Ninth Circuit Finds Creation of Custom Programs under Contract which is Silent as to Intellectual Property Grants an Unlimited License to Use and Modify the Custom Programs

In Asset Marketing Systems, Inc. v. Kevin Gagnon, d/b/a Mister Computer, D.C. 542 F3d 748; 88 USPQ2d 1343 (9thCir. 2008), Kevin Gagnon, doing business as Mister Computer (“Gagnon”) appeals from the District Court’s grant of summary judgment in favor of Asset Marketing Systems, Inc. (“AMS”). The Court of Appeals for the Ninth Circuit affirmed.

Background

From May 1999 to September 2003, AMS, a field marketing organization offering sales and marketing support to insurance marketing entities, hired Gagnon at-will as an independent contractor to assist with its information technology needs. Gagnon was asked to develop six custom software programs for AMS.  Over the course of the companies’ four year relationship, AMS paid Gagnon over $2 million for this development.  However, no agreement was agreed to governing rights in the intellectual property for the developed software programs. Continue reading