                                       ___________

                                  Nos. 95-2329/2412
                                      ___________

Mark L. Maness,                               *
                                              *
     Cross-Appellant/Appellee,                *
                                              * Appeals from the United States
              v.                              * District Court for the
                                              * Eastern District of Arkansas.
Jimmie Heavrin,                               *
                                              *         [UNPUBLISHED]
     Appellant/Cross-Appellee,                *
                                              *
Fun, Inc.,                                    *
                                              *
     Defendant.                               *


                                       ___________

                          Submitted:   September 20, 1996

                              Filed:   September 24, 1996
                                       ___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

PER CURIAM.


     Jimmie        Heavrin   appeals   and   Mark   Maness   cross-appeals   from   the
                      1
district court's          judgment following a bench trial in this copyright
infringement action.         We affirm.


     Maness claimed that he owned the copyright to a movie, "Tomorrow
Never Comes" (movie).        He asserted Heavrin, who had financed the movie, had
agreed to pay him 27% of the movie's gross




     1
      The Honorable John F. Forster, United States Magistrate Judge
for the Eastern District of Arkansas, to whom the case was referred
for final disposition by consent of the parties pursuant to 28
U.S.C. § 636(c).
revenues, after deducting initial production costs, but had never done so,
thus infringing Maness's copyright and breaching their oral contract.
After conducting a bench trial, the district court concluded that Maness
was an employee of Heavrin's when the movie was made; that the movie was
created within the scope of Maness's employment; and that, under federal
copyright law, the movie was a "work made for hire" to which Heavrin owned
the copyright.   The court further determined that the parties had entered
into an oral compensation agreement as Maness alleged and that, according
to such agreement, Maness was owed $35,370.


     We review the trial court's factual findings for clear error, and its
legal conclusions de novo.   See Little Rock Sch. Dist. v. Pulaski County
Special Sch. Dist., 83 F.3d 1013, 1017 (8th Cir. 1996); Church of God In
Christ, Inc. v. Graham, 54 F.3d 522, 525 (8th Cir. 1995); Fed. R. Civ. P.
52(a).


     We conclude that the district court's findings are not clearly
erroneous, and that, based on those findings, the district court correctly
concluded the movie was a "work made for hire."   See 17 U.S.C. § 101 ("work
made for hire" is "a work prepared by an employee within the scope of his
or her employment"); cf. Community for Creative Non-Violence v. Reid, 490
U.S. 730, 751-53 (1989) (under common law agency principles, sculptor was
independent contractor and work was not "work made for hire," where
sculptor supplied own tools, was in skilled profession, was unsupervised,
was retained for less than two months, had absolute freedom of when and how
long to work, had total discretion in hiring and paying assistants,
sculpting was not regular business of hiring party, and hiring party did
not pay payroll or social security taxes, provide benefits, or contribute
to unemployment insurance or worker's compensation funds).        There was
evidence that Maness was paid $200 a week in addition to the compensation
he was to receive from gross revenues, and that Heavrin made films and
videos as an ongoing sideline, had the right to control the manner and
means by which the movie was made, supplied most of the equipment and
locations,
and paid others Maness hired to work on the movie.   Because of the flexible
nature of the definition of employee under the "work made for hire"
doctrine, which may include informal, non-salaried employees, Reid, 490
U.S. at 742-43 n.8, 752, the district court's conclusion that Maness was
an employee does not conflict with its characterization of the percent-of-
gross payment scheme as one common to independent contractors.


       Although the district court's characterization of the payment scheme
as one common to independent contractors is not supported by the record,
the underlying finding that there was a percent-of-gross compensation
agreement is; because the court reached this finding after weighing
conflicting testimony, this finding of fact is not clearly erroneous.   Cf.
Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985) (findings based
on credibility determinations may "virtually never" be clear error);
Country Corner Food & Drug, Inc. v. Reiss, 737 S.W.2d 672, 674 (Ark. Ct.
App.   1987) (under Arkansas law, when testimony on the existence of
agreement conflicts, "a fact question arises that is best determined by the
trial judge").


       A true copy.


            Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                    -3-
