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Joseph
Joseph, Lawyer
Category: California Employment Law
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Can someone point me to resources and also give me a break

Resolved Question:

Can someone point me to resources and also give me a break down of the major differences between NY and CA for contracts between independent contractors and clients? Everything that might be relevant but also I'd like to know if work created without explicit rights release is any different between states.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello,

My goal is to provide you with excellent service today. Please don't hesitate to ask me any follow up questions or request any additional information.

There are no major differences between NY and CA for contracts between independent contractors and clients.

The contracts themselves would govern the terms and conditions of the relationship, not state law. (The only difference, as I've mentioned to you in the past, is that California does not allow for any non-compete agreements, while New York does).

Are you asking in regards XXXXX XXXXX intellectual property. Since you're an independent contractor, in order for the work to be considered a work for hire, meaning that the client owns the rights to the work, the following conditions need to be met:

1. the work must be "specially ordered" or "commissioned." What this means is the independent contractor is paid to create something new (as opposed to being paid for an already existing piece of work); and

2. prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire; and

3. the work must fall within at least one of the following nine narrow statutory categories of commissioned works list in the Copyright Act:

(1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work (i.e., "a secondary adjunct to a work by another author" such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index).


If these conditions were not met, then the rights to the work are yours.
Customer: replied 1 year ago.

I'm familiar with those details (as I've done countless hours researching topics related to this, as you may imagine :)) In a business development situation then, does it change the 'ownership' of the contacts found, that were brought to the business?

Expert:  Joseph replied 1 year ago.
Hello Riopua,

No, the ownership of the contacts found is the same in both situations. The contacts would remain the property of either the independent contractor or the client in the business.

Customer: replied 1 year ago.

I don't mean to doubt what you just wrote, but I've read elsewhere opinions that because I was hired to do business development and develop in essence sales contacts for the business, then de facto because it was specially commissioned, then it belonged to the client. I suppose, to make this a productive question, are there any scenarios where sales contacts and accounts would belong to the client in an 'independent contractor' relationship? or (and just shooting off the hip here) maybe a defense from the client would be that at the time its doing business with the client is owned by them? that might not even make any sense, but just wondering if there's any exceptions to which I may fall under (based on specifics that I have no disclosed here in this public venue).

Expert:  Joseph replied 1 year ago.
Did you agree that the contact lists were a 'work for hire'? (If not explicitly, in some other manner)?
Customer: replied 1 year ago.

I mean I suppose I signed the agreements under the client's company name, and generally acted as a representative of the company. But apart from that, there was definitely not a written agreement.

Expert:  Joseph replied 1 year ago.
Then the contacts would remain your property and not that of the client's.
Joseph, Lawyer
Satisfied Customers: 5276
Experience: Extensive experience representing employees and management
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