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Who owns the code?


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#1 fs86   Members   -  Reputation: 105

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Posted 10 September 2012 - 07:01 PM

Hi everyone,

Just a freshly-minted member here, but I've got a question about my code, here's the scenario:

Recently, a friend of mine got me a job building a web-based multiplayer game. Part of the game was outsourced, but I had to rewrite a lot of that, and the rest was left to me to write the code for. So basically, I've written both the client and most of the server-side code. Here comes the fun part: While I have been getting paid to do this work, there is no written contract (basically no documentation at all to confirm that I have been commisioned to write this game). Does that mean I own the code, or the company does?

Ideally, I'm looking for some legal info on this, as it has become pretty important recently, for details I can't and won't go into. I've read online that the ownership resides with the author, unless the author is an employee of the company, or a contract explicitly states who the owner is. As there IS no contract, therefore no employee record, etc. I'm worried that the waters are somewhat muddied and need some confirmation.

Thanks

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#2 Ravyne   GDNet+   -  Reputation: 7498

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Posted 10 September 2012 - 07:16 PM

You need to speak to a lawyer that's familiar with rules and regulations in your area. In some places it might be as you say that the work is yours without explicit agreement, but I think in most places the work belongs to whomever is paying you for it unless you have a contract that says otherwise.

When you think about it, any employment agreement usually starts out with the base assumption that in exchange for money, you are agreeing to do some work, and that the fruit of that work belongs to the employer. Otherwise it would essentially be charity for the company to be paying you.

#3 frob   Moderators   -  Reputation: 21488

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Posted 10 September 2012 - 07:51 PM

There is no contract in place, and they paid you money in exchange for services, so I'd call it a work for hire. That means they (as the contracting body) own the rights.

At this point since there is no written agreement it becomes a verbal agreement, and is up to a judge's interpretation. Or you can negotiate it and get it in writing now.
Check out my personal indie blog at bryanwagstaff.com.

#4 Xai   Crossbones+   -  Reputation: 1452

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Posted 10 September 2012 - 09:41 PM

There is NO standard answer to this. Even if you know the jurisdiction (lets assume TN / USA, since that's were I live and work). All copyright starts with the author. In general copyright does not transfer unless explicitly transferred. However, a work for hire is often viewed as implying such a transfer, unless something described the contract to the contrary. It is common for ownership to transfer to the investor, however it is equally common for ownership to stay with an author, and the investor to gain limited rights to it (such as for the project being worked on / bought).

However, your situation is FAR more complicated than even that. Since you didn't right the initial code ... so in this case you are probably screwed. Because it would be impossible for you to gain a copyright for something you didn't create without it being transferred to you. If the person who paid for the initial code (your soon to be ex friend) is NOT the owner of the original code, then there is no possibility for you to become the owner of the modified code - as it would reside with the original author. If your employer DOES own the original code, and you obviously knew this, then it would be reasonable for a court to say that - unless something was said to the contrary - when you took the job, you assumed similar terms to the previous author (meaning, if you know the previous authors code is the employers, and you knowingly added to it, you consented to let ownership reside with the employer). Because ADDING to code, DOES NOT make you own it, AT ALL. The original owner gains rights to your additions - by virtue of them being a part of the derivative work.

If someone shows you my code - and you extend it - your additions are legally mine, NOT YOURS. That's the fundamental nature of copyright. If you add a line, verse, or modification to a popular song, THEY have the right to use your change, but you did not and do not have any rights to the song whatsoever (including your additions).

Just read about the Verve to understand how this works.

#5 bschmidt1962   Crossbones+   -  Reputation: 1837

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Posted 10 September 2012 - 10:37 PM

The original owner gains rights to your additions - by virtue of them being a part of the derivative work.

If someone shows you my code - and you extend it - your additions are legally mine, NOT YOURS. That's the fundamental nature of copyright. If you add a line, verse, or modification to a popular song, THEY have the right to use your change, but you did not and do not have any rights to the song whatsoever (including your additions).


That is not accurate. If you extend someone else s work, you have created what is called a "Derivative work". Ownership of a derivative work is complex. You do not have the rights to that work, since it incorporates elements of someone else s work. So you can't sell/license it, etc. If you wanted to do that, you would need to obtain the explicit rights from the rights holder of the original work.

However, the original author does NOT have the rights to your original extensions of that work.
In the case of a song, if you make up a new verse to a song, the original songwriter does NOT have the rights to your new verse.
Computer code, same thing.

You should talk to a qualified copyright attorney. Even if there is no written contract, if there are email exchanges, etc that spell out terms or a "meeting of the minds", that may well have influence on what a judge would say.

