04 Mar, 2008, Mabus wrote in the 1st comment:
Votes: 0
I have been asked to code for a game in the design phase. While I realize that (most likely) none of us are lawyers, and that it would be best to inquire of a lawyer about such matters, I would value any input you could give on what I should ask for in my initial dealings with the company.

1) I retain all copyright rights to any code that I write, and to any modifications that I create, while modifying the code.

2) All code written and/or modified by me shall have a copyright notice that I have written and/or modified the code in the code files. This notice cannot be removed or modified, even if the code is further modified, or even rewritten, by others in the future.

3) A notice that the service of my design and code is not "Work for Hire" must be included within any license agreement.

4) A "Release for Use" clause that allows that if this venture does not come to completion (in the form of a working game with paid customers), and/or that if the work on the game progress stops for any reason, that I can use my designs, code and modifications in any form and manner that I see fit.

5) Any license must contain the possible complete methods for payment, profit and/or profit sharing that I could expect from usage of the code.

6) A "No Sale or Sublicense" clause, that states that any code, design and/or modifications cannot be given, shared, sold or sublicensed to anyone without my written and notarized consent.
04 Mar, 2008, David Haley wrote in the 2nd comment:
Votes: 0
(1) It is unlikely that they will grant you this unless you grant them an eternal and irrevocable right to use the code. Otherwise they have very little incentive to hire you if at any moment you can take away your contributions by asserting copyright.

(2) That seems reasonable, modulo the fact that if they toss your code, they should still need to keep your notice. If they truly toss your implementation and use another one, they shouldn't have to note that at one point in time they used your algorithm.

(3) I don't really understand what you're asking for. If you're trying to say that you keep all rights, unlike employees, this is not something they would agree to if they had half a brain.

(4) How does one define progress stopping? Does it require them to explicitly abandon it? What if they just go on a three-year hiatus?

(5) Yes, of course, it is perfectly reasonable to contractualize your payment expectations…

(6) Unlikely that they'd agree – what if they go bankrupt and are purchased by another company? – but you could try asking.



Basically, and frankly, I don't think it's at all reasonable to be paid to do work, and yet expect to keep all of your rights. The whole point of paying you is that they get something for themselves! They're giving you money, you give them a work. If all you give them is a hobbled work they have very few rights over, then they haven't really gotten their money's worth.
04 Mar, 2008, Tommi wrote in the 3rd comment:
Votes: 0
Wouldn't a standard employer, employee agreement be the order of the day here. I am sure if you scan the web you will find 100's of them specific to the software industry.

Being that most of us have only ever dealt with muds in the context of a free environment and don't really have much of an idea when it comes to real world scenarios like this. But to my way of thinking, if i was being payed to do a job, i would not care what happened to the code afterwards, about the only thing i would stipulate is that my name appeared in the credits.
04 Mar, 2008, David Haley wrote in the 4th comment:
Votes: 0
This isn't really a question of MUD programming, it's a question of being paid by somebody to do work for them. They're not even buying a product from you: they are buying your time, not your product. There's a non-trivial difference there.

Incidentally, I have been paid to do MUD work and it was always, always on the assumption that the payer would get to do whatever they wanted with the code. If you're not happy with that (which is the standard arrangement!) then don't get paid, or get paid more until it's worth it to you. Or, expect and accept to be paid less, and be able to enforce such unusual conditions.

Tommi said:
about the only thing i would stipulate is that my name appeared in the credits

Even this is an unusual request. It would be nice to recognize who wrote something, but if I'm paying you you to produce something, what I'm buying is the product, not all these attached strings! If you're going to attach strings, I'll give you fewer greens. :wink:
04 Mar, 2008, Mabus wrote in the 5th comment:
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That's the thing, I would be expected to code with just a promise of possible future compensation as it currently stands. There would be no set salary as compensation. The company had a previous game that never made it past vaporware, and I really do not want to spend hundreds of hours coding and have it all end up as just time lost.

I would prefer to license their use of my code to them, and if it all goes belly up (without my ever receiving compensation) I would at least have the code that I had spent my time developing.
04 Mar, 2008, David Haley wrote in the 6th comment:
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It is reasonable to set your compensation as a function of profits. It's how many things work where revenue is uncertain. There are flat fee arrangements (which sounds like isn't what you expect to get), and then there are arrangements along the lines of "give me x percent of your revenue".

If I were the person you were working with, I would be extremely nervous if at any point you could up and leave with all the code. Especially when I start giving you money, I expect that code to remain fully available to me, and I probably don't want you giving it to other people, either, because that might remove a serious competitive advantage from me.

You can always try working something out amiably, along the lines of a mutual (and informal) agreement that if it doesn't work out, you get to keep everything, and if it does work out and they start paying you, it becomes theirs. But if they're smart, they would think extremely carefully about agreeing to such an arrangement formally.

