Your Questions, Answered

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There are two main types of intellectual property that have legal consequences for employees: patent and copyright.

Patents provide legal protections for inventions and certain types of designs. If you contribute to new or developing technologies with new or improved designs, processes, or inventions, your work may be patentable.

Copyrights provide legal protections for creative works. Creative works can include the following:

• literary works (fiction and nonfiction)
• visual arts
• musical works and recordings
• videos and motion pictures
• architectural plans
• software code

If your job requires you to contribute to inventions or other patentable works, most employers will require you to "assign" your patent rights to them. If the assignment is valid, you don't retain rights to your patentable works. Some states, like Minnesota, impose additional requirements on employers that use patent assignment terms.

If you're contributing to an invention that could be patented, it doesn't mean your employer has to apply for a patent. Many employers use nondisclosure agreements and trade secret laws to protect newly developing processes and technologies. Even if you haven't signed agreements with nondisclosure terms, the legal penalties for violating trade secret laws can be severe.

If you have specialized expertise in a new or developing technology, or if you're considering contract work or employment to work on a new or developing technology, you may have the opportunity to negotiate your intellectual property rights. Instead of assigning your patent rights, you could negotiate a "license," where you get royalties or other compensation from the use of a patentable technology.

If your job requires you to create or contribute to copyrightable works, the default rule is that your contribution is a "work for hire." Under that rule, you can't assert copyright over contributions to works you create for your employer.

If creative works are a significant part of your job, most employers will require contracts that limit your rights and interests under copyright law. Those contracts may contain language that specifically characterizes your contributions as "work for hire." Those contracts may also contain terms that "assign" your copyright interests to your employer.

But if you're working as an independent contractor, your rights are different. As an independent contractor, you retain your copyright interests, but you can still transfer them to others through a written contract or agreement. Under those types of agreements, if you assign your copyrights or agree to treat your works as "work for hire," then you transfer your copyright interests to the other party.

If your creative works aren't works for hire, you can negotiate written agreements with detailed terms about your copyright interests. Those agreements may place limits on how or when your copyrighted works are used. Those agreements may also include terms about royalties, meaning payments or other compensation you receive for use of your copyrighted works.

Copyright agreements can substantially vary depending on the type of creative works involved. The customary legal practices can be different for copyrights from different kinds of creative professions: for instance, a visual artist may have very different copyright issues than a songwriter or musician.