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Imagine you hire someone on a freelancing site to code a (highly) custom website or app with very specific functionality. After they complete the job, you pay them for their work and they hand over the source code to you. Who owns the code / IP? You or the developer? Let's assume the employer resides in the U.S and the freelancer resides in India or another 3rd world country.

I've checked this question and it seems that unless a contract was written explicitly stating that the Freelancer hands over all IP + code to the employer the code may actually "belong" to the Freelancer and the employer is merely able to "use it".

Does this means the Freelancer can re-use the entire code base and unveil an exact replica of your site with the intention to undercut you if he or she chooses? Or does it mean the Freelancer gets to re-use bits and pieces of code for another project?

Thanks

S.O.S
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  • This s not a support channel for freelance crowd sourcing sites. If you have a question about such a site, you need to ask them or review their terms of service. – Scott Jan 29 '21 at 06:37
  • @Scott How is the question different than: https://freelancing.stackexchange.com/questions/1619/what-to-do-with-code-after-odesk-job-completion – S.O.S Jan 29 '21 at 06:38
  • 6 years of site growth and changes. Often with stack sites, what is acceptable at one time becomes untenable. If questions regarding crowd source sites were allowed here they would quickly take over the entire stack. – Scott Jan 29 '21 at 06:39
  • @Scott I see. What if I just leave this part of the question: "So this means the Freelancer can unveil an exact replica of your site to compete with you if he so wishes" and remove the Freelancer.com part. Would that be acceptable? – S.O.S Jan 29 '21 at 06:41
  • Sure.. remove all aspects referring to crowd sourcing sites. – Scott Jan 29 '21 at 06:41
  • @Scott OK updated the question hope it is good now – S.O.S Jan 29 '21 at 06:46
  • Better :) Thanks for the consideration. – Scott Jan 29 '21 at 07:11

3 Answers3

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In any creative venture, be it artwork, fiction writing, markup writing, coding, music, film.... the "work" is copyrighted and owned by the creator the moment it is created.

There are only 9 ways the author "loses" rights to the work. William Fisher, of Harvard Law, has an excellent lecture on copyrights. Specifically Lecture 5 part 3 explains the 9 instances where authors do not retain the rights. There is a 10th... if you are an employee or otherwise under a work-for-hire agreement. And an 11th.. if the author gives them away.

So, to that end.. Yes the freelancer owns their creation and can do with it what they want.

Ethical freelancers aren't going to reuse something in whole. It's not uncommon to pull a part form here or there to flesh out something new, but direct duplication is often something most ethical freelancers aren't interesting in doing.

If you fear replication of something you've paid for, a simple solution is to have a contract which transfers partial or all rights of the product from the author to the client/buyer. Most freelancers are more than willing to enter such agreements, however costs may be higher given this factor. Barring such an agreement, the author is free to use the work in any manner they see fit, even if it upsets or bothers the client who paid for the work initially.

It should be noted that freelancers do not have an "employer". Freelancers have clients, not "employers".

  • Employers tell workers when to work, how to work, what to work on, provide tools for completion of that work, etc.

  • Freelancers define their own hours, how a project is completed, what projects they will work on, and use their own tools to complete those projects.

Definitions matter.

Simply because someone pays me to complete something does not make them my "employer", much the same way if I were to hire a plumber to fix my drains, that would not make the plumber my "employee".

The employee <> employer relationship is always a work-for-hire arrangement and the employer owns everything created by the employee.

Independent contracting is often a freelance position. However, there can be contracts defining ownership which can equate to a more work-for-hire agreement in which the contractor (client) owns everything created by the contractee (worker).

Osama
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Scott
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  • What if the employer played a big role in shaping the function, vision, direction and success of the entire program - wouldn't that give the employer a good chunk of the IP? I mean software isn't written in a vacuum.. It's not like asking someone to write a book and then sitting back on the couch until the guy finishes his work.. it's like someone who plays an active and critical role in character / story development.. are you so sure that in this case the guy who writes the book (or software) owns the whole IP? – S.O.S Feb 01 '21 at 04:46
  • @S.O.S input, suggestions, ideas, feature requests are all not "when", "what", and "how" to work... Of course a client must provide some direction, but the idea or desire alone does not constitute ownership. One cannot copyright any idea. It's only the implementation of an idea which can be copyrighted and owned. – Scott Feb 01 '21 at 07:29
  • Hire me to paint a picture of a turtle... sure it's your idea... but I do the painting on my time, with my tools.. and it's my artwork. I can then choose to either sell you the rights to the artwork or not. But you don't own anything other than what I'm willing to sell you - which may be merely usage rights, not ownership. – Scott Feb 01 '21 at 07:36
  • A good example of all this is Zuckerbrg and Facebook... He took an idea from someone else, built it with their input along the way, then decided to keep it. Sure there were legal settlements later (but no definitive wrongdoing on Zuckerberg's part). Ultimately, who owns Facebook now? – Scott Feb 01 '21 at 08:54
  • According to ndtv.com the twins accused Mark Zuckerberg of "intellectual property theft", saying he "illegally used source code intended for the website he was hired to create."

    • "Mark Zuckerberg, who said he hadn't used a single code meant for Harvard Connection in Facebook, finally had to agree to an out of court settlement."

    – S.O.S Feb 01 '21 at 18:11
  • (continued) It seems your comparison to FB is misconstrued. Mr. Zuckerberg argued that he did NOT use even a "single line" of code that was intended for the website he was hired to create. Even in this case the twins recieved some settlement (albeit insignificant). Now imagine the opposite scenrio: Suppose mark had handed over the entire source code to the twins (after receiving payment) and the twins launched FB (not Mark). A few months later (perhaps after seeing the succes of the website) Mark decides to launch an exact replica of the site (or sell it to someone else who does)
    • – S.O.S Feb 01 '21 at 18:11
  • (continued) I'm pretty certain the outcome would have been very different. I think you're comparing apples to oranges. Moreover, in the example I gave there's clear proof of communication/direction between the "employer" the developer for each step of the way - which clearly shaped the direction and essence of the site. This is the opposite of the winklevoss twins case against Zuckerberg.
    • – S.O.S Feb 01 '21 at 18:13