You should talk to a qualified copyright attorney (No, that wasn't a typo-- it was important enough to say it twice Posted Image

Brian Schmidt

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GameSoundCon 2014:October 7-8, Los Angeles, CA

 

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Founder, Brian Schmidt Studios, LLC

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#6 fs86   Members   -  Reputation: 105

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Posted 11 September 2012 - 01:06 AM

Thanks for the advice. So it IS as complicated as I thought. But now as I understand it I have the derivative work, but does that mean that, for example, I can choose to not allow my work to be used, and force a reversion to the original work? Also, to complicate matters further, it is only one element of the code that I didn't write from scratch, so does that make the rest of the work isn't derivative?

#7 jbadams   Senior Staff   -  Reputation: 18742

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Posted 11 September 2012 - 01:09 AM

You should talk to a qualified copyright attorney (No, that wasn't a typo-- it was important enough to say it twice Posted Image

...and to quote for emphasis. You're on murky legal grounds, and you're not going to get any clear response -- and would certainly be lucky if you were able to pursue a favourable outcome -- without speaking to a professional.


If nothing else, a valuable take-away from this situation is that proper legal agreements -- or barring that at least a clearly stated plain-english agreement -- are really important, and for anything remotely serious should be sorted out sooner rather than later.

#8 bschmidt1962   Crossbones+   -  Reputation: 1837

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Posted 11 September 2012 - 11:17 AM

But now as I understand it I have the derivative work, but does that mean that, for example, I can choose to not allow my work to be used, and force a reversion to the original work?

It's not quite that simple.
What happened is that you and whomever paid you did have a contract. It may not have been written down,but clearly since someone started writing you checks and you started writing code, there was some sort of agreement. You knew what to write, they knew how much to pay you.

Since it was not a written agreement, it gets very hard. If there is a dispute (which reading between the lines, it sounds like there is), then the way disputes are settled in such cases in in the courts. Either you sue them because they're using "your" code, or they sue you for their money back if you're not handing over the code you wrote, etc.

What will then happen is that a Judge will have to create a contract for you, after the fact, based on what you say, what they say and whatever evidence (email thread, logs, notes, etc). And they will decide who owns the code.

Although I would advice contacting a lawyer versed in copyright and contracts law, I have to believe that if someone gave you some instructions on what code to write, wrote checks for you to write it and then you wrote that code, it would be difficult to believe the agreement between you was anything but a "Work for Hire" agreement. A judge would look at all of the facts and then judge what would be a reasonable contract.

Although I suggest you contact an attorney (there-I've said it 4 times:)), if they paid you a reasonable rate (in the normal range for "work for hire" programming) and you accepted their money, I think you'd have an uphill case saying it wasn't a work for hire.

But to answer your question with a much more simple answer:
If you write code and get paid for it, but don't have a written contract, that does NOT mean that you automatically own what you've written.

Edit for clarification. What I should have written was: If you write code and get paid for it and don't have a written contract it does not mean that you would automatically win if you were sued (for example, if you then sold/licensed it to someone else). It was a certainly huge error on the part of the person who is paying you to not ensure that you had a contract.

Brian Schmidt
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Edited by bschmidt1962, 11 September 2012 - 03:21 PM.

Brian Schmidt

Executive Director, GameSoundCon:

GameSoundCon 2014:October 7-8, Los Angeles, CA

 

Founder, EarGames

Founder, Brian Schmidt Studios, LLC

Music Composition & Sound Design

Audio Technology Consultant


#9 samoth   Crossbones+   -  Reputation: 4792

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Posted 11 September 2012 - 11:38 AM

as it has become pretty important recently, for details I can't and won't go into.

To me, this reads a bit like "I now have an offer from a direct competitor and since I wrote that stuff and there's no written contract, I'd reuse what I have, and sell to them". Don't correct me if I'm wrong, and don't tell me if I'm right -- just saying what this looks like.

If it is anything like that, stay away from that idea, for your own good. Don't even talk about it. Seriously.

#10 fs86   Members   -  Reputation: 105

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Posted 12 September 2012 - 07:05 PM

But now as I understand it I have the derivative work, but does that mean that, for example, I can choose to not allow my work to be used, and force a reversion to the original work?

It's not quite that simple.
What happened is that you and whomever paid you did have a contract. It may not have been written down,but clearly since someone started writing you checks and you started writing code, there was some sort of agreement. You knew what to write, they knew how much to pay you.

Since it was not a written agreement, it gets very hard. If there is a dispute (which reading between the lines, it sounds like there is), then the way disputes are settled in such cases in in the courts. Either you sue them because they're using "your" code, or they sue you for their money back if you're not handing over the code you wrote, etc.

