Elance OutSourcing - Do i own copyright?
I am outsourcing a commercial project(software program) to elance. I was wondering if after the work is finished, I own the copyright to this work fully. This is very important since i want to make a product out of this and i need to have the rights on the software fully.
Is there a way to force that ? Do I need something from the contractor ?
EDIT: Digging through a bit more, i found the elance services agreement : https://www.elance.com/p/legal/services-agreement-between-client-and-contractor.pdf This seems to indeed pass all rights to the employer upon payment has been finalized. It would still be good if someone can also verify that.
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Don't think anyone here can validate that for you - creating your own service agreement (with counsel) and obtaining signatures prior to work start is the only way to be 100% sure of your rights. – Jim Galley 12 years ago
4 Answers
Jimg is right, you probably need to consult with an attorney. Generally in those situations you're probably okay, especially if it's in Elance's terms of service. If you're really concerned, I'd have them sign an additional contract. I'm not a lawyer, so none of what I say can be taken as legal advice, but this thread might help, specifically this section:
Do I Own the Work I've Paid For? Not necessarily. If a specially commissioned work doesn't qualify as a "work for hire," you may not own the work -- or even have the exclusive right to use it. While you may have implied license to use it, the scope of your rights will be unclear at best. One way to avoid this situation is to use an appropriate work for hire agreement.
What is a Work for Hire? One way to acquire rights is by license. With a license, you do not obtain total ownership of the final work, but rather certain limited rights to use it. These limited rights can either be exclusive or nonexclusive. A license can further be defined -- or limited -- by territory, duration, or even media. As a rule, hiring parties prefer to obtain rights on "work for hire" basis (shorthand for "work made for hire"). With a work for hire, the hiring party steps into the shoes of the creator and becomes the author of the work for copyright purposes. With a work for hire, all of the attributes of copyright ownership -- including credit and control -- vest in the hiring party, not the creator.
Important! There are only two situations in which a work for hire can exist. They are: (1) a work created by an "independent contractor," and a (2) "work prepared by an employee" within the scope of her employment.
A. Works Created by Independent Contractors
For a work created by an independent contractor (or freelancer) to qualify as a work for hire, three specific conditions found in the Copyright Act must be meet:
- the work must be "specially ordered" or "commissioned." What this means is the independent contractor is paid to create something new (as opposed to being paid for an already existing piece of work); and
- prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire; and
- the work must fall within at least one of the following nine narrow statutory categories of commissioned works list in the Copyright Act:
(1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work (i.e., "a secondary adjunct to a work by another author" such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index).
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It is worth noting that in most US States and Countries, copyright automatically passes to the Client in a work for hire situation. However, in some US States (California I believe is one example) it does not. Therefore you cannot assume that you own the rights just because you hired someone to produce the work for you. Always get a signed contract to ensure that ownership is clearly defined. – Gavin Coates 12 years ago
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The preceding comment has errors in its statements about US copyright law. – Dana Shultz 12 years ago
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@DanaShultz: Would you care to tell us what those errors are then? – Gavin Coates 12 years ago
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1. In the US, copyright is a federal matter; state law is irrelevant. 2. As concerns California, specifically (where I practice), I know of no law that purports to govern copyright. 3. Minor point: The proper term is "work made for hire" rather than "work for hire". 4. More a concern, than an error: The statement "copyright automatically passes to the Client in a work for hire situation" is likely to mislead readers, because few know what a "work [made] for hire" really is. – Dana Shultz 12 years ago
My understanding of the agreement is the same as yours expressed in the "EDIT" portion of your question.
Disclaimer: This information does not constitute legal advice and does not establish an attorney-client relationship.
Our company has done more than 200 projects on eLance
No need to hire an attorney. You retain all the rights. So no need to worry. Any good contractor will ensure that, but be careful in selecting that contractor.
The eLance services agreement covers almost most major points.
You can create any agreement you would like with your contractor. However the standard agreements will give you some protection. So the answer is yes you are protected.
Personally however I wouldn't worry too much about IP protection for software. In the vast majority of cases it's unlikely to be worth anything until the business is earning very significan profits.
