Re: Re: Non contracted intelectual property.

I agree with Jessica's first sentence, but not the second. A would only "own" the work as WMFH based on a contractual declaration if it fell into one of the nine specified categories in the Copyright Act. Otherwise (the vast majority of cases), there would have to be an express *assignment* of the copyright, and in that case the assignment would be subject to the 35-year recapture provisions.

Vance

On 1/8/07, jrfriedman[_at_]litproplaw.com <jrfriedman[_at_]litproplaw.com> wrote:
>
> A can own a work created by B if B is a full-time employee
> and the work was created in the scope of B's employment.
> Alternatively, A can own a work created by B if B was an
> independent contractor and both parties signed an
> agreement saying that the work would be work made for
> hire.
>
> Based on your summary of the facts, you might have a good
> argument that they do not own it because, even if you
> wrote it partly on company time, the job of "kitchen
> manager" would not seem to include writing a software
> program for inventory management and therefore, it doesn't
> sound like you wrote it "in the scope of your
> employment." But your employer might also have a good
> argument to the contrary, since at the end of the day, the
> program was written to facilitate the kitchen manager's
> job and that job *was* your full-time job. If the job
> description included doing whatever you could to improve
> the efficiency of the kitchen, writing a program might
> well come within that category. The cases are very
> fact-specific and I'm sure if one were to dig a little
> deeper, there are more facts than the ones you provided.
>
> Jessica R. Friedman
> www.literarypropertylaw.com
>
> On Mon, 08 Jan 2007 15:00:15 -0500
> "Brian Lucas" <bcl1713[_at_]gmail.com> wrote:
> > This is purely for my curiosity's sake as the situation
> >has already been
> > settled but I was curious if anyone could give me some
> >information or
> > maybe a case law or two to back me up. I was working
> >for a restaurant
> > in my area as their kitchen manager. They were
> >completely lacking in
> > any sort of inventory management when I started there.
> > I decided on my
> > own accord to write a little program in sql using Access
> >(on my personal
> > computer using my copy of access) in order to keep track
> >of their
> > inventory. I was never commissioned to write this
> >program. I wrote a
> > minimum of 75% of the program on my own time. A maximum
> >of 25% however
> > was completed on work time when I had some downtime and
> >nothing else to
> > do. When I quit my job, the owner and GM "claimed" they
> >had talked to
> > their lawyer and owned the rights to this program. I
> >denied them and
> > they "decided not to pursue it". Did they have any
> >legal right to my
> > software?
> >
> > Brian
>
> Jessica R. Friedman
> Attorney at Law
> 757 Third Avenue
> Suite 1903
> New York, NY 10017
> Tel.: (212) 220-0900
> Fax: (212) 973-9101
>
> More information at
> www.literarypropertylaw.com
>
> #############################################################
> This message is sent to you because you are subscribed to
> the mailing list <CNI-COPYRIGHT[_at_]cni.org>.
> To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org>
> To switch to the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org>
> To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org>
> To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org>
> To resume mail list message delivery from postpone mode, E-mail to <
> CNI-COPYRIGHT-feed[_at_]cni.org>
> Send administrative queries to <CNI-COPYRIGHT-request[_at_]cni.org>
>
> Visit the CNI-COPYRIGHT e-mail list archive at <
> https://mail2.cni.org/Lists/CNI-COPYRIGHT/>.
>
>

-- 
Vance R. Koven
Boston, MA USA
vrkoven[_at_]world.std.com