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Friend asked me to develop a software application for him. I did and he paid me. There was no written contract. I live in UK and he resides in Canada.

My question is: who is the owner of the software now? Can my friend make and sell copies without my permission? Can I do the same?

I'm asking this because another person also wants to buy it, but friend insists on receiving some kind of sale commission, because the software was originally written at his request.

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closed as off topic by Blrfl, gnat, MichaelT, Glenn Nelson, Jimmy Hoffa Feb 13 '13 at 23:17

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It is 110% his. Next time do a contract. –  Mathew Foscarini Feb 13 '13 at 19:50
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It can't be 110% his. It's 100% at most. –  marco-fiset Feb 13 '13 at 19:57
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Yeah, in the United States we call this a "work for hire." Generally speaking, the person paying you to write software for them has complete rights to do whatever they wish with it. –  Robert Harvey Feb 13 '13 at 19:58
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In all my freelance work it clearly states in my contract that the code belongs to the client. I can't see how they would want it any other way. –  Bill Leeper Feb 13 '13 at 20:01
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If you wrote it once, then you can write it again with a separate code base. It'll give you a nice clean break. –  GrandmasterB Feb 13 '13 at 21:06
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1 Answer

up vote 14 down vote accepted

Without a contract in place, most common law says that the program and copyright to the code belong to your friend. Essentially, he employed you for a task and paid for your labor so you were his employee*.

And that implies that you aren't allowed to sell a copy to a second friend since you don't own that application. Your first friend owns it.

However, it also depends upon the verbal (IM'd, or email'd) terms that you guys agreed to when specifying the project. Verbal contracts are a pain to sort out because it's a you-said vs. he-said argument. But if your first friend agrees that you also still "own" the software then you could sell it to your second friend.

In my opinion, the right thing to do would be to give your first friend a cut of the sale. Ideally, he's not asking for all of the sale, but he could be entitled to make the claim. You should also discuss what limits there will be for any additional sales that might occur. Hopefully, you'll come to an amicable agreement.

Legally, there's probably not much that can occur. You're in completely separate jurisdictions, and I'm willing to be that the sums involved are not enough to justify an international lawsuit. Worst case is that you'll have lost a friend, and perhaps with some hard feelings.

Talk it over with your first friend and find an amicable agreement. He does have a basis for his claims.


Update:
There is a huge distinction to be made between an application that was created under terms of employment and an application that was commissioned.

If the work was created under terms of employment, an implied contract in this case, then the copyright would belong with your first friend who paid you to write the program. US law recognizes the term "work-for-hire" as an employment term. Canadian law regrettably acknowledges the US term due to the number of Canadian | US contracts, but it's not a preferred term within Canadian contract law.

On the other hand, if the work was created under terms of a commission then full copyright remains with you, the creator of the work.

And there's one more slightly crazy exception to all that. If your friend was requesting the work on behalf of the Canadian Crown then all copyright would belong to the Crown.

The nuances between creation under employment versus creation from a commission are ones that an attorney would have to settle for you. That sort of determination is well outside the scope of what Programmers can offer.

Also off-topic, but slightly interesting, is that photographs and illustrations have a whole gamut of exceptions to the copyright provisions of commissioned work.


For some not-so-casual reading, here are some additional references.

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Actually, due to the absence of a contract, the copyright lies with @Michal. See ipo.gov.uk/types/copy/c-ownership/c-commissioned.htm. –  Bart van Ingen Schenau Feb 13 '13 at 20:18
    
@GlenH7 - thanks for the reply. I agree with you and I'm willing to give him a cut. I was bit surprised when others pointed out that under US law he'd be an owner of both code and the program itself. –  Michal Feb 13 '13 at 21:06
    
@BartvanIngenSchenau - does UK jurisdiction apply in this case or Canadian one? –  Michal Feb 13 '13 at 21:07
    
@Michal: As fas as I could determine, the UK law applies as you are a UK citizen. In any case, I did not see a significant difference between UK and Canadian law here. –  Bart van Ingen Schenau Feb 13 '13 at 21:11
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Someone please create an updated answer that is correct! –  livingtech Feb 13 '13 at 22:57
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