What will then happen is that a Judge will have to create a contract for you, after the fact, based on what you say, what they say and whatever evidence (email thread, logs, notes, etc). And they will decide who owns the code.

Although I would advice contacting a lawyer versed in copyright and contracts law, I have to believe that if someone gave you some instructions on what code to write, wrote checks for you to write it and then you wrote that code, it would be difficult to believe the agreement between you was anything but a "Work for Hire" agreement. A judge would look at all of the facts and then judge what would be a reasonable contract.

Although I suggest you contact an attorney (there-I've said it 4 times:)), if they paid you a reasonable rate (in the normal range for "work for hire" programming) and you accepted their money, I think you'd have an uphill case saying it wasn't a work for hire.

But to answer your question with a much more simple answer:
If you write code and get paid for it, but don't have a written contract, that does NOT mean that you automatically own what you've written.

Edit for clarification. What I should have written was: If you write code and get paid for it and don't have a written contract it does not mean that you would automatically win if you were sued (for example, if you then sold/licensed it to someone else). It was a certainly huge error on the part of the person who is paying you to not ensure that you had a contract.

Brian Schmidt
Register for GameSoundCon2012 San Francisco
Oct 24-25


Thanks for that, pretty clear and concise. I'm sorry if I'm coming off pretty clueless about this, it's just that it is a situation I didn't expect to find myself in, and really need all the advice I can get to make informed decisions. Just to give a couple more details: I'm not using the company's tools, and to make matters even more complex, I'm actually being paid by a third party, not the people who give me instructions on code to write. Also what happens if the pay is far less than the standard work-for-hire rate? To clarify though, this isn't about money as such, I'm just wondering how it affects the issue.

as it has become pretty important recently, for details I can't and won't go into.

To me, this reads a bit like "I now have an offer from a direct competitor and since I wrote that stuff and there's no written contract, I'd reuse what I have, and sell to them". Don't correct me if I'm wrong, and don't tell me if I'm right -- just saying what this looks like.

If it is anything like that, stay away from that idea, for your own good. Don't even talk about it. Seriously.


I know you said don't correct you, but when you posted that I realised that's how it is coming across, and that's REALLY not the case. I've not been approached by anyone, nor do I want to sell the code to another party. Sorry I can't go into details, but let's just keep it vague with it has everything to do with working practices and conditions, and decisions being made about the code.

#11 Orymus3   Crossbones+   -  Reputation: 9296

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Posted 12 September 2012 - 07:27 PM

In the case of a product that is the result of multiple conjointed efforts and an especially loose policy, you might end up with no global ownership from everyone.
You've probably heard of "brands" that nobody can use because a lot of parties own portions of the brand and/or tech involved with this?
You *could* argue that this is the case here and go in courth, and, depending on how well you present your case, you could end up in a variety of scenarios.
But the de facto scenario (and jurisprudence is going to play a big role here) is that you've been paid for a service, and that, as a result, the contracting part assumes all respinsibility and ownership over that which was produced.

#12 TechnoGoth   Crossbones+   -  Reputation: 2769

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Posted 12 September 2012 - 07:49 PM

Laws vary by country but speaking for the UK system which will be similar to the US and Canadian one. Your remuneration normally doesn't have a baring on the ownership of the work. Copyright is automatically owned by your employer for any work you produced for them. It gets complicated when the work is considered service for hire which is in the case of a company hiring another company to do the work in which case the hired company owns the copyright by default but the original company generally has a licence to use the commissioned work. But they don't own the rights to the work unless it was formally agreed.


The classic example is a wedding photographer. If you hire someone to take photos of your wedding they own the copy right to those photos not you. You have to buy the rights to photos as part of the contract if you want to control the copyright.

Edited by TechnoGoth, 12 September 2012 - 08:11 PM.


#13 samoth   Crossbones+   -  Reputation: 4792

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Posted 13 September 2012 - 04:09 AM

Your remuneration normally doesn't have a baring on the ownership of the work. Copyright is automatically owned by your employer for any work you produced for them.

That's wrong on two accounts. First, the copyright is automatically with the creator, not the employer (except if you have signed a particularly and highly doubtful working contract with a slaver company -- some particularly abusive companies have you sign that they own everything including what you do in your free time, if you're stupid enough to sign it). Whether copyright can be traded/sold at all and whether or when it expires varies greatly across countries (it can, for example, be sold in the US -- it cannot in most EU countries).

However, the important bearing of the remuneration is that this makes it (or it will at least be alleged as, when it comes to a lawsuit) a contract work. In which case the company that paid you owns everything. This doesn't vary much across countries. Even in countries where copyright is not tradeable, this means that you have the reserved right to keep a copy for yourself (as your "creator-right", this is distinct from "copy-right" e.g. in Germany), but you are not allowed to copy or reuse or sell it.
The really bad bit here is the "no written contract" part, because that will be several people from the ordering party against the single lonesome contractor. Even if nothing was ever agreed, they'll likely be able to "prove" (by testimony) that whatever they think was agreed.

