WORK FOR HIRE

(1)

Earth Woman is not a work for hire and therefore should not be protected under VARA because the Artist was an independent contractor of the Association.

• A Supreme Court case held that a 13 factor balancing test, known as the Reid test, was required to determine if a work was produced for hire by an employee or by an independent contractor.

• Aymes, a Second Circuit case, narrowed in on 5 factors that should always be considered:

1.) provision of employee benefits

2.) the tax treatment of the hired party

3.) the hiring party’s right to control the manner and means of creation

4.) the skill required, and,

5.) whether the hiring party has the right to assign additional projects to the hired party.

WORK FOR HIRE

(2)

The evidence overwhelmingly demonstrates that the Association treated the Artist as an independent contractor because:

1.) The Association did not provide her with employee benefits or withhold taxes from her compensation.

The Association admits that they did not offer the Artist health insurance, sick leave, vacation pay, or a W-2 form.

2.) The Association had very little control over the manner and means in which the sculpture was created.

The Artist supervised the construction of the sculpture and the Association only intervened during the early stages of creation and when supplying materials chosen by the Artist.

3.) It is undisputed that the Artist has the skill required to create a sculpture with movement, as she was chosen from a pool of highly qualified applicants.

4.) This was the Artist’s only project. Her duty was to produce a sculpture for permanent display for the Association, and even other required tasks were associated with the sculpture. For example, as mentor of the Youth Program, she taught students how to create a part of the sculpture they were interested in.

For those reasons, this Court should affirm the lower courts finding that Earth Woman is not a work made for hire and thus, protected from modification or destruction under VARA.