The three most common Intellectual Property (IP) themed lawsuits are likely those that center on independent contractor/employee issues, copyright ownership issues and the hijacking of a unique and moneymaking idea.
The issues that create these types of lawsuits tend to crop up again and again for the simple reason that the law protecting the rights of the players is not always intuitive for most people with the result that costly and inadvertent mistakes can easily be made.
The first important legal mine field to know more about is the one that pits the rights of a creative or freelancer against those of an employer.
Part I. Independent Contractor IP Rights v. Employee
Just for a moment pretend that you created this really innovative business and you hired your neighbor’s kid do the programming work for your website. Now that your business has really taken off you are wondering if the kid actually owns the copyright to the code and if he can demand additional payments from you if you continue to use the code. Can he claim he transferred to you only an implied and limited license to use the code? Well, the answer is kind of complicated. Let’s take a look.
Works Made For Hire
For the purposes of copyright ownership an author’s rights may land with the employer of the person creating the work or the person who commissioned the work if a “work for hire” relationship existed between them. The legal doctrine known as “work made-for-hire” shifts copyright ownership rights from the creator of a certain work to his or her employer. Courts will review whether or not the work at issue was made within the scope of the employment situation of the original creator to determine the rights of the parties. This is an example of the mechanism that requires many brilliant scientists employed by huge corporations to turn over any and all rights to their discoveries to their employer.
It is important to note that a work-for-hire relationship can also arise by a contractual agreement made between the parties, but this is true only for works falling into very specific categories. Work for hire agreements concerning all other work that does not fall into a listed category, such as a commissioned work of fine or graphic art, will not similarly be recognized as a work made for hire even if there is a written agreement between the parties.
Copyright Ownership Rights of an Independent Contractor
Copyright ownership vests in the original author of a copyrightable work. In the case of a creative, a freelancer, or an independent contractor, the copyright is owned by him or her unless and until those ownership rights and interests are transferred to another either in whole or in part. A freelancer can transfer full copyright ownership rights to another or he can transfer only a limited license to use the work specifying a limited term of use and limited rights of use.
Thinking back to the earlier scenario where a new business hired the neighbor’s kid to create code for a website and recognizing now that the kid was not a formal business employee but was acting only as an independent contractor we can see that the kid would be considered the original author of the code and as such the owner of the copyright to the code. The rights of the business owner to freely use the code would tend to turn on whether or not the kid validly transferred his copyright interests in the code in full or in part to the business owner. This is where the copyright transfer services offered at Kunvay can really work to protect a business or an individual interest from being hauled into court as the result of copyright infringement lawsuit with a freelancer claiming damages based on a transfer of only an implied and limited license to a use his copyrighted work.
Part II. Full Copyright Ownership v. Limited License to Use
Do you remember that I was telling you in my earlier Kunvay blog entitled, “Copyright 101 for eBook Self-Publishers – What You Need to Know about Copyright & IP Before You Self Publish,” that a copyright ownership is a sort of “bundle of rights”? The means that the author of a copyrightable work, the creator of a work, whether he is an individual, a freelancer or independent contractor, is vested under copyright law with several rights and interests as owner of the copyright to a work.
The “bundle of rights” as provided by federal copyright law gives the creator of a work an exclusive right to control the reproduction, adaptation, publication, performance and display of his work. Authors often transfer all or a specific part of their “bundle of rights” to a publisher, an individual user or an employer under a written contract. A transfer by an author of less than his full bundle of rights is known as a “license” transfer allowing another to use the copyrighted work for a specific purpose and for a limited period of time.
People usually end up in a courtroom with a judge determining the rights of the parties because there is a disagreement as to whether there was a full transfer of copyright, a limited transfer a copyright or no valid transfer of copyright at all based on verbal agreements, written agreements, if any, and the general intentions and understandings of the parties. It is an issue that can become complicated and expensive to defend and to litigate. Kunvay offers a method of transferring copyright interests that seeks to protect people from being pulled into courtroom based on copyright infringement and licensing issues. It seems like a good option to take to protect your project from ending up as an unintended rainmaker for another.
Part III. Protecting Exclusive Ownership Rights in Ideas
Courts are of full of cases where someone is claiming that someone else stole their highly lucrative idea and made millions of dollars with it. There are many cases where an aggrieved individual claims to be the originator, the creator, the author of a unique idea seeking to be awarded a portion of the dollars earned by another through the use of his brilliant flash of genius by an alleged idea hijacker.
How can you protect yourself or your employer from this type of exploitation? Take a look at my Kunvay blog entitled, “What the Winklevoss Twins Can Teach You About Copyright & Intellectual Property Law” for on point information about how to effectively protect your original ideas. I guess we all know that ideas are not copyrightable. However, there are methods that can be used to fully protect important and innovative ideas such as the plot of a television show pilot, a novel way to access undersea treasure and antiquities, a map to reach the treasure, and zillions of other amazing ideas.
The process of protecting an idea is simpler than you may think. It involves buying or drafting a few legally recognizable documents and getting them signed by those people or entities that you choose to share your idea with. The centrally necessary document to protect an idea is called a “non-disclosure agreement,” and another document needed may be an “evaluation agreement.” You may also decide to add an “agreement not to compete” depending in the rule of law in your State. And last, but never least, is taking the option to patent your idea.
An idea is patentable if it is a useful, novel and “not obvious” design or invention that falls into one of four patentable classes, one, a useful process, two, a type of machine, three, a manufacture process, and four, a composition of matter. In addition, any idea presenting a new and useful improvement to an existing useful process, machine, manufacture or composition of matter is similarly patentable.
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About the Author: Christine Varad is the principal writer and editor for Varacolors. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and protecting the rights and interests of the writers and visual and performing artists the law was designed to protect.