Six Years Later. . . The Statuts of the Work Made for Hire Doctrine and the Reid Test after Aymes v. Bonelli

I. Introduction

The 1992 landmark case, Aymes v. Bonelli, on which I served as lead counsel for the defendant,^[3] presented the Court of Appeals for the Second Circuit with its first opportunity to implement the multi-factor test for applicability of the work made for hire doctrine established by the Supreme Court, four years earlier, in Community for Creative Non-Violence v. Reid.^[4] The issue presented to the Second Circuit in Aymes was whether a "part-time" graduate student, who developed a computer program for the defendant's business without any employment agreement regarding ownership of the program's copyright, was to be considered an employee or an independent contractor for purposes of the work made for hire doctrine. As elaborated further below, the Second Circuit ultimately found that the "part-time" graduate student was not an employee under the work made for hire doctrine.

In Reid, the Supreme Court carefully laid out twelve factors to be weighed in the work made for hire inquiry :

(1) the skill required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the extent of the hired party's discretion over when and how long to work; (7) the method of payment; (8) the hired party's role in hiring and paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) whether the hiring party is in business; (11) the provision of employee benefits; and (12) the tax treatment of the hired party.^[5]

The court in Aymes weighed each of these factors. Notwithstanding the Supreme Court's ruling that no single factor was to be determinative, the Aymes court found that the last two Reid factors -- employee benefits and tax classification of the hired party -- were determinative of the computer program's copyright status.^[6]

The decision in Aymes set the stage for providing a definitive gloss on the Reid test in the Second Circuit, not only for purposes of the work made for hire doctrine, but for determinations of the status of all employees under statutes that fail clearly to define the term "employee." Furthermore, Aymes' influence has spread beyond the Second Circuit, with the Sixth Circuit openly adopting Aymes' gloss on the Reid test, and with the district courts of the Second Circuit tentatively citing Aymes. However, there appears to be a growing indication that following Aymes strictly may lead to an overly categorical application of the Reid test. Courts that fully adopted Aymes previously are now beginning to retreat somewhat. In light of these developments, this article will seek to evaluate the status and future viability of Aymes to determine whether it will continue to serve as the definitive gloss on the Reid test.

II. Background of the Work Made For Hire Doctrine

Pursuant to the Copyright Act of 1976, 17 U.S.C. §201, ownership of a copyright automatically vests in the author of a work. As a general rule, the author is defined as the "party who actually creates the work....[T]he person who translates an idea into a fixed, tangible medium of expression [is] entitled to copyright protection."^[7] The exception to this rule arises under the "work for hire" doctrine, which holds that if an employee creates a work within the context of his or her employment, it is the employer or the party for whom the work was prepared who owns the copyright in the work.^[8] Under the Copyright Act, there are two distinct paths by which a work may achieve work for hire status: a work is made for hire either if (1) it is made by an employee or (2) it was specially commissioned to be made by an independent contractor and there is a written contract designating the work as a "work made for hire."^[9] Accordingly, in the absence of a clear written contract, the operative determination as to who owns the copyright in any resulting work turns on whether a party is classified as an employee or as an independent contractor.

The Supreme Court concluded in Reid that employee status is determinable under the general common law principles of agency, which require, inter alia, an inquiry that focuses on the "hiring party's right to control the manner and means by which the product is accomplished."^[10] Again, the Supreme Court, in establishing the non-exclusive list of relevant factors set forth earlier in this article, announced that "[n]o one of these factors is determinative."^[11]

Application of the Reid factors, however, provided little guidance for future decisions relating to copyright disputes that involve the work made for hire doctrine. In short, the twelve, non-exclusive factors of the Reid test were meant to assist in the ultimate determination of the "hiring party's right to control the manner and means by which the product is accomplished."^[12] Yet, the Reid Court concluded that while the hiring party maintained control over many details of the finished product, it was not dispositive in light of the fact that the remaining factors counseled against the finding of an employee relationship, such as, Reid was a skilled sculptor; supplied his own tools; worked in his own studio without daily supervision; he was retained for a short period; CCNV had no right to assign additional projects to him; Reid had freedom to decide when and how long to work; and he was paid a lump sum.^[13] Consequently, and considering that the Supreme Court essentially found that the record reflected an overwhelming eleven to one ratio in favor of independent contractor status, Reid provided little guidance as to how to weigh the factors in cases that are not so clear-cut.

