restrictive stipulations that further define the type of work that can be completed.

T. Leverett freelance writer logo

For freelance workers there are only nine specific areas in which work can be completed, and any content that falls outside of those areas still belongs to the creator; not the person who hired them to complete the work. The nine areas are:

1. As a contribution to a collective work

2. As a part of a motion picture or other audiovisual work

3 As a translation

4 As a supplementary work

5 As a compilation

6 As an instructional text

7 As a test

8 As answer material for a test

9 As an atlas

*taken from copyright.gov

Many freelancers don’t find out about these rules until it is too late.

“I never really paid attention to all of these laws and rules because I just needed to get paid,” said Adrienne Levis a freelance graphic artist, “That is until I got burned one too many times and said this was too much for me to continue to deal with, and I got a lawyer to draw up an airtight contract for me.”

According to The Freelance Strategist, the best way to avoid issues with work-for-hire is to have a clear, legal understanding of the work to be completed before the project starts.

A recent article on the site states, “Even if your work falls into one of these nine categories, there must also be a written agreement stating that it’s a “work made for hire” (or “work for hire”). To be safe, the agreement should be signed before the work is created.”

Also, if the work requested doesn’t fit into at least one of the nine categories it is not a “work made for hire” …even if the contract states that it is.

Levis says, “It is a mess to navigate as a freelancer, but since I lost my job at a major news outlet, I didn’t really have much of a choice. It is much better to know upfront what I am getting myself into before I even draw one sketch for a client.”

Would The “Real” Journalists Please Stand Up? A New Definition for “Shield Laws”

Last week the Senate Judiciary Committee passed the Free Flow of Information Act, a bill that allows “anyone associated or once associated with a news-gathering operation — including freelancers, student reporters and bloggers — who is working with the intent to convey information on important matters to the public.”

Although the rights granted by the First Amendment are the “umbrella” that shields the practice of journalism as a whole, the Free Flow of Information Act further defines who benefits from those protections. Identifying who falls under the category of journalist has been an issue of debate as access to the industry exponentially expands, and the role this plays in reporting on the government is often the center of the argument.

T Leverett 2013

A recent article in the Washington Post explains, “When the Obama administration wages an aggressive campaign against leaks or, as in previous administrations, journalists are threatened with or sent to jail because they refuse to give up their sources, people think twice about talking, and reporters are deterred from pursuing their mission. It’s long past time for Congress to pass a law protecting journalists from being forced to disclose information about the sources, methods and content of their reporting to the government.”

According to an article in techdirt, The Free Flow of Information Act defines journalists as, “as someone employed by or in contract with a media outlet for at least one year within the last 20 years or three months within the last five years; someone with a substantial track record of freelancing in the last five years; or a student journalist. In addition, the law would protect a person deemed appropriate by a federal judge, so long as their newsgathering practices have been consistent with the law.”

Although this provides a more defined description of who can be protected by the laws, it raises several questions as to who is not considered a journalist.

Jeanette Noel, a journalism student states, “I think it’s nice that this bill includes students, but what about someone who just started out and somehow had the luck to break a big story? Not likely, but it could happen. Would they be forced to give up a source just because they didn’t have experience? That does not seem like free speech to me at all.”

It’s a Bird…It’s a Plane…It’s a Super-Injunction

United States’ law defines a Gag Order as “a judge’s order prohibiting the attorneys and the parties to a pending lawsuit or criminal prosecution from talking to the media or the public about the case. The supposed intent is to prevent prejudice due to pre-trial publicity which would influence potential jurors.,

Since 1976, when use of this law became more prominent, there have been a multitude of cases in which the order has been enacted.

In Peterson v California, the case in which Peterson was tried for the murder of his wife, Stanislaus Superior Court Judge Al Girolami issued a Gag Order to protect the safety of the defendant.

