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Intellectual property statute of limitations

Basehor, KS |

my wife was asked by her boss to come up with some design/logo artwork for a new airline that he wanted a contract with (his company did nothing with advertising) so she designed various logos and didnt think much more about it and recently saw that that airline uses everyone of her designs she never signed a contract with her boss saying that anything that she did while in his employment belonged to the company.we do have discs with the designs and dates which they were done which has been some time ago just wondering how long you can go back?

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Attorney answers 5

Posted

You need to consult an IP attorney. There are many questions that need to be discussed. How long ago? When did you discover use? What did you do after use was discovered. There is a legal precept called laches. Basically, if you know of the infringement, and do nothing, the inaction on your part will affect your rights. Here is a URL on a recent TM case where laches was a successful defense. There are many articles on the Internet discussing this case. http://www.ca9.uscourts.gov/opinions/view.php?pk_id=0000012459

Bruce E. Burdick

Bruce E. Burdick

Posted

Not sure laches has much to do with this when she was an employee.

Bruce E. Burdick

Bruce E. Burdick

Posted

http://www.law.cornell.edu/uscode/text/17/101 - no agreement is needed for an employee's work to be a work-for-hire. The agreement would be needed to prevent it from being a work for hire and she states no such agreement exists, incorrectly thinking that helps her case when it actually kills it.

Posted

If your wife was an employee of the company (as opposed to being an independent contractor) at the time she designed it, the work would likely be considered a "work made for hire." If that is the case, then the company would likely be determined to own the rights to the intellectual property. With that being said, it would still probably be worth talking to an attorney to clarify your wife's working relationship with the company and to ascertain what rights she may or may not have in the intellectual property.

This response is for informational purposes only and should not be construed as legal advice. Mr. Jefferson is licensed to practice in Kansas. Seek legal advice from an attorney in your state. Please be advised that by answering this question, an attorney-client relationship has not been established.

Bruce E. Burdick

Bruce E. Burdick

Posted

Not only would the company own the copyrights, the company is legally deemed to be the "author", not your wife. The Statute of Limitations on copyright infringement is 3 years from date of accrual for civil actions, but is irrelevant when you have no case.

Bruce E. Burdick

Bruce E. Burdick

Posted

The absence of an agreement works against an employee, as an agreement would be needed BY THE EMPLOYEE to take the work out of work for hire status in view of 17 USC 101. You might say it is Copyright 101 that she loses.

Posted

I agree with the others that a discussion with your own IP lawyer in private is the first step. This way all the particulars can be fleshed out.

Keep in mind, even if a court concluded that she indeed was the rightful owner of the material (a big if here), what does this mean to you guys exactly? The ariline that presumably paid for the designs has a legal right to use them for their intended purpose and your wife presumably was paid for her service even if it was technically outside the scope of her employment.

So what would be the damages sought here exactly? I see this as an interesting question...

Most of us here, including myself, offer a free phone consult.

Best regards,
Frank
Natoli-Lapin, LLC
(see Disclaimer)

The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the areas of business law and intellectual property to entrepreneurs, small-to-medium size businesses, independent inventors and artists across the nation and abroad. Feel free to call for a free phone consultation; your inquiries are always welcome: CONTACT: 866-871-8655 Support@LanternLegal.com DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.

Bruce E. Burdick

Bruce E. Burdick

Posted

I see it as a slam dunk case for her employer per 17 USC 101.

Frank A. Natoli

Frank A. Natoli

Posted

Most likely...

Posted

This is not likely to be a viable case.

I am sorry to tell you that your wife's employer does NOT need an agreement to fall under the work for hire provisions of the statute.

17 USC 101 defines a work for hire in two ways, one for employees and one for non-employees, the first one of which (for employees) is conclusive in this situation:
"A “work made for hire” is—
(1) a work prepared by an employee within the scope of his or her employment; or. . ."
http://www.law.cornell.edu/uscode/text/17/101 [scroll down to "work for hire"]

Note there is nothing mentioned about any agreement, written or otherwise. That comes in the definition of work for hire for non-employees. You stated:"my wife was asked by her boss to come up with some design/logo artwork for a new airline. . ." Ergo, within the scope of her employment and thus work for hire. End of case, sorry!

Forget this and move on. Or, if you think she can prove this was not done as part of her work, see a copyright attorney.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

Bruce E. Burdick

Bruce E. Burdick

Posted

So, it is "Copyright 101" that you wife loses this claim. Sorry.

Posted

A company generally owns any intellectual property that any employee develops by the company within the scope of employment. Thus, in this case, in all likelihood the company (and not your wife) owns the intellectual property rights covering the logos which she designed. The statue of limitations for copyright infringement is generally three years, but if you have no valid claims this is irrelevant. I cannot imagine that your wife has any valid claims here.

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