Posts Tagged rights

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


Employee Handbook Prep 101

Employment Handbooks for Small Businesses (less than 50 Employees) An employment handbook – if done right, provides a small businesswith legal protections and can be used to demonstrate legal compliance. Without an employment handbook, a small business misses legal protections and opens itself to liability and legal expenses (even for frivolous claims) that far exceed the time and costs associated with ensuring a well-drafted employment handbook is in place. A well-drafted handbook means the handbook is current with laws and legal protections, which constantly evolve with new laws and court decisions.   Are Employment Handbooks Legally Required for Small Businesses? There may not be a law that expressly states that a small business (or large business for that matter) is legally required to have an employment handbook, but without an employment handbook – there may be a presumption that your company is not in legal compliance. And, worst yet, your small business is missing out on legal protections and the right to enforce your lawful rights and expectations with regard to employees. So, the better question is the following: Is your small company in a much better position (legal or business) with an employment handbook? Yes…if done right! Here’s a simple example. If a disgruntled employee threatens to sue your small business for being wrongfully terminated – having employment handbook policy expectations in place and showing the employee failed to meet such written handbook expectations – can stop a potential lawsuit in its tracks. Beyond the legal issues, an employment handbook also helps employees understand your company expectations and policies, which is a great tool for a better workforce. What’s Addressed in the Employment Handbook? It depends on your business. Generally speaking, an employment handbook summarizes employment rules, policies, and expectations of the small business and addresses many legal compliance