                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 98-2281
                                  ___________

Ron and Judy Kirk, doing business as   *
Iowa Pedigree,                         *
                                       *
               Appellees,              * Appeal from the United States
                                       * District Court for the
      v.                               * Western District of Missouri.
                                       *
Gary Harter,                           *
                                       *
               Appellant.              *
                                  ___________

                             Submitted: January 14, 1999

                                 Filed: August 27, 1999
                                  ___________

Before WOLLMAN1 and FLOYD R. GIBSON, Circuit Judges, and TUNHEIM,2
      District Judge.
                          ___________

WOLLMAN, Chief Judge.




      1
        Roger L. Wollman became Chief Judge of the United States Court of Appeals
for the Eighth Circuit on April 24, 1999.
      2
        The HONORABLE JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota, sitting by designation.
       In this copyright dispute, the district court entered judgment on a jury verdict in
favor of Iowa Pedigree. Because we find that Harter was an independent contractor,
we reverse.

                                            I.

       Iowa Pedigree, a partnership owned by Ron and Judy Kirk, is in the business of
assisting dog breeders and brokers to comply with American Kennel Club (AKC) and
United States Department of Agriculture (USDA) licensing and registration
requirements. Iowa Pedigree sought to develop computer software that would aid its
customers in conforming to these regulations.

      In 1989, Ron Kirk learned from a kennel owner that Harter had written a
computer program that allowed the owner to track information on the dogs bred and
sold by the kennel. In May of 1989, Kirk asked Harter to develop a computer program
for Iowa Pedigree to assist dog brokers with AKC and USDA regulations. Harter
agreed and eventually helped Iowa Pedigree develop the software.

      For the next six years, Harter worked on a variety of projects for Iowa Pedigree.
He developed several computer programs, maintained the computers at Iowa Pedigree,
and serviced the software of Iowa Pedigree’s clients. In 1996, several customers
terminated their relationship with Iowa Pedigree and began receiving services directly
from Harter. Iowa Pedigree then sued Harter for copyright infringement,
misappropriation of trade secrets, and tortious interference with business expectancies.

       The jury found that Harter was liable for copyright infringement. In addition, the
jury found that Harter had misappropriated Iowa Pedigree’s trade secrets in violation
of Iowa law and that he had tortiously interfered with the business expectancies
between Iowa Pedigree and its customers. In addition to awarding compensatory
damages, the jury awarded punitive damages in the amount of $50,000.00. The district

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court entered judgment against Harter, but set aside the verdict in favor of Iowa
Pedigree on the claim of misappropriation of trade secrets.

                                           II.

       The central issue in this appeal is whether Iowa Pedigree is the sole owner of the
copyrights to the computer programs. The Copyright Act provides that an employer
is the author when an item is considered a work made for hire. See Community for
Creative Non-Violence v. Reid, 490 U.S. 730, 743-44 (1989); 17 U.S.C. § 201(b).
See also 17 U.S.C. § 101 (defining work made for hire as “a work prepared by an
employee within the scope of his or her employment”); MacLean Assoc., Inc. v. Wm.
M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 775-76 (3rd Cir. 1991) (explaining
work made for hire doctrine). Whether the computer programs in this case are works
made for hire turns on the nature of the employment relationship between Iowa
Pedigree and Harter. See e.g. Siebersma v. Vande Berg, 64 F.3d 448, 449 (8th Cir.
1995) (explaining the significance of employment status in a copyright ownership case
involving a computer programmer).

      To determine the employment status of an individual under the copyright statutes
when there is no written employment agreement, we look to the common law rules of
agency. See Reid, 490 U.S. at 750-51. In applying the common law test, we examine
several factors to determine employment status, including “the hiring party’s right to
control the manner and means by which the product is accomplished.” See id. at 751.
Other factors to be taken into account include

      the skill required; the source of the instrumentalities and tools; the
      location of the work; the duration of the relationship between the parties;
      whether the hiring party has the right to assign additional projects to the
      hired party; the extent of the hired party’s discretion over when and how
      long to work; the method of payment; the hired party’s role in hiring and
      paying assistants; whether the work is part of the regular business of the

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      hiring party; whether the hiring party is in business; the provision of
      employee benefits; and the tax treatment of the hired party.

