Do Beets Have Leaves, and Other Thoughts on Works for Hire

Say what you will about Elon Musk, but the man doesn’t shrink from a challenge. He’s an uber-ambitious serial entrepreneur who’s pushed to market fully electric sports cars, commercialized space travel, and a host of other ideas. However, Fox Business reported that he may have picked a fight last week with one person no one wants to tangle with: Rainn Wilson, the actor behind The Office’s Dwight Schrute.

Source: Smileus / shutterstock

Perhaps in jest, perhaps inspired by Recyclops (an avenging environmental angel droid and one of Schrute’s more confusing alter egos), Wilson tagged Musk in a tweet asking, “[C]an u [you, Elon Musk] make a quiet electric leaf blower?” (Editorial Note: I detest what social media has done to our language.) Wilson’s Twitter followers chimed in with support, and many of them noticed Musk’s cryptic tweet a few minutes later: “Back to work…”

It didn’t take long for a seemingly humorous exchange to take on a dose of reality. Last Tuesday, Musk took to Twitter to announce that Tesla would produce … wait for it … “a quiet, electric leaf blower.” Was it real? Was it a jibe? Who knows, but the Twitterverse didn’t waste time kicking the announcement back to Wilson. He tweeted back, “C’mon Musk, give me some credit…,” to which Musk replied with a wink, “Nope.”

As of the time of this publication, the author is unaware whether David Wallace, Toby Flenderson, or Lloyd Gross are involved and, if so, whether they have decided on a course of action.

Who Owns an Invention: The Employer or the Employee?

Obviously, Wilson isn’t a Tesla or SpaceX employee (although watching Schrute try to sell Teslas would be worth watching), but this good-natured back-and-forth raises a good question about who owns ideas and inventions between employers and employees. Typically, an invention belongs to the inventor.

Just because an inventor happens to be employed by you doesn’t give you rights to their inventions, unless you hired the employee for the specific purpose of creating them. If the employee creates something on his or her own time, with his or her own resources, and totally unrelated to the employment relationship, in most cases, that invention belongs to the employee and the employee alone. However, if the employee produces an invention on your time, using some of your resources, and the invention will help you, you may be able to claim a nonexclusive and uncertain license to use it.

If you hire creative folks, none of the above gives you much comfort. With all of that in mind, you must ease some of this uncertainty on the front end with a written agreement that specifically assigns inventions to you that are made by the employee in the course and scope of his or her employment.

You should consult counsel to prepare these agreements to fit the particular circumstances of your business and the work to be done by the employee. The agreement may contain requirements that the employee disclose all inventions to you during employment, that the employee maintain complete records of all creative or inventive activities, that the employee disclose all inventions made before employment, and that the employee assist you in perfecting your rights to the inventions he or she makes while in your employ—among others. In this, as with most things, some quiet forethought can avoid a howling roar later on down the road.

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