Abandonware: The Problem of Ownership

Last week I talked a bit about the difficulties tracking down owners when companies merge or go out of business. But what about the more fundamental problem of companies that never explicitly take ownership of the software or games to begin with?

Most savvy software companies have their developers sign work made for hire contracts before they start their first day of work, so that there is no question that anything developed within the scope of their employment, on company time, and on company computers is treated as though the company was the “author” for the purpose of copyright law. Companies that realize they have lag between hiring and beginning projects have their developers sign contracts assigning all rights to the company, making it still authored by the developer, but owned forevermore (or until 35-40 years after creation) by the employer.

Older companies, those who developed, published, or sold software during the early days of the internet and the video game industry were not nearly as thorough. Paperwork has been lost or shredded, paperwork was never signed, and in some cases, the people in charge made assumptions about the ownership of software because the employees were employees and not officially independent contractors. However, early software development often took place without much supervision, at odd times, and with developers having near complete control over their output. Under the 1976 Copyright Act, if the employee looks like an independent contractor, behaved like an independent contractor, and never signed paperwork transferring ownership to the company, then the employee may still be the author/owner of the work.

This all assumes that the employee was the only one working on the project. What if there were collaborations? What about the artist who rendered backgrounds, or the sound person who created or tweaked the soundtrack or effects? They might also be authors, especially if there was an intent to create a joint work before any of them started work on the project.

What does this all mean in terms of copyright law? It means that each author has the power to license the work as a whole, and is entitled to a share of the profits from the licensing efforts of all other authors. It means any author can individually grant permission for others to make use of any or all of the work, including the parts that were the result of the efforts of others.

Even if the game isn’t a complete work of joint authorship, each creator may be entitled to additional compensation for their work, and portions of the revenue in proportion to their contribution to the whole work. Especially if they all have their name in the credits, and the defunct employer failed to register a proper assignment of the copyright. The passage of time may prevent these authors from reclaiming their share of the royalties, but their claim to be owners may prevent anyone else from being able to use the game or software in question before such an issue is resolved by a court of law. And that can be damn expensive.