There's a misconception that meeting with a layer means you 1) have to hire them and 2) that you're going to file a lawsuit. Neither is true. Most good lawyers offer a free consultation and you're just seeking advice, not a litigator.

OP: the code and intellectual property belongs to you unless you transfer copyright over or mark as open source. That said, code is hardly the most valuable asset in an early-stage startup. The best real way to "protect" yourself (besides getting legal docs papered) is to stay involved in every important discussion and develop your own relationships with investors. Your cofounder should welcome this, and should help you develop your non-technical skills.

If you notice any unease, red flags, shadiness, lack of transparency, BAIL OUT. Incorporate yourself and transfer the IP into a company owned 100% by you. Find a new business partner.

The OP said he's working for another company while he's doing this ("I have a very well compensated job in a local startup"). Depending on the employment agreement he signed with that company, they may have rights to the code he wrote (especially if he wrote any part of it using the company's equipment or on the company's premises, or if the code is related to the company's line of business). Remember, this is in NY, not in California, so the protections against unreasonable employment contracts could be weaker. So he really needs to talk to a lawyer before taking any kind of action.

I'll stop there because there's a 'softer gentler' approach you can figure out by yourself.

I'm stopping there because he has already insinuated the following:

"I'm not convinced yet that I need you, software guy. It seemed easy enough to find a guy like you to code this up for me and I could probably do that again, especially once I raise funds and can actually pay someone to write code."

"If I was really willing to share the pie, I would have addressed your concern about "let's put the equity share in writing" but I sort of 'stone-walled' you on that because the risk of you bailing out now is minimal, you already provided me an MVP which I can show to investors to raise money."

I've been down this road before. Unless you have very unique technical know-how, you can be replaced by almost any other coder. And if you provide the work with no 'sharing agreement' you risk discovering that your non-technical co-founder shows he is not motivated -- by anything -- to later cut you in for a piece of the pie.

Let me say that another way. Put together an equity share paper. Put it in your own words and/or using equity share statements from the web. If he refuses to sign even that, you know where you stand, he's probably put you on his "expendable" list.

After the tech world saw Zuckerberg become a billionaire by absconding with 'not his idea', ethics and respectable business behavior is much less common, unfortunately.

If anything, the Zuckerberg situation is a counter-example: similar to OP, Zuckerberg was the technical guy, and similar to OP, he was not placed under sufficient contractual obligations before beginning the work, thereby allowing him to "abscond" with the "idea" (if such a thing is even possible).

Close your browser and call one NOW! However if you read below that line - you're on your own :)

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Since you developed the code and you never signed on any paper that hand over the rights to that code to another person or a company (I hope you didn't) then you probably have some leverage since your co-founder (or his corporation) won't be able to use it.

One of the few things that you do when you incorporate is create a TAA (Technology Assignment Agreement) that will sell your IP to the corporation. The technology assignment agreements deal with IP that was created by the IP owner before the he became a shareholder - in your case IP created by founders pre-incorporation.

The technology assignment agreement is usually referred in the stock purchase agreement (SPA) since the transfer can be seen as the consideration for any stock purchased by you (when incorporating).

Without that any founders will have a hard time to get investors to invest since the company itself does not hold any right over the code or any inventions.

Additionally - I must say that your co-founder might be right in the fact that you do not want to incorporate the company until you can know for sure there is some sort of positive outcome. It seems that you just built an MVP and there's no need to incorporate (payroll? selling something?).

Incorporating means that you will need to start declaring taxes and report to the IRS and that add a lot of overhead that you DO NOT WANT. The best thing to do is probably wait until you have some investors showing interest and then incorporate in order to receive that investment.

I would probably consult with a lawyer and prepare a sit-down with your co-founder to form a legal document that will establish the relationship between the co-founders.

AS always - IANAL

p.s: Edited and added some clarification about TAA

If you don't trust the guy, don't start a company with him.

Really. You will need to deeply and totally trust each other in every thing you do for years if you go down this route, and if he's dodgy about this, he's going to be dodgy about everything, to you, your customers, your future employees, etc. Investors will see it too, and they won't want to invest if they can't trust him and if you two don't have a professional, trusting relationship and absolute dedication to the success of the company over your personal gain.

Don't do it.