The example of a wedding photographer is quite funny insofar as it is even much more complicated than merely copyright. The photographer certainly has the copyright on his work (if it is artistic, non-trivial -- again something you can dispute), however he is not allowed to make copies (in the EU, at least). An individual owns the rights on their own image, and it is a felony to make, copy, reproduce, or distribute images of people without their explicit consent.

Edited by samoth, 13 September 2012 - 04:13 AM.


#14 TechnoGoth   Crossbones+   -  Reputation: 2769

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Posted 13 September 2012 - 05:02 AM


Your remuneration normally doesn't have a baring on the ownership of the work. Copyright is automatically owned by your employer for any work you produced for them.

That's wrong on two accounts. First, the copyright is automatically with the creator, not the employer (except if you have signed a particularly and highly doubtful working contract with a slaver company -- some particularly abusive companies have you sign that they own everything including what you do in your free time, if you're stupid enough to sign it).


That's a common misconception http://www.ipo.gov.uk/types/copy/c-ownership.htm the creator doesn't own the copyright for anything the produce as part of their employment it automatically owned by the employer regardless of its in your employment contract or not in the UK. Copyright is considered a form of property like any other so can be bought, sold, or traded.

The tricky part of OP problem comes down to what the relationships are.

If his friend is employed at a game company and paid the OP to do some of there work for them then the OP would be independent contractor and would in theory own the right to the derived work. The problem being of course that unless their friend got permission from the company to subcontract out to the OP then they didn't have any right to transfer the company's intellectual property to a third party and the OP's work would be illegal as they didn't have permissions from the original owner to make to use of the original code. So while the company can't use the OP work the OP can't either. They have of course opened themselves and their friend up to potential litigation by the company.

If the friend has a company that was hired to do work for the game company then it could be argued that the OP was an employee in which case the friends company would own the work.

#15 Bregma   Crossbones+   -  Reputation: 5187

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Posted 13 September 2012 - 06:42 AM

That's a common misconception http://www.ipo.gov.u...c-ownership.htm the creator doesn't own the copyright for anything the produce as part of their employment it automatically owned by the employer regardless of its in your employment contract or not in the UK. Copyright is considered a form of property like any other so can be bought, sold, or traded.

Yes, but that's entirely jurisdictional-specific. In many countries, the "natural rights" of a creator can not be sold or given away, period. In such countries, the common-law concept of "public domain" simply does not exist. In other countries, such as the United States of America, there is a strict accrual of rights in a "work for hire" as set out by appropriate legislation, and of course lawyers are all over that with exploitative loopholes and greasy contracts. There is no simple statement of how copyright works that applies everywhere.

If you need to know how copyright works in your local jurisdiction, you need to consult a lawyer who specializes in copyright in your particular jurisdiction (or maybe two lawyers if you want two different and possibly conflicting opinions). Any other advice you get is simply bad advice.
Stephen M. Webb
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#16 fs86   Members   -  Reputation: 105

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Posted 13 September 2012 - 06:42 PM

The tricky part of OP problem comes down to what the relationships are.

If his friend is employed at a game company and paid the OP to do some of there work for them then the OP would be independent contractor and would in theory own the right to the derived work. The problem being of course that unless their friend got permission from the company to subcontract out to the OP then they didn't have any right to transfer the company's intellectual property to a third party and the OP's work would be illegal as they didn't have permissions from the original owner to make to use of the original code. So while the company can't use the OP work the OP can't either. They have of course opened themselves and their friend up to potential litigation by the company.

If the friend has a company that was hired to do work for the game company then it could be argued that the OP was an employee in which case the friends company would own the work.


This is where it gets a little trickier. The instructions were handed down by the company that my friend has, while my pay came directly from the client, and I didn't use the tools of either to author my code.

#17 Tom Sloper   Moderators   -  Reputation: 9934

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Posted 13 September 2012 - 10:10 PM

Enough with all the complications. You don't own the code. If you want to own the code, hire a lawyer and pursue the matter.
-- Tom Sloper
Sloperama Productions
Making games fun and getting them done.
www.sloperama.com

Please do not PM me. My email address is easy to find, but note that I do not give private advice.

#18 fs86   Members   -  Reputation: 105

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Posted 14 September 2012 - 05:57 AM

Tom I'm just trying to give information so I can get advice on a topic I'm not experienced in, that's all. I've seen so many differing answers from so many places.

Thanks for your input.




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