Protect Your Intellectual Property

Posted by: Rod Kurtz on October 26, 2005

Do you own the materials created by your firm? The answer isn’t as straightforward as you may think. Owning the ideas — or intellectual property, as attorneys call it — created by your workers depends on whether the worker is classified as an independent contractor or employee.

Here are some basic principles:

You automatically own everything — patents, trade secrets, and copyrights — created by employees within the course of doing their job. Even so, it’s preferable to have written agreements stating this with employees, particularly in the case of patents and trade secrets.

In contrast, you don’t own things created by an independent contractor unless you both agree to it in writing. These agreements, known as “assignments,” usually transfer ownership to you, although in the case of some copyrights, your business may acquire ownership from an independent contractor under a principle known as a “work made for hire.”

An employee or independent contractor can never own the rights to your trademarks — the names or logos used to identify your products or services. The owner is always the business that first uses that trademark in commerce, regardless of who created it.

However, if the trademark involves artistic elements (other than choice of font), it may be separately copyrightable, and an independent contractor may own rights under copyright law. So make sure all rights in that imagery are assigned to you.

Richard Stim
Author, Whoops I’m in Business: A Crash Course in Business Basics
San Francisco

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