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curiouscat

transition from company to indie despite inventions clause

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What is the legitimacy of a typical game company inventions clause (claiming ownership over employee inventions produced in the employee's spare time) in California? I've heard that non-competes do not hold up in court in California for example (correct me if I'm wrong), but can companies really own things you do _at home_ _in your own time_ _with your own materials_ or sue you if you make a game in your own time after signing a contract saying that you won't? Can they take your profits? Would it hold up in court? What if you are only part owner of the project, and the other owners don't work for the company you signed an inventions clause with? Can you own what you do at home if it's not for profit but still intended for a broad audience (free game)? I'm sure companies can fire you for such a thing (since it is generally 'at will' employment in Cali, they can fire you for almost anything), but is termination the worst that can happen? Just to clarify, I am not asking about making games with company equipment on company hours or using company IP, as these acts are clear-cut no-nos. If companies really do have this much power and such inventions clauses are as standard as I keep hearing, then how do indie developers 'break free', like with 2D Boy (http://en.wikipedia.org/wiki/2D_Boy), who left EA to start their company? Do you just need to save and save money and not start working on a project until you quit your job and hope you've saved enough to ride out the dev time? If a company was going to have layoffs in a few months you couldn't start working on your own project to soften the blow of getting laid off...???

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Quote:
Original post by curiouscat
how do indie developers 'break free'...
to start their company? Do you just need to save and save money and not start working on a project until you quit your job and hope you've saved enough to ride out the dev time?

That's one way. Another is to form alliances/partnerships with others desirous of going independent, and seek investment capital. There are numerous threads here about starting one's own company.

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Dodgey advice be here:
You can just do lots of work in your spare time, then quit with a small amount of savings, and then pretend that all that work was done after quitting. Flush your SVN server, kill all the timestamps, etc... If they sue you then it'll be an interesting battle proving that you worked on it during your employment with them.

I also wonder what this would do to their reputation anyway. After all, who wants an "Evil corporate developer eats innovative indie games for breakfast, shits out shovelware"-headline with their name in it?

Sensible advice: Ask your employer for permission to work on a private at-home project. Get it in writing that they won't claim ownership.

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Companies have as much power as you give them (within the limits of the law). The key is not to sign a bad contract in the first place. As Hodgman points out you should ask permission before doing side projects - better yet negotiate out bad clauses before signing a contract in the first place.

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If a company really wants you they will have no problem adding in a clause stating you are free to do whatever on your own time as long as its not in direct competition with what you do for work. Any decent company is already going to have that in the contract. And if a company is unwilling to bend on that they probably aren't worth working for. Even though I do very little indie programming its a personal requirement that it be in a contract before I work for somebody. They already own you 40+ hours a week, they don't own your free time as well.

Though not entirely legal, what Hodgman said would probably work. If there is no 'proof' you worked on the game while employed at a company there is probably not much they can do.

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Look at it another way. Reading between the words of the subject line of this thread. The OP is saying he wants to be paid by his employer while he creates his own game on the side, then stay with the employer as long as it takes to get that game ready for the market. That way, when he gives notice to the employer, he's already got a product to sell.
(Ignoring for a moment the issue of whether one game is enough of a jumpstart for a business.)
There's an old saying - it costs money to make money.

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Quote:
Original post by Tom Sloper
Look at it another way. Reading between the words of the subject line of this thread. The OP is saying he wants to be paid by his employer while he creates his own game on the side, then stay with the employer as long as it takes to get that game ready for the market. That way, when he gives notice to the employer, he's already got a product to sell.
(Ignoring for a moment the issue of whether one game is enough of a jumpstart for a business.)
There's an old saying - it costs money to make money.


If this is the case and you come out with a complete game within a couple of months of quitting a job then burning your SVN servers and whatever else is probably not going to be enough. It will be obvious that all the files had the same checkin date. And the company wouldn't have to have hard evidence to bring you to court over a breach of contract. If this is the OP's plan then best wait until you exit time clause is up before trying the release anything.

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In California, inventions created by employees in their off time on their own equipment is governed by Cal Labor Code 2870: http://www.unixguru.com/california_law.html

If the invention is related to business of your employer, then the contract between you and your employer assigning them all rights to the invention will not be invalid under CA law. If your current job requires you to work on games and you decide to create another game at home, then they have a strong argument that they own your game. This is the same argument Mattel made against MGA in the Bratz litigation.

If you really want to reduce the risk of losing ownership in the side project, then you should disclose it to your manager and ask for a formal waiver of the company's ownership rights.

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My advice would be to not mention it to your employer under any circumstances.

Speaking as a (very small time) employer who has also spent 20 years as someone elses employee:

If you came to me asking about dabbling with say some DS homebrew stuff to learn the system, I'd applaud and help you. Wanna play around using PhysX to do a billiards game for fun? Sure, use our library to help. Need a hand?

However...

If you come to me with something along the lines of "do you mind if I continue taking your pay checks for another six months whilst I think about my exciting new home job all day, which btw is developing an indie title for my new career? I promise to f**k off when I have no further use of you, doubtless during alpha?"...

I promise I'll stamp your ticket right there. If you intend to phrase it more delicately than that, please give the employers credit for their reading-between-the-lines powers.

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Thank you all for the replies, I really appreciate them.

I am a little confused by people making statements along the lines of 'taking a paycheck', as if I wouldn't be putting in 40 hours of work a week (well more, since this is a crunch-happy industry). For example, Tom says "he wants to be paid by his employer while he creates his own game on the side, then stay with the employer as long as it takes to get that game ready for the market." What if I feel this is inaccurate, and that a more accurate statement would be "he wants to be paid by his employer for the time he spends at work, while having the freedom to mitigate the risk of his financial future with his own product in his own time, just like said employer is hedging its future with other products from other studios that it deals with, and if the studio keeps him happy (as any good studio should) then he will never _want_ to leave."

I'm not sure why the game industry, including its workers, seems to think that risk is a one way street that should only favor companies. I have read about, seen, and experienced first hand countless situations where the low-level workers that put in most of the crunch get laid off first when things don't go well while management keeps their cushy high-paying job, even when some of the things that hurt the quality and sales of the game were pointed out by said workers and ignored by management.

Please accept this as a topic that I take very seriously and not something I am trying to start flame wars with. Also in my original post I was asking about not-for-profit games - for example, what if I feel that my job is keeping me happy but I have a really cool idea (that's not a first person shooter or action game, so I know the company won't actually want to do it) that I want to release for free, just to bring a fun experience to the world. Can the company still claim ownership over that, even if it's not intended for profit?

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