In 1993, the Supreme Court revisited Reid in Nationwide Mutual Insurance v. Darden,^[14] holding that the meaning of "employee" in an ERISA dispute would be determined by an analysis of the Reid factors. In doing so, however, the Court reiterated that "[n]o one of these factors is determinative."^[15] In its stead, the Court stated, "[s]ince the common-law test contains 'no shorthand formula or magic phrase that can be applied to find the answer . . . all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.'"^[16] Ultimately, however, Darden provided no more guidance in applying the factors than did Reid.

III. The Second Circuit's First Application of the Reid Test: Aymes v. Bonelli

With the framework established by the Supreme Court, the Second Circuit in Aymes for the first time attempted to apply the Reid facts in deciding a work made for hire dispute. It appears, however, that the Second Circuit believed that the Supreme Court's decision lacked guidance in determining which factors should be given more or less weight and suggested that a straight balancing test should not be applied in every case:

We begin our analysis by noting that the Reid test can be easily misapplied, since it consists merely of a list of possible considerations that may or may not be relevant in a given case. Reid established that no one factor was dispositive, but gave no direction concerning how the factors were to be weighed. It does not necessarily follow that because no one factor is dispositive all factors are equally important, or indeed that all factors will have relevance in every case. The factors should not merely be tallied but should be weighed according to their significance in the case.^[17]

The Aymes court then went one step further to announce that there were indeed some factors from Reid that would almost always be more relevant and thus deserved more weight in any work for hire analysis:

[T]here are some factors that will be significant in virtually every situation. These include: (1) the hiring party's right to control the manner and means of creation; (2) the skill required; (3) the provision of employee benefits; (4) the tax treatment of the hired party; and (5) whether the hiring party has the right to assign additional projects to the hired party. These factors will almost always be relevant and should be given more weight in the analysis, because they will usually be highly probative of the true nature of the employment relationship.^[18]

This list of five factors has come to be referred to as the "Aymes factors."^[19] It should be noted that, in establishing this weighted interpretation of the Reid test, the Second Circuit in Aymes relied not on any one of the twelve factors presented by Reid, but rather on the central concern presented by the common law of agency which Reid's twelve factors were intended to illuminate.^[20]

Finally, in applying its list of five super-important factors, the Aymes court further emphasized two in particular, elevating them to near-dispositive status. The Aymes court held that the defendant's "failure . . . to extend to Aymes any employment benefits or to pay any of his payroll taxes" was tantamount to a "virtual admission of Aymes's status by [the defendant] himself."^[21] The Second Circuit relied on the district court's findings that Aymes received neither employee benefits from the defendant nor was provided with health, unemployment or life insurance benefits, as Aymes was considered a "part-time" hired party. The Aymes court also relied on the district court's finding found that the defendant did not pay a share of Aymes's social security taxes and did not withhold federal or state income taxes, as Aymes was issued a yearly 1099 tax form. As a result, the Second Circuit observed that it would be inequitable and "completely inconsistent" to allow an employer that had "deliberately chose[n] to deny Aymes two basic attributes of employment it presumably extended to its workforce" to then take a diametrically opposite approach by claiming Aymes as an employee in a defense to a copyright infringement suit.^[22]

After having evaluated all of the factors, the Second Circuit in Aymes found that there were two undisputed factors in favor of employment status, three against it, and that the remaining factors were "relatively insignificant or negligible in weight because they [were] either indeterminate or inapplicable to these facts."^[23] Thus, even on a straight balancing test of the factors deemed relevant, the Second Circuit would have found that Aymes was not an employee. However, the court went one step further and observed that the weight that it assigned to the tax and benefits status was so overwhelming that all of the other factors could not "outweigh the significance we attach to [defendant's] choice to treat Aymes as an independent contractor when it was to [their] financial benefit. Now that this treatment is no longer to [defendant's] benefit, the company must still adhere to the choice it made."^[24]

Aymes's is significant in three respects. First, it establishes that the Reid factors should be weighted according to the facts and circumstances of each case, not tallied mechanistically. Second, it asserts that there are five factors which are consistently and reliably more important than the others. And third, it implies that an employer who financially benefits by failing to offer payroll taxes or employee benefits to a party is essentially estopped from later asserting that the party was an employee. Each of these propositions has fared differently in subsequent decisions.

