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Created on Company Time Usually Means It’s Company Property

Created on Company Time Usually Means It’s Company PropertyEvery company (at least, every company that’s run well) has policies, right? There are policies for sending emails, for taking time off, for filling out TPS reports, for when to go to HR – policies a’ plenty. And in most cases, those policies are usually created by whomever heads a department (if the business is large) or by the owner (if the business is small).

Recently, we saw that viral TikTok video about a worker who took their training materials with them after they quit their job. (The video appears to be down, but you can see some screenshots of it in this Buzzfeed article.) The comments seemed pretty divided, so we thought we could use it as a “teachable moment,” so to speak, and clear up any confusion you might have.

In short, if you create something for a company on company time, what you create is property of that company – mostly. It has to do with a concept called intellectual property.

What is intellectual property?

Intellectual property is” any product of the human intellect that the law protects from unauthorized use by others.” It’s the reason why musicians can tell politicians not to use their music at conventions or rallies, and why you see all those wacky costumes at Halloween with names like “Giant friendly mouse in shorts” instead of “Mickey Mouse costume.”

So generally speaking, when an employee creates something for the company or employer, and that creation takes place on company time and/or using company resources – AKA, in the course of their employment – there is often an automatic assumption of ownership by said company.

Another example of when an employer would own the rights to your work would be if you compensated separately for it. For example, let’s say you build the firm’s website. You do it on your own time and with your own resources. In exchange for the website, your employer gives you a bonus, or offers some other form of compensation (like a paid vacation, stock options, etc.) Even though YOU are the one who built the site, the company now owns it because you have been compensated for it specifically.

A quick note about “resources”

One common dispute when it comes to creation is over resources: what did the employee use to create the product? Resources can encompass a wide range of services and goods. Let’s use the same example of the website. Did you build it using access to the company’s servers, even if the build took place in your own home? Did you use a photo library owned by the company? Were you allocated access to data that would not have been available to you if you were not employed or working for the company? If so, the company likely can assume a right to ownership.

When would an employee own the rights to their own work?

In general, an employee could own the rights to their own work if:

  1. It was created outside of company hours. If you create something – a policy, a piece of art, a website – with your own resources and on our own time, legally it should be yours.
  2. There’s nothing about ownership in your contract. Your employment contract should outline rights of ownership to avoid exactly this type of dispute. If you have a written agreement of any kind, even if it was not a part of your original employment contract, it will dictate who owns the property.
  3. You’re an independent contractor. Independent contractors are governed by different rules, and unless there is a specific agreement, you may own the rights to anything you create.

So, was the TikToker legally allowed to take their materials?

Based on what we can see, probably not. In a follow-up video (which also appears to be down, though you can read more about it in this Distractify piece), they stated that “Contractually these documents existed outside the scope of my position” and “that I wasn’t contractually obligated of me to leave these documents with them.”

But that’s not really how it works. As we said, products created for a company in the course of employment belong to the company, unless otherwise dictated by a contract. Just because the agreement doesn’t specifically say, “Hey, you have to leave anything you make here with us” doesn’t mean that it’s free for you to take. Furthermore, content or products created outside of the scope of your specific job duties doesn’t necessarily belong to you, either.

So – what’s the takeaway?

Litigation is expensive, and most businesses have more money (and more lawyers) than individual employees do. So you should take some steps to protect yourself as a creator AND as an employee:

First, ALWAYS read your employment contract. If you cannot understand your contract, ask someone to explain it in full to you. We’d recommend asking someone from Human Resources; their job, despite their portrayal in popular media, is to help employees.

Second, if you are tasked with creating policies, procedures, or other content for a business, you should assume that it will remain their intellectual property. If you are unsure, ask your supervisor or employer to confirm or deny.

Finally, if you create something to benefit your company in some way that legally remains your property, and you find yourself facing potential legal challenges, don’t go on TikTok to get help. Call a Chicago employment lawyer instead. There may be a way to reach an outcome that works for both of you. But if there’s not, you’re going to want someone who can protect your rights, interests, and property.

Gainsberg Law is based in Chicago and serves Cook County and the surrounding areas. To learn more about our services, please call us or fill out our contact form.