Can my manager own the rights to the jewellery I make in my own time?
I work in a jewellers and also design my own stuff at home with my own materials,equipment and in my own time.This used to be ok.But I am now getting bad vibes from the management and I have heard they want to claim rights to my jewellery.
This is not an intelectual property (IP) question, although it is a confusing area. IP is an intangible business asset. Ordinarily Intellectual property is a negative right in that it gives the owner a right to prohibit others from copying without permission what has been created. It does not generate any income unless it is exploited, for example, by incorporation in a product or service which is sold.
This is partly a copyright question and party competition law. It also raises questions relating to restrictive covenants.
In L. Woolley Jewellers Ltd -v- A & A Jewellery (London) Ltd : [2002] EWCA CA Civ 1119 the Court of Appeal considered the trial judge’s approach to infringement of design right and concluded that in applying the test for infringement of copyright the judge had been wrong. The tests for infringement of the two rights were different.
The parties were both jewellery manufacturers. The piece of jewellery in question was a pendant which made use of obsolete and imitation coins called inserts which were kept in place by lugs within the mount. The lugs could also be formed within a bezel, a ring with lugs placed over the circumference of the insert. The claimant's design drawing was of a pendant without an insert and was a combination of the features – the bail (a piece of metal attached to the pendant through which a chain was threaded), the bezel, the mounting and the decorative edging. The area around the insert had an outline of three heart shapes into which a bail had been inserted. The centre of the bail was also cut out in a heart shape.
The judge had held that the parts protected by design right were the decorative edge, consisting of the three heart motif, and the bail which took the chain. There was no appeal against this finding. The bail was held to be the designer’s own design and the combination of the bail and heart motif was original, not commonplace and thus entitled to design right.
The bail but not the heart motif had been copied. The question at issue was therefore whether the copying of just the bail amounted to copying of the design. The judge applied the approach of copyright law – copying of a "substantial part". He considered whether the bail could be said to be a substantial part of the design and decided it was and so as it had been copied there was infringement.
The defendant appealed against that approach. The Court of Appeal referred to the judgment of Aldous J in the well known first reported design right case – C & H Engineering -v- Klucznik & Sons Ltd [1992] FSR 421 – where he said that under Section 226 Copyright, Designs and Patents Act 1988, there will only be infringement if the deisgn is copied "so as to produce articles exactly or substantially to the design". The alleged infringing article must be compared with the document or article embodying the design.
The Court of Appeal held that "there is a difference between an enquiry into whether the item copied forms a substantial part of the copyright work and an enquiry whether the whole design containing the element which has been copied is substantially the same design as that which enjoys design right protection." They added that it might not be enough to have copied a part, even a substantial part and that regard had to be had to the overall design (the recent Da Vinci Code copyright case took this even further). The judge had not done so.
The Court of Appeal remitted the case back to the judge for further consideration on this point.
So unless your jewelly is substantially similar to any your employer sells, you are fine. It is unlikely that you would breach any competition laws as technically you are employed by the competition. However, I would be concerned that you may be breaching a restrictive covenant in your employment contract (if there is one). Other than that you are probably okay unless you decide to open a shop in direct competition. Then it could get complicated.
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February 20th, 2009 at 6:55 pm
Tell them to take a hike dude!
It's a hobby as well as a job…so what!
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February 20th, 2009 at 7:34 pm
Are you talking intellectual property rights here? If you are designing things, personally and at home, but the designs are similar to things in the shop you could be in trouble, they may own the rights to the designs (and sometimes even the ideas). However, if what you are doing outside of work is completely different, I can't see what the problem is. Read up about intellectual property rights – and perhaps consult legal advice here and then speak to you employer about the situation. Better to get everything out in the open and have it sorted. Good luck.
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February 20th, 2009 at 7:48 pm
I think you could have a conflict of interest here.
Since you are working for a jeweller and carrying on in your own time, they could claim that you are competing with them and that competition is unethical.
Your manager has a point.
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February 20th, 2009 at 8:35 pm
He can only claim rights to your jewelry if you signed a paper stating he could then most of these are only good when you are at work unless he specifically worded it to include home and you were silly enough to sign it
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February 20th, 2009 at 8:43 pm
no they cant do that… your stuff is obviously selling better than theirs… leave and set up on your own…
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February 20th, 2009 at 9:23 pm
If you don't sell it in his business or you did not sign a non competetive contract he cannot claim your work. Be careful not to tell his customers about your jewelry when you are working or on his business grounds.
