Intellectual Property

How does one declare ownership of code?

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5 Replies - 1760 Views - Last Post: 17 May 2009 - 03:23 AM

#1 mnewsome   User is offline

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Intellectual Property

Post icon  Posted 15 May 2009 - 07:19 PM

Greetings:

My name is Maurice... A systems administrator working in Washington, DC. Completley new to coding. I write to inquire if one hires another to develop an application who owns it? Is there some entity that is a globally accepted repository for this. Much thanks for any informed opinion
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#2 Martyr2   User is offline

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Re: Intellectual Property

Posted 15 May 2009 - 08:00 PM

In US copyright law when a company hires someone to write code for them the contract is a "work made for hire" and that any code written while under the company's employment is property of the company making the company the sole author of the code.

Makes sense right, the company pays for the coders time, supplies, and expertise. What they produce is then property of the company.

Now things change a bit if the person you hired is not actually an employee of your company and is considered an independent contractor. In that case the company can still claim ownership of the work but has to prove it based on a number of criteria including...

1) The skill required
2) The source of the tools
3) The location of where the work was done
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 hired party's discretion over when and how long to work
7) Whether the work is part of the regular business of the hiring party
8) Whether the hiring party is in business for himself
9) The provision of employee benefits
10) The tax treatment of the hired party.

Most of this can be hard to answer without having a contract, which is why it is always a good thing to get a contract put out there when bringing on an independent contractor. But if the company can prove these features to the satisfaction of a court, then the company again will most likely have the copyright on the work and thus own it.

So for all intents and purposes, companies should have a contract with those they hire and in it state that the code produced is property of the company. But if no such contract is in place and the hired party is an employee or the company can prove many of the 10 items listed above, the software is the property of the company.

:)
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#3 dsherohman   User is offline

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Re: Intellectual Property

Posted 16 May 2009 - 04:16 AM

View PostMartyr2, on 16 May, 2009 - 03:00 AM, said:

In US copyright law when a company hires someone to write code for them the contract is a "work made for hire" and that any code written while under the company's employment is property of the company making the company the sole author of the code.

Even in the case of a regular employee, things can get complicated if you're also creating anything (not just programs) outside of work and those rules vary from state to state. I'm told that, in New York, by default, anything created outside of work by salaried employees is also the employer's property, even if it's entirely unrelated to their job. In California, on the other hand, it not only belongs to the employee, but any contract stating otherwise is invalid.

Which gets right back to the conclusion you ultimately reached: Make a contract and get these details of ownership worked out in writing. It's the only way to be sure you won't encounter any unpleasant surprises.
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#4 AdaHacker   User is offline

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Re: Intellectual Property

Posted 16 May 2009 - 07:47 AM

View Postdsherohman, on 16 May, 2009 - 05:16 AM, said:

I'm told that, in New York, by default, anything created outside of work by salaried employees is also the employer's property, even if it's entirely unrelated to their job.

I'm pretty sure that's not true. Copyright laws are federal, so they don't vary from state to state, and that certainly isn't implied in federal law. Of course, many employment contracts for software developers do include a clause that could be construed to mean that every copyrightable thing you produce while employed by the company, regardless of what it is or when or where you work on it, belongs to the company. How enforcable that clause is may depend on what state you're in, but that's an issue of contract law, not copyright law.
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#5 NickDMax   User is offline

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Re: Intellectual Property

Posted 16 May 2009 - 09:02 PM

I had a long talk with my employer's lawyer when I was first hired. As AdaHacker points out there was a clause that made it seem like anything I produced while in their employment belonged to them.

Basically I did not get much reassurance. He did assure me that the intent was not to take ownership of my personal projects, but to ensure I didn't use code developed for them in my own personal projects. However I still feel that should I invent the next big thing, they will try to take a chunk of my change. TO guard against this he recommended that, should I start a project and feel that it is morphing into the next big thing, I may wish to visit the legal department and have it explicitly declared my property and not theirs. I got the assurance that the law was on my side here and the most the company could do to block such action was review my code looking for proprietary IP.

My advice, if you have questions ask your own lawyer.
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#6 dsherohman   User is offline

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Re: Intellectual Property

Posted 17 May 2009 - 03:23 AM

View PostAdaHacker, on 16 May, 2009 - 02:47 PM, said:

View Postdsherohman, on 16 May, 2009 - 05:16 AM, said:

I'm told that, in New York, by default, anything created outside of work by salaried employees is also the employer's property, even if it's entirely unrelated to their job.

I'm pretty sure that's not true. Copyright laws are federal, so they don't vary from state to state, and that certainly isn't implied in federal law. Of course, many employment contracts for software developers do include a clause that could be construed to mean that every copyrightable thing you produce while employed by the company, regardless of what it is or when or where you work on it, belongs to the company. How enforcable that clause is may depend on what state you're in, but that's an issue of contract law, not copyright law.

Copyright law itself is federal, yes, but I've been able to find confirmation (at http://womeninbusine...eo-copyrigh.htm ) of the claim I mentioned regarding California:

Quote

In California state law prohibits transferring copyrights from the author/creator to a client under "Work for Hire" agreements unless the creator is also treated as an employee.

In other words, anyone you hire independently to do your SEO work (which is considered copyrighted material) not only gets to keep full copyrights to their creations, but cannot legally transfer their rights to you unless certain conditions are met.


Although my quick check on google did not turn up similar confirmation of New York's policy, the fact that California can place limits on where copyright ownership ends up in "work for hire" arrangements shows that individual states do have the ability to pass laws at that level which affect the interpretation of "work for hire" and the resulting assignment of copyrights. It is, therefore, legally feasible that New York may have a law stating that your employer owns every idea you come up with unless you have a contract stating otherwise.

Which really just gets us back to the most important theme on this topic: Consult a lawyer competent in your jurisdiction. Even if someone on the internet gives you an answer that's correct where they live, Your Laws May Vary.
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