Agreed. Always make contracted work a work for hire. A friend of mine did not and he ending up paying $20,000 additional to ransom his software back. That was 20 years ago when $20,000 was real money.
You also want to avoid having the employee become a Statutory Employee. See footnote 3 in the article. If that happens, you can be hit with all sorts of nasties like disability claims to IRS claims for withholding taxes.
It looks like there may be a CA minefield in there also if you DO make it a work for hire.
> Agreed. Always make contracted work a work for hire.
How? Per the article, you can only do this if the person making the work is an employee, or the kind of work is in that list (which does not include software).
...hmm. I wonder if, say, the Unix shellutils could be considered a "collective work" if each individual program was written by a different person.
The point, as I understand it, is that you don't get to determine what constitutes a work for hire - that is determined by law, and only 9 categories of things (or work done by an employee) count. Your contract may need to be written more carefully to ensure that you own the copyright when all is said and done.
Not quite. The law enumerates the things that are automatically work for hire. Works outside those must be explicitly declared works for hire in the contract. If you have done any contracting you will find the phrase in your contract "work for hire".
Literary works are not automatically works for hire. I believe that software is considered a literary work, strange as it seems. (IANAL)
> Not quite. The law enumerates the things that are automatically work for hire. Works outside those must be explicitly declared works for hire in the contract.
The article specifically says that this is not correct: "A work made for hire is not any work that you pay someone to create for you. Nor is it any work that you and a developer agree is a work made for hire.".
Per TFA (quoting the law) it has to be (1) done by an employee, or (2) both in the list of 9 kinds of things (which does not include software) and specifically declared to be a work for hire. Things that are not in the list and are not done by employees cannot be works for hire regardless of what the contract tries to claim.
You also want to avoid having the employee become a Statutory Employee. See footnote 3 in the article. If that happens, you can be hit with all sorts of nasties like disability claims to IRS claims for withholding taxes.
It looks like there may be a CA minefield in there also if you DO make it a work for hire.