employment contract - how far is too far? (rights)

[CottageCheese]

I have been offered a full-time freelance role with a creative company in a field I want to work in. But as I'll need to make major sacrifices for it I want to be careful. So would anyone mind clarifying what effect these clauses could have in future, and whether or not they are standard/acceptable? Thanks so much in advance if you can advise (Omissions have been made to keep this brief)

 

• [The Contractor] waives their Moral Rights ... in respect of any acts of [the business] or any acts of third parties done with [the business]'s authority in relation to any copyright works produced wholly or partly by them in performance of their duties.
   
  
• Any inventions, writings, designs [etc] made by [the Contractor] individually or jointly, during their engagement by [the business] (or within two years before that time) that can be used in any business of [the business] must be disclosed immediately. [The business] retains full rights to use any such material in any of [the business]'s services.
   
  
• [The business] shall have the right to make the Contractor's services available to third parties and the Contractor will co-operate fully with, and follow all lawful directions and instructions of such third parties.
  - [The business] shall be entitled to use and authorise others to use the name, likeness, photograph and biographical material of the Contractor in connection with the advertising or exploitation of any project to which the services relate in any format and in any and all media.
  - The provisions of this clause shall survive the termination of this Agreement for any reason.
  

Edited July 13, 2015 by CottageCheese

[SabreSheep]

Is this a real situation or is this homework?

[CottageCheese]

This is definitely a real situation! It's also my first job offer in this field (career-switcher here) so I do not know whether or not these clauses are standard.

[obiter dictum]

It looks to me that you have given up all rights to your original works to the employer

 

I will always remember that pop group from the 1970s called XTC

 

They made a mint and it all went to the record label due to the contractual clause. They made millions but to this day still owe the record company royalties

 

A contract of employment is two way and if they need you that much you should be negotiating your own contractual terms

 

Better still speak to a solicitor for half an hour who specialises in contract law as to copywriting your original own work

[CottageCheese]

Thanks for your comment capquest, I've taken your advice on board. I've not accepted the job yet, but it does look like I'm expected to give up a lot of rights. The below concerns me most, however - does this mean the employer could claim my recent portfolio (made in last two years) as their own property and use it freely?

 

Any inventions, writings, designs [etc] made by [the Contractor] individually or jointly, during their engagement by [the business] (or within two years before that time) that can be used in any business of [the business] must be disclosed immediately. [The business] retains full rights to use any such material in any of [the business]'s services.

[obiter dictum]

Yes, especially any published works, you are technically giving up rights to all your work, past, present and future, even if you leave the company

 

like i said, i would not touch that with a barge pole but i am no solicitor who specialises in contracts but that is even worse than a Wonga Contract

[Sidewinder]

It certainly seems as though you are being asked to give up copyright not only for work completed during employment by the company, but also (just in case you have something on the back burner that might be useful) anything created immediately prior to employment.

 

My suspicion is that the most onerous clauses might well be unenforceable, however I would have to agree with CWN that a short session with an employment lawyer well versed in contracts of employment would be time well spent and should at least give you extra room to discuss and negotiate those points which are contentious.

[Ford]

also have a look at the Copyright, Designs.... Act.

covers that 'waiver of moral rights' if by consent, ownership of copyright during employment, contract, etc.

seems as if a licence wld be needed re any preexisting copyright you own?

ditto, a lawyer shld be well informed re all that.

[CottageCheese]

Thanks capquest and Sidewinder - I thought that may be the case but had to double-check(!!). I will consult a professional anyway to at least educate myself further, but otherwise I think I know how I'll proceed with this. And I will certainly recommend this forum to others!

 

that is even worse than a Wonga Contract

 

Ha, thanks!

[CottageCheese]

Yes, especially any published works, you are technically giving up rights to all your work, past, present and future, even if you leave the company

 

like i said, i would not touch that with a barge pole but i am no solicitor who specialises in contracts but that is even worse than a Wonga Contract

 

also have a look at the Copyright, Designs.... Act.

covers that 'waiver of moral rights' if by consent, ownership of copyright during employment, contract, etc.

ditto, a lawyer shld be well informed re all that.

 

I will do

[steampowered]

I am able to answer this:

 

- clause 1, the waiver of moral rights, is absolutely standard. Moral rights are a specific category under the Copyright, Design and Patents Act which, basically, allows you to insist on being identified as the author of a piece of work. That is not appropriate for things developed during employment.

 

- clause 2 would be reasonable if it weren't for the words you have highlighted. The words you have highlighted make it totally unreasonable and should be deleted. I don't see any reason why an employer should get a right to things you developed before joining them. More important, assuming that you had another job during the past 2 years in the same field, agreeing to that clause would place you in breach of contract with your former employer. Your former employer will most likely own the intellectual property rights in things you created during your employment with them and you will also owe your former employer a duty of confidentiality. You can't give intellectual property rights in those things because they are not yours to give. Ask for the words in brackets to be deleted.

 

- clause 3 is slightly odd but I think it is fine. Presumably you would need to work for third party clients as part of your work.

 

- clause 4 is quite standard. My bio is included in pitch documents all the time.

 

- clause 5 is very standard, the agency does need to retain the intellectual property rights in things you have created during the course of your employment.

[CottageCheese]

Wow - thanks for the breakdown! That really helps put things into perspective and makes me feel at ease regarding some of the clauses. There are however quite a few more paragraphs not shared here which I'm questioning, but I'm hoping to go over them with a solicitor soon. I will be much more careful in future now following this experience, but this forum has been an amazing start.

[ericsbrother]

basically clause 2 wants to pinch any ideas you already have but may not have developed or copyrighted. From their point of view they dont want you to show them things at interview that they cant develop to their advantage but for your point they can claim anything you have done in the past as theirs and then sack you after a day!

I wouldnt be agreeing to this bit but saying that they own whatever you think up whilst employed by them is normal but be careful because it can include things that are not in the same business field so if you invent a new mousetrap in your shed they own that as well.

[angrycrow]

This sounds very much like the contracts written by computer game developers.

 

There was the case of a person who worked for one such company who on their own time created some lovely artwork which went on to sell very well. After a few years their employer decided they wanted a piece of the action and hit them with a threat of legal action for profits from the art work done outside of work hours as they stated the contract entittled them to all of the interlectual output whilst under contract even if they were not paying them for the time in which it was created.

 

My understanding is the person quit and went off to be a tattoo artist by they still took legal action that blocked the sale of the artwork that was of the disputed type.

 

Just be aware of the long term implications of any contract you agree.

[CottageCheese]

Definitely. The contract as a whole went too far which dissuaded me from accepting the offer. So for now I'll happily stay in my current job until the right opportunity comes along.

 

The grass isn't always greener as they say!

[steampowered]

If you still want the job you could just ask them to amend the clause which concerns you. It may well be a standard form contract drafted by an overzealous lawyer or HR person, rather than anything more sinsister. It is common to negotiate contracts!

[CottageCheese]

If you still want the job you could just ask them to amend the clause which concerns you. It may well be a standard form contract drafted by an overzealous lawyer or HR person, rather than anything more sinsister. It is common to negotiate contracts!

 

I considered that, but there were too many red flags in this case (not just the contract, but that was the final nail in the coffin) and my gut feeling said no.