Legal Question in Intellectual Property in Alaska

Employer/Employee intellectual property question

I understand that if a work is created by an employee in the course of his or her employment, the employer owns the copyright.

However, does this situation hold if the employee submits proposal entirely outside the area of her job description? I worked for a major reference publisher as a copy editor on specific products. I also, however, work outside the company in the field of audiobook publishing. I put together a proposal for an audio series based on one of their products that I do not work on. I did this on my own time, at no one else's suggestion, and I put the full proposal in writing before submitting it to any management personnel.

Do I have ownership of the product idea? The central issue to me would seem to be that the proposal was entirely outside my job duties and specifically within the realm of my self-employment off company time.

Thanks much,


Asked on 3/14/02, 9:43 pm

3 Answers from Attorneys

Todd Epp Abourezk & Epp Law Offices

Re: Employer/Employee intellectual property question

This is a close question. Do you have a written job description? What does it say about outside employment? What does it say about other projects? You need to start there first.

If there is no written agreement, I would argue that you were hired (or performed) specific editorial functions for a publisher that does not do audio books. You put together the project on your own time with your own materials.

Is there currently a dispute over rights?

Interesting question. Thanks for your posting.

Best regards,

Todd D. Epp, Esq.

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Answered on 3/14/02, 10:20 pm
Bruce Burdick Burdick Law Firm

Re: Employer/Employee intellectual property question

I do not think this is a close question. Based on the facts you give, the audiovisual proposal is not a work for hire and you own it. The statute specifically says

A ''work made for hire'' is -

(1) a work prepared by an employee within the scope of his or her employment; or

(2). . .

The scope of your employment does not include things you do in the course of a second job such as you describe, particularly where your company know you are doing them.

That said, however, recognize that, unless you have an employee contract preventing your employer from firing you for this, you are an at will company and the company can terminate you at will. Be warned.

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Answered on 3/14/02, 11:43 pm
Curt Handley, Esq. Law Office of Curt Handley

Re: Employer/Employee intellectual property question

I agree in part with both of the previous answers. This real issues at hand are:

(1) Whether you have an employment agreement or employee handbook that speaks to the prevention and/or ownership of work done outside the company?

(2) Did you use any of your current employer's resources in preparing your proposal?

Absent some contractual agreement between you and your employer, the copyright in any work created by you outside the scope of your employment, not on company time, and not using company resources will remain yours.

Please be aware that some courts have held that the substantial use of company resources (i.e. printing, access to information you could only get at your company, etc.) constitutes at least partial ownership in the work.

Likewise, one of the previous respondents noted that while you may own the copyright, your current employer might view this as a conflict. You might lose you job or at a minumum be told to drop your self-employment activities.

As an attorney doing work with both authors and publishing companies, I have found that both sides are now more than ever concerned about who owns the electronic rights (i.e. audiobooks, multi-media, Internet) in works. While I do not know your publisher, it's possible that they may eventually want to enter the electronic foray, if they haven't already. Thus, they could then start to argue that your extra-curricular activities fall within the scope of your employment.

Just some food for thought. Good luck!

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Answered on 3/15/02, 12:21 am

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