[btilly]

You'll have to talk to a proper lawyer to get a citation.

The state difference emerges because the "for hire" bit depends on local labor laws. And yes, the type of work matters. If a programmer writes a novel, or an accountant writes software, the employer likely doesn't have a case. But if a programmer writes software, then in New York it doesn't matter whether the software relates to your job or what your employer does. In California the content does matter.

[jkaplowitz]

Well, there are two different things here: for-hire status or not, and assignment to employer if not.

For-hire status is different since the employing corporation is actually deemed the author, which affects things like duration of copyright. Maybe it depends on whether a state-law employment relationship was in place or what the state says your job functions are. I'm unsure about that point but I don't think either of us is claiming meaningful differences between California and New York on that point.

In either state, if you do something within the scope of your employment (i.e. programmers writing software for their employer's use or in-house accountants writing notes to a financial report for their employer), the employer owns it as author regardless of contract, unless the employer explicitly assigns it in writing to the employee.

Also in both states, nothing the employee does in their spare time outside of the scope of employment is owned by the employer by default, in the absence of a contract saying otherwise.

The only difference in this regard between California and New York is that a California statute restricts what the contract can assign. New York has no such statute.

But your example about a programmer writing a novel is interesting: if the content of the novel relates to the actual or demonstrably anticipated business or research of the employer, or uses the employer's confidential information / resources / time, an assignment provision covering it would be enforced in California. Same if an accountant writes software useful for the Kubernetes hackers at their employer.

Neither of these examples would be a work for hire or assigned by default, but both California and New York would allow that to be assigned by employment contract language (with the individual and not the corporation as author for copyright law purposes).

[btilly]

The relevant difference as I understand it is the definition of "the scope of the employment".

In both states, if a professional employee figured out how to solve a work problem at 6 AM in the shower, that is clearly part of the scope of the employment. The difference is that if a programmer sits down to write some code at 8 PM, that is more likely to fall within the scope of employment in New York than in California.

This difference is on top of what the contract is allowed to say.