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Attorney Arcadier
Attorney Arcadier, Attorney
Category: Business Law
Satisfied Customers: 1106
Experience:  Contract questions and Incorporation questions answered.
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I am a software developer. I have a software platform that

Resolved Question:

I am a software developer. I have a software platform that I built independently over the course of some 10 years. A company "hired" me to work with their I.T. department to re-brand, re-design and add components to the software for their own use. There is no contract or agreement between me and the company. They pay me a cash "consulting" fee at the end of each month.

Now that the project is nearing completion, the company is claiming IP rights over "their" re-branded software, and is attempting to sell the software. They claim that since they pay me a monthly "salary", and many new additions were works of staff on their payroll, my work belongs to them by default.

My position is the software continues to be my IP until a proper agreement is concluded. Since there is no employment contract or consulting contract addressing ownership of works or transfer of IP, the company cannot claim any ownership by default. What is your opinion on this matter?
Submitted: 1 year ago.
Category: Business Law
Expert:  Attorney Arcadier replied 1 year ago.

Attorney Arcadier : If no contract, then you are owner of everything that existed prior to you working for that company. Anything developed while you are on salary, it is theres.
Customer:

Thanks for the answer. Ordinarily I would agree, however the situation is not so cut and dry.


 

Customer:

1. I am not on "salary" per-say. No employment contract, NDA, or anything on paper etc. Work began on the premise that we would eventually sign a proper agreement indicating equal IP ownership for the purpose of going to market. Obviously that has not materialized - and now I find myself at a grave disadvantage. The Company claims my work as their own siting - as you suggest - that they have employed me for this purpose.


 

Customer:

2. There is only 1 product. The software platform I walked in with. It is not possible to say here is 50% of the software financed by the company.


 

Customer:

3. If I go to work to deliver pizza for pizza hut. I agree they can put signs and stickers on my car and buy me replacement wheels and add or replace whatever they want on my car. But at the end of the day the car still belongs to me... right?


 

Attorney Arcadier :

1. Salary is defined as follows: If an employee is paid a specific sum each week, and that sum does not fluctuate based on hours worked, then the employee is a salaried employee. Not having a contract or NDA or other stuff is irrelevant for salary determination.


2 and 3. Your example three is not on point at all. You own title to the car, stickers can be removed, etc. etc. A more accurate example is this. I am a writter. I have many notes on things I want to write. In fact, I even have a short story. Then I get hired by the University as an English professor. They ask me as part of my duties, to extend my short story into a book. I am paid one year to make my short story into a book. The university paid me to make the short story into a book. The university, hence, owns my book despite my short story in which the book is based. Of course, with such copyright issues and IP issues, both the University and the employee would be crazy not to have a contract which is applicable to these issues. But, barring a contract, then you will have a difficult time establishing that the entire work is yours. I encounter this issue a lot when an engineer invents something on their own time that is related to the line of business of the company they work for where they are salaried. The law deems the invention to be the company's if no agreement otherwise. Another example, a doctor, who is an expert on Cancer, has many great prior inventions on treatment, gets hired by a Hospital and then invents a cure for cancer. The invention belongs to the hospital.


 


 


 

Customer:

Arcadier thanks this is much clearer now.


 

Customer:

You mention that it would be crazy for the short story owner and the university not to have a contract. Why would the Uni be compelled to have a contract when they hold all the cards anyways?

Arcadier, I've put 10 years of my life into my app. Lived and breathed it. Losing it all because I was naive enough to think that a company would do the honorable thing would be like ripping out my soul. Is there no angle I can approach this to try and get a fair shake?


 

Attorney Arcadier : A contract is preferabe to avoid itigation You have a vaid argument and a viabe cass, just not a winning one You willl have to show that your app existed prior to you working for them and you simply tailored it for their temp use. You can still create a lot of issues against them, but will be very expensive. You need to find a very aggressive attorney to send them a strong demand and cease and desist letter.
Customer:

Arcadier. Thanks for your advise.


 

Attorney Arcadier, Attorney
Category: Business Law
Satisfied Customers: 1106
Experience: Contract questions and Incorporation questions answered.
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