I’ll be giving a panel talk on “Third-Party Trademarks in Video Games.” In other words, if you want to put a Coca-Cola® sign on the street in your game world, can you? Should you? How should you do it if you want to, can, and should? I’ll be at the conference all weekend and am always glad to talk law, technology, pop culture, or the random topic of your choice.
I had a great time at the first (and hopefully annual) Chicago Video Game Law Summit last Friday. I attended all the panels, as well as appearing on the Video Game Law and Business panel. My co-panelists Greg Boyd and Sam Glassenberg were both knowledgeable and a ton of fun, and special thanks to moderator Patrick Sweeney for providing refreshments appropriate to the gravity of the topic. (As ever, IP leads the law.)
One topic which was discussed during the dev panel I just wanted to make a small comment on. Companies have various approaches to “moonlighting,” or doing outside work while employed by them. (This can also apply, depending on the nature of the contract, to contracted development work. That’s yet another reason you need an attorney to review your dev contracts.) One panelist said that they believed it was easier to seek forgiveness than to ask permission – that is, they’d do the work, and if anything ever came of it, they’d explain it to their employers later.
In a practical sense, this isn’t the worst advice ever, since the odds are nothing much will come of it (sorry) but I have to disagree, and for two reasons:
- If your outside work – say, a mobile app you develop in your free time – takes off, there’s a very real risk that your employer will end up owning it, or at least having a claim over it which will cause no end of problems. However, that’s not the most important issue.
- If your employer finds out you’re violating an established policy, whether written or unwritten, regarding moonlighting, they may consider that a sign that you are not a trustworthy employee.
That second one is the real-world reason why I disagree with this advice. In general, don’t lie to employers when there’s a good chance you’ll get caught at it. (I mean, you shouldn’t lie to anybody for the most part, but there are degrees to everything.) They’ll very likely respond the way that regulators respond when they find out you failed to disclose something. Whatever you didn’t disclose may be totally innocuous, but their first response is, “What else aren’t you telling me?” It provides incentive to investigate further, and it indicates that you may not be happy in your position and/or that you are not serious about upholding the employer/employee relationship under the accepted terms.
This goes nowhere beneficial to your career.
If you want to do outside work while employed by another party, the thing to do is find out if there’s a policy, and follow it. If the policy doesn’t allow what you want to do, seek a waiver. Yes, waivers can and will be granted by most reasonable employers, even if the policy doesn’t specifically allow them, as long as your outside work doesn’t directly compete with or endanger the interests of the employer. If the policy doesn’t have waiver provisions, that is an opportunity for you to discuss ways to make your employer a better working environment and a more competitive seeker of candidates in the marketplace. Drafting and implementing a reasonable waiver procedure is an opportunity for developers and human resources to work together to make the employer a better place for everyone. And if they’re not interested in being reasonable, that is valuable information for you in considering the future path of your career.