- an employee seems pretty straightforward, right? If I work for Company X, I'm an employee of Company X, right? Well, not exactly. Unfortunately, "employee" has a whole bunch of potential meanings, and the Copyright Act does almost nothing to distinguish among them... or justify any such distinction. Even in the world of federal law, "employee" has a number of different, partially overlapping meanings. About all that we can say for certain is that an individual employee is not truly an employee if he or she fails virtually all of the multifactor test used by the IRS to determine whether one is an "employee" or an "independent contractor." However — and this is not just a caveat, but critical — several of those factors simply do not apply to creative activities. Time and place of production really doesn't matter; only time and place of presentation do. And so on.
- within the scope of his or her employment is an even bigger mess, particularly if there is no formal employment contract... or, worse yet, a one-sided take-it-or-leave-it "employee handbook." Then, too, there's the question of when a hobby activity that has a common bond of some kind with something that does pass the employment test is also within the scope of employment; consider an assistant professor of physics who specializes in optics who writes science fiction stories concerning astronomical observation and consequences of spotting intelligent life, or a local prosecutor who writes political thrillers involving wiretapping and cover-ups. (Obviously, neither of these is entirely hypothetical.)
- work made for hire is only indirectly defined here; what we're really interested in is the consequences of a work falling into that category, not the definition per se. I'm going to reserve this for later.
But the fun is just starting, folks. Just wait till we get through subparagraph 2... and I doubt that I'll be able to do so in a single entry.