In Justmed, Inc. v. Byce, 600 F.3d 1118 (9th Cir. April 5, 2010), the Ninth Circuit found that a corporation owned a computer programmer's code, even though he didn't receive a salary while doing the programming and wasn't declared as an employee while he authored most of the code.
The court applied the T.B. Harms test to find that it had federal question jurisdiction over the dispute involving copyright ownership because the Copyright Act's work for hire doctrine was implicated.
The facts were a little muddy, but the company was a startup, the employee held the title of "Director of Engineering" and got shares of stock (with no written agreement). When a merger opportunity came up, he deleted all of the source code from the company's computers and put a personal copyright notice on the source code. Prior to that, the company's copyright notice was on the source code.
Bad behavior, plus muddy facts, together with expensive litigation show the wisdom of figuring out who owns what in advance and drafting clear employment agreements. The court applied the CCNV v. Reid test - the federal common law of agency - to determine whether the programmer was an employer or an independent contactor.
Monday, May 10, 2010
9th Circuit: Under Copyright Act's Work for Hire Doctrine Computer Programmer Doesn't Own Source Code
Labels: Copyright Act, copyright notice, independent contractor, t.b. harms test, work for hire doctrine
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.