IV. The Reid Test Has Evolved into a "Weighted Balancing Test"

There is near-universal agreement among the circuits that the Reid factors should be applied as a weighted balancing test, i.e., that "[i]t does not necessarily follow that because no one factor is dispositive all factors are equally important, or indeed that all factors have relevance in every case. The factors should not merely be tallied but should be weighted according to their significance in the case."^[25]Aymes is certainly not the first court to apply Menager with that proposition in mind,^[26] ut it is increasingly being cited as its cleanest expression.^[27] Furthermore, following the Supreme Court's holding in Darden,^[28]the district courts of the Second Circuit have applied the Aymes interpretation of the Reid factors in Title VII^[29]and Age Discrimination Act (ADA)^[30]actions to determine employment relationships.

Although the Sixth Circuit is the only other federal court of appeals to expressly adopt Aymes,^[31]]other circuits that have confronted Reid have acknowledged that there will be certain factors which are more relevant to a given fact pattern than others. For example, the Eighth Circuit, in an ERISA dispute over pensions, adopted an approach in which the court considers "all of the incidents of the relationship . . . with no one factor being decisive" and then "balanc[es] the . . . factors on each side of the employee-independent contractor question to reach [a] conclusion."^[32] In affirming the district court's decision, the Eight Circuit in Berger Transfer noted that the district court based its decision on a discussion of only six factors of Reid, but there was evidence in the record that it may have considered four others, and that the remaining factors were irrelevant.^[33] Though not explicit, this clearly evidences the same analytical framework as Aymes by acknowledging that some factors will be of greater importance, some of lesser, and others may be irrelevant in determining if a hired party is an employee or independent contractor for work made for hire issues in the copyright area, or any other areas that involve determining employment relationships.

Despite the unspoken consensus among the circuits that the Reid factors should be weighted according to their significance in the case, there are conspicuous contradictions among the circuits as to exactly what factors will be considered when the hired party is an employee for copyright or for other purposes. For example, the Fifth Circuit, in determining whether a work was a work for hire, held that "the Court [in Reid] made clear that 'the hiring party's right to control the manner and means by which the product is accomplished' is just one of numerous factors to consider,"^[34] while the Eighth Circuit, in an ERISA action, held that this same factor is the "fundamental inquiry" of the common law agency analysis.^[35]The First Circuit, in a work made for hire dispute, stressed that the factors presented by Reid were non-exclusive and looked to the representations of the parties as probative of employee status,^[36] while the Third Circuit has expressly stated that the party's representations are irrelevant to the determinative issue of the actual nature of the relationship in a work made for hire dispute over the ownership of a computer software program.^[37]

The one district court outside of the Second Circuit to cite Aymes, although relying on Aymes for the proposition that "the factors should not merely be tallied but should be weighted according to their significance in the case,"^[38]found independent contractor status despite the fact that there were numerically more factors supporting employee status.^[39]The federal court in Illinois went on to observe that:

Aymes also sought to structure a kind of weighted approach under which (to crib from the classic sentence in Orwell's Animal Farm) some factors are more equal than others. For purposes of this opinion it is unnecessary to decide whether that gloss should be superimposed on what the ultimate authority--the Supreme Court--has said in [Reid].^[40]

It is difficult to see, however, how the court ruled as it did -- for the result favored by fewer Reid factors -- if it did not recognize that some factors had more weight than others.

IV. The Current Status of the Aymes Factors

The assertion in Aymes that five specific Reid factors are reliably more probative than the others and should therefore form the core of any analysis has not been adopted outside of the Second Circuit. Indeed, the Sixth Circuit, the only circuit that has expressly adopted the reasoning of Aymes, pointedly ignored the Aymes factors and instead identified facts of the its own list of factors which were relevant to the facts of the case before it.^[41]Second Circuit, however, the Aymes factors remain the starting point, and often the ending point as well, for applications of the Reid test to work made for hire copyright disputes. The Second Circuit has decided two cases applying the Reid test since Aymes. In Carter v. Helmsley-Spear, Inc.^[42] the court began by observing that "[t]he district court properly noted that Aymes established five factors which would be relevant in nearly all cases . . . [a]nalysis begins with a discussion of these factors."^[43]he court found that two Aymes factors weighed in favor of independent contractor status and three pointed towards employee status. The court, however, went on to conclude that there were numerous other "formal indicia of an employment relationship" such as: the payment of a weekly salary; the existence of a contract which stipulated that the parties would not take on additional work which would interfere with their ability to work full-time for the hiring party; the fact that they were provided with nearly all of the required supplies by the hiring party; and the fact that they were not free to hire additional help without the approval of the hiring party.^[44]us, the Carter court made its determination not on an evaluation of the Aymes factors alone, but after consideration of all of the factors relevant to the case.