The business person's obligation is to execute on the business side, and that obligation hasn't been fulfilled. Moreover, the business person has stated that they are not going to execute their role until they feel like it.

Let the other fellow lawyer up.

Note to everyone: OP said his agreements have been made "verbally". I'm going to assume he meant "orally", because 99% of the time that is what people actually mean when they talk about verbal legal agreements.

It almost certainly is true. The only ways it would not be his code are if it were a "work made for hire" or if he has transferred the copyright to someone else.

There are two ways for something to be a work made for hire.

1. It is produced by an employee within the scope of his employment, or

2. It is specially ordered or commissioned and falls into one of several categories AND the parties expressly agree in a written instrument signed by them that the work is to be considered a work made for hire.

If all they have are oral agreements, then #2 is out. For #1, "employee" does not necessarily mean an actual employee under whatever definition your state uses for that term. It can include relationships where the person creating the work acts like an employee. A big factor in that is how the work is supervised, and who provides the equipment and facilities used in creating the work.

From the OP's description, he did the work on his own. It's hard to see how he could be seen to be an employee for purposes of copyright law, and so #1 is also out.

The other way he could no longer own the copyright would be if he transferred it to someone else. Copyright transfer requires a signed, written instrument. If all they have are oral agreements, then there could not have been a transfer.

There's one more possibility to consider. Even thought the OP almost certainly owns the copyright on the code he has written so far, it is possible that he has licensed it to his partner. For instance, if they intended to make their code open source, and the OP included a notice stating that the code was under GPL, and gave a copy of the code and license to the partner, the partner might argue that he can continue to use that code and continue to develop it without the OP's further permission, as long as he follows the GPL.

> When is my work protected?

> Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Without that agreement the technical co-founder own the code and no sane investors will put money in a company that doesn't have a TAA since the company doesn't own the code.

As always - IANAL.

Until a contract is signed, and you have "assigned your copyright" to another entity, all of your produced code remains under your own control.

And we did. We launched a private beta, signed a couple small-time clients, and started making money. The product kept evolving, and my co-founder got less and less involved.

I kept pressing him to do the paperwork. We'd made a verbal agreement, which he affirmed many times (I still have the chat logs in Gmail). I trusted him to keep his word for a long time.

After about five years, I found myself suffering through depression, stress, and burnout. I couldn't take it anymore, so I left the company.

As soon as I left, he started to actually work on the business, finding clients and looking for funding and investors, free of the shackles of his promise to me.

The only way you can guarantee your value is to have a formal agreement -- one drafted by a lawyer. I don't know your co-founder, and I certainly hope he's not like mine, but you need to look out for yourself. Even if your co-founder is a stand-up guy, it's not his job to look out for your interests.

Having something out there that says you've both agreed to some split, even in your own words, is super helpful to protect your interests when investors show up. Their lawyers will want that gone, and replaced with something more formal. To do that they'll need you to agree to a new formal relationship, and for you to agree you'll need to be happy with what they're offering.

I'm not a lawyer, this isn't legal advice. Just observations from my own experience.

But you can protect yourself. First, only dabble with people who you trust. It's not perfect (every couple believes "till death do us part" when they say it), but it helps. Beyond that, it's trivial to write out a shared understanding that will get you much of the way to "protected". Note that the most important thing is that they are ethical and there is a shared understanding. Legal docs aren't a substitute for that, they're just a weapon if you need to go to war.

Discuss the following: 1) Compensation. Equity? Deferred $? If equity, % of ownership (fully vested) and rate of vesting. (read: http://thenextweb.com/entrepreneur/2013/07/21/startup-founde...)

2) What happens in various dissolution scenarios? What if either or both of you want to quit? What if either or both of you wants to fire the other? Who owns the code?

Once you share a verbal understanding, write it down via email to him and have him respond to the email confirming that he agrees. If you're worried, print and sign 2 copies. It doesn't have to be legalese to give you teeth if a fight happens... But your goal should obviously be to avoid a fight.

