Legal question regarding someone doing coding work for you

[The Equivocate]

Lets say you pay someone to code a custom program/script for you. You pay in full, so it becomes your property. You implement this program on your site and then through the course of using it you find out other webmasters are interested in using it on their own site. Does the fact that you paid for this custom script give you full resale rights, allowing you to sell the code to other webmasters?

Just wondering because I'm planning on getting a hack done for vBulletin which i KNOW there are dozens of other people interested in having for their own.

 

[Eric]

I would say no, unless you specifically state that upon completion of payment - it becomes your property, and you get all rights to the code - not allowing the coder to use/sell it, etc.

 

[Skinny]

I think you would have to tell him in advance.

It becomes your property but you might not be allowed to resell it so you have to make this clear prior to your payment.

Skinny

 

[-NC-]

My understanding is that unless the contract states that you will own the Intellectual Property, then the creator (the coder) still has IP rights.

 

[IAmAllanShore]

Horse's mouth:
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000201----000-.html

The juicy part:
(b) Works Made for Hire.— In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

-Allan :gl:

(AKA, 180 degrees from the above )

 

[-NC-]

I couldnt find anything as reliable as Cornell:

http://findarticles.com/p/articles/mi_m0GSZ/is_11_42/ai_53710428

The situation is different, however, if the programmer is an independent contractor. Unless there is a written contract transferring the copyright from the independent contractor to the company, the rights to the program belong to the programmer. The programmer may sell or lease the program to others even though the company paid for his services.

Of course this may be superseded (its from 1997) or just plain wrong!

 

[The Equivocate]

The Cornell article is at least citing the exact wording of the law/code... but I don't see any citing in the FindArticle article and yeah it's from 1997, I'm sure something in the last decade has changed (if FindArticle was citing a specific law or case)

 

[-NC-]

okay, *slightly* better source, this seems to indicate that "work for hire" is not exactly as it sounds:

http://www.answers.com/topic/work-for-hire

"There are two criteria for works for hire. It has to fit into one of nine specific categories, and there has to be a contract stipulating that it's a 'work for hire.' If one of those two elements is missing, then the work in question is not, repeat not, a work for hire."

The nine categories of materials eligible to be considered works for hire, as outlined in the Copyright Act, include works commissioned for use as: a contribution to a collective work; a part of a motion picture or other audiovisual work or sound recording; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; or an atlas.

I'd be really interested in seeing something that definitively explains what "Works Made for Hire" actually covers.

Found a .edu that refers to the actual law and a supreme court decision:

http://irt.austincc.edu/copyright/overview/workshire.html

If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.

Whether or not a particular work is made for hire is determined by the relationship between the parties. This determination may be difficult, because the statutory definition of a work made for hire is complex and not always easily applied.

There might be a big grey area here?

Sorry, if I'm going over board here, but as a programmer, this subject is very interesting to me:

http://www.hmw.com/workcite/20050526.htm

This rule, commonly known as the “work-for-hire” doctrine, might reasonably lead one to think that a business owns any work product that it hires and pays someone to prepare, whether the individual doing the work is an employee or independent contractor.

But law and intuition seem to part ways here, because the work-for-hire doctrine applies to work performed by independent contractors only if the parties have signed a “work made for hire” agreement and only for certain types of work.

The work-for-hire doctrine is a narrow exception to the general rule in U.S. copyright law

The bottom line seems to be: get it in writing that this is a "work for hire"

 

[The Equivocate]

Just to be clear... I would be the one paying the coder to do this work for me. I'm a little confused as to what actually applies... so when I pay this coder to do this work, I have to get it in writing that I own all rights to the code upon completion?

 

[-NC-]

Not sure that you HAVE to, but it might cover you against any future claims by the programmer you hire.

Just a thought, I guess you also want to protect your idea, not just the code? Might be an idea to get programmers to sign an NDA before even telling them the idea.

I have a suspicion that even with all this, once you release your vBulletin mod, someone could just copy it without using any of your source code.

 

[The Equivocate]

Well, it's a pretty in-depth hack... random people have been requesting it to be coded for the past 2 years on the forum and no one has done it. It's a lot of work to do for free which is why I need to hire someone to do it. So even when it is done, it won't be easy for someone to just copy it, there'd be too much work involved.

 

[enlytend]

A “work made for hire” is —

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

source: Copyright Law, as posted on the site of the US Copyright Office

Here's the shorter version (which also goes into international issues, which may or may not apply in your case).

Assuming we're talking about US copyright law, my understanding (I'm not a lawyer) is if the coder meets the definition of an independent contractor (as opposed to an employee), they retain rights to the work unless the conditions in paragraph 2 apply.

It never hurts to spell these things out in a contract - regardless of legal necessity, it also avoids nasty misunderstandings!

 

[labrocca]

Horse's mouth:
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000201----000-.html

The juicy part:
(b) Works Made for Hire.— In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

-Allan :gl:

(AKA, 180 degrees from the above )

Allan beat me to it....yes it's called a work-for-hire and you need to stipulate this whenever you contract a person to code for you. The law is fairly clear here.

 

[Ronald Regging]

I agree with everyone Thats rare.. Yes, there are exceptions for works-for-hire as Allen stated, but as others have mentioned, this usually refers to situations involving employees of companies, or if there are specific arrangements made to agree that it is a work-for-hire. By default, an independent programmer would own all the rights to the code, unless you specifically establish that it is a work-for-hire and transfer full rights to the buyer in the contract.

So if you want full rights, you need to have it in writing and I would expect to pay a lot more for it. Examples of this are Ghost Writers... You could have someone write you an article/book to include as content on your site, etc... But if you want them to give you the right to attach your own name as the author, you will be paying significantly more.

 

[scandiman]

Just to be clear... I would be the one paying the coder to do this work for me. I'm a little confused as to what actually applies... so when I pay this coder to do this work, I have to get it in writing that I own all rights to the code upon completion?

Yes, absolutely. This is a very important way to CYA.

 

[The Equivocate]

allright, sounds good. It just didnt seem fair that I would pay a coder to create a unique game that no one else has, give him all these ideas for how to implement the game and then he can just turn around and sell it himself.

 

[Ronald Regging]

allright, sounds good. It just didnt seem fair that I would pay a coder to create a unique game that no one else has, give him all these ideas for how to implement the game and then he can just turn around and sell it himself.

Well I can obviously understand where you're coming from, but you have to look at it in a different context as well. Programmers get many many clients, most of whom all want pretty much the same things done. Few ideas are truly unique. So if a programmer creates something for you, more than likely he'll be creating the exact same thing for another client at some point. Obviously the other client may want things a bit different, or whatever, but it's important that programmers have the rights to reuse their little bits of code that they may use over and over again ad nauseum. (modules? i dont know the correct term, haha).

Otherwise they'd have to reinvent the wheel every time and development costs would probably rise through the roof. So normally. If you want exclusive rights to the code, you gotta pay a hefty sum to get it.

But I agree, no one wants to pay a large amount of money for a custom coding job, and then see another site using the exact same code... Or even worse.. Finding that the coder decided to release the script for sale enmasse at a fraction of what you paid for it.

But like I said, I think it's sort of dependent on the price you pay. It's sort of the same thing as with templates. I've seen professionally designed templates for sale for $59... But if you want to buy ones with exclusive rights, they can cost 10x that or more...