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A Reason Why Your Contractual Agreement Shouldn't Be a “Work for Hire”

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Re: A Reason Why Your Contractual Agreement Shouldn't Be a “Work for Hire”

#21

Post by rch »

CalChris wrote: post #20
rebelde wrote: post #9

Can somebody point me to a model contract that does what we all want it to do? There must be some good ones out there that we can use.

Cooley has these. https://www.cooleygo.com/documents/ Adding Wilmer Hale, Orrick and Founders' Workbench https://launch.wilmerhale.com/build/document-generator/ https://www.orrick.com/Total-Access/Tool-Kit/Start-Up-Forms http://www.foundersworkbench.com/ I think Clerky does this as well. Documents just want to be free . https://techcrunch.com/2015/01/10/documents-just-want-to-be-...

My impression is that Cooley tends to be more company-favorable. Those docs are to help a startup get to the point where they can afford to hire Cooley.

Re: A Reason Why Your Contractual Agreement Shouldn't Be a “Work for Hire”

#22

Post by Thrillington »

arvidkahl wrote: post #12

While it may not fall under the precise definitions, I like to think that the source code I produce is both a translation (from an abstract concept language into a machine-executable/-readable language) AND an instructional text (for the machine to parse and execute). From the perspective of a machine, that makes a surprising amount of sense.

Sure, but the law is generally interpreted from the perspective of the humans

Re: A Reason Why Your Contractual Agreement Shouldn't Be a “Work for Hire”

#23

Post by daenney »

late2part wrote: post #5

Citation needed - why must they fall in one of these categories? The deliverables must fall within one of nine limited categories of works

It's literally in the same sentence you're quoting:

> Per 17 USC 101, the deliverables must fall within one of nine limited categories of works.

Though I'll grant you that 17 USC 101 might not be blatantly obvious, a quick Google search will reveal https://www.law.cornell.edu/uscode/text/17/101 as a source for further information.

Re: A Reason Why Your Contractual Agreement Shouldn't Be a “Work for Hire”

#24

Post by faitswulff »

MrFoof wrote: post #8

> A highly recommended practice is to institute a clause which covers a variety of scenarios of assignment of the copyright for all work produced. This is what I've done for years with my Service Agreement. IP transfer officially occurs on full payment, and rights are assigned to Client if Product would not be considered a work made for hire under applicable law. Though if I'm not paid, I send a written warning after…

How would you recommend drafting something similar? Did you work with a lawyer to produce your Services Agreement?

Re: A Reason Why Your Contractual Agreement Shouldn't Be a “Work for Hire”

#25

Post by late2part »

daenney wrote: post #23
late2part wrote: post #5

Citation needed - why must they fall in one of these categories? The deliverables must fall within one of nine limited categories of works

It's literally in the same sentence you're quoting: > Per 17 USC 101, the deliverables must fall within one of nine limited categories of works. Though I'll grant you that 17 USC 101 might not be blatantly obvious, a quick Google search will reveal https://www.law.cornell.edu/uscode/text/17/101 as a source for further information.

Your point is valid. Mea culpa. What isn't obvious to me is that the produced work is only protected by copyright, not trade secret property. But my wonder is immaterial to the practical issue as most code is copyrighted; and any arguments I would make about trade secrets or patents would be easily refutable without a long debate. Apologies and mea culpa.

Re: A Reason Why Your Contractual Agreement Shouldn't Be a “Work for Hire”

#26

Post by omginternets »

rebelde wrote: post #9

Can somebody point me to a model contract that does what we all want it to do? There must be some good ones out there that we can use.

I don't know a great deal about law, but http://www.contractstandards.com/ has been very helpful to me.

Re: A Reason Why Your Contractual Agreement Shouldn't Be a “Work for Hire”

#27

Post by DannyBee »

steveeq1 wrote: post #11

Ok, wait. I am somewhat confused by this article. It is from my (non-lawyer) understanding that intellectual property ownership generally default to the creator. This happens even in "independent contractor" type of relationships, from my understanding. In the case of an employee/employer relationship, on the other hand, IP generally lies on the employer. So if it's a work-for-hire relationship, IP automatically goes…

"So if it's a work-for-hire relationship, IP automatically goes to the potential employer? "

Yes.

Re: A Reason Why Your Contractual Agreement Shouldn't Be a “Work for Hire”

#28

Post by DannyBee »

joshuak wrote: post #15
dagss wrote: post #13

Earlier quoted context omitted.

At least in my country the IP goes to the author, full stop. In employment contracts you then specifically transfer the IP to the employer.

Though I'm not a lawyer, I have direct experience with this having successfully sued a client over IP related issues. Under California law all IP produced by an employee during their employment, that is within the domain of the employer's work product and regardless of where that work was produced, is by default owned by the employer. All IP produced by a independent contractor is owned by the independent contractor,…

" that is within the domain of the employer's work product and regardless of where that work was produced, is by default owned by the employer."

It's broader than that, actually.

Re: A Reason Why Your Contractual Agreement Shouldn't Be a “Work for Hire”

#29

Post by zekevermillion »

steveeq1 wrote: post #11

Ok, wait. I am somewhat confused by this article. It is from my (non-lawyer) understanding that intellectual property ownership generally default to the creator. This happens even in "independent contractor" type of relationships, from my understanding. In the case of an employee/employer relationship, on the other hand, IP generally lies on the employer. So if it's a work-for-hire relationship, IP automatically goes…

Different rights behave differently. Work-for-hire doctrine pertains to copyright only. An employee who produces "work-for-hire" never owns the copyrights to his creative work. Whereas with patentable inventions, all inventors must be named on any application for an invention, and any inventor who has not assigned her rights in writing will generally retain them, even if she was an employee of the applicant.

Re: A Reason Why Your Contractual Agreement Shouldn't Be a “Work for Hire”

#30

Post by jhummel »

Has anyone seen any clauses within an independent contractor agreement, which would allow the retention of certain pieces of the finished work? For instance, I write a class/component/plugin/etc. that I want to use in several projects to increase productivity. Is there a standard way to carve out and retain those pieces of code?
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