Id. at 751-52 (citations omitted). No single factor is determinative of employment
status. See id. at 752.

       “[W]hether a given individual is an employee or independent contractor is a
question of law, which must be decided by reviewing the particular facts of each case.”
Berger Transfer & Storage v. Central States, 85 F.3d 1374, 1377 (8th Cir. 1996)
(quoting Short v. Central States, Southeast & Southwest Areas Pension Fund, 729 F.2d
567, 571 (8th Cir. 1984)). See also Alford v. United States, 116 F.3d 334, 336 (8th
Cir. 1997); Birchem v. Knights of Columbus, 116 F.3d 310, 312 (8th Cir. 1997). In a
court-tried case, the findings regarding each of the underlying common-law factors are
reviewed under the clearly erroneous standard of review, with the ultimate question of
employment status being reviewed de novo. Berger v. Transfer & Storage, 85 F.3d at
1377-78 (citing Dole v. Snell, 875 F.2d 802, 805 (10th Cir. 1989)). In the present case,
however, the question of Harter’s employment status was submitted to the jury.
Because the evidence was largely undisputed, we need not dwell on the degree of
deference that should be shown to the jury’s findings regarding the Reid factors, for we
conclude that the evidence compels a determination that Harter was in fact an
independent contractor and not an employee, with the result that he was the owner of
the computer program and thus not liable for copyright infringement.

      Throughout Harter’s relationship with Iowa Pedigree, his pay was reported to
the Internal Revenue Service by Iowa Pedigree on form 1099 as payment to an
independent contractor. Harter reported the pay as self-employed income. Iowa
Pedigree did not withhold any portion of Harter’s pay for income taxes, nor did it
withhold social security taxes. Harter received no medical, retirement, or vacation
benefits while working for Iowa Pedigree. Iowa Pedigree’s failure to provide
employment benefits or withhold any payroll taxes is probative evidence of Harter’s


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status as an independent contractor, as “every case since Reid that has applied the test
has found the hired party to be an independent contractor where the hiring party failed
to extend benefits or pay social security taxes.” Aymes v. Bonelli, 980 F.2d 857, 863
(2d Cir. 1992); see also Birchem, 116 F.3d at 313 (stating that financial relationship,
including tax treatment, is highly probative of employment status).

       Moreover, Harter received payments on an irregular basis. For example, in
August of 1991, he was paid on the 12th, 17th, and 19th, whereas he did not receive
any payment from December 19, 1989, to July 11, 1990. Harter did not use a time
clock or submit the number of hours he worked to Iowa Pedigree, except in the form
of an invoice. This absence of regular, periodic payments is an indicia of independent
contractor status. See MacLean, 952 F.2d at 777.

       In addition, throughout his six-year relationship with Iowa Pedigree, Harter
continued to engage in computer consulting with other companies, a factor suggesting
that he was an independent contractor. See Berger Transfer, 85 F.3d at 1380 (stating
truck owner-operators driving for multiple companies was key in finding that they were
independent contractors); Aymes, 980 F.2d at 862 (finding computer programmer
highly skilled); Maclean, 952 F.2d at 777 (same).

       In 1992, Harter hired a second programmer, Dennis Blazek, to work on a
particular project. Harter’s 1992 tax return shows that payments made to Blazek were
reported as subcontractor expenses, a fact indicative of Harter’s status as an
independent contractor. See Reid, 490 U.S. at 751-52 (hiring and paying assistants is
relevant to determining employment status).