You have a lot of power right now, but you should use it lightly. Say, "Hey, X-- I'm feeling increasingly uncomfortable and would love to take some time out to discuss our partnership. I know incorporation is expensive and time consuming, but I'd like to make sure we share an understanding on X, Y, and Z. Once we do, I'd like to write that down, email it, sign it, etc. Does that make sense? When would be a good time for that? I suspect we'll need a few hours of quiet time." Until that happens, stop writing code and (if you think he might be a bastard) make sure you have the passwords.

But yes, you're right that a simple written agreement is much better than nothing (though doesn't provide full protections on both sides - founder vesting, dispute resolution, etc.).

If your cofounder is a half-decent business guy he knows both of the above, which makes this situation somewhat suspect.

I've seen a lot of side projects (my own and others') peter out for various reasons, which is why I think front-loading it with incorporation is a bad way to spend money/time. With a good shared (WRITTEN!) understanding on vesting/disputes/etc, you can mostly de-risk it... But not in the buttoned-up way a lawyer could.

You should have a broad agreement before you go to the lawyer. Are you thinking about a 50% share in the company or a 1% share in the company. You need to talk about it and be on the same page. After you talk about it, I would just get a confirmation via e-mail. Some documentation is better than no documentation. (Yes, you ideally want a lawyer looking at it, but it also would be a legal liability for him if there is a rough e-mail agreement that he hasn't given you shares for).

The idea guy will likely want you to be working full time on the company. I think your answer should be something of the order of 'Yes, as soon as you are also full time meeting goals XYZ and that we have enough runway to pay me 50% salary for 18 months'.

Until the company exists any work that you have done you own it (unless he has paid you and you have explicitly assigned the IP to him).

If he waits for investors before incorporating, there is going to be a tax situation (because then the company will be worth something). You ideally want to incorporate and value the entire company in the beginning at $1 or something similar.

Most investors will likely want the technical talent that they are investing in. If he gets good investors then they will likely want you to have an comparable share in the company as him. However, in my opinion, your worst case scenario is that he could say to the investors you are not too important, and that he can toss your code and get it built offshore for cheap (which might be easy given that there is an already working prototype).

What does money bring to the table and how will it convert your MVP into a viable business entity?

Personally I believe you need customers before you get yourself beholden to some outside investors.

Get the customers, go live with your MVP in a soft roll-out way, do what you have to do to get to ~100 customers/clients/users. If they like your product then they will do some 'organic' growth for you. If that happens then you will have traction. You will be able to get money for growing into a proper company from many other sources than your friend's network.

So, head for success. When your friend who would not give you a formal 50/50 wants to know why he is not needed just tell him that his idea was just an idea and that 99% is perspiration. From how you tell the story he has brought nothing else to the table other than an idea, ideas on their own are worthless.

Much like winning the lottery there is this dream of having the right idea, getting an MVP and then being bought by FB/Google/Yahoo to then not have to work ever again. However why not go for the customers, get revenue from them and grow the business fairly and squarely?

If you are charging customers, selling ads or getting revenue sent by any way that needs code, make sure your bank details go in the back end. Simple as. Setup the hosting in your name, make sure you have the DNS situation under control too. Keep your partner along for the ride just in case he does bring something useful to the table but don't tell him that he isn't really needed until you are absolutely certain of that.

1st, make absolutely certain that who ever you choose as your lawyer is a startup lawyer. Do not contact a family friend who does litigation or someone else that does real estate law. You must hire a startup lawyer who does work for venture firms, angel investors etc.

2nd, From the read, you are worried, but you still think your co-founder is a good guy. If that is the case, you should just send him a link to this post and say: "I asked this question on HN, and it is clear that we may not need to incorporate yet, but I am concerned about protecting the work I have done and will do in the future. Let's start talking to lawyers about everything to get the ball rolling."

By staying positive and just showing him that this is the right thing to do, you are making forward progress. If he balks at hiring a lawyer, you may want to consult one on your own.

Replying to your comment: yes, I think he is a good guy. But in all honesty, I would like to finish the product and stop working on it while holding to some (even small) equity in case the company succeeds.

We've already outlined a plan to bring paid developers onboard. Once it materializes, I would like to do less and less until completely detached.

It all started as a good idea and I had a lot of fun building it. Looking back, I see the quality of our current product and the time I've spent on it, and I think I should own part of it even if I don't continue to be involved in its potential success.

