It's not the case that contractors are guaranteed copyright to their work; in fact, the opposite is more common. The issue of copyright doesn't come up in the IRS criteria for contractor vs. employee.
It's not the case that contractors are guaranteed copyright to their work; in fact, the opposite is more common.
It is in the constitution, actually, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
The issue of copyright doesn't come up in the IRS criteria for contractor vs. employee.
No, but the IRS's determination of the business relationship between the two parties affects the applicability of work-for-hire.
As someone who runs a application design and development business I have yet to receive or sign a contract that doesn't explicitly state the final disposition for the rights to the resulting IP. I would find it hard to believe that there's a publishing outlet that doesn't do the same in their contractor agreements, particularly with writers.
No actually code, on its own is not patentable, systems and algorithms are. All those cool Apache and BSD licenses are about copyright which apply equally to code and a news article.
The issue is that the agreement may not be valid because of the business relationship between the two entities.
A "work made for hire" is anything an employee makes in the scope of his or her employment OR as a contractor "...a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."
If he was treated by AOL as a contractor, but was determined by the IRS to be an employee, he would be entitled to a refund for the excessive taxes he paid as a contractor and AOL would then be liable for those taxes. However, he would lose all IP rights to the content (because he was an employee).
However, if he were an employee, and the IRS determined he was a contractor, and there was no written "work made for hire" agreement (because the company assumed he was an employee and a signed agreement was unnecessary), he would retain all rights to his works.
In his specific case, if is is determined by the IRS to be a contractor, the agreement he signed would have to be specifically for a "work made for hire" and his works were "...specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas."
I'm not sure if writing search engine spam constitutes any of those.
If you sign a professionally drafted contract stating that you are being compensated for writing done on a work-for-hire basis, you are not keeping the copyright to your work regardless of whether the IRS determines that your employer owes penalties and interest for stiffing them on your payroll taxes.
I am saying if you sign a work for hire agreement, and are later determined to be an employee, the company owns the IP because you are an employee of the company, not because you signed a 'work for hire' agreement.
Conversely, if the company assumed you didn't need to sign a 'work for hire' agreement because you were an employee, but the IRS determined you were a contractor, you would retain the rights to your works.
Not quite. The constitution doesn't stipulate the relationship between contractors. The part of the constitution that you've cited establishes copyright as a concept. It doesn't denote that every work you create is automatically owned by you. While it is true that works you create on your own time are by default protected by copyright, you can also enter into work-for-hire and other intellectual property agreements that alter the status of what you create.
