Forum Moderators: not2easy
We have worked together on every detail of this project and it is my idea through and through. In the beggining I did not see the re-licensing possibilities of the project but now I do.
We have no written agreement but have an understanding we would continue to work together in resale of item to others.
I am paying him for his labor too.
What are my rights here? Is it a work for hire?
And either way should I have the opportunity to pay him a larger sum and assume complete economic copyright owner? Or should we do a split and if so with something like 75 / 25 going my way?
Thanks!</font>
My cynical answer, based upon my own experiences, is:
"the copyright holder is the one who can afford the better lawyer"
Under UK law, if he was employed by you then you own the copyright. But with nothing written down, it's a free for all!
Matt
mostly from scratch
What do you mean by that? If the software developer used code from other sources, there may be issues of copyright and licensing with the "borrowed" code. You should inquire about that as well.
We have no written agreement...
Without one, you're on a sticky wicket.
Is it a work for hire?
Not without a written agreement engaging him as your employee. The fact you've been paying him is irrelevant here.
Does anyone have any feelings, feedback, experience on what a fair split / deal would entail.
PS - to the person who mentioned a lawyer, thanks and I might inquire with one but the first person I spoke to wanted a $5,000 deposit and like I said above, worst case I will start this project over as opposed to a long drawn out battle
Since you have a copy of the source, it creates difficulties if you were to hire someone else to duplicate the work.
Here's what I would do. Set a value for each copy as manufacturers, and split that 50-50. Then have a fair sales commission that either of you can make, say 50% markup. So if the product sells for $300, you each get $100 and whoever makes the sale gets an extra $100.
But something you might want to consider before you decide that you deserver the larger cut - support and upgrade costs. I've been the programmer in the situation you are describing, and there is a huge difference between coding for in-house use, and coding a product for sale. If the programmer is expected to support the product, they deserve hourly pay off the top, before the base price is split.
The programmer owns the copyright in the code since he wrote the code. What you have is an idea, and ideas fall in the realm of patents.
BigDave... this is a pretty broad statement and since I hear it here a lot I'd love to see some court cases that have tested the limits of this.
Code does not get written in a vacuum. Sometimes the programmer is given an idea, sometimes functional specs, and sometimes technical along with the functional specs.
I've seen technical specs so detailed that the coding of them is more of a translation or a derivative work.
If I give a programmer a written database schema and a 1000 articles and his job is to code a website to read and display the articles can he now claim sole copyright of the website including the content?
If I sit down with a programmer and we go back and forth for a few days working on a website where I am providing all the design direction who owns the copyright?
I have been a programmer (and technical architect) for over 20 years now and I know from experience that a finished software product is a combination of ideas, design, QA and with web programming, content creation.
It's hard for me to grant just the coder the copyright if they had only a portion of the product creation.
Andy
It seems like both sides of the equations has a point.
I should mention that if I started this project over, it would not include any of the original source code but just the idea which no one owns.
I am going to offer this person 3x what I initially agreed to for full economic copyright but "only" in regards to re-licensing if for "my particular industry".
I now need to come up with the terms for what would be fair if let's say this became software that could be used by many other industries. I'm not looking to screw anyone over but if if it's my idea from a to b and I am going to do the marketing, selling etc. I feel I should just pay this person fair "licensing fees" which yes I agree includes fair market per hour for work throughout and 3 to 4 times what the normal job costs.
Thx
BigDave... this is a pretty broad statement and since I hear it here a lot I'd love to see some court cases that have tested the limits of this.
There are no limits to test. The work-for-hire provisions are some of the most clearly written in copyright law. It is either a work-for-hire or it is not. If it is not, then the copyright in the code lies with the author. Go to copyright.gov and search on "work for hire".
Code does not get written in a vacuum. Sometimes the programmer is given an idea, sometimes functional specs, and sometimes technical along with the functional specs.I've seen technical specs so detailed that the coding of them is more of a translation or a derivative work.
That is just plain silly, and shows a lack of understanding of "translation" and "derivative work". A translation would be doing something like taking a fortran program and translating it to cobol. It is NOT taking an idea put down in a spec, and turning it into code.
For it to be a derivative work would require significant copyrighted portions of the spec to be included in the code. In other words the spec has to be code.
Derivative works only get a controlling copyright over any part that comes from the original work. Any new work is not covered under that derivative work copyright, it goes to the author.
If I give a programmer a written database schema and a 1000 articles and his job is to code a website to read and display the articles can he now claim sole copyright of the website including the content?
