Re: Re: Non contracted intelectual property.

Brian,

I think Jessica has it right. The legal doctrine is called "work made for hire." The application of it in any particular instance turns on the particular facts of the case.

Though I'm sure your program is very useful, and would pass the copyright threshold, I'm also very sure that the program is not lengthy, or complex, or so novel as to be something that a competent programmer hired to make could not reproduce in a relatively short time. This means in part that the costs of pursuing the issue on the part of the restaurant is probably not worth it. This cost-benefit analysis often enters into these sorts of situations.

Also, I suspect your copyrightable work would be rather thin since I suspect you used very standard programming techniques and have quite a standard (albeit customized and custom-created) inventory control program. This only means that you probably have no rights against the restaurant if they reproduce your program by hiring someone else to make one to do the same functions yours did.

Steven Jamar

On Jan 8, 2007, at 5:05 PM, <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
>
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-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Howard University School of Law           fax:  202-806-8567
2900 Van Ness Street NW         mailto:stevenjamar[_at_]gmail.com
Washington, DC  20008	                http://iipsj.com/SDJ/

"God, give us grace to accept with serenity the things that cannot be  
changed, courage to change the things which should be changed, and  
the wisdom to distinguish the one from the other."

Reinhold Neibuhr 1943