Works Made for Hire

Not every author is the owner of his or her original works of authorship. Many works are prepared by employees within the scope of their employment; those are works made for hire . In most countries , such works are owned by the employer. It is the employer who can decide whether or how to dispose of the work. The employee has no right, title, or interest in the work once the work is done. Here's what the U.S. Copyright Act says:

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author..., and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. (17 U.S.C. § 201[b].)

Sometimes employees create software on their own time using their own computers, software that has nothing to do with their real jobs as employees. In the United States, as long as writing that software is outside the scope of his or her employment, the employee owns the software and can dispose of it as he or she wishes.

Copyright law deals with works for hire differently in different jurisdictions, and even within the United States each state has different rules concerning ownership of employees' creations. Be careful to consult an attorney.

Not everyone who writes software for someone else is an employee. Many programmers are independent contractors who move from company to company, or from assignment to assignment, writing software on demand. In most jurisdictions, the copyrights to original works prepared by contractors are owned by the contractors themselves , unless there is a written agreement between the parties specifying otherwise.

What happens if there is no written contract? In this situation, even though a contractor owns the copyrights to software written for someone else, the person who hired the contractor to write the software will be entitled to a nonexclusive license to use the software for its intended purpose. That is because he or she paid for the work; otherwise, contractors could hold their software hostage from the very companies that paid to have it developed.

The default law regarding ownership of employee and contractor inventions in the absence of a contract varies from jurisdiction to jurisdiction. Most companies protect their own interests by executing written invention agreements with their employees and contractors in order to contractually ensure that the rules of ownership for patents are similar to those for copyrights. If you want to be sure to own your creations, consult an attorney.