Posts Tagged Intellectual Property

Intellectual Property Disputes Between Employers and Employees

The creation and development of intellectual property can be an exciting and profitable process.  Unfortunately, disputes often arise regarding the ownership of intellectual property when the intellectual property is created while the inventor is employed by someone else.  Intellectual property can be extremely valuable and, in this situation, both the employee and employer can have an expectation of ownership. The general or default rule is that employers own the intellectual property created by their employees during the scope of their employment, while the employees own the intellectual property created outside of the scope of their employment, even if these creations were created during the time of employment.  As with most “general” or “default” rules, there are exceptions and numerous factors that must be considered in determining ownership. The most important factor that must be considered regarding intellectual property ownership is the type of intellectual property at issue. Copyrights:  Pursuant to the federal Copyright Act, ownership of a copyright initially vests with the author unless the work falls within the statutory definition of a “work made for hire.”  A “work made for hire” automatically is owned by the employer.  If a copyright does not qualify as a “work made for hire,” an employer must obtain a written assignment signed by the author to acquire legal ownership. Trademark:  Trademark ownership is dependent upon who first uses the mark pursuant to federal law.  Conception without use does not establish an ownership right.  If a trademark is created during the course of employment, the employer must still establish that it was the first to use the mark to identify its goods or services, or that an employee’s use of the mark is on behalf of or for the benefit of the employer.  Common law trademarks may arise by usage in commerce, but ownership may


Intellectual Property Basics

Businesses in Florida own many different types of assets including real property, personal property and intellectual property. It is commonly understood that real property includes real estate and anything attached to it, such as an office building or residential home. Personal property includes all other physical assets such as equipment, desks and inventory. However, many people are unclear what constitutes intellectual property. Intellectual property is defined by Black’s Law Dictionary as “a category of intangible rights protecting commercially valuable products of human intellect.” Intellectual property includes ownership rights over names, logos, works of art, literary works, ideas, inventions, computer code, and more. Just as you can own real or personal property, you can also own intellectual property. These ownership rights are protected by federal and state law which were designed to help the creation and use of ideas in our economy. These laws separate intellectual property into copyrights, trademarks, patents and trade secrets, and understanding which one applies to your property is the first step to protecting it. What is a Copyright? A copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. If you write a book, for example, you would apply for a copyright to protect your rights to the content of the book. Copyright protection is provided by Title 17 of the United States Code and all copyrights are registered in the Copyright Office of the Library of Congress. A copyright gives the owner the exclusive right to reproduce and distribute the protected work. This includes displaying art or performing musical or literary works in public. A more recent development is the protection of computer software with copyrights. Copyrighted material is often marked with the © symbol. The term of copyright protection depends on