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I work for a large, international company. As a hobby, and in my free time, I began learning software development.

To learn, I began creating a small tool that I could use at work to assist with my duties there. However, its usefulness soon caught the eye of coworkers who also wanted to use it.

Long story short, my application is now being used in multiple departments, with myself still as the sole developer. It has continued to grow and I now have leadership making specific requests for additional changes to be made to the software.

The majority of the early work on the software was done at home, on my own time. However, within the past 6 months, I have spent some company time working on it as well. I am now working on it nearly full time at the request of my managers.

My question is this: What are my legal rights to this software? Would I be able to sell it? Or deny its use to my company? There have been no contracts signed at all, no change in my salary, and no offers to pay for the work I've done on it (and no, I do not make a developer's salary; I actually make a relatively low salary-grade).

Did I lose all of my legal rights or bargaining power the moment I brought it to work and used company time to work on it?

Thank you for your help!

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I'll assume you are salaried full time exempt in the U.S. in an at-will, right-to-work state and are covered by a standard "employee handbook".

This has been developed by you, employee, to assist in doing your job, employment, for your company, employer, using time, materials and information belonging at least partially to your employer. Since creating it, you gave it to other employees and have accepted management directives to continue work on the software as part of your full-time job.

This is the company's software now. Your best bet is to support it like crazy, make it a big deal and ride it as high as it will take you in the company. Ask for a raise, ask for a promotion, get references and put it as an accomplishment on your resume.

But you can't sell it or take it away from your employer. That ship has sailed. You can still greatly benefit from your work (at your employer's discretion) and learn from it for next time.

  • It has, indeed, already opened some opportunities for me going forward within my company. I am happy to have provided the software and to continue supporting it. I expected this to be the answer. Thank you! – Zephyr Jun 28 '17 at 3:20
  • @Zephyr user6726 provides a different perspective in his answer: he suggests you might have some ownership rights. Note that I might be wrong and am using my limited knowledge of the law to provide what I believe the answer to be. It might be worth talking to a lawyer if you are serious about trying to exercise rights of ownership. You may have some - but if I were you I wouldn't count on that being a productive venture. – Patrick87 Jun 28 '17 at 12:35
  • Talk to your Boss. When my partner do this sort of thing I don't mind sharing profit – Sharen Eayrs May 9 '18 at 8:24
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This poses an interesting and complex legal question. During the period when you developed the program as a hobby, it was your property, even if you did allow friends at work to use it. Subsequent development, where you've been working on revisions as part of your job, make that part of the whole work a "work for hire", which is the property of the company. It is not required that you get a pay raise, or have an explicit contract stating that the work you're doing for the company is software development.

The tricky part is the mixing of property interests. You retain copyright in the original code, but you've implicitly granted permission to use that code as a basis for further versions that were part of your job. So you can't prevent the company from using the current program, because the company holds copyright to the stuff they paid you to do. You might be able to yourself sell the current program, and you could certainly sell the hobby version. There is minor risk in selling the hobby version that the company would (incorrectly) maintain that you implicitly assigned your copyright in the original program to them, and you could duke it out in court and win since copyright transfer has to be in writing. It's highly unlikely that they would go to court to stop you selling your original program, but management could be misinformed and think that they can do that and could threaten you accordingly. Your lawyer would set them straight on that point. The problem is the current version.

17 USC 106 says that the owner of copyright has the various rights (owner of the right, not creator of the work). 17 USC 201(b) says that

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.

17 USC 201(a) says

Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.

You are obviously the author and rights-owner of the basic code, and the company is the "author" and rights-holder of the added code. So this is a joint work, the you (and the company) are co-owners of the whole final product (you own disjoint portions). 17 USC 201(d)(2) says

The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

which means you can sell your part, or license its use. Either owner can register and enforce copyright in a joint work, and the owners have an equal interest in profits from selling the work. If the company could not possibly have an interest in trying to distribute the revised program elsewhere, then there may not be any point in trying to sort out this joint ownership. However, as a co-owner of the work, either one can grant a non-exclusive license to use the work. It's enough of a mess to warrant a visit to an attorney.

  • Thank you for all the details. I had figured this would be the case. – Zephyr Jun 28 '17 at 3:20

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