Girolami explains, “although the Court is extremely concerned with the due process and fair trial rights in this case, it is also keenly aware of the public’s right of access to the proceedings herein and the right of free speech of the participants. However, after balancing these rights, and in order to protect against the disruption of the proper administration of justice, the Court finds that good cause exists for the issuance of a pre-trial protective order.” (From KTVU.com)

In Hallowich v Range Resources (Court of Common Pleas of Washington County, Pennsylvania), the latter was accused of creating a hazardous environment near the Hallowich’s property through unsafe oil drilling practices (fracking). Although a settlement between the parties was ultimately reached, as condition of the agreement a gag order was issues which prevented not only the Hallowichs from speaking about any adverse results of fracking, but also included their minor children. The children, aged seven and ten at the time, were forbidden to speak about fracking for the rest of their lives. The gag order on the children has since been removed.

PA Welcome Sign PA Turnpike – T Leverett 2013

To many Americans, the idea of the gag order seems to eviscerate the First Amendment, prevents the public from receiving the proverbial “whole story,” and insults the intelligence of citizens.

Lawrence Jemison, New York resident and security worker at a New York court building says, “The fact that a court can tell me what to say just seems like I live in some other country or something. I can understand if it has to do with my safety or the safety of someone else, but let me make that judgment. If you can trust a person to be in the jury and decide someone’s fate, you should trust them to keep their mouths shut when they have to.”

Apparently across the Atlantic, there is even less trust that citizens or press will “keep their mouths shut” when involved in high profile cases.

West London Skyline – T Leverett 2013

In the United Kingdom, the “Super-Injunction” serves as a beefed up version of the gag order. This order states, “In its purest form, a ‘super-injunction’ refers to a legal gagging order which not only prevents the media from reporting the details of a story, but also forbids mention of the existence of the injunction itself.

They have their legal basis in the UK’s 1998 Human Rights Act, but have come to prominence in recent years.”

Although British celebrities primarily use this order, it has also been a tool for British government officials to avoid scrutiny for questionable behavior. London residents in particular are not happy with the concept of the Super Injunction, and many feel that is simply a farce created by the press.

“It’s simply another distraction thrown to us to take away from poor reporting on what is really happening. Reporters can say they are restricted by this “super injunction” and somehow they are absolved from covering the story,” said Amenah Abiola, a university student in London.

Verizon Joins the Battle to Modify Net Neutrality in Favor of Cable Moguls

Net Neutrality was again called into question today in a DC Circuit Court.

Oral arguments were presented in a case between the FCC and Verizon Inc. after an ongoing battle to either strike down or to uphold the Open Internet Framework. The Open Internet Framework is a set of rules that prevents internet service providers from surcharging companies to place content on their networks and from arbitrarily blocking content based on company preferences. Essentially, the rules were designed to keep the internet free and equal; and to provide an balanced range of content for consumers.

Net Neutrality, the concept suggesting that internet providers cannot discriminate or provide preferential treatment to specific content, has remained an issue for big business, as they battle with the government to determine how much control they can wield over content and bandwidth accessibility.

In 2012, Comcast, the Philadelphia based cable provider and owner of NBC Networks, was again brought to trial on net neutrality issues when it proposed internet usage caps for consumers. The plan was to limit bandwidth accessibility for customers who exceeded a predetermined usage level, yet several of Comcast’s on-demand programs and streaming apps were exempt from usage accounting.

Comcast Headquarters, Philadelphia - Tieast Leverett 2013

Comcast Headquarters T. Leverett 2013

While the FCC ultimately ruled against the company, which resulted in more relaxed usage caps, Comcast consumers are still concerned about what controls cable providers have over the programming and internet access they pay for each month.

“I can barely understand my bill, much less all of the stuff that goes on down there on 17^th and Arch…I’m sure they are watching what I watch, and recording what I do, so it doesn’t really surprise me that they can limit my internet access and force me to watch the channels that they promote,” says Philadelphia resident and Comcast subscriber Jana Scott.

As several major cable providers continue to face lawsuits and engage in debate that could potentially weaken regulations like Net Neutrality and the Open Internet Framework, consumers may have to deal with several changes in what their current providers offer and how much content they can access.

Scott considers a way to avoid the confusion, “I know there are a few websites out there that just let you choose shows to watch and you pay a few bucks each month to watch them online. I feel like that is what I would rather do…I’m paying way too much for cable and internet services anyway. I guess that wouldn’t matter anyway, then they would probably cut off my internet for not watching their shows.”