Who Owns Intellectual Property Created by Independent Contractors

When you start a new job or freelance contract, you will likely be faced with onboarding documents. These documents sometimes contain a provision on intellectual property. Such provisions can only refer to intellectual property created in the course of employment, but they can also refer to intellectual property created outside the company`s time and without the use of company resources. In summary, the facts surrounding your relationship with your employer and your act of creating an intellectual property object are likely to be taken into account when determining ownership. Of course, standard ownership rules can be changed by an agreement between the employer and the employee or contractor. However, the general rule is that in the absence of a written agreement, copyright in works created by an independent contractor is owned by the independent contractor. Take stock of the intellectual property you are creating and see if you retain the ownership rights. If you have not assigned any rights to your employer, and in particular if they have licensed your property, the end of your employment relationship may change the conditions under which they can use your property. If rights have been assigned, make sure you don`t encroach on their property by using something belonging to your former employer. The absence of these agreements with the founders poses a risk to the company if one of them leaves to create competing companies and use the intellectual property originally created for your company.

Once a founder leaves, it`s hard for your company to “recover” that intellectual property, especially if a lot of time has passed. If the intellectual property that founders take is crucial to their former business, the survival of that company may be threatened. Therefore, it is best to ensure that the founders of the company immediately enter into agreements with the company to transfer ownership of all previous intellectual property to the company and ensure that all their future intellectual property also passes into the company. If you wish to transfer ownership of this intellectual property from your independent contractor to your business, you must explicitly state this intention in the contract you use to engage the contractor. Intellectual property created in the course of an employee`s employment is not synonymous with automatic and exclusive ownership of any intellectual property by the employer. In fact, employers who mistakenly believe that they automatically own such goods may pay a high price – monetarily and through the loss of inventions or improvements – for failing to protect that intellectual property or effectively guarantee workers` rights. It is also necessary to examine whether there really is an employee-employer relationship. In many cases, hiring is an independent contractor. Again, this is a multifactor analysis, but it has important implications. Independent contractors usually own what they imagine if no written agreement has been reached that specifically transfers ownership of the same to the contractor. For example, under federal law, ownership of copyrighted works generally belongs to the author (the person who creates them), with the exception of works created by employees in the course of their employment.

This exception does not apply to work performed by independent contractors. Independent contractors own the copyright unless: (1) the work falls under one of the nine types of works established by law and there is a written “employment contract for remuneration” between the creator of the work and the company that commissioned its creation; or (2) the copyright is assigned in writing by the Contractor. The nine types of works considered temporary works are narrow: a contribution to a collective work, a part of a film or other audiovisual work, a translation, a complementary work, a compilation, a lehrtest, a test, response material for a test and an atlas. Get out of these categories and the copyright belongs to the independent contractor. If you (or your employee) wish to grant the employee the intellectual property they develop in the course of their employment, you must indicate this in their employment contract. Employers must also ensure that the written agreement complies with applicable state laws. For example, some states require that the agreement include plain language that created the employee`s intellectual property (i) entirely at his or her own time, (ii) without the use of company property (e.B. Confidential equipment, supplies, facilities or trade secrets), (iii) that are not directly related to the Company`s activities or planned research or development, and (iv) are not the result of the person`s work performed for the Company.

Some employers require their employees to continually disclose intellectual property that has arisen outside the scope of their employment relationship. .


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