Is contract programming a "work for hire"?

Question

I am about to enter into a contract which includes the following section about "work for hire"

COMPANY desires to contract [NAME] (“Contractor”) to perform work for hire on a project basis. This work is in connection with information technology work performed for COMPANY and its clients.

...

1. Contractor will perform services regarding this work and agrees that his work for hire becomes the property of COMPANY.

....

This answer seems to say that it code written would be a "work for hire" even though it isn't listed in the legal set of works.

The problem is that I work on many Open Source projects and build and maintain my own websites. I don't want to sign EVERYTHING I code from now on over to this company since that would mean I could no longer contribute to these (or my own) projects.

Is this a legitimate danger? If my all my code now belongs to them should I ask them to alter this to only include code write for them during the hours I'm employed?

Answer 1

I'm not an expert on legal issues, but it seems from the contract clause that only the work you have been hired to do becomes property of that company.

Answer 2

Don't panic.

That clause is just there to say that the code that you create as the deliverable for your contract agreement has its copyright transferred to the company. This prevents you from collecting a licensing fee from the company and from selling the same code to another company, but it does not affect code that is produced outside of the scope of your contract and not delivered to your client.

And if you're really a contractor, you don't have "hours that you're employed". If you are expected to be working a certain number of hours, then you are an employee, not a contractor. In the contractor/client relationship, the client pays you for the end product, not for your time. You may choose to base your charges for the end product on the time you spent working on it, but if you can produce the end product that your client wants in the timeframe that you were contracted to do it in by working two hours a day, then you are free to spend the rest of your day working on whatever OSS (or other contracts) that you want.

If you're a "contractor" and your client is requiring you to spend 8 hours a day in the office regardless of whether or not you need that time to work on what you're contracted to work on, then your client is attempting to abuse labor laws by treating you like an employee but calling you a contractor (to get out of having to pay their share of benefits and payroll taxes).

Answer 3

IANAL, but it seems like only the work you did for them would be covered by the "work for hire." You should ask them what they think it means. May be even get an amendment that specifically states your open source work and other private projects are not part of the "work for hire."

As always, consult an attorney if you aren't clear or comfortable.

Answer 4

Seems pretty straight forward. When working on the project the "work for hire" or work you complete on the project is owned by the COMPANY. Anything else you work on outside is irrelevant to this contract.

Answer 5

I've been a consultant for many years and this is a very common clause. But given your extracurricular activities, you have a legitimate concern. Your request is reasonable and you need to follow up on it. Most companies should be able to accommodate you.

I know of a musician / programmer who faced a similar situation. The programming contract was so poorly worded, even the music he wrote would have become property of the COMPANY. He added a rider to the contract to clarify. Problem solved.

Answer 6

"agrees that his work for hire becomes the property of COMPANY."

The work they pay you for.

Of course, I'm a code monkey not a legal eagle.