Legal Protection for the Software Arts — Part 6

Kidon IP

Due to the size and complexity of computer code, the software is usually created by a team of programmers.

Consequently, to fully own software one must first make sure that each of the developers has relinquished any ownership claims that they may have. This is an important step because legally copyright ownership automatically vests in the individuals who create the work unless the work is a work made for hire. 

Under the Copyright Act’s work-made-for-hire provisions, a natural or legal person who does not create work is considered the work’s author if it is either: (1) The creator’s employer, for whom the employee has created the work within the scope of her employment; or (2) A party that has specially commissioned the work under a written agreement with the work’s creator acknowledging that the work is being made for hire.

For specially commissioned software to qualify as a work made for hire, either the commissioning party and creator must have a de facto employer-employee relationship under the common law of agency, or the commissioned software must fall within one of nine specific statutory categories. Because computer programs per se are not included among the nine categories of works that non-employers may commission as works made for hire, a party commissioning an independent contractor to develop software should obtain the contractor’s written assignment of the contractor’s rights in the resulting work to ensure that the creator’s rights in a program are effectively transferred to it. The commissioning party may also seek to qualify commissioned software for work-made-for-hire treatment by obtaining the commissioned contractor’s written agreement that the software is a work made for hire and either or both: (1) Establishing a de facto employment relationship with the contractor by fulfilling the common law agency requirements; and (2) Framing the software, where applicable, as part of an audiovisual work; a translation of another program or program language; or a compilation.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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