IP Ownership sounds like it should be pretty straight forward, the Customer says, I paid for the service, I paid the rate you quoted, so I should own the work. To fully appreciate the Consultant’s challenge with the above statement however you need to understand two related facts: 1) how consulting work is typically performed; and 2) how the US copyright law works.

First, when a consultant provides services they leverage a lot a previous work while some code is new, and certainly the arrangement of the program code changes to make the custom work they inevitably use many of the pieces of program code that they used in earlier consulting Projects, so the work is never new from the ground up. Compounding this fact is the strong likelihood that Customers often selected their consulting vendor because of their familiarity with the application program package, or subject matter familiarity; perhaps the software application vendor recommended them or the Consultant did a similar Project for a customer in your same line of business. So the vendor is asked by the customer to do similar tasks and they will be using the same pieces and the same application program package.

Second, under US Copyright law all one party needs to do to create a presumption of copying is to establish: i) the works are substantially similar in a meaningful way (i.e. not totally copied but meaningful portions work appear the same) ; and ii) that the party that did the second work had access  the earlier work. Once the Customer demonstrates those 2 facts the Consultant then must be able to prove that he did not copy, in practice that is an extremely difficult task, particularly if a Consultant specializes in that market.

The challenge is that while Customer’s select their Consultant based upon their prior experience with the application software package and performing similar Projects, yet when they demand exclusive ownership of the work (“Work for Hire”), that creates a presumption that the Consultant copied that work the next time they do similar Projects for others. There are ways to help strike a fair balance where the Customer owns the work but that the Consultant is not burdened with the presumption that they violated the Customer’s copyright, but that is beyond the scope of this paper.