Default rules that surprise people
For copyright, work created by an employee within the scope of employment generally belongs to the employer, but work by an independent contractor usually belongs to the contractor unless it is assigned in writing or, for certain narrow categories of work, covered by a signed work-for-hire agreement. For patents, rights start with the inventors, and an employer typically needs a written assignment, often in an employment agreement, to own them outright. In some circumstances an employer without an assignment may still have a limited right to use an invention made with its resources. Trademarks belong to the business that uses the mark to identify its goods or services, not to the designer of the logo.
Joint ownership has consequences
When two or more people co-own a U.S. patent, each can generally use and license it without the others' consent and without sharing the proceeds, unless an agreement says otherwise. Co-owners of a copyright can each use the work and grant nonexclusive licenses, but generally must account to the others for profits. Joint ownership can also complicate enforcement, since co-owners may need to join a lawsuit. These rules make cofounder and collaboration agreements far more important than they look at the start. For trademarks, ownership fights between cofounders often turn on which entity actually used the mark in commerce.
Cleaning up the record
We start by mapping who created each important asset, when, and under what agreement. Bring employment and contractor agreements, founder agreements, invention assignment forms, registrations, and any correspondence about ownership. Gaps can often be closed with confirmatory assignments, though people who have left may ask for something in return. Assignments should be recorded where recording is available, and company records should match the registrations. Investors and acquirers usually check this, so fixing it early tends to cost less. When a dispute is already underway, the order in which records are requested and assignments are sought can matter.
