How do I balance working on personal projects with the things I create for my employer? Does the studio I work for have first dibs, or even ownership, on my work?
The games industry is full of passionate people and many choose to have their own projects outside of work, but does your employer own these by default? “The short answer is ‘yes’ and the longer answer is ‘it depends’” Alex Tutty of Sherridens LLP explains. “Obviously if you are a designer by day at work and at night designing your own projects using work computers this creates an issue, but any role at a game studio and working on your own project can cause an issue”.
“The general legal position is that only work done ‘in the course of your employment’ will be owned by your employer, so things that you do in your own time should remain yours” explains Tom Lingard, Partner, Stevens & Bolton LLP. “However, it’s important to check the terms of your contract and make sure you keep your personal projects distinct from your work ones. Working on personal things in the office, or using code from work projects in your own games is definitely not a good idea” Tom cautions.
There are also exceptions to the default ownership as Vincent Scheurer at Sarassin LLP explains “This does not apply to freelancers, or to work which is not created in the course of employment. However, many employment contracts go much further … stating that additional work created by the employee is also automatically owned by the employer… I have even seen one contract which transferred all rights in all work created by an employee to the employer, even if the work had nothing to do with the job at all” says Scheurer. “Check your employment contract carefully, and if in doubt discuss with your employer at the outset. Never start a project without being sure that you own it yourself!”.
Alex Tutty agrees; “To avoid an issue of who owns what arising later it is best to have a conversation with your employer and get a written agreement (a short letter will suffice) that your own project will not be claimed by them. If your employer does say no then at least you can make the decision of whether to leave or stop your project”.
The games industry has a deep respect for people’s creativity and it can be a key feature that attracts a studio to hiring someone. “A number of studios and companies actively encourage their employees to work on their own things” says Tutty. Alastair Moore, Legal and Business Affairs Counsel at Jagex Games concurs “At Jagex we have a positive HR policy on personal projects and encourage our team to be creative in their spare time".
If you are building up an ambitious project to start your own game one day it’s important to do your homework as Tim Davies of Sherridens LLP explains;- “Developers that work for, often larger, games studios need to be aware that their employment contract may contain post-termination restrictive covenants. This is a term in your employment contract that prevents you from doing certain things for a set period of time after you have stopped working for that employer. A typical restrictive covenant might seek to prevent you from starting or joining any business that is in competition with, or overtly similar to, the employer’s business for a set amount of time (often, up to 6 months). If you are unsure then it is worth asking a lawyer who should be able to review your employment contract and any covenants that it may contain for no charge”.
However if your own projects are just for fun, from the advice we gathered a thorough check of your contract plus a sensible conversation with your employer should keep things transparent for everyone. It’s not a black and white area so be open with your employer and stay vigilant to keeping clear lines drawn between the two. Alternatively, if you feel that your job doesn’t offer you fulfilment it could be time to consider a new career challenge which more closely matches what you enjoy.