      Conversely, some factors support a finding that Harter was an employee of Iowa
Pedigree. Harter traveled extensively with Ron Kirk throughout the six-year period.
The two visited clients of Iowa Pedigree to “de-bug” their computer systems. Harter
attended several trade shows with Kirk, where he wore an Iowa Pedigree “uniform”

                                          -5-
and worked in the Iowa Pedigree booth, where he would answer questions regarding
the services provided by Iowa Pedigree. On these trips, Iowa Pedigree paid for
Harter’s expenses. Each of these facts favors a finding that Harter was an employee.
See Aymes, 980 F.2d at 863 (stating that right of the hiring party to assign projects is
strong evidence of employee status, although assignment of additional duties is not
necessarily inconsistent with an independent contractor relationship).

       Although Ron Kirk had no computer skills, he directed the projects through his
knowledge of the AKC and USDA compliance requirements. In addition, he directed
the hours and days that Harter would work, a fact that suggests an employer-employee
relationship. See Reid, 490 U.S. at 752 (fact that hiring organization directed
sculptor’s work favored finding hiring organization controlled the project); Short, 729
F.2d at 574 (stating that a workers ability to determine when and how long he would
work favored finding that he was an independent contractor).

       Although Harter did some work at home, he also spent a significant amount of
time in the Iowa Pedigree offices. The six-year duration of the relationship, and Iowa
Pedigree’s furnishing of equipment also favor finding an employment relationship. See
NLRB v. United Ins. Co. of America, 390 U.S. 254, 259 (1968) (finding permanent
relationship favored status as employee); Aymes, 980 F.2d at 864 (stating that work
done at company office supports employee status, but had negligible weight when
computer programmer needed access to hiring party’s computer hardware).

      On balance, we conclude that the factors which might support a conclusion that
an employer-employee relationship existed are insufficient to overcome the evidence
that Harter was an independent contractor. Iowa Pedigree did not treat Harter as an
employee for tax purposes and did not pay him traditional employee benefits.
Furthermore, Harter was highly skilled, continued to consult with other companies, and
on at least one occasion unilaterally hired a subcontractor. We find the Second
Circuit’s reasoning in Aymes persuasive, and we therefore conclude that Harter was

                                          -6-
an independent contractor. See Aymes, 980 F.2d at 862-64 (finding that the skill, tax
treatment, and employee benefit factors compelled a finding that a computer
programmer was an independent contractor). Thus, as owner of the computer programs
he designed for Iowa Pedigree, Harter cannot be held liable for copyright infringement.

       The jury was instructed that to find for Iowa Pedigree on its claim for tortious
interference, each of the following elements must have been shown by the weight of the
evidence:

            First, plaintiffs had contracts or business expectancies with
      customers which were terminated by the customers,

             Second, defendant caused the customers to terminate their
      relationships with plaintiffs, and

            Third, defendant did so intentionally and without justification or
      excuse, and

             Fourth, plaintiffs were thereby damaged.

Jury Instruction No. 30.

       We will affirm the jury’s finding of tortious interference if it is supported by
substantial evidence. See Central Telecommunications, Inc. v. TCI Cablevision, Inc.,
800 F.2d 711, 732 (8th Cir. 1986). Liability for tortious interference with business
relations may not be sustained based “upon speculation, conjecture, or guesswork, and
no fact essential to submissibility can be inferred absent a substantial evidentiary
basis.” Mueller v. Abdnor, 972 F.2d 931, 938 (8th Cir. 1992).

       We conclude that there is insufficient evidence to support a finding that Harter
tortiously interfered with Iowa Pedigree’s business expectancies. The owners of the
former customers testified that they were unhappy with the continually rising prices at

                                          -7-
Iowa Pedigree, that they were uncomfortable with Iowa Pedigree because they believed
that Ron Kirk was divulging information regarding their businesses, and that they were
unhappy with the manner in which Kirk demanded payment for services. In addition,
the former customers testified they had solicited Harter and that he had not pursued
them. Accordingly, the judgment entered on this claim must be set aside.

       Because Harter was an independent contractor and thus not liable for copyright
infringement, and because the claim of tortious interference with business relations is
not supported by the evidence, no basis remains for affirming the award of punitive
damages. Accordingly, it is set aside.

       The judgment is reversed, and the case is remanded to the district court for entry
of judgment dismissing the complaint.

      A true copy.

             Attest:

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




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