Finally, your written agreement with the independent contractor should include a catch-all allocation of the contractor`s work to your company. This is in particular to remedy the uncertainty associated with the application of the „Work for Hire“ doctrine on software programs. In the case of a well-developed task, the contractor will recognize that, even if it is established that the software is not considered one of the nine types of „work to rent,“ the contractor permanently rejects to the company all the work that was done during the period in which it was created as a contractor. NO: If the answer is „no“ and your company does not have an appropriate independent contractor agreement or not stipulating that the delivery element is „interim work,“ the analysis ends there. At least by law anyway, the work is NOT a „rental job“ and will belong to the independent contractor. This is the simplest scenario in the „Work for hire“ analysis, but especially among my start-up clients, it is of course also the least common. Copyright licences can be complex instruments and should always be negotiated and developed with the help of a qualified consultant. Among other things, parties negotiating an exclusive software license should carefully consider and address the following interdependent (and non-exhaustive) issues: it is important to keep in mind that independent contractors, like all other authors (and the absence of contractual language to the contrary), own the copyrights on all software and other works they have created. The fact that a company pays for the work has no influence on the ownership of the independent copyright contractor. Therefore, if a company wishes to own copyright on the elements of the delivery, the company must include in the contract a language that changes this standard rule and effectively transfers the copyright to the company. As if the „work for rent“ doctrine were not confusing and uncertain enough that our clients, whose contractors are based in California or who work in California themselves or whose contracts are or may be subject to California law, do not recommend including the language of „work for hire“ in their independent contract contracts. For independent contractors, three requirements must be met in order for benefits to be leased. First, delivery components must be ordered or put into service (i.e.
they are not already present). Second, a written contract between the company and the independent contractor must establish that the elements of the delivery are loan work. Third, the results must be in one of the nine categories of works. This latter requirement disqualifies most software and other technological results created by independent contractors. The nine categories are: A word (or warning) about „working for hire“ in California Unfortunately, we have not yet been one of the U.S. Circuit Courts of Appeals definitively the question of whether computer software fits into one of the nine categories listed to be considered „work for rent“ and, while some in Congress have tried to clarify this issue and amend the doctrine as defined in the law. copyright, it has yet to move on a real bill by both houses of Congress.