We’ll start with the obvious question, “Why would my employer own a Video Game I made on my own time?”. The answer comes down to your Employment Agreement. 

Employment Agreements for Canadian Video Game developers commonly include clauses related to Intellectual Property (IP) ownership. These clauses outline the rights and responsibilities of both the employer and employee regarding the ownership of any IP created throughout the duration of your employment.

It is typical for these Agreements to provide your employer with full rights to any IP created using company knowledge and assets (such as company-owned hardware, software, etc.), or IP that could compete with their own Video Games and products. This is why your side projects could become the property of your employer, as it’s quite possible that it will be competing within the same market, or was created using technology provided by the employer, on company time, or with skills learned on the job.

Of course, you can take careful steps to avoid violating your Employment Agreement while working on side projects, but you also can try to negotiate a better deal that gives you some freedom to create. Let’s take a closer look at some common Employment Agreement terms to see where you might be able to negotiate for an improved arrangement.

Though each Employment Agreement is different, there are a few common terms and conditions in this industry that you should get familiar with as a Video Game developer. Knowing what each term means and how it will affect your ability to work on side projects will give you some valuable leverage when it comes to negotiating for the best deal possible.

Here are a few terms to look at carefully if you see them in your Employment Agreement:

• Proprietary Ownership or IP Ownership: This term states that your employer is the owner of any IP that you produce during your employment, and that you, as an employee, were never the owner of such work, only the author. Watch out for similar terms in Canadian Agreements; they are very common and may contain vague wording that could leave unwanted room for interpretation.

• Assignment Clause: This clause may require the employee to assign any copyrights or other applicable IP rights to their employer for all work created during their employment, including any side projects or freelance work. This could land you in quite a mess legally, so be sure your employer will not gain ownership of any work you take on outside of your main employment (if allowed).

• Moral Rights: In Canada, the author of an original work remains its author regardless of copyright ownership, giving them moral rights to the work. Moral rights protect you as the author associated with a piece of creative work. They come into play here if your employer has taken rightful ownership of your IP, and is using it in a way that is damaging to your reputation. Employers cannot get you to assign or transfer your moral rights, but they can get you to waive your rights, and this is usually the reason you’ll come across this term in your Employment Agreement. Issues pertaining to moral rights often include some legal “grey area”, so it’s best to work with a Video Game Lawyer if you are concerned about them while working within an Employment Agreement.

The terms laid out in your specific Employment Agreement may be labelled differently, or contain slightly different wording, so keep an eye out for terms that look similar to the ones above. Ownership of your IP is an important factor to think about when considering a new employer, so don’t make a decision lightly - you may come to regret it!

Many Video Game developers go into this line of work because it’s something they have a passion for. To learn that your dream job may restrict your ability to indulge that passion can be  difficult for those wanting to flex their creative muscles after hours.

Luckily, there are several ways that you can negotiate a more favourable deal for yourself, or lay out specific clauses that would allow you to work on side projects. 

For example, you can ask your employer about their policies related to IP created without the use of company resources. This is especially relevant if you are joining the company as an experienced developer, as you likely bring much of your own training and skill to the table, meaning you won’t depend on knowledge acquired during your employment to create your Video Game. 

You should emphasize the fact that your games won’t compete with company titles, and then follow through on this promise, in order to stay out of trouble (and to stay employed!). It’s recommended that you set up a separate agreement for this arrangement if your employer approves, in order to keep yourself and your IP safe in case of a disagreement in the future. This should outline the scope of the approved side project, the ownership of IP, and what payments/royalties are allowed, if any.

Some employers will allow employees to publish their own games only if they are free to the end user, so be sure to clarify every aspect of such an agreement before your sign the contract. A Video Game lawyer is a valuable resource to you when navigating tricky situations related to IP and Employment Agreements. They can help you strike a fair balance between work and “play” projects, keeping yourself and your employer happy.

In conclusion, it is possible that your employer will hold the rights to Video Games you create outside of work, but by no means is this the case for all developers. A careful look at your Employment Agreement, ideally before it’s signed, is a crucial step in protecting your side projects and keeping their ownership rights where they belong - with you! 

A Video Game Lawyer can offer expert advice in the complex world of IP law, Employment Agreements, and industry-specific regulations. Contact Amar-VR Law if you need some guidance in keeping ownership of your passion projects.