In the early 1900s, the Supreme Court recognized the copyrightable nature of the encoded sequence of instructions used by player pianos, called “piano rolls.” That idea of copyrighting encoded instructions ultimately led to the rationale for copyrighting the first computer program in the early 1960s. Since then, Congress has made clear that software code is a protectable “literary work” under the Copyright Act.
Today, there are an estimated 4.4 million software engineers in the United States writing an average of ten lines of code each day. That’s 11,440,000,000 lines written annually! With all that creativity being generated, it is important to know how to protect your ownership rights in the software you create.
When working with software developers, a “work for hire” agreement is an essential tool for preserving ownership rights. In a work for hire agreement, employees or independent contractors acknowledge and agree that the work they perform will be owned by the employer or contracting company. Without this agreement, the Copyright Act states that the person who actually typed in the code is the owner, preventing the employer or contracting company from filing for copyright protection.
Copyright law requires commissioned works to be governed by a written agreement signed by all parties prior to creation of the work in order to be copyrighted. An agreement signed afterward will not be recognized as valid for the purpose of copyright registration. While it is also possible to draft an assignment of rights after creation of the work to preserve ownership rights, chasing an employee who has left the company or a contractor who has moved on to another project may prove challenging. Crafting a work for hire agreement that meets the requirements of the Copyright Act is strongly recommended.
If you need assistance creating a plan for protection of your intellectual property, please feel free to contact us at 248.477.6300. We can help!