Again, I wouldn't want the person writing code for me to be able to disappear with all the code the day before things start working out…
04 Mar, 2008, Guest wrote in the 7th comment:
Votes: 0
Considering the stakes involved here, I think it would be wise to seek a consultation with a real lawyer who has real qualifications. Not a bunch of armchair lawyers on a legal forum for MUDs :P

With that in mind, I don't think it's unreasonable for you to ask to be compensated for your work, and for you to ask that the work be licensed to them in such a way that you retain full rights to it as well. I wouldn't expect them to be terribly happy with this kind of a setup, but they did come to you and you've indicated they do have trouble getting things to release. So it seems to me you've probably got a stronger negotiating position than most.
04 Mar, 2008, David Haley wrote in the 8th comment:
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Well, if I were them, I would back out quicker than you can say "no" if somebody demanded such a deal without safety for me. Either that, or I would significantly reduce the amount of money I'd offer. And I would demand an irrevocable, time-unlimited right to use the code; it would be completely unacceptable for code I paid for to be pulled out from under me.

And for once I think there isn't much "armchair employer lawyering" going on here since there is fairly clear precedent on what happens when you write code for somebody who has hired you. It is definitely on the unusual side to be employed and yet retain complete and exclusive control of your work – and in particular be able to remove it from the person who hired you…!
04 Mar, 2008, Mabus wrote in the 9th comment:
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I appreciate all of your comments. I believe I will just buck up and contact a lawyer.
04 Mar, 2008, Tommi wrote in the 10th comment:
Votes: 0
Quote
MABUS: I would be expected to code with just a promise of possible future compensation as it currently stands. There would be no set salary as compensation.


As its a startup with no development capital, just ask them for an equal stake in the company. You can then write down your time spend working on the project as a loss on your current income tax and just negotiate for what you would feel is adequate compensation once there is a revenue stream.

Quote
SAMSON: So it seems to me you've probably got a stronger negotiating position than most.


This is very true, your in a very strong position in this situation. As your putting in time for what could amount to nothing, i would be pushing for part ownership of the project, pretty much anything less than that is really not worth your time and effort. A promise of potentially nothing is not of benifit to you, making a business loss atleast can be used to write down your income tax.

The other thing is you want real contract and real signatures in this situation, as you want proper legal avenues open to you. This does not mean that you need to rush out and hire a lawyer, but you would want the company involved to send you proper legal contracts that you can then have a legal person scrutinize.
04 Mar, 2008, KaVir wrote in the 11th comment:
Votes: 0
Mabus said:
That's the thing, I would be expected to code with just a promise of possible future compensation as it currently stands. There would be no set salary as compensation. The company had a previous game that never made it past vaporware, and I really do not want to spend hundreds of hours coding and have it all end up as just time lost.

I would prefer to license their use of my code to them, and if it all goes belly up (without my ever receiving compensation) I would at least have the code that I had spent my time developing.


Understandable - most muds fail, particularly scratch-written ones, and very few commercial muds make it. If the company failed last time, I wouldn't hold my hopes too high about them succeeding this time around.

Licencing your work is certainly an option (that's how most software is used - you purchase a licence), and is probably what I would do in your situation. Perhaps you could even provide them with two licences, one for non-commercial use and another for commercial use (so once they're ready to make an income, they have to start paying you royalties or a licence fee), or maybe both could be combined into a single licence. I would also suggest the other party make a small up-front payment to make it clear there is a contract, so they know you can't later withdraw your licence for no reason.

But you're right, you should really speak to a lawyer.

DavidHaley said:
And for once I think there isn't much "armchair employer lawyering" going on here since there is fairly clear precedent on what happens when you write code for somebody who has hired you. It is definitely on the unusual side to be employed and yet retain complete and exclusive control of your work – and in particular be able to remove it from the person who hired you…!


That's assuming you're actually an employee, though - and from what Mabus has said here, that doesn't sound like it's the case.

http://www.bitlaw.com/copyright/ownershi...

The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under "the common law of agency." What this means is that courts will look at various factors to determine whether the individual is an employee, such as:

* the control exerted by the employer over the employee (i.e., the employee's schedule and the hiring of the employee's assistants);
* the control exerted by the employer over how and where the work is done;
* the supplying of equipment for the employee's use; and
* the payment of benefits and the withholding of taxes.

Although these factors are not exhaustive and can be difficult to analyze in close situations, it is clear that a work created within the scope of a regular, salaried employee's job is a work made for hire. Typical examples of works made for hire would include a software program created by an employee programmer, or the ad copy created by a marketing department employee.

