@Sythe To me, at present, this case comes down to the meaning of what 'call it my own' means - I think it could support an exclusive license to use. I don't think joint authorship can be made out, because 'all' Bogla has supplied is ideas, and under the law that isn't sufficient to grant copyright generally, or joint authorship.
There seem to be two main arguments that Bogla could advance which I will deal with:
- Bogla was a joint author with Quid; and
- The words 'call it my own' meant an exclusive license (although not copyright) was given to Bogla.
Joint Authorship:
Based on the law, I'm not convinced that it can be said that Bogla is a joint author.
Here is a small article which alludes to why, specifically this excerpt which I think readily applies to this situation:
"...there is no copyright in an idea, or in ideas. A person may have a brilliant idea for a story, or for a picture, or for a play, and one which appears to him to be original; but if he communicates that idea to an author or an artist or a playwright, the production which is the result of the communication of the idea to the author or the artist or the playwright is the copyright of the person who has clothed the idea in a form, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in that product."
Although I accept that Bogla did convey instructions to Quid as to how Bogla wanted the website to look and operate. To me this was Bogla conveying 'ideas' and not 'expression'. One very entrenched principle of copyright law is that it protects 'ideas' and not 'expression': the idea-expression dichotomy. Where the line is drawn is cause for much litigation; I don't think this case falls on the borderline. I would briefly argue as follows: Given what Bogla commissioned was a computer program (which I'll define as a 'set of instructions'), for Bogla to have contributed 'expression' to the computer program, logically he would have to write some of that computer program. I would expect Bogla to have coded some non-trivial instructions which formed part of the website (for example if all Bogla did was declare a variable, that would obviously not be sufficient; if Bogla coded a useful function, you would be closer to that borderline). To my understanding, Bogla has not coded any such non-trivial instructions - if this is incorrect
@Bogla please let us know.
In short, that is why I don't think Bogla would qualify as a joint author. Assuming we accept the above test, and if Bogla did in fact write some code, I would want to know what Bogla's actual contributions to the writing of the code were.
'Call it my own':
When I first read this, I agreed with iHQ that it did not transfer the copyright to Bogla. I thought that it meant Bogla wanted a unique look and something that differentiated him from his competition. Regardless, focusing on the natural meaning of the words 'my own'. I think the opposite of 'my own' would mean someone elses. In other words, Bogla wanted something that was his own and not someone elses. Interpreting it this way, the consequence would be that it would be illogical to then allow Quid to sell what was Bogla's 'own' to someone else. Because then Bogla's 'own' would be someone else's too, defeating the whole purpose of those words. Logically then, I would certainly see support for the fact that Bogla had an exclusive license to use.
Others could interpret this differently however and so it would be useful to see what others think the natural meaning of the words 'my own' mean in this situation. On the
contra proferentem rule, I would note that this was not a standard form contract and that the rule should be invoked at last resort and not first instance. I'd like to hear what other people think on the interpretation of 'my own'; I think this could go both ways even after we've applied the rule.
