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Protecting pre-existing projects

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I have several pre-existing projects that I have invested a lot of time in. I have just accepted an employment offer from a startup and I want to make sure that my pre-existing projects are protected. I made it clear when negotiating that I had these projects and needed to be able to continue working on them outside of work. They had no problem with that, but I want more protection than just a verbal agreement. What do I need to make sure is in my employment contract to ensure that I am protected?

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don't work on your personal projects on company time, using company resources, or company staff. As long as your contract with the company doesn't specifically state that anything you make during your tenure with them is owned by the company, you should be fine.

Also don't use "parts" of your pre-existing ideas in the work you do for the company; once you do so you're basically giving them that portion of your work.

What you do on your own time, with your own resources, is your business (assuming, also, that you don't have a non-compete clause in your contract).

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Yes, but lots of companies has clauses that basically makes them own anything you create, even in your sparetime. Or more like, they try to push that contract, it's up to you to say no way.
After that, they're likely to change it into a no-compete clause, saying you're not allowed to do any work, private or commercial, that in any way could be seen as competition for the company. You're not likely to get away without one, I wouldn't employ someone without it, but make 100% sure it doesn't affect you for a longer time after you've left the company than necessary.

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Hence, my statement: "As long as your contract with the company doesn't specifically state that anything you make during your tenure with them is owned by the company, you should be fine."

If you sign an employment agreement that gives your company rights to work you do outside the office, you've got no one to blame but yourself.

On a related note: the legality of non-compete clauses vary from state to state. Some states dismiss them, as they'd prevent the employee from making a living in their studied field (telling a doctor that they can't work as a physician in the same city for X number of years is tantamount to keeping them unemployed). Check with your local bar association (if not a lawyer), to see how enforceable a non-compete clause is in your area.

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What I am looking for is some sort of formal disclosure on my part. Basically a list and description of my pre-existing projects along with a statement from my employer acknowledging no rights to the projects in the list.

I have read about these things before, but I failed in googling for it. I don't know the magic search term. Anyone know it?

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Here's a problem with what you're asking: are these completed projects, or works in progress?

If these are ideas, concepts, that you want to protect - I don't know if legally you can. If you disclose an idea to your employer, and they use the idea (but not the name or specific characters, or your literary works in relation to it) then you really don't have much protection. Your work isn't copyrighted or trademarked, and you can't copyright a concept.

Where exactly is the heart of your concern? Do you plan to release works under your own name while employed with this group/company? Do you plan to develop work, on your own, independently of work you do for the company? You might be better off with a blanket waiver statement (although I don't know if they'd go for that), noting that: you reserve the right to produce and publish works of your own original design during your tenure with the company, provided that said works do not relate to or infringe upon works created on behalf of the company, and that the company agrees to hold no claim on any such works created independently of the company provided such works do not relate to or infringe blah blah blah blah :)

But again, speak to a lawyer about the legality/enforceability of this.

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What you could also do is have inserted into the language of your contract that ideas and developments you own or are collaberated in prior to going to work for these guys are not a part of the agreement, and that you warrant in said clause to use due diligence an reasonable care in keeping the differing works separate.

The key to making this work, is that a company cannot enforce an unreasonable clause unless you let them, so, they cannot prevent you from making reasonable attempts to make a living from things you had interest and investment in (even if it was sweat equity projects) you do for a living whether working for them or not.

The other key is to do what is called a trusted and neutral third party verification, where you make a list of the things you are working on, with explanations about how they work and what they are intended to be and where they are now in process, and warrant those representations as true to the best of your knowledge under penalty of purjury or any other applicable law, and give that list and descriptions to an attorney who can qualify themselves as both neutral and objective with respect to the matter pending (the agreement) between you and the company, and you and your field in general.

Should the company not play ball, and ultimatum you, make the list and the effort to play ball just as I described above anyway, then, when they try to come and take what is rightfully yours unreasonably, you have shown disclosure, diligence, good faith effort to make an amenable and agreeable agreement with them prior to this bad clause they wanted you to sign, and the attorney that is the trusted and neutral third party will then disclose the list you prepared and warranted in the first place to the attorney representing you in the lawsuit, and the claimant, the company that is whining before the judge and waving the employment contract, will have a very bad leg to stand on because you made these efforts in advance to keep fairness in your business dealings, which they willingly, and with foreknowledge, ignored.

You should be doing all these kinds of protection schemas, as well as the standard ones everyone has spoken about a zillion times for all your projects every time.

The key leverage point you have here is that prior to any relationship you had with saidco, saidco had no interest in anything you were doing before considering you for their employment. While negotiating, one thing you want to preface the discussion with when you sit down to the table is that you want an agreement that is fair and a win win. Sometimes, the best deal is no deal, and, if you have something they want, your talents and not your IP, then they should be only negotiating in good faith with intent to produce a fair and amicable win win agreement for your talents alone, not your pre-existing Intellectual Property.

You would want to write an e-mail to the attorney that Gamedev now has a relationship with to verify and obtain advisement on this to be certain, otherwise, just straight out contact by e-mail a programmer agent or a software litigation attorney at one of the dozens of e-mail links just for this kind of work that are out there. An important thing to remember is that once you realize that an unfair agreement can be rendered unenforceable by law (this is why lady justice wears a blindfold and holds a balance in her right hand), and whether you're sitting across the table from bill gates and you just got off unemployment, laws are there to provide equity, which mandates equality. It is often good to make sure this concept is understood in the early discussions. It's called the qualification process, and something everyone should learn if they are going to have business dealings. It is moments like these you should realize what they want from you and what you want from them is only the matter to be discussed and agreed upon, and, corporate types tend to think they are invulnerable, especially when they are from a larger company, and in fact, law is designed so that you cannot be taken advantage of.

What you don't want to do is be the ankle grabber their expectations deem you to be, and, in business, unlike love, it is far better that they respect you than like you. It's like gambling sometimes, you don't necessarily want to have the biggest cajones by making bravado moves, but you do want to know how far they are willing to stick their necks out ( so you have the measure of their willingness to trust, and not just make the piece of paper they wave in front of you the instrument of trust), because going to work for somebody who is risk averse or patrimonically rigidized is, imho, the Alcatraz of creativity and personal and professional growth. Remember, an agreement is only as good as the integrity of the person signing it. Put your evidence of ownership of your work in the hands of a professional who is willing to sue a solid winning case (actually, there are five steps legally before lawsuits, but you can't take a hot head or a rigidized mentality through it comfortably or objectively, unlike attorneys can do all day, btw) and collect their fees because you gave them the facts they needed before they ever had to pick up the phone or open the word processor that is the compelling interest evidentiary basis for prevailing legally. The attorney is going to look at you as somebody who plays to win, and knows how to cover their ass.

Be that person.

Good luck,

Adventuredesign

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