If the software was the creation of an employee that was made within the scope of his or her employment -- yes, it can be considered a "work for hire."
However, if an independent contractor was hired to develop the software, the answer is probably not. Most software is categorized as a "literary work" under the Copyright Act. The work for hire doctrine, however, only recognizes nine valid categories as valid works for hire:
1 as a contribution to a collective work, 2 as a part of a motion picture or other audiovisual work, 3 as a translation, 4 as a supplementary work, 5 as a compilation, 6 as an instructional text, 7 as a test, 8 as answer material for a test, or 9 as an atlas,
17 U.S.C. Section 101.
Notice that "literary works" are not included anywhere within the list. The upshot is that most software cannot be considered a "work for hire" even if there is an agreement between the parties that it will be.
However, if an independent contractor was hired to develop the software, the answer is probably not. Most software is categorized as a "literary work" under the Copyright Act. The work for hire doctrine, however, only recognizes nine valid categories as valid works for hire:
1 as a contribution to a collective work, 2 as a part of a motion picture or other audiovisual work, 3 as a translation, 4 as a supplementary work, 5 as a compilation, 6 as an instructional text, 7 as a test, 8 as answer material for a test, or 9 as an atlas,
17 U.S.C. Section 101.
Notice that "literary works" are not included anywhere within the list. The upshot is that most software cannot be considered a "work for hire" even if there is an agreement between the parties that it will be.
RSS Feed