### The Honorable John F. Forster, United Sta tes Magistrate Judge 1 

### for the Eastern District of Arkansas, to whom the case was r eferred for final disposition by consent of the parties pursuant to 2 8 U.S.C. § 636(c). ___________ 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 Jimmie Heavrin, * * [UNPUBLISHED] Appellant/Cross-Appellee, * * Fun, Inc., * * Defendant.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 th e district court's judgment following a bench trial in this copyrigh t 1 infringement action. We affirm.

Ma ness claimed that he owned the copyright to a movie, "Tomorro w Never Comes" (movie). He asserted Heavrin, who had financed the movie, ha d agreed to pay him 27% of the movie's grossrevenues, after deducting initial production cos ts, but had never done so,

thus in fringing 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 hi re" to which Heavrin owned the copyright. The c ourt further determined that the parties had entered into an oral compensa tion 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, a nd 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. Graha m , 54 F.3d 522, 525 (8th Cir. 1995); Fed. R. Civ. P. 52(a).

We conclude that the district court's findings are not clearl y erroneous, and that, based on those findings, th e district court correctly concluded the movie was a "work made for hire." See 17 U.S.C. § 101 ("wor k 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 (198 9) (under common law agency principles, sculptor was independent contractor and work was not "work made for hire," wher e sculptor supplied own tools, was in skilled profession, was unsupervised,
was retained for less than two months, had absolute freedom of when and ho w 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 so cial security taxes, provide benefits, or contribute to une mployment insurance or worker's compensation funds). There wa s 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 an d videos as an ongoing sideline, had the right to control the manner an d
mea ns by which the movie was made, supplied most of the equipment an d locations,

### -3-

and paid others Maness hired to work on the movie. Because of the flexibl e nature of the definition of employee under the "work made for hire " doctrine, which may include informal, non-salaried employees, Reid , 49 0 U.S. at 742-43 n.8, 752, the district court's conclusion that Maness was an employee does not conflict with its character ization of the percent-ofgross payment scheme as one common to independent contractors.
Although the district court's charac terization of the payment scheme
as one common to independent contractors is not supported by the record, the und erlying finding that there was a percent-of-gross compensatio n agreem ent is; because the court reached this finding after weighin g conflicting testimony, this finding of fact is n ot clearly erroneous. Cf. Anderson v. City of Bessemer City , 470 U.S. 564, 575 (1985) (findings base d
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. 198 7) (under Arkansas law, when testimony on the existence o f agreement conflicts, "a fact question arises that is best determined by th e trial judge").

A true copy.

Attest:

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