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Sign non competitive contract ONCE.
February 20th, 2009 at 9:55 pm
no, you're using your own stuff, and they're not paying you at that time, so they shouldn't be able to do that.
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February 20th, 2009 at 10:21 pm
Providing you are paying for the materials and it is your own time and you are not stealing the designs in the shop then the management cannot claim rights to the designs of your jewellery. Don't be bullied if they demand this and ask your union rep or solicitor for help immediately if they try!
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February 20th, 2009 at 10:30 pm
Not unless you have done it on their property, in their time or using their materials or equipment.
The other thing to worry about though is that they may not like you making your own as it is direct competition, that only applies if you plan to sell it though. If you plan to sell it they need to be aware as you may be breaching your contract.
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February 20th, 2009 at 10:55 pm
hif yous the catch i used to work in jewelry finishing, your manager dosent BUT the owner does he or she hired you to work for him he trains he pay you a salery its something like a contract and it would legally be a conflit of interest if you did this while being his employee suggestion resign and go on your own, good luck.
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February 20th, 2009 at 11:21 pm
Yes, they can indeed. Read your employment agreement carefully. If you have questions, take your agreement to an attorney. But, yes indeed, they can if it is contained in your employment agreement. (that's the short answer)
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February 21st, 2009 at 12:02 am
do you have an employment contract or agreement? if so, what are the terms regarding intellectual property rights?
If they own or reserve them, look to the definition of the scope of work – if it says that they own all your designs while in their employ, then that's the answer (of course, you can change things but that's another issue.)
If it says that you do, or nothing at all, then they cannot claim anything beyond what you design at work. And then what you design at home is your own.
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February 21st, 2009 at 12:10 am
Actually, these are good signs that your work would sell.
It may be time to open your own business, and if you need a steady source of income while it takes off, just don't make jewelry for anyone else.
Think seriously about firing your boss.
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February 21st, 2009 at 12:16 am
Its definetely an Intellectual Property matter.
First of all…check the terms of your contract.
Second: If there are any similarities between your personal designs and the ones at work then you could have a conflict of interest (especially if you are planning on selling)…personally, i think you shouldn't have to allow them to claim rights as you were doing it on your own time, your own equipment and materials……..but keep in mind that they could say its unethical and fire you!?!
Third: get the advise of a lawyer before saying anything to your management.
Fourth: can i get some free samples of your jewelry to further study the case? ;p
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February 21st, 2009 at 12:55 am
That's definitely an unreasonable claim. The best solution would be to quit the job and go somewhere else. That's what at-will employment is all about. If either party is dissatisfied at any time, that party may unilaterally break an employment contract. Even though government does intervene and prevent true at-will employment from existing these days, at-will employment is the only moral system of employment. If either you or your employer can't freely break the employment contract at any time and for any reason, that is called slavery.
It shouldn't be that difficult to find another job. Your current one clearly isn't going to work out.
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February 21st, 2009 at 1:05 am
They might feel that you are using knowledge gained during your employment, and inspiration from the jewellery pieces you see around you there, to produce items at home for your own personal gain. They may even argue that you could be drawing customers away from their place of business by offering to make jewellery for them at a lower cost than if they bought it from your employers. In other words, you are working for them, but at the same time doing business in direct competition with them.
Since you are doing your own thing at home, in your own time, using your own materials and equipment, I can see your side of the argument. I can also see theirs, however, and it probably all comes down to a fine point of law. I would say you'd have to consult a lawyer about that. Nonetheless, what you are doing seems to have created some ill feelings with your employers, which is not likely to make for a harmonious work environment. You might, in the end, have to decide whether to stay with your present employers, or maybe go full time with your own private enterprise.
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February 21st, 2009 at 1:17 am
No, absolutely not. Unless your contract of employment clearly states that all designs made by you, in or out of work, clearly stipulating Monday to Monday, 24 hours a day, with all rights and ownership belongin to your employer.
