Dear Rich: Nolo’s Patent, Copyright & Trademark Blog: employer Archives

Dear Rich: Out of frustration with the nonsense taking place in our industry I asked a colleague of mine to set-up a blog site for me to blog on. So they did. All the content and photos are mine. My employer provided no support for the site other than my colleagues jumping in every so often to change fonts in my writings when things went haywire. I left my employer and want to take my blog content with me to my new employer. Who owns the content? The short answer is that we don't know ... but we have a feeling your employer owns it.

Work for Hire? As we mentioned in a previous blog entry, if the blog is not something you would create in the course of your employment and you created it on your own time, using your own equipment, then you own it under work made for hire rules. But if you got paid for doing it (wrote it during work time), or used work equipment and it was related to work (sounds like it was since you're talking about your 'industry') then your employer owns the blog. For example, even though I'm writing this miles from Berkeley and on my own computer, my employer owns these words. Some other factors that may matter are whether you signed an employment agreement discussing ownership of employee works, or whether your employee handbook at work has rules regarding employee-created works.

Trademark and Domain Name Issues. Regardless of the copyright rules expressed above, you're free to start another blog at your new job, provided you're not taking and using any trade secrets from your last job. The Dear Rich Staff believes that the bigger question is whether you can take the blog name (your trademark) and the domain name (The URL or address of your blog). If readers associate the blog with your employer -- for example, they access it at your employer's website -- then it's likely your employer will claim ownership of the name unless there is some alternative agreement between you and your boss. For example, you could work out a deal where you owned the name of the blog but licensed it to your employer during the course of your employment. If the domain is part of a free blogging service such as Blogger, then things become more confusing and there may be battle over who has rights to use the Blogger URL.

To learn more about online trademark law, check out Stephen Fishman's book A Legal Guide to Web & Software Development.

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Posted In: Nolo , copyright , domain names , employer , trademarks , work made for hire

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Dear Rich: I currently am working at a company that makes a product that I have no intrest in trying to make better. But they package this product with something that I have found a better way to do. I want to invent this product prototype but was informed that because I signed an NDA, if I take this idea out of the idea stage it would then belong to them!!! Is this true? My company is going out of business next year but the corporation is staying open under a different name out of the country. Does this make a difference? And they are keeping our company name as a brand. Is a nondisclosure agreement iron-clad or does an aspiring inventor have a chance to shine? I didn't realize that by signing an NDA, they could own innovations concepts and inventions. The thought of someone else owning my creative process is very scary to me. We're guessing that what you actually signed was a combo-agreement that had nondisclosure provisions and also gave your employer the rights to any inventions or copyrights created in the course of your employment (known as a preinvention assignment). Eight states have limitations on these agreements and in those states the employee will usually own non-work related innovations created without employer resources and on the employee's time. In general, if you signed a typical preinvention assignment your employer will own your work-related innovations.

All that other stuff ...We're not sure what's going on with your company but assuming the assets are transferred to another entity, that new entity will step into the shoes of your employer and own everything you created. Practically, the new owners may not police the old agreements, or may not be aware of what you're doing, but under contract law, they could claim rights to it. The Dear RIch Staff reports that your predicament is standard, (and often a business necessity) for many innovative companies. And in these days of disappearing job opportunities, it's not likely to go away.

Even without the paperwork ... Regardless of whether you signed any paperwork, if you were employed for your innovation skills (or hired to create inventions), the employer would likely own what you create under the "employed to invent" doctrine. Alternatively, even if you weren't hired to invent, if you use the employer's resource (materials, supplies or time), the employer may obtain a royalty-free right to own your innovations under "shop-right" rules. In addition, whether or not you signed a nondisclosure agreement, you're bound under state laws to maintain an employer's trade secrets. (Sometimes, the rules expressed above are different for government and university employees.

Plunk Your Magic Twanger! What about this picture of a rare poisonous tree frog? Okay, it's not actually poisonous or a tree frog. In fact the only reason we're posting it is that istockphoto.com was offering it as a free download and we like the way the little guy looked.

Questions about patent law? Check out my book Patent, Copyright & Trademark: An Intellectual Property Desk Reference.

Posted by Rich Stim | Permalink | Email This Post

Posted In: assignment , copyright , employer , inventions , patents , trade secrets

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