Who owns the IP for some software that I created in my spare time? Employee or Employer? I am employed as a designer in the UK by a UK employer. I do not work for a software company. On my own machine on weekends I created my own software that I believe my employer would benefit from. I pitched my software to my employer with the intention that my employer could use it for free, support with its future development, and share revenue from future external sales. My contract with my employer however states the following: &quot;Any process or invention which is discovered or made by an employee or intellectual property which arises during the course of their employment is, and shall be, the absolute property of the Company....&quot; This aligns pretty well with Copyright, Designs and Patents Act 1988 (legislation.gov.uk) which states: (1)The author of a work is the first owner of any copyright in it, subject to the following provisions. (2)Where a literary, dramatic, musical or artistic work [F1, or a film,] is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary. So whether the IP of this software belongs to me or my employer appears to boil down to the definition of &quot;during the course of their employment&quot;. Based on Mei Fields Designs Ltd v Saffron Cards and Gifts Ltd [2018], the following tests where used which fell in favour of Mei's employer. (a) the terms of the contract of employment; (b) where the work was created; (c) whether the work was created during normal office hours; (d) who provided the materials for the work to be created; (e) the level of direction provided to the author; (f) whether the author can refuse to create the work/s; and (g) whether the work is ‘integral’ to the business. In my case, my answers to the above would be as follows: (a) In line with England and Wales law. (b) At home (c) Outside normal office hours (d) I provided all materials to carry out the work (e) I had no direction from my employer (f) I chose to do this work, and initially didn't tell my employer about it so there was nothing to refuse. (g) It would be useful for the business. I wouldn't say it was integral (essential or fundamental) Based on the above, who owns the software, me or my employer?
Based on the contract language quoted in the question, and the facts stated there, it would seem that the employee owns the copyright on the software. It would seem that the software was not created &quot;during the course of employment.&quot; However, when the employee offers it to the employer free of charge, the employer may well want to own the copyright and any other related IP. The employer might want the employee to sign an agreement transferring the copyright. Or the employer might simply treat the software as belonging to the employer. Asserting and enforcing the copyright against the employer might be difficult. Insisting on even a token payment would help establish thst the copyright belongs to the employee, or gettign the employer to sign an acknowledgement of the ewmployee's copyright would have a similar, bnt even stronger effect.
Yes, the original designer (or the designer's employer) would have a legal right to the design, insofar as it included protectable design elements. Copyright on the design of &quot;useful&quot; products is limited, and the exact limitations vary from country to country. However, it might be hard for the designer (or the company for which the designer works) to prove that the creation was original, and was not an actual leak. But if the designer or company has retained sufficient evidence to convince a court, then a suit could be successful. Such a possibility makes me doubt that Apple or a similar large company would do that. The risks are too great when a design of their own creation would probably be quite good enough for their purposes. But that is all speculation.
In the US, code that you write in the course of employment is the property of your employer. Otherwise, anything that you create is your property. The gray area is things that you write during your employment but not in the course of your employment (hence the terms of the employment contract are vital). Something that you write before becoming an employee is not &quot;in the course of employment&quot;. However, if you use that code in the in the course of employment, you invite the argument that in fact the code was written in the course of employment. That argument can be squelched if you have an agreement with the employer that acknowledges that you are licensing your code to the employer in exchange for ... some consideration. It could be $1, or a similar unit of currency.
Their code, their rules A copyright holder is free to offer their work under none, one or many licences. They can, at the same time, use their own work however they see fit without regard to the licences they have given/sold to others (except, they can only give one person an exclusive licence). As an analogy, let’s say I own a fleet of cars. I can drive my cars anytime I want. I can let Jim drive my cars anytime he wants for free. I can let Mary drive a specific car on Thursdays and only within 10km of the depot. I can let Joe drive my cars providing he pays me $50 a day. And I’m not going to let Fred drive them at all because Fred’s a jerk. Each of those is a different licence.
This is going to depend on several things. First of all, do you have a lawful, licensed copy of the SDK? My understanding is that Nintendo only licensed the SDK to selected game companies. If what you have is an unauthorized copy, you do not have the legal right even to use it. If what you have is properly licensed, then you do. Or is what you have an unofficial SDK created by someone other than Nintendo? Secondly, what does the license agreement that comes with the SDK provide? Does it require developers to register with Nintendo? If it does, you will need to comply. Nintendo cannot prevent others from writing programs designed to run on their hardware. But they can control who uses their development software, if they choose to. You cannot reproduce in your game any of Nintendo's copyrighted software (or anyone else's) without permission. That applies even more strongly if you intend to sell the software. But you can use any development software for which you have a valid license in whatever ways its license permits. I would expect this includes creating games. It would include selling games that you create that do not use any of Nintendo's code, unless there is a specific provision forbidding that in the license agreement.
My question is, because I am not making any income from the distribution of the game, would the use of the copyrighted music fall under Personal Use? There are some &quot;private use&quot; exemptions in Australian copyright law but they have some fairly narrow conditions. These exemptions are fairly narrow because the point of copyright law is not to prevent you from making money with someone else's intellectual property but to protect the other person's ability to make money with it. If Alice writes a song and Bob distributes it free of charge, Alice loses revenue. Similarly, it is Alice's right to decide whether that song should be included in a freely available open-source software product, and her right to decide whether to allow that use without charge or in exchange for a license fee.
This could be a problem if the consultancy agreement contains a provision that assigns to the client any copyright in any code created by the consultant. That is why there should be no such provision. In the absence of such a provision, the consultant owns the copyright in the code, so it would be impossible for the consultant to infringe that copyright. Even so, copyright protects a particular expression of an idea, not the idea itself. The idea of an "analyze data" class containing a "read data" function is not itself subject to copyright protection. It could potentially be patentable as a "process," but it would fail to meet the criterion of novelty. It would also fail to meet the criterion of non-obviousness. On the other hand, a software developer cannot (without permission) copy source code that is protected by copyright simply by changing the names. Changing the names would constitute the creation of a derivative work, and the right to create derivative works is also protected by copyright.
If you are subcontracted, then some other company is going to use the code that you wrote, and since you were not paid for it, you are the copyright holder. A letter to that company's legal department might work wonders.