4 ms·

Right off the bat Joel makes what appears to be a very serious mistake regarding work for hire. His opening logic is as follows: - When you hire a contract ph

Right off the bat Joel makes what appears to be a very serious mistake regarding work for hire. His opening logic is as follows: - When you hire a contract photographer to make some pictures, he owns the copyright on those pictures even though you hired him. - The same goes for your programmer employees. They own the copyright on their work. - Therefore you need to require your programmer employees to sign an agreement to sign their work over to you. I am not a lawyer, but I'm pretty sure that's a gross misunderstanding of work for hire. If someone is your employee, they are doing work for hire and you own the copyright on their product. Photographers own their work because they were independent contractors and thus their work was not work for hire. I believe work for hire doesn't apply to patents, thus possibly justifying a patent agreement. But seriously, this (AFAIK) broken explanation is his opening justification?

ilamont 7y ago
> When you hire a contract photographer to make some pictures, he owns the copyright on those pictures even though you hired him. Depends on how the two parties set up the deal. If you want the copyright or to change the license in some way that gives you (the publisher) more rights, the agreement will spell out those details and you could up spending more (maybe a lot more). I sometimes work with professional photographers and for pre-existing work I pay for a non-exclusive license that costs less than a commissioned piece. I also use stock photography extensively which works in a similar manner. For commissioned photography or design work I'll insist on owning the copyright and the agreement will spell out that it's not work-for-hire: To the extent that the Provider’s Work includes any work of authorship entitled to protection under the laws of copyright, the parties acknowledge and agree that (i) the Provider’s Work has been specially ordered and commissioned by Publisher as a contribution to a collective work, a supplementary work, a translation, or such other category of work as may be eligible for treatment as a “commissioned work” and a “work made for hire” under the United States Copyright Act; (ii) the Provider is an independent contractor and not an employee, partner, joint author or joint venturer of Publisher; (iii) the Provider’s ’s Work shall be deemed a “commissioned work” and a “work made for hire” to the greatest extent permitted by law; and (iv) Publisher shall be the sole author of the Provider’s Work and the Work, and the sole owner of original materials embodying Work and the Work, and/or any works derived therefrom. Of course, the photographer or designer can opt to reject these terms, or make additional demands upon the publisher (more money, the right to use images in their own promotional materials, etc.) Not sure how it works with independent contractors doing programming.
- greglindahl 7y ago
  ... as mentioned above, in the US both programming employees and independent contractors doing programming usually sign a pre-employment agreement that makes all of this clear.
Slartie 7y ago
I don't know the exact legal situation in the US, but let me assure you, the described legal copyright situation is very much possible, because German copyright works exactly like that. I am a software developer, so I write software. I am employed full-time by an employer for which I (usually) write code, documentation and such, and still I own the copyright to each and every line of code or documentation or whatever I write. Simply because copyright in German law is non-transferrable. Even if I want to, I cannot sign over the copyright to anybody else, hence my employer couldn't make me sign it over to him in my employment contract. Instead, there's a clause that I grant my employer an exclusive and irrevocable right to use the work I create during my paid work time in any way he wants. This effectively leaves me with the copyright, but I don't have any rights to profit off of that work anymore, so that copyright isn't of much use to me.
- oh_sigh 7y ago
  Is there any observable difference between copyright being reassigned from employee to company vs copyright remaining with the individual but the company getting automatic exclusive and irrevocable use of the copyright?
  - droithomme 7y ago
    You have the right to be identified as the author of the work.
- LinaLauneBaer 7y ago
  You have every right to profit according to German law. You have to be compensated appropriately for your employer to be allowed to use what you hold the copyright for. Usually this is ensured by your monthly salary. However, if what you did and hold the copyright for becomes a surprise success you have to be compensated appropriately in addition to your salary. In practical terms, if your code makes a billion bucks and you only get a regular average salary you could sue the employer and would probably win.
  - qayxc 7y ago

ilamont 7y ago

> When you hire a contract photographer to make some pictures, he owns the copyright on those pictures even though you hired him. Depends on how the two parties set up the deal. If you want the copyright or to change the license in some way that gives you (the publisher) more rights, the agreement will spell out those details and you could up spending more (maybe a lot more). I sometimes work with professional photographers and for pre-existing work I pay for a non-exclusive license that costs less than a commissioned piece. I also use stock photography extensively which works in a similar manner. For commissioned photography or design work I'll insist on owning the copyright and the agreement will spell out that it's not work-for-hire: To the extent that the Provider’s Work includes any work of authorship entitled to protection under the laws of copyright, the parties acknowledge and agree that (i) the Provider’s Work has been specially ordered and commissioned by Publisher as a contribution to a collective work, a supplementary work, a translation, or such other category of work as may be eligible for treatment as a “commissioned work” and a “work made for hire” under the United States Copyright Act; (ii) the Provider is an independent contractor and not an employee, partner, joint author or joint venturer of Publisher; (iii) the Provider’s ’s Work shall be deemed a “commissioned work” and a “work made for hire” to the greatest extent permitted by law; and (iv) Publisher shall be the sole author of the Provider’s Work and the Work, and the sole owner of original materials embodying Work and the Work, and/or any works derived therefrom. Of course, the photographer or designer can opt to reject these terms, or make additional demands upon the publisher (more money, the right to use images in their own promotional materials, etc.) Not sure how it works with independent contractors doing programming.

greglindahl 7y ago
... as mentioned above, in the US both programming employees and independent contractors doing programming usually sign a pre-employment agreement that makes all of this clear.

Slartie 7y ago

I don't know the exact legal situation in the US, but let me assure you, the described legal copyright situation is very much possible, because German copyright works exactly like that. I am a software developer, so I write software. I am employed full-time by an employer for which I (usually) write code, documentation and such, and still I own the copyright to each and every line of code or documentation or whatever I write. Simply because copyright in German law is non-transferrable. Even if I want to, I cannot sign over the copyright to anybody else, hence my employer couldn't make me sign it over to him in my employment contract. Instead, there's a clause that I grant my employer an exclusive and irrevocable right to use the work I create during my paid work time in any way he wants. This effectively leaves me with the copyright, but I don't have any rights to profit off of that work anymore, so that copyright isn't of much use to me.

oh_sigh 7y ago
Is there any observable difference between copyright being reassigned from employee to company vs copyright remaining with the individual but the company getting automatic exclusive and irrevocable use of the copyright?
- droithomme 7y ago
  You have the right to be identified as the author of the work.
LinaLauneBaer 7y ago
You have every right to profit according to German law. You have to be compensated appropriately for your employer to be allowed to use what you hold the copyright for. Usually this is ensured by your monthly salary. However, if what you did and hold the copyright for becomes a surprise success you have to be compensated appropriately in addition to your salary. In practical terms, if your code makes a billion bucks and you only get a regular average salary you could sue the employer and would probably win.
- qayxc 7y ago