By contrast, the Second Circuit's most recent application of the Aymes factors was far more cursory. In Graham v. James,^[45] the court affirmed the holding that James was an independent contractor with little more discussion than the observation that "we give greater weight to certain of the Reid factors" and "almost all of the Aymes factors line up in favor of that conclusion [of independent contractor status]: James is a skilled computer programmer, he was paid no benefits, no payroll taxes were withheld, and his engagement by Graham was project-by-project."^[46] The one Aymes factor which "arguably" weighed in favor of an employee relationship was the degree of general control over the work which the hiring party maintained.^[47] Nonetheless, the concurrence of "almost all of the Aymes factors" was sufficient to dictate affirmance and the court did not discuss the relevance of any remaining Reid factors.

In two New York district court decisions that discussed the Aymes factors in a work made for hire situation -- Langman Fabrics v. Samsung America, Inc.^[48] and Innovative Networks, Inc. v. Satellite Airlines Ticketing Centers, Inc.^[49] -- one court followed the Aymes analyses, while the other did not. In Langman Fabrics, the court concentrated on the Aymes factors and briefly discussed the remaining Reid factors, but concluded that the defendant artist was an independent contractor, relying on ... the fact that the design involved a high degree of creative skill, that Langman did not provide employee benefits and the conflicting, and unsubstantiated evidence with respect to whether or not taxes were withheld compels the conclusion that the artist was an independent contractor and not plaintiff's employee.^[50]

In Innovative Networks, the court did not apply the Aymes factors in finding that the hired party was an employee, but rather weighed certain Reid factors as follows:

First, Martin is not a licensed architect or engineer and does not have a formal trade or profession. Accordingly, his work did not require skills beyond the capacity of an ordinary layman. Second, INI owned all of the materials used to prepare the INI Orlando Floor Plan, including the paper, pencils, drawing tablets, desk space and photocopy material. Third, Martin worked regular business hours at INI's offices for two years during which time he drafted the INI Orlando Floor Plan. During the course of his employment, Martin was "told what to do and when to do it" . . . . Martin did not hire or pay assistants. Fourth, the INI Orlando Floor Plan was prepared in the ordinary course of INI's business. Finally, [the employer] made all of the creative decisions necessary to prepare the INI Orlando Floor Plan. . . .Taken together, these factors indicate that Martin was an employee who prepared the INI Orlando Floor Plan in the course of his employment.^[51]

Regardless, the Aymes factors appear still to serve as a starting point for issues involving employee status under the common law of agency. Their value lies in the fact that they provide a framework for commencing the analysis, not that they are necessarily accurate predictors of the outcome. By confirming the twelve-to-thirteen-plus factored balancing test of Reid to a more manageable set of factors, Aymes provides both judges and litigants with a more manageable framework for addressing the common law of agency than the unpredictable and often impenetrably impressionistic process involved in an unadorned balancing test with so many factors.

V. Aymes' Denial of Payroll Taxes and Benefits

Following Aymes, the Second Circuit has clarified its position on the decisiveness of whether the hired party had payroll taxes deducted and whether the hired party was entitled to employee benefits. The Second Circuit concluded in Carter that "while the existence of payroll formalities alone would not be controlling, in combination with other factors, it may lead to a conclusion that a given work is one made for hire."^[52] The court further elaborated the policy concerns implicated in giving these two factors too much weight in copyright cases:

We also recognize that by counting indicia such as health insurance and paid vacations against the artists' independent contractor status, it may appear that artists are regrettably being forced to choose between the personal benefits inuring in an employment relationship and VARA's [Visual Artists Rights Act of 1990] protection of the artists' work afforded only to independent contractors.^[53]

Nonetheless, the court did confirm that "when an employer today denies an artist 'basic attributes of employment' like vacation time and health benefits, such denial will be wholly inconsistent with a 'work for hire' defense."^[54]

In practice, this appears to create a regime under which a professed employer will be virtually estopped from asserting a "work for hire" defense in cases where it refused to provide its claimed "employees" with employee benefits or to pay payroll taxes.^[55] The Carter court was careful to specify, however, that the converse will not be true -- an employer who does provide such benefits still has to meet the balance of the Reid factors before an employee-employer relationship will be found. Unsurprisingly, courts outside of the Second Circuit, which have not recognized the Aymes factors, have likewise not joined the debate over the relative weight of these two particular factors and do not appear to accord them any more weight than other factors.