If a work is created by an independent contractor (that is, someone who is not an employee), the work may still be a work for hire, but the definition is much harder to meet. In order for the work of an independent contractor to be a work made for hire, the following facts must exist:

* the work must be specially ordered or commissioned;
* the work must come within one of the nine categories of works listed in the definition above; and
* there must be a written agreement between the parties specifying that the work is a work made for hire.
04 Mar, 2008, David Haley wrote in the 12th comment:
Votes: 0
By "employee" I meant "somebody being paid to provide a service" (e.g. somebody that is hired) – I meant to include e.g. consultancy in that and agree I should have been clearer. There's no need to preemptively declare war citing a whole swath of text… :wink:

Note that if you are doing something for potential future benefits, you are still working for hire, it's just that the compensation is contingent on future income.
04 Mar, 2008, KaVir wrote in the 13th comment:
Votes: 0
DavidHaley said:
By "employee" I meant "somebody being paid to provide a service" (e.g. somebody that is hired) – I meant to include e.g. consultancy in that and agree I should have been clearer.


You mean exclude consultancy - independant contractors are not employees, and it's perfectly possible for them to be paid without it being a work-for-hire.

DavidHaley said:
There's no need to preemptively declare war citing a whole swath of text…


I cited a source up front in the hope of avoiding an unnecessary argument.

DavidHaley said:
Note that if you are doing something for potential future benefits, you are still working for hire, it's just that the compensation is contingent on future income.


It's only a work for hire if (1) they're an employee, or (2) the work has been specially ordered or commissioned and there's a written agreement specifying that it's a work made for hire. We can safely discount the second case from happening by accident, which leaves us with the first - that Mabus is an employee. And that is determined under "the common law of agency", based of factors such as:

* the control exerted by the employer over the employee (i.e., the employee's schedule and the hiring of the employee's assistants);
* the control exerted by the employer over how and where the work is done;
* the supplying of equipment for the employee's use; and
* the payment of benefits and the withholding of taxes.

Does the company control Mabus's working hours, and choose his assistants? Does it control how and where he develops the code? Does it provide him with a computer, development tools and an office? Does it pay him a salary and withhold taxes on that salary?

I don't know what Mabus's situation is, but the above factors are what would be used to determine whether or not he is an "employee" for the purposes of work for hire.
04 Mar, 2008, Tommi wrote in the 14th comment:
Votes: 0
I would highly doubt that he would be classified as an employee under any sane tax system in this situation. In many respects he is an investor or venture capitalist, but rather than forking out $$$ with the hope of making more $$$, he is investing his time, energy and skills as a coder into the project with the view to make a profit from his investment.
04 Mar, 2008, Tailsthefox wrote in the 15th comment:
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I know that I am NOOB when it comes to mud laws, But I think thats kinda idiotic, the things your asking for.
04 Mar, 2008, KaVir wrote in the 16th comment:
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Tailsthefox said:
I know that I am NOOB when it comes to mud laws, But I think thats kinda idiotic, the things your asking for.


The things he's "asking for" are already his by law - all he's doing is clarifying that he's not giving up those rights. Try looking at the licences for proprietary software applications you use, and you'll find that most are more restrictive and also require a purchase before they can be used.
04 Mar, 2008, Tailsthefox wrote in the 17th comment:
Votes: 0
Okay sorry I misunderstood
04 Mar, 2008, Mabus wrote in the 18th comment:
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I have expressed my concerns to the company, and we are in talks now.

Likely, it will end up an exclusive license with payments based on a percentage once the game goes live. There will be a release clause ending the license if the project does not come to completion, which will allow me to then do what I want with the code. Will review and modify it when I get the first draft.

Fun, fun.
04 Mar, 2008, David Haley wrote in the 19th comment:
Votes: 0
KaVir said:
You mean exclude consultancy - independant contractors are not employees, and it's perfectly possible for them to be paid without it being a work-for-hire.

I think you misunderstood what you replied to… if I explicitly say "include", how can you possibly tell me I mean "exclude"? I also said I chose a poor word. Not sure what else you need!

Mabus said:
There will be a release clause ending the license if the project does not come to completion, which will allow me to then do what I want with the code.

Who defines "not coming to completion"? Are they allowed to take a break for a few years? Do they have to dissolve the company before it is officially abandoned? What if somebody purchases the company – is the IP/license transferred to them?
05 Mar, 2008, KaVir wrote in the 20th comment:
Votes: 0
DavidHaley said:
KaVir said:
You mean exclude consultancy - independant contractors are not employees, and it's perfectly possible for them to be paid without it being a work-for-hire.


I think you misunderstood what you replied to… if I explicitly say "include", how can you possibly tell me I mean "exclude"? I also said I chose a poor word. Not sure what else you need!


Then I'm afraid I'm not quite sure what it was you were trying to say. As I've said already, independant contractors are not employees, and a definition of the latter should not include the former.

Another way your comments could be interpretted would be to go back to your earlier statement that "It is definitely on the unusual side to be employed and yet retain complete and exclusive control of your work" and replace the word "employed" with "paid to provide a service". But that's not true either, so I can't imagine that's what you meant.
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