Jacci..

>>
but in Ohio, any computer code you write for a client is yours, not theirs. You grant them a license to use it in their business. Computer code/software is by law not a "work for hire". This is one of the reasons why John Harvey's client couldn't just go sell the product.
>>

Hmmm.... I don't know about that. Ultimately, it boils down to which theory you are going to apply. Are you going to base some right of ownership in property? Or, are you going to base ownership as a matter of consideration in a contract?I think it is a merging of the two areas property/copyright and contract.

When you say by law, computer code/software is not work for hire, what are you citing? Are you citing case law or an existing OH statute? FWIW, there is next to no OH case law on these sorts of issues as they relate to software. Can you cite something where a client asserted an ownership right in the source code of an application that he had contracted to be written, only to be denied by a court???

To say that any code you write for a client is yours is a bit over-reaching. If you want to retain rights to the code, you would be well served to have this spelled out in a contract.


While not binding in Ohio - but most likely persuasive, this case does go to the point...

In Quinn v. City of Detroit, 988 F.Supp. 1044:

Case management computer program written by city staff attorney was not a "work made for hire" under Copyright Act; attorney was not hired to design computer programs, program was not specific to law department, and attorney designed program at home using software package that he bought with his own funds. 17 U.S.C.A. §§ 101, 201(b).

This could easily be distinguishable in a case where writing the software was what you where hired/contracted to do.

More to the point, it would be necessary to underscore the point that in consideration of client paying you, the consideration you are providing is a software application EXCLUSIVE of the underlying source code. i.e., the source code and the finished product are distinct entities.

To not make this distinction would force a court or arbitation panel to make the distinction. One one hand, the panel could conclude that all the client was purchasing was a completed software application - the end product. On the other hand, is the developer unjustly enriched because he retains the code that was funded by client? Further, what of the client's intent? Did he intend to reserve the ability to have future enhancements made, possibly by somebody else other than the original developer? Clearly, if the original developer could retain rights, that would be counter to what the client's intent was.

My guess is that a court or ADR panel would try to resolve the dispute as easily as possible in the absence of a contract that outlines the intent of the parties - with the benefit of the doubt going to who pays for the work.

Finally, I think section b of 17 USCA Section 201 nails it:

(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.


Your thoughts???

< JVP >


FWIW, copyright and patent law does not vary from state to state. It is one of the few areas where a uniform standard from state to state is necessary. And with respect to contracts, it is so deeply rooted in the common law that for the most part, the rules are faily consistient from state to state as well.

< JVP >