VI. Conclusion

Aymes v. Bonelli remains the definitive gloss of the Reid test in the Second Circuit. Any federal court within the Second Circuit jurisdiction that is confronted by a determination of employee status under the common law of agency for work made for hire purposes will likely begin with an analysis of the Aymes factors, which will often be led by an evaluation of the tax and employee benefits status. Outside of the Second Circuit, however, despite the silent consensus that the Reid factors are to be weighted according to their relevance to a given case, the Reid analysis generally remains less formalistic as circuits, for the most part, refrain from adopting any guiding framework for courts to employ when addressing the Reid factors. Although Aymes is the first court to attempt such a framework, and despite limited instances of other courts beginning to follow suit, the future of the Aymes gloss on Reid still remains to be seen.

1. A version of this article was presented at the Intellectual Property Law Section's Fall Meeting at the Sagamore.
2. Susan E. McHale is an intellectual property associate at Coudert Brothers in New York City. The author would like to express her sincere thanks to Peter Sharp, a summer associate at Coudert Brothers, and Shari Rosenblum, an associate at the firm, for their assistance with this article.
3. 980 F.2d 857 (2d Cir. 1992).
4. 490 U.S. 730 (1989). The multi-factor test annunciated in Reid stated: "...Among the other factors relevant to this inquiry are (1) the skill required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the extent of the hired party's discretion over when and how long to work; (7) the method of payment; (8) the hired party's role in hiring and paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) whether the hiring party is in business; (11) the provision of employee benefits; and (12) the tax treatment of the hired party."Id. at 751-52.
5. Id. at 751-52.
6. Id.
7. Id. at 737.
8. The phrase "work for hire" is used interchangeably in this article with the phrase "work made for hire".
9. Section 101 of the Copyright Act defines a "work made for hire" as: (1) a work prepared by an employee within the scope of his or her employ; or
   (2) a work specially ordered or commissioned . . . if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
   17 U.S.C.A. § 101 (1996).
10. Reid, 490 U.S. at 751.
11. Id.
12. Id. at 751.
13. See id. at 752-3.
14. 503 U.S. 318 (1992).
15. Id. at 319.
16. Darden, 503 U.S. at 324 (citation omitted).
17. Aymes, 980 F.2d at 861 (emphasis supplied). The District Court in Aymes had interpreted the Reid test to be a straight balancing test in which it was the court's task to evaluate each factor in turn, tally up the score, and then declare a winner based on which side had garnered more factors in its favor. See id. at 860-2.
    
