4 ms·

It's important that independent developers know that (by default) they retain the copyright to their code and to anything produced from their code. Unless agre

It's important that independent developers know that (by default) they retain the copyright to their code and to anything produced from their code. Unless agreed otherwise, a company contracting you does not have the right to build off your code without your permission - they have an implicit license to use your code for the reasons they expressed to you, and no more. This is an important part of contract negotiation. If a company wants the right to use what I built for them, they pay one price. I find it helpful to make it explicitly clear exactly what we are agreeing. If they want the right to my code, there are several disadvantages for me: I could lose potential future work from them, and I lose some competitive advantage gained from my past work and skill that's gone into that, and I might lose the right to reuse my own code. They will normally pay a much higher price to cover that disadvantage, depending on how thoughtfully this is negotiated and the nature of the work. This is different from employed developers, who give up their copyright to the employer (again, by default). In my experience, freelancers in creative fields tend to be very aware of this situation and apply it skilfully. If Nike started using the swoosh in a way which they hadn't agreed upfront, the designer has a definite copyright claim there, and both parties ought to have known this when she first agreed to do the work. Indeed, the article reads like they later paid her off with shares. This is my understanding from the UK; I am not a lawyer.

MatthewWilkes 12y ago
Your understanding is wrong. If you don't put an explicit licence in place then the implied licence is a matter for the courts to decide based on what a reasonable person would expect, not just what was discussed (as that's explicit licencing). If you're contracting without an explicit licence then not only are you doing it very wrong, but any implied licence would certainly include the right to derivative works. If you sold a piece of off-the-shelf software as a whole I think you could argue it wasn't intended for derivative works to be allowed but you certainly don't have the right to restrict it if you are relying on an implicit licence. If you're not handing over IP rights because you're wanting to lock your clients in to using you in future rather than trying to retain clients with quality work then you're doing them a disservice.
- learnstats2 12y ago
  > any implied licence would certainly include the right to derivative works I'm fairly confident that you are wrong, on this particular point, but I'm happy to be corrected. Copyright remains with the author/coder unless it is explicitly transferred (or is work-for-hire, as in an employer-employee relationship). Copyright cannot normally be implicitly transferred. Derivative works remain the property of the copyright holder. As I said, I do make this explicit and discuss it with potential clients in advance, and I recommend that to everyone. The quality of my work is excellent and I'm not concerned about that. I don't hand over IP rights for the same reasons that Disney don't hand me over IP rights when I buy a Mickey Mouse sweater. If you create, you have rights to that creation and those rights should be respected. This is a fair business practice in that it applies to everyone equally - it applies when I commission creative work from other people too. Edited to add: http://en.wikipedia.org/wiki/Implied_license http://en.wikipedia.org/wiki/Implied_license "Unauthorised use of the work would therefore infringe the creator's copyright. Nevertheless, the commissioner may have an implied license to use the commissioned work, although only for the particular purpose under which the commission was originally agreed."
  - tomp 12y ago
    > Copyright remains with the author/coder unless it is explicitly transferred (or is work-for-hire, as in an employer-employee relationship). But isn't company-contractor also a work-for-hire relationship?
    - learnstats2 12y ago
      Work-for-hire is a legal term (and maybe a US-specific term?) in this context so I'm not sure. Here is the official advice: https://www.gov.uk/ownership-of-copyright-works https://www.gov.uk/ownership-of-copyright-works "in settling disputes the courts have typically had to decide whether the employee was working under a ‘contract of service’ (eg as an employee) or a ‘contract for services’ (eg as a freelancer or independent contractor)." So, it seems to depend if the contractor is seen as an employee in legal terms - in that case, the contractor should expect employment rights and benefits as well.
Merpick 12y ago
For safety always have a contract that also states who the copyright owner is. In New Zealand's copyright act there's a terrible bit of law called a "commissioning clause" that says if person A commissions person B to produce some work and there's some assumption about A paying B, then A owns all the rights to it even if they neither paid for it nor explicitly agreed to pay. There was a case of a company producing a free sample of engineering work and then trying to reuse that elsewhere. The court decided the recipient of the work was the copyright owner and the company that produced it could not reuse it. Where was the payment? They hoped the recipient would layer become a paying client for future work. Most other developed countries have removed similar clauses but NZ's government recently voted to retain theirs. IAAL
bobbytherobot 12y ago
I'm no copyright lawyer, but it looks like to me that you are wrong in the U.S.: http://www.copyright.gov/title17/92chap2.html http://www.copyright.gov/title17/92chap2.html > 201. (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. > 203. (a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:
- learnstats2 12y ago
  Work made for hire is a legal term which implies an employer-employee relationship (see also https://en.wikipedia.org/wiki/Work_made_for_hire https://en.wikipedia.org/wiki/Work_made_for_hire) Commissioned work is usually not work made for hire in the US, and so your quote wouldn't apply, unless it has been very explicitly agreed: "there must be a written agreement between the parties specifying that the work is a work made for hire by use of the phrase "work for hire" or "work made for hire."" Note: Wikipedia suggests it is highly unfavourable to the creator to agree to this term, in comparison to a simpler copyright transfer.
  - unsquare 12y ago
    Work for hire means that the artist transfers ownership, they can't even use it in their portfolio's unless the work for hire contract states otherwise. They can also modify,deface,butcher it without needing the artists consent.

