Do you create intellectual property in your business? Do you work with others to express your ideas? Sometimes, it gets tricky when it doesn’t work out with your developers. Many of the terms we will be discussing today were discussed in episode 6 of the podcast. I will define them in our conversation today as well, just wanted you to know if you wanted to dig a little deeper.
Ownership Rights in Creation of Intellectual Property
How many times have you hired a developer to work on your website only to find out the developer is not very good, or the developer is too expensive, or the developer doesn’t get things done on time, or [INSERT YOUR REASON FOR NEEDING TO GET RID OF THE DEVELOPER]. So, you fire that developer and hire another one. You have the new developer take over the development. Of course, you already liked the direction, so you instruct them to continue. Do you own the design? Authorship is foundational to an understanding of copyright. Whenever you have an issue with copyright, one of the most significant questions is: Who owns the work? Ideas cannot be protected. You had an idea. You knew how you wanted your website to look. But, that isn’t protected by the law. What is protected is the expression of your idea. Now, you get into the legal issues in the simple redesign of your website. If you complete your web redesign and your business becomes incredibly successful, the original developer may come after you for infringing on his rights to create a derivative work.
That is, unless you were the author of the expression of your idea. You can author a work even if it was performed by someone you paid, but only if the agreement is in writing and explicitly states that you own the work. This is called a “work made for hire“.
Most developers, if they know their know legal rights, do not want to perform works for hire. They want to make sure they can retain their libraries and other creative expressions outside of the whole embodiment of your work. So, what are your other options? One other way you could be considered an author of the intellectual property is if you had an agreement that clearly states that you are working together to create a “joint work“. That means there are two authors of a work. Each author contributed work (e.g. your idea and developer’s coding skills) to create one work. A work that would not exist if both parts were not involved. This would certainly help solve your ownership problem. If you were an author, you could certainly create a derivative work of your own Original Work.
What if you didn’t get any of that done? What could you do? You could try to get the developer to transfer the intellectual property to you, so you can use it as you wish. You could also depend on the fact that the derivative work you are creating with a new developer is not substantially similar enough to be considered a derivative work. (Though this is not the best option, nor a recommended one). You could also go back to the drawing board and create a completely new idea.
How to Avoid Losing Your Intellectual Property
So, how do you avoid this for the next time? If you are in business and in the DIY economy, chances are you will use others to create the expression of your ideas. So, what steps can you take to make sure you own your intellectual property?
Make sure you get it in writing.
If you cannot convince your developer to create a work made for hire or a joint work, you need to make sure there is a full transfer of the rights at the termination of the agreement. That termination can be on completion of the project or simply a termination of the relationship, but you need to make sure you have full control of the intellectual property created as an expression of your idea. If not, you could have to start completely over at best, or would be constantly looking over your shoulder for the potential lawsuit that could come. Any time you are working with intellectual property, or you are hiring someone to create an idea you have, you need to make sure you have a written agreement outlining what happens with the intellectual property. Many of the protections for Intellectual Property only exist if you have a written contract. This is one of the components of business you do not want to mess up. Even if you are in the DIY economy, you need to understand what happens with your intellectual property.