No he can't and I never suggested that he could. We are talking about the software itself, not the data processed by the software. A software copyright is a specific type of copyright over the source code and binaries for a program.
If I sit down with a programmer and we go back and forth for a few days working on a website where I am providing all the design direction who owns the copyright?
If you didn't write any code or create any of the artwork, and don't have a work-for-hire agreement, the programmer has complete control of the copyright of the code. You might have an outside chance of claiming a copyright on the layout of the site. The same thing goes for the writers you hire to produce the articles.
Take a lesson from copyright.gov and get work-for-hire agreements with everyone that does any work for you that you will want to sell or allow others to work on. That is the way to do it, not to sit here thinking that it is somehow unfair to you.
I have been a programmer (and technical architect) for over 20 years now and I know from experience that a finished software product is a combination of ideas, design, QA and with web programming, content creation.
Of course it is. But the software copyright doesn't cover all those things. Patents are for covering ideas. Copyrights of design elements are protect those elements for those that created them. QA doesn't create anything they just provide feedback to the creators. Content is copyrighted by the content creators, what does that have to do with the software copyright?
It's hard for me to grant just the coder the copyright if they had only a portion of the product creation.
Thankfully, you aren't the one that grants the copyright. It is controlled by people that have actually read Title 17 and the relevant caselaw.
moppy56
I'm not looking to screw anyone over
Actually, it sounds like you are, you are concentration on what you think is fair for you. You aren't negotiating, you are sitting here coming up with reasons that you should get to do what you want. how about trying to be *more* than fair to the other party, and start considering them a partner, because that is what you will be. You hired him for something and you got that "something" which was code for you to use. Now you want to use it for more. That means negotiation with this person to come up with something that is fair in *both* your views. Quite simply, you are now negotiating for rights to finished software, and that is more expensive than hiring someone to produce the original work.
You have now seen the other code. If you want to hire someone else to produce the same thing, I suggest you go out and hire that $5000 lawyer for his opinion on how you can do that legally if the new software is going to look or behave in a very similar manner to the original product.
And I'm certain that you have no idea what is involved in producing and shipping commercial software. To tell you the truth, I expect that he would be better off taking your 4x the original payment deal, because you aren't likely to be able to sell it in its in-house form to more than a couple of people.
[edited by: BigDave at 5:29 pm (utc) on Mar. 21, 2007]
ps - not that i have to explain myself to you but my working history with artists, engineers, etc has been superb and i've always made a point of paying "more" than the market demands and a every developer has made 6 figure returns with me so don't paint such a wide stroke when you don't know a thing about the person you are talking about.
thx-
What you are essentially saying is that you are going to offer him a take-it-or-leave-it deal based on what you want, otherwise you are going to hire someone else. Have you even asked him what he would want out of the deal? You are now in a negotiation situation, but you don't seem to be willing to acknowledge that. This is not the same situation as when you are fair when hiring an engineer or an artist, you are in negotiations to purchase rights from a copyright holder.
I also don't believe you about having such a long history of enriching artists and engineers to the tune of 6 figure incomes. If you did you would already have contracts with work-for-hire written into them, and you would not balk at paying an attorney $5k.
By the way, did you only notice the "bitter" part, or did you notice the good advice? If you go around the copyright holder without properly clean room writing of the code, you could conceivably end up paying the copyright holder a lot more than you would by striking a deal that they consider fair. Negotiating a fair deal or paying a lawyer up front is the cheap way to do this, otherwise you are risking a lot more than you seem to realize.
BigDave... this is a pretty broad statement and since I hear it here a lot I'd love to see some court cases that have tested the limits of this.
There are no limits to test. The work-for-hire provisions are some of the most clearly written in copyright law. It is either a work-for-hire or it is not. If it is not, then the copyright in the code lies with the author. Go to copyright.gov and search on "work for hire".
Yes... but you seem to be confusing 2 things.
1) My examples were fairly specific to a website in general. The programmer may own the code of the website but another person my own the content. Who 'owns' the website? If neither piece can stand on its own what are the rights of each.
2) You seem to equate the person who types on the keyboard as the producer of the code. If I send you a functional spec and you send back completed code then in your case you are right.
But while the creator of the code owns the copyright in many environments the creator of the code is less obvious.
In pair programming does the individual programmers only own the actual code they typed in?
"Hey Bob... you might own the For Loop but I typed in the Break statement so I own the copyright to that"
In many of the newer software engineering methodologies the definition of code is expanded. Do we now have to look at the methodology the software was developed under to determine copyright ownership?
If you have an agile development environment and you stick a business person, a coder, a technical designer and a QA person in a room for a week with one computer to product a software product is there a single copyright owner?
