This concept is referred to in the 1976 Copyright Act as “work made for hire” and defined under Section 101 as “work that is prepared by an employee within the scope of his or her employment”. The section further states nine categories for which a contribution is being commissioned as a job. Component of a motion picture. Part of an audiovisual set-up. Compilation of varying substances. Set of instructional guidelines. Set of test answers for a particular examination material. Chart, diagram or an atlas. A 1989 Supreme Court decision provided the groundwork on which work-for-hire (WFH) is established. That groundwork is whether the creator agreed to contribute as an employee or as an independent contractor. The employee here is being selected on the basis of his ability to provide a particular creative service in accordance with the specifications or preferences of the hirer. This stands opposed to a regular employee whose skills or talents are being applied for a generic field or purpose. In a work-for-hire arrangement, the employer can add his or her own input so that results will reflect the business image or brand in order to serve an intended purpose.
Thus the created outcome will be identified or associated with the employer’s business. Whereas the work of an independent contractor carries the innovator’s own style or distinction, it adds value to the outcome of the work performed. The contracted work provided is only for the viability of the product, which in this case is deemed by the service buyer as suitable for his purpose. Normally, the produced outcome will still carry the independent contractor’s brand or registered trade name. The hirer as employer has control over the outcome of the innovator-employee’s work. The employer may approve or disapprove the creation or may ask the innovator-employee to incorporate ideas based on the employer’s own standards of what is lucrative for the business. This is by virtue of the employer’s greater contribution as the capitalist, since he provides the venue, the materials, the utilities, the equipment, the additional workforce and the marketing tools. These premises establish the fact that in an employer-employee relationship, the employer becomes the official copyright holder of the original creation. Despite all the definitions, deliberations and distinctions, certain disputes regarding jobs contracted on a for-hire basis still crop up.
This happens so frequently that best practices recommend adopting a “Work-for-Hire Agreement Letter” in place of or in addition to a job contract. The parties are identified as the employer, who is also the service buyer and agrees to enter into an agreement with the service-provider, who is the other party named in the document as the employee. An outline of the scope of work shall be indicated, including the duties and responsibilities to be performed by the employee as service provider and a description of the completed work as the primary purpose for rendering the services. An agreement usually covers a one-year period and with annual renewal, unless any of the parties to the agreement decides not to accept another term of renewal. In that case the disengaging party shall give 30 days’ due notice before the term of the agreement ends. If it has been previously agreed upon by both parties to include certain benefits extended by the employer to its regular employees, the information should likewise be incorporated in this section.
There should also be a statement to the effect that the cost of materials to be used shall be for the account of the employer. The arrangement for its purchase should in no way be the cause of delay for the project’s or the objective’s completion. This denotes that any of the parties may facilitate the purchase of the materials required if it will facilitate the performance of the work according to scope’s schedule. The employee acknowledges that he or she fully understands the employer’s requirements and specifications and will seek the latter’s confirmation that the work-in-progress is proceeding according to specifications. The employee expressly guarantees that work shall be completed on the specific deadlines given by the employer for every project assigned, which makes it necessary to state the reasonable time for each project to be completed. The employee acknowledges the employer’s right to rescind their agreement in the event that he or she fails to deliver the goods or items on the specific deadlines or according to the specifications set by the employer. The employee shall also acknowledge that the completed work produced by the services rendered shall become the property of the employer.
He further acknowledges the transfer of copyright privileges from the employee to the employer as the rightful and official holder of all related copyrights. The employee agrees to surrender all documents, manuscripts, drafts and materials related to the completed work in the event that the agreement will be terminated. He further holds himself committed to all ethical standards governing business agreements, particularly those that pertain to matters of confidentiality regarding the employer’s business. The employer shall acknowledge the condition that any failure to pay the employee the remuneration agreed upon as embodied in this document will likewise constitute a failure in the transfer of copyright ownership for the completed work. This denotes that all rights to the object or item created shall stay with the employee as the creator or the originator. The employer will likewise agree to monitor the work in progress and give his confirmation that the work is being fulfilled according to his specifications. Any failure on the part of the employer to monitor the work-in-progress will forfeit his rights to rescind the contract based on the employee’s failure to meet the specifications.
The employer guarantees payment of all pending remunerations prior to his decision to rescind the contract on valid grounds. The signing of both parties to the agreement constitutes their acknowledgment that the work made for hire agreement is governed by the prevailing federal and statutory laws and the agreement has been entered into for purposes of performing legal works. The signing also signifies that both parties understood the terms and conditions surrounding the agreement, which for all intents and purposes is for their mutual benefit. A downloadable copy of the sample “Work for Hire Agreement Letter” as presented above is available at Bright Hub’s Media Gallery. The sample is intended for purposes of illustrating its contents, which can be modified to suit a user’s own business purpose. The author, however, does not guarantee that the sample can withstand any legal assertions or tests, in the event that a dispute arises between the employer-service buyer and the employee-service provider.
