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Per https://en.wikipedia.org/wiki/Work_for_hire#Law_in_the_United_States, work done by an an independent contractor may qualify under work-for-hire if it's a contribution to a collective work.

But what if the hirer doesn't actually own the copyright to the collective work?! E.g., if it's a FL/OSS project that the contractor was hired to modify and extend, and the copyright on the existing collective work is owned by a third party?

Does this nuance at all alter the determination on whether or not a given work would qualify as work-for-hire when commissioned by a party that has no reasonable existing copyright stake on the collective work in question?

  • Even if the existing code is copyrighted by a third party, wouldn't the newly contributed code still be copyrighted by its author? The author may eventually want to transfer that copyright to the third party, but that's separate. – Nate Eldredge Feb 6 at 15:41
  • @NateEldredge but who's the author? And why would the author want to transfer it to a third-party? – cnst Feb 8 at 3:34
  • The author may be either the person who actually wrote the new code, or their employer if it is a work for hire. My point is that the fact that it's supposed to be a contribution to other code already copyrighted by someone else isn't directly relevant. If it's for an open source project, the programmer or their employer might want to transfer the copyright to the project maintainer (so that all the code belongs to one person), but as I said, that would be separate. – Nate Eldredge Feb 8 at 4:29
  • @NateEldredge there is no employee/employer relationship at stake; and my question is about determining who the actual author of the code is; it does not at all help for folks to be replying with "the programmer or their X" (with inapplicable values for X at that) when a determination of which one it is, is the exact point of the question. I don't think you understand the question based on your comments. – cnst Feb 9 at 1:37
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If the derivative work is made without the permission of the copyright holder or not under fair use/dealing (i.e. it is an infringing work) then the original owner is legally the owner of the derivative work.

If the derivative work is made with the permission of the copyright holder (including the terms of any licence) or under fair use/dealing (i.e. it is not an infringing work) then the author is the owner of the copyright. If the author is subject to the 'work-for-hire' rule then the employer of the author of the is the copyright holder.

  • Note that in a work-for-hire situation the employer is legally the author as well as the copyright holder. This can make a difference. For example, the life+70 term of copyright will not apply, instead the 95-year corporate term will apply (under US law). – David Siegel Feb 7 at 13:44
  • @DavidSiegel that’s us specific - in most other jurisdictions the author is still the author and the term is based on them. Most jurisdictions have (non-)transferable moral rights that belong to the author, not the owner. – Dale M Feb 7 at 19:41
  • @DaleM but the question is specific to the US; there is no "employment" relationship between any parties, either; I explicitly mentioned the part from Wikipedia on US law that I have the question about, because the whole work-for-hire exception seemed weird to me when the contractor is independent, and not an employee, yet seemingly the employee-is-not-an-author jurisdiction is being applied nonetheless to non-employees. I think all examples from Wikipedia seem to indicate "exceptions" of some sort for the film and education industry; I was curious whether they extend to OSS model. – cnst Feb 8 at 3:42

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