I’m often contacted by producers, writers, software designers/engineers and other creative professionals concerned about the provisions of a media or IP company’s employment agreement they are considering. Typically the company’s proposed employment offer letter or agreement and attached standard terms will aggressively provide that the company owns all of your creative work without making any distinction as to creative works and/or projects that you created or contributed to prior to your taking the position with the company. Also, many creatives have ongoing obligations to other co-creators on pre-existing projects with respect to which they’ve already invested significant amounts of money and time.
What the Recruiters Say When Persuading You to Sign Away Rights to Your Prior Works
Creatives are also routinely told by recruiters and company employment coordinators not to worry about prior works as those works would not be included anyway and otherwise not to rock the boat on the job opportunity being offered by asking for additions to or revisions to the company’s offered employment document package. Creatives have been told by recruiters that a separate email by itself is all they would need to send if they are concerned about their rights in their prior works.
The Reality and Downfalls of Signing Away Rights to Your Prior Works
If that is what you’re being told by anyone then red flags immediately should go up in your head. Media and IP company employment offer letters, standard terms and conditions attachments and long-form employment agreements almost always contain what is referred to as an ‘integration clause’ which makes crystal clear that the provisions of the company’s employment agreement documents constitute the ‘entire agreement’ superseding all other written or oral communications of any kind. In other words, the contents of any emails you send or the substance of any phone calls you had would have no legal consequence or affect with respect to your prior or continuing separate works.
Potential Liability Exposure When Signing a Contract that Includes Prior Works
Worse yet, if you fail to adequately exclude prior works in the company documents you sign then you would be running the additional risk of potential downside liability exposure to any co-creators involved in your prior or continuing separate works. If you are fortunate enough in the future to have one of your prior or continuing separate works optioned or purchased the potential buyer’s chain-of-title rights due diligence review would most likely discover the rights problem which oftentimes cannot be inexpensively solved and it ends up killing the deal.
If you are faced with this type of situation and need assistance with the exclusion of your prior and/or continuing works from an employment offer letter or an employment agreement call or email us today to set up a consultation. We will engineer a solution for you custom tailored to the company’s employment documents package you have received.