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Copyright: Is ‘work for hire’ legal?

August 29, 2008

Many contracts for software developers, technical writers and the like include a clause about the client owning copyright in a ‘work for hire’ arrangement. This is definitely the case for employees, but it’s a more slippery slope for independent contractors.

A couple of attorneys in Texas have laid out the conditions under which ‘work for hire’ applies to independent contractors—and it seems software development doesn’t fit. They state:

When it comes to independent contractors, three requirements must be met for deliverables to be work for hire. First, the deliverables must be specially ordered or commissioned (i.e., they cannot already exist). Second, a written contract between the company and the independent contractor must state that the deliverables are work for hire. Third, the deliverables must come within one of nine limited categories of works. This last requirement disqualifies most software and other technology deliverables created by independent contractors.

They go on to list those nine categories as:

  • a contribution to a collective work (e.g., part of a periodical, anthology, encyclopedia, etc.);
  • a part of a motion picture or other audiovisual work;
  • a translation;
  • a supplementary work (e.g., foreword, illustration, editorial notes, musical arrangement, test answers, bibliography, appendixes, etc.);
  • a compilation (an original manner of selecting or arranging preexisting works);
  • an instructional text;
  • a test;
  • answer material for a test; or
  • an atlas.

While they mention nothing about technical writers specifically, it would be interesting to see these nine categories tested against the work that we do—perhaps it’s classed as ‘instructional text’.

I’m no lawyer, but it would be interesting to see this tested.

For the full article, see: http://tinyurl.com/6yxcj4

One comment

  1. The question that bothers most independent technical writers isn’t so much the legal status of their writing, but the legal status of their employment. It may be beneficial for some tech writers to be acknowledged as authors of the manuals they created. It would be detrimental if a change to copyright rules meant that employers were less likely to employ independent technical writing contractors because they were motivated to protect their corporate copyright.



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