At the end of the day, it all boils down to this question; what is the chance of being caught?
Depending on the size of the project and circumstances it could be reasonably claimed that it was developed before or after the course of employment.
Would my employer own a game I made in my own time?
- Thread starter Reezer
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At the end of the day, it all boils down to this question; what is the chance of being caught?
Depending on the size of the project and circumstances it could be reasonably claimed that it was developed before or after the course of employment.
Soldato
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Im glad you're not my lawyer.
Again you post your opinion and pass it over as fact.
Dont pay tax, at the end of the day it just boils down to "will you be caught?" Genius!
Rob a house, at the end of the day "will you be caught"?
As an aside "reasonably claimed" is the reason why you will lose not win.
It depends on the consequences. Risk analysis isn't just about the 'winning' or 'losing', it's about what's at stake. If you get sued for a few grand for making something that someone else claims is theirs, things aren't so bad. If you end up with a criminal record and/or imprisoned for burglary that is something else entirely.
If for example you were to develop such a game and you'd provably put some amount of hours into the project, then your employer decided it wanted to claim that project as its own, would they be obliged to pay you money for the time they effectively just claimed you worked for them?
If you get paid overtime (even at 1x hourly rate) then I suppose, yes!
Soldato
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My dad likes to tell a story about his mam 'inventing' the reversible jacket, and the employer she was with at the time taking all the profit. Now that's potentially not true, and she may have done it in her paid time using their resources.
If you do it in your own time using your own resources then they have no claim to anything tbh, even if they could i doubt they'd care enough to try to use that clause.
If you do it in your own time using your own resources then they have no claim to anything tbh, even if they could i doubt they'd care enough to try to use that clause.
In reality it would most likely descend into a complex legal case and most employers would back away from it unless there was a lot to gain.
i.e. if you worked for a game developer and produced a commercial game in your own time they could argue that they gave you access to the experience, software, training, ideas, etc. that made the game possible and would potentially be awarded remuneration - the exact nature of which would probably be decided out of court unless the 2 parties couldn't agree... probably a share of the profit.
If its unconnected to their core business they'd have a much harder - probably impossible - legal case as unreasonable clauses in a contract are generally found invalid if tested in law.
i.e. if you worked for a game developer and produced a commercial game in your own time they could argue that they gave you access to the experience, software, training, ideas, etc. that made the game possible and would potentially be awarded remuneration - the exact nature of which would probably be decided out of court unless the 2 parties couldn't agree... probably a share of the profit.
If its unconnected to their core business they'd have a much harder - probably impossible - legal case as unreasonable clauses in a contract are generally found invalid if tested in law.
I'm convinced that you're trolling now. Although the way that you compare someone doing some legitimate work on the side to criminal activity is most amusing.
Again I am not giving legal advice or claiming anything as fact. Though I would be interested if you can cite some cases where someone was sued for doing something that could have reasonable have been done outside of their employment.
Man of Honour
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Nordenfelt vs Maxim is just about the starting point for such clauses being enforceable (at least in the English law system) - precis is that this is a case where an arms manufacturer (Nordenfelt) sold his business to Maxim who put in a clause to the effect that Nordenfelt could not make guns and ammunition nor compete with Maxim in any way anywhere in the World for 25 years. This clause in restraint of trade was reasonable in not allowing the manufacture of guns and ammunition (small market, sufficient value of consideration passed to allow this restriction) but was unreasonable in not allowing any form of competition at all and so that shows that part of the contract could be enforceable while another part may not be.
As said way back at the start though it comes down to what is reasonable when viewed by the courts so whether we think it acceptable or unduly restrictive to put in a clause about the company owning the IP for anything created in the course of employment there is a general (and rebuttable) presumption that whatever is created in the course of employment will be held to be the companies IP. Is it reasonable that they should own something created by the employee in their own time and in a field unrelated to that in which the company works where there are little to no transferrable skills? - probably not and that's how I'd normally expect a court to rule but it's worth getting proper legal advice before embarking on such a project rather than relying on the say so of people on the internet irrespective of how they present themselves (this obviously includes me also).
Could you clarify here? It depends how you're going to define reasonable distance from your home apart from anything else but as the case of Nordenfelt that I've just mentioned shows the geographical area dealt with is potentially worldwide if your profession is specialised enough and a limited market. If you are (say) a sandwich maker and there was a restrictive clause that you couldn't practice your trade anywhere within 25 miles of your previous employer then it's almost certainly unreasonable and unenforceable, however even in such a case it might not be unreasonable to insert a clause that they couldn't start up a similar shop on the same street.
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Associate
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Go and talk to HR, explain to them roughly what you want to do (don't give the idea away essentially), ask them to see if they think that it would be acceptable for you to proceed, get it in writing if they say yes.
Basically we are all screwed over by contracts but we cant really do much to stop that so just play it safe, wether these are legally enforceable is another matter, but you don't want to be the one to test that theory and end up worse off right?
Basically we are all screwed over by contracts but we cant really do much to stop that so just play it safe, wether these are legally enforceable is another matter, but you don't want to be the one to test that theory and end up worse off right?
Associate
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Jusr because you cant give something back doesnt mean that you own it. Intellectual property is valuabe asset.
That's not really comparable to this.
It's a ridiculous situation isn't it? If you read a c programming book should every program you create then belong to the author of that book?
Man of Honour
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At no point was it stated that it was equivalent, you asked:
I've given an example of when and how such clauses in restraint of trade are not only valid but enforceable.
And for what it's worth clauses relating to the ownership of IP can also be valid and enforceable but it depends on what the courts find reasonable, not what we as individuals consider acceptable or otherwise.
I have a section in my contract that states anything that can be copyrighted that I make belongs to them.
Being a photographer I told them they could take long walk.
They said it would really only apply if it was work related, but I wasn't happy and told them I wouldn't sign it until it was removed. They amended the contract and I signed it.
Being a photographer I told them they could take long walk.
They said it would really only apply if it was work related, but I wasn't happy and told them I wouldn't sign it until it was removed. They amended the contract and I signed it.
My last employer tried this one. Went back to them and said its a load of rubbish and to rethink it. Shore enough it was changed to within company time and when using company resources.
I was doing activities outside of the company that had no conflict with what they did so for them to own something I did out of hours was a big no in my view. At the time it was photography and as stated above I was told it wouldnt apply but I wasnt taking the risk. I wouldnt have a leg to stand on if they enforced it.
I was doing activities outside of the company that had no conflict with what they did so for them to own something I did out of hours was a big no in my view. At the time it was photography and as stated above I was told it wouldnt apply but I wasnt taking the risk. I wouldnt have a leg to stand on if they enforced it.