MatthewWilkes 12y ago

Your understanding is wrong. If you don't put an explicit licence in place then the implied licence is a matter for the courts to decide based on what a reasonable person would expect, not just what was discussed (as that's explicit licencing). If you're contracting without an explicit licence then not only are you doing it very wrong, but any implied licence would certainly include the right to derivative works. If you sold a piece of off-the-shelf software as a whole I think you could argue it wasn't intended for derivative works to be allowed but you certainly don't have the right to restrict it if you are relying on an implicit licence. If you're not handing over IP rights because you're wanting to lock your clients in to using you in future rather than trying to retain clients with quality work then you're doing them a disservice.

learnstats2 12y ago
> any implied licence would certainly include the right to derivative works I'm fairly confident that you are wrong, on this particular point, but I'm happy to be corrected. Copyright remains with the author/coder unless it is explicitly transferred (or is work-for-hire, as in an employer-employee relationship). Copyright cannot normally be implicitly transferred. Derivative works remain the property of the copyright holder. As I said, I do make this explicit and discuss it with potential clients in advance, and I recommend that to everyone. The quality of my work is excellent and I'm not concerned about that. I don't hand over IP rights for the same reasons that Disney don't hand me over IP rights when I buy a Mickey Mouse sweater. If you create, you have rights to that creation and those rights should be respected. This is a fair business practice in that it applies to everyone equally - it applies when I commission creative work from other people too. Edited to add: http://en.wikipedia.org/wiki/Implied_license http://en.wikipedia.org/wiki/Implied_license "Unauthorised use of the work would therefore infringe the creator's copyright. Nevertheless, the commissioner may have an implied license to use the commissioned work, although only for the particular purpose under which the commission was originally agreed."
- tomp 12y ago
  > Copyright remains with the author/coder unless it is explicitly transferred (or is work-for-hire, as in an employer-employee relationship). But isn't company-contractor also a work-for-hire relationship?
  - learnstats2 12y ago
    Work-for-hire is a legal term (and maybe a US-specific term?) in this context so I'm not sure. Here is the official advice: https://www.gov.uk/ownership-of-copyright-works https://www.gov.uk/ownership-of-copyright-works "in settling disputes the courts have typically had to decide whether the employee was working under a ‘contract of service’ (eg as an employee) or a ‘contract for services’ (eg as a freelancer or independent contractor)." So, it seems to depend if the contractor is seen as an employee in legal terms - in that case, the contractor should expect employment rights and benefits as well.

Merpick 12y ago

For safety always have a contract that also states who the copyright owner is. In New Zealand's copyright act there's a terrible bit of law called a "commissioning clause" that says if person A commissions person B to produce some work and there's some assumption about A paying B, then A owns all the rights to it even if they neither paid for it nor explicitly agreed to pay. There was a case of a company producing a free sample of engineering work and then trying to reuse that elsewhere. The court decided the recipient of the work was the copyright owner and the company that produced it could not reuse it. Where was the payment? They hoped the recipient would layer become a paying client for future work. Most other developed countries have removed similar clauses but NZ's government recently voted to retain theirs. IAAL

bobbytherobot 12y ago

I'm no copyright lawyer, but it looks like to me that you are wrong in the U.S.: http://www.copyright.gov/title17/92chap2.html http://www.copyright.gov/title17/92chap2.html > 201. (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. > 203. (a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:

learnstats2 12y ago
Work made for hire is a legal term which implies an employer-employee relationship (see also https://en.wikipedia.org/wiki/Work_made_for_hire https://en.wikipedia.org/wiki/Work_made_for_hire) Commissioned work is usually not work made for hire in the US, and so your quote wouldn't apply, unless it has been very explicitly agreed: "there must be a written agreement between the parties specifying that the work is a work made for hire by use of the phrase "work for hire" or "work made for hire."" Note: Wikipedia suggests it is highly unfavourable to the creator to agree to this term, in comparison to a simpler copyright transfer.
- unsquare 12y ago
  Work for hire means that the artist transfers ownership, they can't even use it in their portfolio's unless the work for hire contract states otherwise. They can also modify,deface,butcher it without needing the artists consent.