The Second, Fourth, and Seventh Circuits have adopted a somewhat related view which would find that a work is created by an employee whenever the hiring party exercises actual control over the creation of the work.

—relied on Aldon Accessories to affirm a judgment of infringement against an independent contractor commissioned by the plaintiff to develop a software program.

To succeed in a copyright infringement action, plaintiff must show ownership of the copyright, originality of the work, copying of the work by the defendant and substantial degree of similarity between the two works.

Through this declaration the Court rejected the supervision and control test advocated by the Second193 and Seventh Circuits

See 17 USC § 204 (“[a] transfer of copyright ownership... is not valid unless... in “ 'writing' ”); § 2.37 Documentary Formalities.

—affirmed a jury instruction which stated that the artist need not have a regular job with the hiring author, so long as the employer caused the work to be made and exercised the right to direct and supervise the crea-tion.

—infringement of manual for management program; similarities in computer program relevant evidence of similarities in manual

A number of courts have adopted the reasoning of Aldon Accessories as the definitive interpretation of the new "work for hire" under the 1976 Act.

In construing the first prong of the work made for hire definition under the 1976 Act, the Second Circuit determined that commissioned works could be works made for hire under the first prong of the definition as long as the commissioning party exercised supervision and direction over creation of the work because the creator was then an employee.

[CITATION] The Work-for-Hire Doctrine and the “Creative Genius” in the Wake of Martha …

[BOOK] Copyright law

[CITATION] Copyright: cases and materials