Can Software Be Created As A Work-For-Hire?

In early February a decision out of the Southern District of New York added another layer of dicta supporting the notion that software created by an independent contractor can qualify as a work-for-hire. In Stanacard, LLC v. Rubard, LLC, 2016 U.S. Dist. LEXIS 15721 (S.D.N.Y. February 3, 2016), the court found in dicta that work performed by an independent contractor in creating a software program for use in a long-distance telephone services business had the potential to meet the statutory definition of a "work for hire" under 17 U.S.C. §101. This is a significant finding because it is far from clear that software falls under the work-for-hire doctrine at all.

It is no great secret that the term "work for hire" is one of the most misused phrases in all of intellectual property licensing. Contracts that are really meant to assign copyrightable material from an independent contractor to a customer routinely recite that the content being assigned is a "work for hire,"