Owning Your Intellectual Property as a Creative

How Companies Can Take Advantage of Creative Employees & Freelancers

Creative individuals are increasingly in high demand.  There once was a time when it was just the studios creating content. Today, everyone has a blog, social accounts of pets have followers in the millions and there are many, many companies, big and small, building their brand on the backs of creative employees’ and independent contractors’ intellectual property.

So, it’s a good time to be a content creator, right?  Yes, but, it also can be a dangerous time.  Why?  It’s all about ownership.

When you create content for another company, the company will assume they own the content. Even if you are a guest contributor “partnering” with a company to create content, the company will still assume ownership, especially if they have compensated you for your work.

But do they actually own it?

• That depends on the nature of your agreement with the company.  Most companies will have a clause in your agreement stating ownership of any intellectual property you’ve created for the company if you are an employee.
• Many courts will look to see if the IP was created during the course of the employment relationship, meaning even if you are “off the clock”, the intellectual property developed may be considered “relating to your employment engagement”.  For example, if you are creating some code for a company and come up with a solution for the code at home, the company may still argue that the code solution relates to your employment engagement.
• This assessment also varies if you are an employee v. independent contractor. Therefore, understanding the nature of your agreement with the company is critical.

For example, what happens if your company sends you to Rome to create videos of you eating all the pasta and you take some pictures of stuff while you are “not on the clock” for your side hustle business?  Say you later use those images on your blog, which makes you money through advertising and sponsorships. Do you own these images or does the company?

Another solution to think about is having your company sign a termination agreement prior to your departure.  If you are leaving on good terms, you might be surprised at your company’s willingness to sign something.  Definitely work with a lawyer to draft this agreement but it essentially is like a release form for any content/IP you created on the side.  The company acknowledges this content was not part of your specific employment engagement and withdraws all rights and ownership in and to this side hustle content.  This will help protect you in the future.

Always remember:

1. Have a lawyer review your employment agreement before you sign.  The devil is truly in the details.  If you think there is a possibility that you might create ideas or content for use on other projects outside of the employment engagement in the future, work with your lawyer to add language that specifically addresses ownership of “off the clock” content upfront.
2. Pay special attention to the ownership/assignment of inventions clauses and non-compete language in your employment agreement as this could hamper your ability to create things in the future.
3. Try to keep documentation or records of any “off the clock” ideas and/or content you create, including any equipment and funds you used.  This may help to prove ownership.

For more, check out this article from Thomson Reuters.

DISCLAIMER: The above article and information is not legal advice and is not intended to be used as legal advice.  Talk to a real lawyer for the good stuff.  Reach out HERE.