Q: Company is reselling my software I created can I do anything about it?

Quick background, I was working in a different role within this company, they then braught me on todo some development for them as a trial, i have now been working for the company for months in the same role but they havent updated my contract - so in my terms im not technically employed to do development atoll. Anyway i have worked long hours in my own time, and work time creating a a Online software (Trying to keep detailes vague the now). and it current makes over 150 thousand requests a day and is used accross 3 call centrese and they have resold it to over 10 different company’s but i havent made any money from it - is there anything i can do? do i own it? or is it companys software?

1 Lawyer Answer

Will Blackton

Answered
  • Intellectual Property Lawyer
  • Raleigh, NC

A: You need to speak with an attorney licensed in your state who deals with intellectual property issues for more insight into your specific situation, but I can describe the legal principles in play here generally:

Absent a written agreement addressing work for hire, you cannot stop your employer from using work produced within the scope of your employment, nor are you entitled to any additional payment.

Many employees write blog posts, take pictures, write instructions or policies for their employers, among the many other tasks they were expressly hired to do. Perhaps you were hired as an I.T. support professional, but you’ve also become the unofficial photographer at company events.

Work made 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 or negotiations. Absent a written agreement to the contrary, an employer has full rights to any copyrightable work that was produced by the specific efforts for which an employee was hired and was being compensated – that is, a work produced within the scope of that person’s employment. The answer is different if you were an independent contractor instead of an employee (independent contractors retain the copyright in their work absent a written agreement to the contrary). The rest of this post assumes there is no written agreement between the employee and employer regarding work for hire or an assignment of interests in intellectual property developed by the employee:

Within the scope of employment

“Within the scope of employment” can be a bit tricky to determine. If you’re an I.T. support professional and you write some code, even at home, which helps you accomplish your job or improves your employer’s work flow, your employer is the likely owner of your creative expression of that work. If you’re an I.T. support professional and you have become the unofficial company photographer, your employer is the likely owner of the photographs you take which are related to your work (of employees, inside the office, of products listed for sale by your employer). If that same I.T. support professional does freelance wedding photography (and their employer’s business has nothing to do with the wedding industry), it’s not reasonable for the employer to expect the exclusive rights in the work produced by an employee acting outside the scope of their employment. An employer is not entitled to a benefit they never bargained for, and for which the employee is not being compensated, so the I.T. support professional almost certainly maintains their copyright interest in this situation.

In the case of a work made for hire, copyright law provides that the author of the work is not the person whose individual creative efforts produced the work, but the party that employed or commissioned that person. As the author of the work made for hire, the employer or commissioning party owns the entire copyright, except if there is an express written agreement (likely an employment contract) to the contrary. If your employer owns the copyright to work that you produced, it can do with your work almost anything it would like. This certainly includes republishing it. No additional payment is required merely because you no longer work for your employer.

What you're entitled to is going to depend highly on your employment contract and the description of your current position, as well as any communication you've had about the work with your employer. You need to consult with an attorney in your state for legal advice regarding your specific situation.

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