Naturally, no contract would read like this, and even if it did, no Judge would allow any employer to enact such clauses in a contract. After all, you are paid for a 35 hour week,or whatever your hours are, but they do not pay you fr 24 hurs a day and 7 days a week.
Tell them to saod off, and if they persist, tell them that you will take you day time work elsewhere, to a new employer.
hey are trying to crook you, stand your ground. If they fire you on these grounds, then sue them, for thousands £££££££££.
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February 21st, 2009 at 1:26 am
There are a couple of things that you need to check. Firstly what does your employment contract say? Is there a competition clause in there or a non-disclosure clause? If so, then they are probably tightening up on the original agreement.
Do you sell your pieces? Do you sell them in the shop or separately? Do your customers/clients come into the store to talk to you about your pieces? Does your company see you as a threat to their business? If so, they probably think they are "grooming" the competition at their own expense – time and money. Without more information, it's difficult to advise you properly, but from my guess, they don't have a leg to stand on if the designs are clearly your own, you use your own material (not taken from the store and ideally not from your employer's suppliers!) and in your own time.
In the creative communicationns industry like TV, Advertising and Media, creative people sign over their designs and intellectual property to the company with their employment contracts. Without any legal agreement signed by you, they cannot claim anything. It's obvious that you're ready to start off on your own – why not jack in the job and do you own thing?!
Good luck
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10 years experience in the creative media/advertising industry.
February 21st, 2009 at 1:46 am
This is not an intelectual property (IP) question, although it is a confusing area. IP is an intangible business asset. Ordinarily Intellectual property is a negative right in that it gives the owner a right to prohibit others from copying without permission what has been created. It does not generate any income unless it is exploited, for example, by incorporation in a product or service which is sold.
This is partly a copyright question and party competition law. It also raises questions relating to restrictive covenants.
In L. Woolley Jewellers Ltd -v- A & A Jewellery (London) Ltd : [2002] EWCA CA Civ 1119 the Court of Appeal considered the trial judge’s approach to infringement of design right and concluded that in applying the test for infringement of copyright the judge had been wrong. The tests for infringement of the two rights were different.
The parties were both jewellery manufacturers. The piece of jewellery in question was a pendant which made use of obsolete and imitation coins called inserts which were kept in place by lugs within the mount. The lugs could also be formed within a bezel, a ring with lugs placed over the circumference of the insert. The claimant's design drawing was of a pendant without an insert and was a combination of the features – the bail (a piece of metal attached to the pendant through which a chain was threaded), the bezel, the mounting and the decorative edging. The area around the insert had an outline of three heart shapes into which a bail had been inserted. The centre of the bail was also cut out in a heart shape.
The judge had held that the parts protected by design right were the decorative edge, consisting of the three heart motif, and the bail which took the chain. There was no appeal against this finding. The bail was held to be the designer’s own design and the combination of the bail and heart motif was original, not commonplace and thus entitled to design right.
The bail but not the heart motif had been copied. The question at issue was therefore whether the copying of just the bail amounted to copying of the design. The judge applied the approach of copyright law – copying of a "substantial part". He considered whether the bail could be said to be a substantial part of the design and decided it was and so as it had been copied there was infringement.
The defendant appealed against that approach. The Court of Appeal referred to the judgment of Aldous J in the well known first reported design right case – C & H Engineering -v- Klucznik & Sons Ltd [1992] FSR 421 – where he said that under Section 226 Copyright, Designs and Patents Act 1988, there will only be infringement if the deisgn is copied "so as to produce articles exactly or substantially to the design". The alleged infringing article must be compared with the document or article embodying the design.
The Court of Appeal held that "there is a difference between an enquiry into whether the item copied forms a substantial part of the copyright work and an enquiry whether the whole design containing the element which has been copied is substantially the same design as that which enjoys design right protection." They added that it might not be enough to have copied a part, even a substantial part and that regard had to be had to the overall design (the recent Da Vinci Code copyright case took this even further). The judge had not done so.
The Court of Appeal remitted the case back to the judge for further consideration on this point.
So unless your jewelly is substantially similar to any your employer sells, you are fine. It is unlikely that you would breach any competition laws as technically you are employed by the competition. However, I would be concerned that you may be breaching a restrictive covenant in your employment contract (if there is one). Other than that you are probably okay unless you decide to open a shop in direct competition. Then it could get complicated.
References :