The argument was made to reject the contention that the adultery law was discriminatory against men. However, despite declaring women as “victim only” in the occurrence of the crime of adultery, the court did not allow them to file a complaint. The next important judgment regarding adultery law under Section 497 came in Sowmithri Vishnu versus Union of India case of 1985. The Centre has cited this judgment in its 2018-affidavit to back Section 497 of the IPC. In Sowmithri Vishnu case, the Supreme Court held that women need not be included as an aggrieved party in the name of making the law even handed. It also explained as to why women should not be involved in prosecution in the cases of adultery. The Supreme Court held that men were not allowed to prosecute their wives for the offence of adultery in order to protect the sanctity of marriage. For the same reason, women could not be allowed to prosecute their husbands. The judgment retained the offence of adultery as a crime committed by a man against another man.
ALSO READ | Does adultery law breach the right to equality? The Supreme Court also rejected the argument that unmarried women should be brought under the purview of the adultery law. The Supreme Court held that bringing such an unmarried woman in the ambit of adultery law under Section 497 would mean a crusade by a woman against another woman. The ambiguity related to adultery law remained unresolved. In the next big case–V Revathy versus Union of India of 1988–on adultery law, the Supreme Court held that not including women in prosecution of adultery cases promoted “social good”. It offered the couple a chance to “make up” and keep the sanctity of marriage intact. The Supreme Court observed that adultery law was a “shield rather than a sword”. The court ruled that the existing adultery law did not infringe upon any constitutional provision by restricting the ambit of Section 497 to men. Besides the three Supreme Court judgments, there were two more important legal views in connection with adultery law. The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on Criminal Law Reforms of 2003 recommended amendment to the adultery law. Both argued to make Section 497 of the IPC gender neutral. Trivia: The Supreme Court bench that dismissed a plea challenging Section 497 had Justice YV Chandrachud on it. Current Supreme Court bench hearing the adultery law case had his son Justice DY Chandrachud on it. It was Justice DY Chandrachud, who made the observation that women could not be treated as commodity by leaving them to the discretion of their husbands in giving consent in matters of adultery. The Supreme Court said in August this year that Section 497 as anti-women to dismiss the argument that the adultery law discriminated against men.
The Illinois House is considering a bill, introduced by Rep. Luis Arroyo, to amend the Cook County subcircuit statute, 705 ILCS 35/2f, to allow Cook County subcircuit boundaries to be redrawn after the next census. This provision was added to §2f after the Illinois Attorney General issued an opinion in 2006, No. 06-005, stating that subcircuit judges could move from the subcircuit after being retained in office. That’s because judges are not retained in office by only the voters in their subcircuit; instead, they must face a countywide yes or no vote. No provision was made for retaining judges by subcircuit because there were no subcircuits in 1970. So, although the Legislature clearly rejected the AG’s opinion in 2007 when §2f(e) was passed, the constitutional argument has not been resolved. Ah, well. If legislators did their jobs better, even more lawyers would be out of work than presently. Meanwhile, if HB 711 becomes law, subcircuits will get redrawn in time for the 2022 primary. That would be interesting.
Department of Commerce Secretary Wilbur Ross announced in March that a question about citizenship would be added to the 2020 Census. Wide-ranging opposition followed — from local and state government officials, members of Congress and former Census Bureau directors, all citing consequences for decades to come. Historically, the Census Bureau has worked to guarantee the most accurate count of the entire United States population, notwithstanding citizenship. Census-recorded data has been used to determine how to draw congressional districts, allocate federal funds, and for national disaster and epidemic preparedness. Supporters of the question say its inclusion is logical and necessary to enforce the Voting Rights Act. The current administration’s unabashed hostility toward immigrants has led others to believe that undocumented individuals will hesitate to participate in a survey that asks about citizenship, resulting in a significant undercount of immigrant and minority communities. Ross, embroiled in a multistate lawsuit to block the question, has been accused of adding it for partisan purposes.
Key issues in the case have made their way to the Supreme Court. The census, which is mandated by the Constitution, may be necessary to a well-functioning democracy, but can this last-minute addition to the survey truly have such dramatic costs? Is an undercount that big of a deal? Yes, and one that affects all U.S. The most commonly discussed consequences of an undercount are its effect on congressional districts and federal funding. Robert Shapiro, senior policy fellow at the Georgetown University McDonough School of Business, estimates that more than 24 million people could avoid the 2020 Census to keep their information from being shared with law enforcement. This would affect federal programs, such as Medicaid, Section 8 Housing and school lunch programs. Strategic planning begins with survey data, he said, yet public health responders are responsible for entire communities, notwithstanding the census count. Depressed census numbers threaten to undercut funding and create preparation blind spots.
