Re: a question about software and the work for hire doctrine

From: Sam Byassee <Sam_Byassee[_at_]shmm.com>
Date: Thu, 15 Apr 1999 18:32:28 -0400

On Wed, 14 Apr 1999, Michael Tobin <mtobin[_at_]kclh.com> wrote:
>
> Does anyone know for sure whether a software program falls within
> any of the categories of the work for hire doctrine relating to
> non-employee programmers?

Mike,

I don't believe the question may be answered with a bright line rule. Some particular software products may qualify under one of the nine categories listed in the definition, but others may not. For example, any of the CD-ROM encyclopedia products appears to qualify, as do the "Street Map" products. Most games seem to fall within the scope of audiovisual works. Norton Utilities might even be considered a collective work. On the other hand, I can't fit WordPerfect into any of the categories, nor Excel nor TurboTax (to pick a random application).

While the underlying theme of the Work-Made-for-Hire categories appears to be that they all are works often developed through collaborative effort, and for which the marketibility is increased by unified copyright ownership -- and although software typically has these same characteristics -- as a generic category of work, software just doesn't appear to fall under any of the enumerated classes.

It would make a software licensing attorney's life a lot easier if it did qualify, so I would be happy if someone could convince me otherwise.

• Sam

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Sam Byassee                           <sam_byassee[_at_]shmm.com>

Smith Helms Mulliss & Moore, LLP
Raleigh, North Carolina
(919) 755-8788 Fax: (919) 755-8800 Received on Thu Apr 15 1999 - 22:29:45 GMT