—an independent contractor can be considered an employee under subdivision (1) of the work made for hire definition if the hiring author directed and supervised the independent contractor

Under one interpretation, referred to as the “active supervision” view, a work would be deemed a “work for hire” if the hiring party (i) caused the work to be made and (ii) actively supervised the creation of the work.

If the author prepared the work under the supervision and direction of the publisher, as here, it has been held that the product is a work made for hire even where the author is an independent contractor

The second approach devised by the Second Circuit and adopted by the Fourth and Seventh Circuits, holds that "a work is prepared by an employee under § 101 (l) when the hiring party has actually wielded control with respect to the creation of a particular work."

—held that only a modest alteration had been made: Congress had corrected exorbitant case law that "worked an injustice in those situations where the contracting party did all of the creative work and the hiring party did little or nothing."

—the Second Circuit held that both sections of the work made for hire definition applied to independent contractors.

Various Definitions of the Term "Employee" In The "Work for Hire" Context a. Some courts were inclined to stretch the subsection 101 (1) definition of "employee" to cover works prepared by independent contractors at the behest of the putative copyright owner. See

—affirmed a jury instruction which provided 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 creation."

A formal or regular relationship of employment is not a necessary condition for "employee" status within the meaning of section 101.

Issues have also arisen over who is the copyright owner of architectural drawings: the commissioning party or the architect.

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