“You only know what you know,” Schlegelmilch noted. “Upstream funding becomes important. He also explained that public health responders’ ability to interact with all members of a community is necessary to protect it. “Disasters don’t respect politics. They’re going to affect everyone in the community and not just those enumerated under the census. We need to make sure we have the most accurate counts possible, especially with those that are determining policy and funding to respond to a disaster,” Schlegelmilch said. Were the consequences of the citizenship question considered? Between 1820 and 1950, a different version of a citizenship question was included on decennial censuses. Since then, it has only appeared as part of the American Community Survey, also administered by the Census Bureau, but annually and to a smaller number of participants. Typically, new survey questions must go through a lengthy approval process, with the Census Bureau running tests in the years leading up to the count.
Accuracy of the count is of utmost importance, according to Juan Pablo Hourcade, a member of the Census Bureau’s Scientific Advisory Committee and associate director for informatics education at the University of Iowa. ] almost as a space mission to Mars. It costs billions of dollars and takes years of planning and testing things to make sure you get everything right,” he said, adding that he was not speaking on behalf of the Committee. Contrary to the census tradition of testing a question’s impact before adding it, the citizenship inquiry was introduced late, preventing the bureau from fully — or even passably — piloting it, according to the committee’s spring 2018 report. “It’s like you’ve been planning a space mission for 10 years, and right before the mission you make a significant change to the spacecraft without testing it,” Hourcade said. “Maybe it won’t crash, but you don’t know. In a Jan. 8, email, Stephen L. Buckner, assistant director for communications at the Census Bureau, wrote to set up a meeting with Ross and Undersecretary Karen Dunn Kelley. Despite this, Ross considered only data through 2016 in opting to include the question of citizenship.
Hence, the committee’s official position that its “last-minute inclusion” was ill-advised. The committee chairman wrote: “Moreover, the empirical evidence that was discussed by Sec. Where are we now? Attorneys and politicians across the country are wondering the same. Ross, originally claiming that the citizenship question was added in response to a Justice Department request and was needed to enforce the Voting Rights Act, is caught up in pending litigation. Emails subsequently emerged that contradicted his initial explanation, but the Supreme Court intervened to temporarily block his deposition last month. The court did allow other depositions and a New York federal trial to proceed. On Friday, the Supreme Court agreed to hear arguments over whether Ross and others can be compelled to explain their actions. The court’s timing is curious, because the New York trial is underway, with closing arguments scheduled next week. The Trump administration followed up Friday’s ruling with a letter to the trial judge and an application to an appellate court, asking all final judgments be withheld until the Supreme Court issues its decision next spring. For now, the outcome remains to be seen. Whatever the ruling, though, timing is of the essence: Census forms must be sent to the printer by June 2019, with or without the added question. Tara Bahrampour contributed to this report. Clarification: A previous version of this story referenced an email that Stephen L. Buckner wrote. Buckner’s email included language that was copied and pasted from the National Advisory Committee on Racial, Ethnic and Other Populations’ 2017 recommendations to the U.S. Census Bureau. This story has been updated.
As I mentioned earlier this morning, the U.S. Supreme Court reversed the Federal Circuit in a pair of cases, Octane Fitness, LLC v. Icon Health & Fitness, Inc., and Highmark Inc. v. Allcare Health Management System, Inc., involving the interpretation of section 285 of the U.S. Justice Sotomayor wrote the opinions in both cases, and both are unanimous–with the minor exception that Justice Scalia did not join in footnotes 1-3 of Octane Fitness, which discuss the legislative history of section 285 and its predecessor statute. In Octane Fitness, the Court reverses this standard for determining when a case is “exceptional,” and in Highmark it holds that appellate review of an exceptional case determination should be reviewed for abuse of discretion. 1. Section 285 “imposes one and only one constraint on district courts’ discretion to award attorney’s fees in patent litigation: The power is reserved for ‘exceptional’ cases” (p.7). ’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.
District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances. 5. Finally, the Court rejects the Federal Circuit’s rule that entitlement to attorneys’ fees must be established by clear and convincing evidence. Rather, the normal “preponderance of the evidence” standard applies. 1. Will the theme of greater deference to district court decisions carry over into the realm of claim construction? The Court recently granted cert. 2. I wonder if the Federal Circuit’s current standard for evaluating when infringement is “willful,” and therefore potentially supportive of an award of enhanced damages, also may need to be revisited. See Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., 682 F.3d 1003, 1007 (Fed. 133 S. Ct. 932 (2013); In re Seagate Tech., LLC, 497 F.3d 1360, 1371 (Fed. 3. Presumably the impact of Octane Fitness will be an increase in attorney fee awards in patent cases, which many people believe would be desirable for reining in litigation by patent trolls.