18. Id. at 861.
19. See, e.g, Graham v. James, 46 U.S.P.Q.2d 1760, 1764 (2d Cir. 1998) (applying "Aymes factors").
20. See supra notes 10 and 11 and accompanying text.
21. Aymes, 980 F.2d at 862.
22. Id. at 862-3.
23. Id. at 863.
24. Id. at 864.
25. Id. at 861. This proposition has been unfailingly applied in the Second Circuit. See, e.g., Graham v. James, 46 U.S.P.Q.2d 1760 (2d Cir. 1998); Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) cert. denied 116 S.Ct. 1824 (1996); Langman Fabrics v. Samsung America, Inc., 967 F.Supp. 131 (S.D.N.Y. 1997); Innovative Networks, Inc. v. Satellite Airlines Ticketing Centers, Inc., 871 F.Supp. 709 (S.D.N.Y. 1995).
26. See, e.g., Marco v. Accent Publishing Co., 969 F.2d 1547 (3d Cir. 1992) (holding that photographer was an independent contractor while ignoring some factors of the Reid test and noting that some were "indeterminate" and should not be considered). It is interesting to note that there is no mention in this case of the Aymes factors.
27. See, e.g., Hi-Tech Video Productions, Inc. v. Capital Cities/ABC, Inc., 58 F.3d 1093 (6th Cir. 1995). "The district court misapprehended the Supreme Court's statement [in Reid] that no single factor is conclusive in the agency analysis and improperly used this principle to dismiss the relative importance of several factors. . . . We agree with the Second Circuit's approach [in Aymes] to applying the factors in the agency analysis." Id. at 1096-7.
28. 503 U.S. 318 (1992) (adopting the Reid test for the purposes of determining employee status under ERISA). Following Darden, many of the circuits have continued to refer to the "Reid factors", see Dykes v. DePuy, Inc., 140 F.3d 31 (1st Cir. 1998); Graham v. James, 46 U.S.P.Q.2d 1760 (2d Cir. 1998); Quintanilla v. Texas Television, Inc., 139 F.3d 494 (5th Cir. 1998); Hi-Tech Video Productions, Inc. v. Capital Cities/ABC, Inc., 58 F.3d 1093 (6th Cir. 1995), while others now refer to them as the "Darden factors." See Berger Transfer v. Central States, 85 F.3d 1374 (8th Cir. 1996); Loomis Cabinet Co. v. Occupational Safety & Health Comm'n, 20 F.3d 938 (9th Cir. 1994). In either case, the language and the factors are identical.
29. See Tagare v. NYNEX Network Systems Co., 994 F.Supp. 149 (S.D.N.Y. 1997) (Title VII case).
30. See Gargano v. Diocese of Rockville Centre, 888 F.Supp. 1274 (E.D.N.Y. 1995) (ADA case), aff'd, 80 F.3d 87 (2d Cir. 1996).
31. See Hi-Tech Video Productions, Inc. v. Capital Cities/ABC, Inc., 58 F.3d 1093 (6th Cir. 1995).
32. Berger Transfer v. Central States, 85 F.3d 1374, 1376, 1378 (8th Cir. 1996) (citations omitted).
33. See id. "While some of these facts may favor employee status, they do not compel such a conclusion. Certainly, in our weighing of the evidence, they do not tip the scale in that direction." Id. at 1380.
34. Quintanilla v. Texas Television, Inc., 139 F.3d 494, 497 (5th Cir. 1998) (citation omitted). See also, Aymes at 980 F.2d 857, 861 (holding the right to control the manner and means of production to be one of many non-dispositive factors).
35. Berger Transfer, 85 F.3d at 1379.
36. See Saenger Org., Inc. v. Nationwide Ins. Licensing Associates, Inc., 119 F.3d 55, 61 (1st Cir. 1997) ("The understanding of the parties as to the nature of their relationship is also probative of a conventional master-servant relationship as understood by common law agency doctrine.").
37. See MacLean Associates, Inc. v. WM.M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 778 (3rd Cir. 1991) ("apparent employee relationship and the fact that plaintiff represented himself as an employee of defendant to a third party completely irrelevant to determinative issue of "actual" employee status).
38. Respect Inc. v. Committee on Status of Women, 815 F.Supp. 1112, 1117-8 (N.D.Ill. 1993) (quoting Aymes).
39. See id.
40. Id. at 1118 n.11.
41. See Hi-Tech Video, 58 F.3d at 1096-99 (6th Cir. 1995). The court in Hi-Tech Video determined that the factors relevant to the case were: (a) the right to control, actual control, and skill required (Aymes factors 1 & 2); (b) method of payment, employee benefits, and tax treatment (Aymes factors 3 & 4); (c) perceptions of the parties (not an Aymes factor); (d) the scope of the business (not an Aymes factor) and; (e) remaining factors (deemed irrelevant). See id.
42. 71 F.3d 77 (2nd Cir. 1995).
43. Id. at 86.
44. See id. at 87.
45. 46 U.S.P.Q.2d 1760 (2d Cir. 1998).
46. Id. at 1764.
47. See id.
48. 967 F.Supp. 131 (S.D.N.Y. 1997)
49. 871 F.Supp. 709 (S.D.N.Y. 1995)
50. Langman Fabrics, 967 F.Supp at 135.
51. Innovative Networks, 871 F.Supp. at 718-9.
52. Carter, 71 F.3d at 87.
53. Id.
54. Id. (quoting Aymes).
55. See, e.g., Tagare v. Nynex Network Systems Co., 994 F.Supp. 149, 155 (S.D.N.Y. 1997) (provision of the tax forms for non-employee compensation seen as "virtual admission" of hired party's status); Langman Fabrics v. Samsung America, Inc., 967 F.Supp. 131 (S.D.N.Y. 1997) (failure to provide benefits or payroll taxes "virtual admission" of employee status).