Your cofounder will raise money based on the future needs of the company. If you're not a part of the company going forward, your cofounder will need to make it clear to investors how he plans to move the company forward without you. If your role is critical to the company's continued existence, he may need to find a new technical cofounder, which can take quite some time. If not, he may need to raise more money so that he can hire employees or pay for contractors.

If you do decide to leave it's going to be very much like breaking up...

If you've been communicating well with your cofounder he probably won't be surprised, and is more likely to be mature and understanding, and start discussing all of the things that will need to be done so that you can leave without hurting the company.

If you've not been communicating well, your cofounder may be completely surprised and upset, and may disagree that you leaving is the best thing for both of you. He may want nothing to do with you moving forward. It's important that you're prepared for this, and that you are able to show him exactly how you can leave the company without harming it. In other words, you'll need to make a very clear exit plan, so that it's clear that you're leaving the company, not trying to destroy it. If you're lucky he'll let you help execute the transition plan.

Create a corporation this week, yourself, ideally with one shareholder, you. If you need multiple directors, have the other director be someone you trust (best friend, brother, mother, etc.), anyone other than "the co-founder" (whom I will refer to as "the other guy" for the rest of this post.)

(You may be able to immediately pass a directors' resolution or shareholders' resolution reducing the number of directors, depending on your jurisdiction.)

Assign all copyright in your work to the corporation (possibly in exchange for a nominal fee, e.g., $1). At this point, the company you own controls the software. If necessary, and upon advice of the lawyer you hired, file in the corporate minute book copies of all emails or other communications between you and "the other guy" that show, explicitly or implicitly, that you wrote the code and were simply making it available to him (for purposes specified or unspecified). At this point you have documents that may be considered evidence of your effort and ownership and of his non-involvement in the production of the code.

(Be sure to include in the above batch of documents anything that does reflect his contributions, e.g., in terms of reviews, recommendations, suggestions.)

The real action step: Once the above is done, send him a brief email indicating that you aren't sure whether or not you want to continue with the project (call it that, not business or product or company or anything else) and that you are willing to sell him the intellectual property you have developed so that he can continue with the project. You do not have to say why you are no longer interested. If pressed, cite "work life balance" or something.

What happens next depends on his tone. If it is anything other than friendly and understanding, indicate that you are disappointed, hope to be able to resolve things amicably one way or another, etc., but don't make any commitments or say anything other than pleasantries. If his tone is still other than friendly, play hardball. Have the lawyer or a good friend do it if you are uncomfortable. Tell him that you are going to sell your interest to the highest bidder and are offering him first dibs.

If his tone is friendly, tell him you want to work out together what happens next, that you incorporated, for your own protection, and either that the two of you will agree to his share of the company (which is entirely in your control) and agree to work together or that you will sell him the company and all interest in the IP for a reasonable and mutually acceptable price.

If you agree to work together, you may want to write down roles and responsibilities for each of you and documented expectations for the next several weeks/months.

If it looks like things are going to go south, and that a sale is a pipe dream, and that you are not interested in pursuing the project, then, as long as you know for sure and for certain that you own everything, open source it with a license that prevents others from "taking it proprietary" and building the business in your absence without rewarding you.

https://news.ycombinator.com/item?id=7326162

https://news.ycombinator.com/item?id=3101498

Would you invest in a solo ideas guy with an MVP but no skill? Or would you rather invest in a dynamic duo?

Trust is a hard thing to grow, but it does become rather easier when you work to understand the motives of others from their perspectives, and if there's a shred of doubt in an investors' mind as to whether the cofounders trust one another, they will not bite.

That all said, what's stopping you from opening an llc/s-corp and assigning the ip?

talk to your cofounder.

Express your fears, and negotiate a solution (solutions which you have already in mind having talked to the lawyer). Maybe he really hasnt had time or maybe he really thinks that the investment stage is the most appropriate for incorporating.

And you are clearly at the bottom of the food chain. You are best suited to a lifetime of regular employment, not launching a startup.

Every man's got to know his limitations. Make sure you know yours.

Or don't, you already have a partnership with him. But with no agreement you'd have to follow default partnership rule. 50/50% split of profit, assets, and debt.

If there are shenanigans, try to cause as much pain as possible without doing actual damage; a kick in the balls is OK, scratching should be avoided.