Source code ownership rights

Without more specific information and without reviewing the contract, my initial thoughts are that the prgrammer, in this case the previous consulting company, owns the copyright in the source code, and the company's ownership interest is limited to their contractual rights. While the company has the right to modify the program as it existed when their relationship ended with the programmer, they do not have an interest in the sourse code. I would suggest consulting with a knowledgeable attorney.

Good luck,
Dan Silverman
SilvermanEsq@gmail.com

DISCLAIMER:
I am NOT your attorney. An attorrney-client relationship has NOT been created. The above is NOT legal advice. If you need legal advice, contact an attorney in your area.

I agree with my colleague. Computer code is subject to copyright, and unless the contract transferred the rights to the underlying source code in the contract or some other writing, copyright law says that the programming author or her company is the owner of the copyright.

It isn't necessary for the words "source code" or "computer code" to be used in the contract. Any language similar in meaning could be used to convey the parties' intent that the retail company bought all right, title and interest to the websites they paid for.

If not, then the creator/previous consulting company would own the source code (and their drafts and notes and other work product and anything else not included in the contract) and the retail company's rights would be restricted to their contractual right to own and use what was created for them.

You should probably have a lawyer review the contracts before youy re-invent the code.

Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

You need to have a technology/IP law attorney review the contracts in order to answer this question. The contracts may not refer specifically to source code, but they may contain a general work product ownership provision whereby the rights in any deliverables and work product are assigned to the retail company.

Generally speaking, source code is copyrightable, and copyright stays with the author (here, the other consulting company) unless it is assigned via contract or unless the source code constitutes "works made for hire" under the Copyright Act, in which case copyright would automatically vest in the client The "works made for hire" doctrine mostly applies to works created by an employee within the scope of his or her employment (not applicable here, since the consulting company is not an employee of the retail company); it can also apply to certain types of specially commissioned works (probably also not applicable here) authored by a independent contractor if they are designated as such in a written contract.

If the source code does not constitute "works made for hire," then copyright would stay with the developer (the other consulting company) unless it was assigned to the retail company in the contracts. A general provision assigning rights in deliverables and work product might be sufficient to accomplish this, which is one reason why legal review of the contracts is necessary. It would also be useful to see how the deliverables were defined, because this sheds light on whether or not the parties contemplated physical delivery of source code.

Without assignment language that is broad enough to cover the source code, the other consulting company probably still owns the source code. On the other hand, depending on how the deliverables are defined in the contract and whether by the nature of the relationship the parties expected there to be a physical transfer of the source code, it might still be possible to argue that the retail company has an implied license to use the source code to operate the website, which in turn could translate into a contractual right to access to the source code.

The bottom line here is that a lot of this can be clarified on review of the contracts.

NOTICE: The foregoing is provided for informational purposes only, is not specific legal advice and does not create an attorney-client relationship. You should consult with an attorney before taking any definite action.