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What's the deal if you are:

  1. The only technical person on your start up / and or the one doing programming.

  2. Haven't made a penny 'on-the-books' in terms of your startup

    Is the code you write on your developer machine automatically copyrighted in your name and not in the startups name ?

In addition, at what point does it change that the code you are producing becomes property of the startup?

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You need to clarify things here. Are you a principal in the company? Are there any other principals? Are you an employee? What exactly is the structure? – TimJ♦ Jul 20 '11 at 19:19
Tim - thanks for all your comments. I was a tech cofounder, then we all decided no one has titles. I'm the sole "developer" for the product, but I haven't signed any contracts other than nondisclosure and I haven't been paid a cent or have any contract or salary setup yet. (and there are no plans yet) until we get initial funding – user9968 Jul 20 '11 at 19:44
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Impossible to answer without knowing legal jurisdiction. Where is company incorporated, where is it based and where are you working? And which applicable law (country / region) is stated in the contracts you've signed? – paperjam Jul 21 '11 at 9:30
Company is out of PA. Source code written in PA and in NJ. – user9968 Jul 21 '11 at 16:42
There is a lot of misinformation in the answers here (except for mine). Caveat emptor. – user6603 Jul 22 '11 at 3:12

4 Answers

up vote 3 down vote accepted

@user9968 , your question didn't contain the relevant information required to answer it.

You're a person. If you create some code, then absent any contracts or agreements stating otherwise, the copyright on the code belongs to you.

However, the most common situation is that developers have signed contracts which transfer copyright of their work -- the most common example is the employment contract -- see more below.

The obvious questions are:

  1. Which contracts (if any) have you signed, and what do they say?
  2. Have you done anything to inadvertently, either implicitly or explicitly, transfer copyright (or reasonable assumptions of having copyright) to someone else?

Regarding your contractual obligations: Read Joel's answer about copyright for software developers first, and then have a look at your current and past employment contracts, partnership contracts, freelancer contracts, etc.

Regarding inadvertently transferring copyright, that's a little bit more complicated.

  • Have you written the code on a corporate laptop?
  • Have you checked it in to a corporate SVN/Git repository?
  • Have you made headers in the source code with "Copyright 2011 Company Name"?
  • Have you written emails stating that the company has a ready product, a product that could only be your code?
  • Made any verbal agreements?
  • etc?

If the answer to both issues above is a "no!", then you're in the clear -- the code you wrote belongs to you personally, as it does by default.

Important: The above is not qualified legal advice, and you really should go see a lawyer.

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1. I have signed a non-disclosure agreement. And signed a contract stating I get 10% equity, however, we recently decided to bag the idea of equity until we get funding (verbally). 2.None that I'm aware of. I'm developing on my locally-run web-server. None of the source is even online yet. The ONLY copyright I wrote was on the footer saying Copyright 2011 <the coppany name>. All Rights Reserved. – user9968 Jul 20 '11 at 20:01
Jesper, that is not correct for employees. See 17 USC 201(b): Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. – user6603 Jul 20 '11 at 20:12
@Kekito: That's very precise, thank you. :-) But, I think it's also the same as what I'm trying to say, and what Joel's answer (which I linked to) says in greater detail. Did I write something in an unclear way? – Jesper Mortensen♦ Jul 20 '11 at 20:23
@user9968: You will need to review your agreements in detail, you can't just write "non-disclosure agreement" here and be done with it. Read it, what does it say? What about the other agreements, what are the specific clauses in them? If you can't be bothered yourself, then take the complete pile to a lawyer, and ask him to sort it out for you. – Jesper Mortensen♦ Jul 20 '11 at 20:30
@Jesper, the third sentence of your answer is incorrect for someone who is an employee. If you are an employee, the employer owns the code you write as an employee unless there is a contract that says otherwise. In other words, the default is the employer owns your code. – user6603 Jul 20 '11 at 20:48
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up vote 0 down vote

It depends on what your work agreement/contract says. Did you sign anything or agree to anything that transfers ownership of your work to another entity?

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The only agreement I signed was a non-disclosure agreement. – user9968 Jul 20 '11 at 18:57
I did not sign anything stating any code i wrote was in ownership of the startup – user9968 Jul 20 '11 at 18:59
If he is an employee, then the work-for-hire law applies even if there is not another contract that assigns ownership to the employee. If he is an independent contractor, then you look at the contracts. – user6603 Jul 20 '11 at 19:10
How can he be an employee without getting compensation? That would not meet the criteria of being an employee. – TimJ♦ Jul 20 '11 at 19:18
Tim, whether or not someone is an employee can be a complicated question and whether/how the person is being paid is only one factor. Payment can be in equity as well, which he probably has. – user6603 Jul 20 '11 at 19:56
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up vote 2 down vote

There's an implied duty of loyalty and good faith among members of a joint venture. When a group of people all contribute to a speculative endeavor, courts tend to think that any gain from the endeavor should be shared fairly among them. Meinhard v. Salmon is the classic case on this.

That doctrine might not apply in your particular circumstances. I don't know, without the details and a lot more legal research. But you should know that it's out there: you could run into trouble if you assume that black-letter copyright law is all that's at issue.

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That is correct, but the applicable law here is copyright law. – user6603 Jul 22 '11 at 3:13
I'd see it as three questions, in sequence. First, if there's a contract, that controls. (absent statutory overrides, equity, etc etc.) Second, if there's no express contract, you consider whether to imply duties based on Meinhard reasoning. Finally if Meinhard doesn't apply, you fall through to whatever the default copyright ownership rules are. – Zopa Jul 22 '11 at 15:45
up vote 0 down vote

If you signed a non-disclosure and discussed the idea together, and baked the idea together then you couldn't probably do anything with the code anyways as it would probably break your NDA. My guess is I would error on the side of the group / company owning it since you guys all baked the idea together.

Watch - The Social Network ;) in the end it's who is willing to fight for it.

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Lol. saw the social network. I love how a lot of entrepreneurs on biz end are all scared now. – user9968 Jul 21 '11 at 12:52

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