You deserve credit for your own ideas. Unfortunately, sometimes employers can claim that your ideas or the work that you’ve done with them are their own. Ownership of intellectual property in California can be difficult to determine, especially without the help of an experienced attorney. It gets particularly complicated when your employer is involved and your intellectual property becomes a question of employment. If you have concerns about whether your employer owns your intellectual property, it’s best to discuss your case with an experienced California intellectual property attorney.
What Is Considered Intellectual Property in California?
According to California law, intellectual property refers to unique creations and ideas that come from the mind. It can range from inventions, designs, music, literature, art, photography, film, algorithms, databases, and more. Intellectual property can be protected through Intellectual Property Rights California, which is the area of the law that uses mechanisms such as patents and trademarks to help protect and promote original ideas and creations.
What California Law Says About Intellectual Property and Your Employer
When working with an employer who deals with creating intellectual property, you will most likely be presented with some form of legal agreement, such as an “assignment of inventions,” when beginning the job. This agreement might include aspects such as protection of trade secrets, or it may assign ownership of all creations on company time to the employer. Ownership will therefore depend on the agreement that you signed with your employer when you began the job.
However, under the California Labor Code, if intellectual property is developed “outside the scope of employment,” it is owned by the employee who created it. To be considered outside the scope of employment and owned by the employee, the intellectual property must have been created on the employee’s own time, outside of the workplace, and without the use of any company materials, equipment, supplies, facilities, etc.
Legal Ownership Mechanisms
There are three main areas of protection for intellectual property for both employers and employees, copyright, patents, and trademarks. Consider how each works.
Copyrights: Copyright law gives legal ownership of intellectual property. In other words, it’s the “right to copy” the works created. With many occupations in California, a “work for hire” agreement is part of the sign-on paperwork. This agreement states that under specific employment circumstances, the employee is not the legal creator of the work. In this case, the employer is considered the legal owner for copyright purposes. The Copyright Act of 1976 also applies to works created at your place of employment, giving presumed ownership to your employer.
Patents: Patents are most commonly assigned to the employee who creates the work, giving them legal ownership of it. In some cases, ownership can be given to the employer through a patent if the employer either gives the employee a Patent Assignment Agreement, which transfers legal ownership over to them or if the employee was hired specifically to create whatever is being patented for the company. Otherwise, the work you create and patent is legally yours.
Trademarks: Trademarks are different from patents and copyrighted materials because the person who creates them does not own them; rather, the person/company/brand that uses the trademark is the owner. Legally, a trademark isn’t a trademark until it is being used consistently by a company claiming it.
How Section 2870 of the California Labor Code Protects You?
It is a common misconception that your employer owns absolutely every idea that pops into your head while you are employed. Fortunately, your employee intellectual property rights are protected by a very specific state law.
Under California Labor Code Section 2870, your employer cannot claim ownership of an invention if you developed it entirely on your own time without using the employer’s equipment, supplies, facilities, or trade secret information.
This is a massive shield for creators. If your side hustle is completely disconnected from your day job’s resources and doesn’t directly relate to your employer’s current or anticipated business then it legally belongs to you.
Agreements That Transfer Legal Ownership of Intellectual Property to Your Employer
Because intellectual property is so commonly dealt with throughout different occupations here in California, employers are more than experienced in assigning and retaining legal ownership of most work created with them. The following agreements are ones that every employee who works in creative and development fields should know before signing any contract:
- Assignment of Inventions: Simply put, if an employer presents an assignment of inventions to a consenting employee, this will give the ownership of inventions or the works that the employee creates to the employer. The employer will then be recognized as the legal owner of the creation. However, this agreement does not apply to creations made on the employee’s own time.
- Work for Hire Agreement: “Work for hire” agreements are a form of copyrighting that gives employers legal ownership of their employee’s work. A “work for hire” agreement might be seen when an employer hires someone to create something specifically for them, or it can be used for an employer to classify the work an employee creates as “work for hire,” ultimately giving them ownership as well. These agreements are most commonly seen in creative industries such as film and other areas that use collective works.
- Patent Assignment Agreement: A patent assignment agreement is most often given to an employee by the employer. The agreement transfers over legal ownership of the creation in question, as well as all other important aspects such as blueprints, utility models, etc. These are most commonly seen when inventors sign over their developments to bigger businesses.
Independent Contractors vs. W-2 Employees in California
IP ownership also depends heavily on your employment status. If you are a standard W-2 employee, the company generally owns the IP you create on the clock.
However, if you are an independent contractor or freelancer, the default rule is often the opposite: the contractor retains ownership of the work unless there is a written agreement explicitly stating it is a “work made for hire” or formally assigning the IP rights to the client.
Artificial Intelligence and IP Rights at Work
The landscape of IP ownership is rapidly changing. With the enforcement of the 2026 California AI Transparency Act (SB 942/AB 853) and new liability rules under AB 316, the use of generative AI at work has changed the game.
If you use company IP to train an AI model, or if you use third-party AI to generate work product, there are strict new transparency and copyright disclosure mandates. Furthermore, neither employees nor employers can use an “autonomous AI” defense for copyright infringement. This means if an employee uses an AI tool that spits out stolen IP, the company (and potentially the employee) is legally liable. Both employers and employees must now keep meticulous records of how AI is used in the creation of company assets.
Tips for Employees and Their Intellectual Property
Two crucial pieces of advice for any employee concerned with intelligent property are to read the contract and keep accurate records.
Whenever dealing with a business, whether they’re your employer or not, it’s crucial to read the contracts and agreements they lay out for you. More often than not, these contracts will assign legal ownership of creations made on company time to their business. If these are terms you’re not comfortable with, you’ll have to negotiate for your intellectual property if you want to work with them. If you’re unsure of any of the legal terminology, contact our office.
Likewise, keeping records is another crucial component of maintaining your intellectual property rights. Because creations on company time are most often owned by your employer, it’s always smart to keep records of what you’re doing and when. If you make something on your own time with your company’s resources, legally, you own it. Consider how Taylor Swift’s copyright lawsuit unveiled.
FAQs
Do I need an employee inventions and trade secrets agreements attorney?
If your employer asks you to sign an overly broad PIIA agreement that seems to claim ownership of your off-the-clock ideas, it is highly recommended to seek legal counsel. Consulting an employee inventions and trade secrets agreements lawyer ensures your contract complies with Labor Code 2870 and protects your personal side projects.
What are my employee IP rights under California intellectual property law?
Generally, your employer owns work created during your employment and within the scope of your job duties. However, California law heavily protects independent projects developed on your own time, using your own equipment, provided they do not directly compete with your employer’s business.
Does my employer own my patent?
Not automatically. While copyrights often default to the employer, claiming a patent usually requires a specific invention assignment agreement (PIIA) signed by the employee.
Find Help with California Intellectual Property Law
You deserve credit for what you do. Sometimes, keeping ownership of something you came up with can be a lot harder than it seems. At The Myers Law Group, our team of experienced attorneys is prepared to help fight for your intellectual property. We understand just how complicated these situations can get, and we’re ready to help you every step of the way. For intellectual property attorneys or to learn more about our services, contact us today.
