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How the Changing Concept of 'Work' May Jeopardize Employers' IP Ownership
It is no secret that the daily lives of U.S. employees have changed drastically since 2020. Hybrid or fully remote work arrangements plus temporary or permanent relocation have blurred lines and shifted norms around how and where work is performed. These changes present numerous administrational and legal challenges to employers. Significantly, they have also necessitated new practices and policies to ensure that employers own and retain all necessary rights in intellectual property that their employees create.
A key step to ensure that employers own their intellectual property is having employees sign agreements which assign to the employer all intellectual property created in the course of employment. Even when assignments are broadly drafted in favor of the employer, various state laws prohibit or restrict assignments for intellectual property created outside of work hours and without use of employer resources — limitations which are sometimes overlooked by employers. Several of these laws require that employee assignment agreements include the relevant excerpts from such state statutes or risk being deemed void.
The following discussion highlights how the changing concept of "work" may jeopardize employers' ownership of intellectual property, focusing on the specific requirements of specific state statutes and suggesting changes employers can make to avoid footfalls. Certain issues raised in this analysis may similarly apply to independent contractors and individuals located outside the United States, topics that are beyond the scope of this discussion.
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