For example, the repository owner owns the app, publishes the partial source code, and creates few tasks supported by some bounty to write some new components (such as new functions, classes, etc.).

What are the main factors deciding whether the owner of repository owns the new code which is merged into the main repository (code which is sent by a separate author), so that the owner can do whatever they want with the new code (e.g. changing the licence or applying their own copyright)? Does it matter if the code is brand new or modified, or whether the author was paid to write it (and is the ownership transferred with it)? Or, does it depend on the service being used, the agreement or the licence of the code which was merged into?

In other words, how does the copyright apply in this case?

My current understanding is that it's owned by the original code owner/company, because the developer who completed the task could be treated as a subcontractor.

  • I'm voting to close this question as off-topic because this is a straight legal question about works for hire, it is not at all specific to FOS.
    – bmargulies
    Apr 11, 2016 at 17:44
  • 3
    I'm leaving this open because it's a relevant issue related to open source development. There is no requirement that something must be specific to open source in order to be on-topic.
    – Zizouz212
    Apr 11, 2016 at 21:52

1 Answer 1


This question touches a lot of different copyright issues; here's the basic overview (under US law) followed by how I think it applies:

(1) The author owns the copyright. If it's a work made for hire, then the employer owns it. A work made for hire is (1) a work an employee prepares OR (2) certain special types of works as long as the parties agree, in a signed writing, that the work is a work for hire. Here's a good summary of the work for hire doctrine: http://copyright.gov/circs/circ09.pdf

(2) The copyright code requires that all transfers be in writing and signed by the owner. Under US law, there has to be a signed written agreement in order to transfer copyright. So if the work for hire doctrine doesn't apply, the person who wrote the code owns the copyright. This is true even if you paid that person to write the code. No writing, no transfer.

(3) There's some case law stating that a click-through agreement is enough to transfer ownership. At least one federal court of appeals (4th Circuit) has indicated that this requirement of a writing might be satisfied with a click through agreement. The case is Metropolitan Regional Info Sys. v. American Home Realty Network, 722 F.3d 591 (4th Cir. 2013). That might make it a little easier to comply with.

(4) Derivative works. When a person creates a new work based on someone else's work, that's called a derivative work. The author of the original material is the only person who can authorize another to create a derivative work. But the copyright in the derivative work is separate - the author of a derivative work (not the author of the original) owns the copyright in the derivative work. Good information on that here: http://www.finnegan.com/resources/articles/articlesdetail.aspx?news=9cbb473b-f87b-47eb-8d4b-0202ad56343a

So getting to the scenario you laid out: The contributor is probably creating a derivative work by taking the original code and adding new material. Assuming there's no written agreement to the contrary, the contributor owns the copyright in the derivative work. Doesn't matter if money has changed hands, doesn't matter that the original author owns (and continues to own) the rights in the original work - the contributor owns the rights in the derivative work they created unless there's a written agreement to the contrary.

If you want to change that result, the Metropolitan Regional case gives you something; if you have a click-through agreement stating that the contributor is transferring ownership, that might be enough to put the copyright back in the hands of the original author.

  • 4
    The copyright ownership in a derivative work's a little more mixed than that. The contributor owns the copyright to the parts of the derivative work they created, but the original author continues to own the copyright on the parts the contributor didn't write. The contributor can't distribute the derivative work except as allowed by the license on the original work because of that. I'd be wary of relying on a click-through, especially for open-source where the contributor can get the source without going through it, but they'll still be stuck with the license terms no matter what.
    – Todd Knarr
    Apr 8, 2016 at 5:48

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