If I commission a piece of software and the result has to heavily modified to work according to the original specifications (therefore a derivative) … who has rights to what?
On the flip side… I give you an entire set of HTML pages and you are commissioned to add some content to a portion those pages pulled from a database. You convert all the HTML you were given to PHP (therefore a derivative). Who owns the copyright to what?
While work for hire is pretty black and white as far as copyrights go there is definitely more gray area in determining who wrote the code. Saying that it is just the person that typed it in is not good enough.
That is where I was asking for specific court cases that tested some of these limits.
Andy
My lack of knowledge in copyright law is based on the fact that I have to this point done hand shake deals based on trust and have gotten screwed over a few times.
This is obviously a tricky subject and I have gotten many differing opinions from those here and those I have spoken to personally; lawyers, software writers themselves, posters in forums here and elsewhere in regards to intellectual propert law. I like to deal with people one and one but yes, unfortunately it does seem like getting a lawyer invloved here would be the best thing.
Most of those situations that you mention are in a business setting.
If you have an agile development environment and you stick a business person, a coder, a technical designer and a QA person in a room for a week with one computer to product a software product is there a single copyright owner?
Yeah, there is. It is almost certainly the business that is paying that group and they are either employees or they have signed work-for-hire agreements. Actually, a work-for-hire agreement might not even be necessary if the computer is owned by the company and it is on company premises. Again, go read the work-for-hire documents at copyright.gov.
But back to the basis of your question, if the code is physically created by one person, the copyright in the code is theirs unless they sign it away in some sort of contract. The others gave input, but they didn't write the code.
Now if you have one programmer working over another's shoulder, kibitzing the actual coding, that would be a more complicated situation, possibly leading to ...
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.
Just because you stand there and tell a painter to paint a tree, does not give you any copyright rights in that painting. If you suggest adding a tire swing, you still have no rights. You can have piles of suggestions, and you still don't have any rights. If you paint the mountains and lake in the background, and he paints the tree, the rope swing and the little girl, as part of an intentional agreement, then you have a joint work where you hold a joint copyright.
If the copyright matters to you, get it in writing. It's what real businesses do for a reason.
I like to deal with people one and one but yes, unfortunately it does seem like getting a lawyer invloved here would be the best thing.
You can still do it without getting a lawyer involved. It's called negotiation. Why are you here instead of asking the programmer what he would consider fair, and working out the details? He might even ask for less than what you are suggesting. He might just say that he intended that you get the copyright and he will sign the copyright transfer for pizza and beer. He might insist on a little more than you think is fair, but still less than it would cost you to develop it again, and with significantly less legal liability to you. It might be worth considering his offer.
As annoying and overused as the term "win-win" is, that is what you want to go for. You know what you want, now try and figure out what he would want, and try and give it to him
To summarize again, my aim is to gain the rights to marketing the software for a specific purpose and not to take full ownership of the source code. I feel there's a difference and offering him a licensing fee for that specific area seems fair to me. I would actually like to go into business with him licensing the software for many other purposes other than my specific profession.
Thanks for your time and I will follow up with the outcome or the total of my legal bill (:
If someone wants to make a piece of software and they know from the beggining they "do not" want to have a partner, split the profits, etc.. How do you recommend they go about that?
And if I have someone who responds to an add, who is not an on the books employee does the "work for hire" even apply?
I look forward to your thoughts.
thx -
In the United States it's simple. You just search the web for ["work for hire" contract] and you will find piles of freely modifiable versions. You should have a contract anyway if money is changing hands.
If you are in another country, I'd be willing to bet that it is called something other than "work-for-hire" and the laws about it will be a little different. For example in the UK, this page [intellectual-property.gov.uk] talks about making sure copyright ownership is clear in the contract, but it doesn't seem like using "work-for-hire" terminology is necessary or useful. Then again, it probably doesn't hurt.
You can expect to pay more, but not a lot more, for this right, at least when it comes to software.
thx -
Thanks and if I'm summarizing you correctly, if I have someone sign a "work for hire" agreement then I would own the source code afterwards. BUT if I wanted to reproduce the software then the designer would be entitled to more compensation.
No, it should be spelled out in the work for hire agreement that you own the copyright, thus the right to copy (reproduce) the software. The initial and only compensation should be negotiated on that basis.
That is the difference between getting the copyrights as part of the contract, and trying to add stuff, like distribution rights, after the work is completed. Once completed, the copyrights have a MUCH higher value, and you can expect to pay a lot more.
Thx for all the feedback.
