Can my employer own my personal work made outside of work hours

Question

I have just been offered an interview for my first Graphic Design job outside of commissions and college, but I had a quick question about ownership rights for artwork. In my spare time, I create artwork and designs not only for personal use, but for one-off commissions as well. Does my employer own the rights to these when they are made while employed? Here are some scenarios for example

1: Say I make some custom artwork for myself or for a friend for personal use and for no profit and while using my own at home equipment. Does my employer own the rights to this, simply for the fact of me being employed with them?

2: Say an individual client commissions me for a one-off design or a one-off custom artwork, for profit. While not done as a competing business, this is done for a small profit. Will my employer own the rights to this artwork created?

3: Say I create artwork or designs for personal use, but then decide to sell prints of it. Does my employer own this?

I do know that any artwork or designs made with company property and on company time would likely be under the sole ownership of said company, but I am refering to things made outside of company time and with my own equipment. If they do own my artwork made outside of company time, is there any way to get around this so I can continue making my own personal artwork and designs, or commissions?

Note: I am not refering to freelance contract work

Answer 1

I am not a lawyer and this is not legal advice.

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United States:

• In most instances an employer owns nothing you create on your own time, using your own equipment.

• An employer may own rights if you create something on your own time, using your own equipment, but the creation is directly related to the employer's business.

• An employer may own rights if you create something on your own time, using the employer's equipment.

• An employer owns everything you create on the employer's time using the employer's equipment.

I'd speculate that most design professionals do a little freelancing on the side while employed. As long as you aren't trying to compete, or use the employer's resources/equipment, it's often not a problem.

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There are grey areas....

An employment agreement may have some specific clause stating the employer owns everything while you are employed.

Some employment agreements may specifically prohibit "moonlighting" or working outside the employment agreement in the same field - meaning it's fine if you have a second job pumping gas, bagging groceries, digging ditches, etc. but not okay if your second job use the same skill set the employer hired you for (design).

Creating something on your own time, using your own equipment which competes or dilutes the employer's business may be seen as detrimental. Possibly resulting in termination or some other action.

Example: Say your employer sells hot tubs. You're hired to design marketing materials for hot tubs - web stuff, print collateral, etc. On your own time, using your equipment, you draw a hot tub. While you may own the artwork, using it anywhere other than for the employer could be construed as diluting the employer's marketing efforts.

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In my career I've freelanced pretty much always while I was employed. However, I've also never had an employment agreement which precluded freelancing.

The safest thing to do is to stay as far away as possible to anything even remotely related to your employer's business. If the employer sells car parts... then don't work on anything connected to cars in any way. If the employer sells web site design.. then don't do any freelancing related to web design.

Again this is not intended to be legal advice. For actual legal advice, you need to consult an attorney experienced with copyrights, work-for-hire agreements, and employment.

Answer 2

If you pass the interview and take the job, your employer will become your main income stream and everything you do outside of their offices, using your personal equipment, time and software licences, you will own that, and this will become your second income stream.

Then, your employment agreement/contract could include further clauses restricting you from working for competition or companies in the same field. Real estate, health or entertainment could be overly restrictive of their people working for competition.

In some areas it does not really matter what you do in your time. Smaller companies don't get preocupied with this, but the larger the company and especially if they have a proper legal team, you bet they will get the team involved in protecting the work.