Q: i have an app idea but no skills to develop. how do i safely hire someone to do it for me and prevent theft

A: Answer: The contract between you and the person who creates your app, defines who owns the underlying intellectual property. Absent a contract, if you’ve only supplied an idea, the person who did the actual coding has the best claim to the copyright for that work. A court may, however, determine that the code for the app was jointly authored and thus, jointly owned.

Many valuable copyrighted works result from creative collaborations. U.S. copyright law allows for two or more parties to own the copyright in a work as joint authors. Whether a person hiring a developer to design an app is considered a joint author will depend heavily on the facts and circumstances of that relationship, as well as the court in which the dispute is heard. If you’re hiring a developer to create an app, relying on a well-written contract, instead of any interest arising out of coauthorship, will go a long way in avoiding a costly court battle. So, to minimize uncertainty as to authorship, and therefore ownership, it’s best to have a written agreement in place with your developer before beginning a project.

This written agreement will become especially important if the person you hire is not considered your employee. If there is no written contract as to the ownership of the app and if a court determines that you and your developer are not coauthors, ownership will be determined by the employment relationship between the parties. When you hire someone to do creative work for you, this is quite naturally, known as “work made for hire” under U.S. copyright law. In the case of a work made for hire, U.S. copyright law provides that the author of the work is not the person whose individual creative efforts produced the work, but the party who employed or commissioned that person.

Employment relationship and work for hire

Any copyrightable work created by an employee acting within the scope of his or her employment is a “work made for hire.” The parties do not need to address works made for hire in their employment agreement, negotiations, or any other written agreement. If it’s an employee-employer relationship, and there is no written agreement to the contrary, the default is that the employer owns the copyright to the app.

However, any copyrightable work created by an independent contractor for the employer who hired them is not a “work for hire” without an express written agreement. To say that another way, if your developer is considered an independent contractor, and there is no written agreement assigning you ownership, the default is that the independent contractor (your developer) owns the copyright to the app.

How would a court determine if someone was acting as your employee or as an independent contractor? The questions of whether a person is an “employee” under the work made for hire rules must be determined under the general common law of agency, which considers the hiring party’s right to control the manner and means by which the product is accomplished. That is, it is not sufficient that the hiring party exercises control over the end result; the hiring party must also control the process by which that result is achieved. Even if the hiring party issues specific guidelines to which the end result must conform, that doesn’t necessarily establish the existence of an employer-employee relationship under the work made for hire rules. There has already been a lot written on how to determine whether a person is acting as an employee or independent contractor, but for the purposes here, it’s important to know that it’s not always a cheap or easy determination.

The lesson here is: Don’t start work without a contract. Determining ownership rights after the project has completed is like putting a helmet on while you’re on the way to the hospital after you have crashed your bike. You have already lost the preventative benefits and most of your negotiating leverage.