

Work made for hire doctrine does not generally apply to software - grellas
http://www.pillsburylaw.com/index.cfm?pageid=34&itemid=39637

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jacquesm
Everybody here that freelances or that hires freelance coders should read
this.

~~~
russell
Agreed. Always make contracted work a work for hire. A friend of mine did not
and he ending up paying $20,000 additional to ransom his software back. That
was 20 years ago when $20,000 was real money.

You also want to avoid having the employee become a Statutory Employee. See
footnote 3 in the article. If that happens, you can be hit with all sorts of
nasties like disability claims to IRS claims for withholding taxes.

It looks like there may be a CA minefield in there also if you DO make it a
work for hire.

~~~
carbocation
The point, as I understand it, is that you don't get to determine what
constitutes a work for hire - that is determined by law, and only 9 categories
of things (or work done by an employee) count. Your contract may need to be
written more carefully to ensure that you own the copyright when all is said
and done.

~~~
russell
Not quite. The law enumerates the things that are automatically work for hire.
Works outside those must be explicitly declared works for hire in the
contract. If you have done any contracting you will find the phrase in your
contract "work for hire".

Literary works are not automatically works for hire. I believe that software
is considered a literary work, strange as it seems. (IANAL)

~~~
tbrownaw
> Not quite. The law enumerates the things that are automatically work for
> hire. Works outside those must be explicitly declared works for hire in the
> contract.

The article specifically says that this is not correct: "A work made for hire
is not any work that you pay someone to create for you. _Nor is it any work
that you and a developer agree is a work made for hire_.".

Per TFA (quoting the law) it has to be (1) done by an employee, or (2) both
_in the list of 9 kinds of things_ (which does not include software) and
specifically declared to be a work for hire. Things that are not in the list
and are not done by employees cannot be works for hire regardless of what the
contract tries to claim.

------
alextingle
This is just an ad for a law firm.

You should always be clear who gets what when you freelance or when you hire
freelancers. Any legal "default" would fail to capture the subtleties. For
example, who owns the copyright to my "library code" when I use it in your
project?

I always prefer to specify something like a BSD license to the code. That
means that it doesn't matter who owns the copyright - we both get to do
anything we want with the code. If the client wants exclusivity, then we
explicitly agree that he gets 100% ownership of the code that was written just
for him, and the remainder is BSD licensed.

None of this is hard, and none of it requires a lawyer.

~~~
anigbrowl
It is sort of an ad, but a useful one.

I disagree about none of it being hard; there are a lot of potential pitfalls,
and disputes may arise not just between client and provider, but between
either of them and the labor or taxation authorities.

For example, A hires B to develop software tools for A's business, which takes
3 months of full-time work, during which B does not service any other clients.
B gets paid and assigns all his interest in the code to A and both walk away
happy. A year later B goes bankrupt or is involved in a messy divorce, and a
court takes control of his assets. In the course of assessing B's financial
position, they find the transaction with A was equivalent to employment, and
that B's financial position would be better if it had been treated as such for
the 3 months, which would in turn have made more funds available for B's
alimony or creditors. A may be asked to make good on additional obligations
that would have been payable to or on behalf of B, if B had been classified as
an employee (social security payments or suchlike). Even if both parties
agreed that B was an independent contractor, a court could invalidate that
agreement on the basis that statutory obligations of employers took precedence
and hold A liable for failing to meet those obligations. Or that A's payment
to B was far below reasonable market rates, and the administrator of B's
trust/estate/whatever may seek equitable relief from A. Or...

This is hypothetical of course, but not so far away from some real cases. And
as far as copyright is concerned, disputes can and do arise after the fact,
and an agreement that looked beautifully simple during friendship is
interpreted differently under acrimonious circumstances. I was involved in a
case like that last year as a witness, where a dispute arose between client
and vendor relating to payment and delivery, the client sued the vendor and
was counter-sued in turn, and the paperwork between them turned out to have
holes big enough to drive a truck through. After a second visit to court
yielded no result other than the parties threatening further legal action
against each other (though mainly out of bravado rather than serious intent),
I documented, copied, and quickly severed my relationship with both of them,
feeling that no good could come of it. Not fun.

------
Terretta
_Section 101 of the Copyright Laws defines a “work made for hire” as:_

 _1\. a work prepared by an employee within the scope of his or her
employment; or ..._

So, what's an employee? Startups, and developers working for startups, should
read about a recent case that tilts in the startup's favor:

[http://www.sonnenschein.com/pubs/clientalerts/JustMed_Inc_v_...](http://www.sonnenschein.com/pubs/clientalerts/JustMed_Inc_v_Byce_A_Tech_Upset.xml)

// Submitted this: <http://news.ycombinator.com/item?id=1344996>

~~~
tbrownaw
> So, what's an employee?

Someone who sells you their time, rather than something specific produced with
their time.

~~~
russell
It's way more complicated than that. It also depends on how much control a
contractor has over his task, hours, and tools. Even if you have a work for
hire agreement, micromanagement can turn the contractor into a Statutory
Employee. If you treat them as employees they may well turn out to be
employees if anything goes to court. Microsoft learned that the hard way.

EDIT: Clarification: The IRS and Labor department dont really like independent
contractors; it allows you all sorts of tax write-offs. They have a list of
tests to see if you qualify: available to work for anyone, advertising, the
list above, and a few other things. If you work at their site, using their
equipment, and are micromanaged, you may be declared a statuary employee. A
business license should be a simple remedy.

~~~
tbrownaw
Micromanaging someone, dictating their tools, etc, are telling them how to
spend their time. Which I would take to mean that they clearly must have sold
you that time (regardless of what's on paper) rather than whatever they're
producing with it.

------
lsb
How is a contractor working on a code base not working on a collaborative
work?

~~~
tbrownaw
That would be a "joint work", which is not in the list. What is in the list is
"a contribution to a collective work", which has to be distinct from the
whole.

<http://www.copyright.gov/title17/92chap1.html#101> : <<A “collective work” is
a work, such as a periodical issue, anthology, or encyclopedia, in which a
number of contributions, _constituting separate and independent works in
themselves_ , are assembled into a collective whole.>> <<A “joint work” is a
work prepared by two or more authors with the intention that their
contributions be merged into inseparable or interdependent parts of a unitary
whole.>>

