Dismissal for freelancers who copy their own work

Here's an idea for a game: Move a ball around from place to place by putting down train tracks in front of it. Here's another one: Having developed the above concept, move it from your ownership, to your company and then try to move it back again using the courts and the law of copyright infringement.



The first idea might seem a decent one - although sadly for the developer in question it was not a commercial success. The second idea is truly terrible, and one that developers should avoid at all costs, although the story may not be as unusual as it might sound.



Stuart Burrows, a freelance developer, developed his game concept (called either Tracktrix, or later Train Trax) before he joined Circle Studios in 1998 as a games developer. Last month, the High Court heard that Burrows regarded his creation as 'Marble Madness meets Tetris/Wetrix and a Scalectric track'. Without telling others in the company that he had developed this hybrid concept himself, he passed on the concept and encouraged Circle Studios to exploit it.



Sadly for the parties concerned, this did not lead to commercial success and, later in 2007, Circle Studios went into administration. Afterwards Stuart sought to take back the concept and prevent it falling into the hands of a software developer that was purchasing intellectual property (IP) rights from Circle Studios. To do this he claimed, amongst other things - copyright infringement, alleging that Circle Studios had copied the game from him as a freelance developer. Of course he (as an employee of Circle) had, in fact, copied it from his own concept which he developed as a freelance worker.



Perhaps unsurprisingly, the games developer's claim was dismissed: the high court judge found that Burrows' job as an employee was to come up with ideas for games, and that if he did so and shared them with his employer, he was doing no more than he was contracted to do as an employee. The copyright claim failed, as did a related breach of confidence claim, with the judge lamenting that the action reached the court in the first place (see paragraph 2 of the judgement).



The lesson for game and other software developers? Be clear where ideas come from as an employee, and if you've developed in-house, discuss assignment of intellectual property rights with your employer. Litigation is costly, so don't sue for copyright infringement when you are also the infringer or you're likely to lose your claim, and potentially your marbles as well!





Comment by Richard Nicholas, partner and IT lawyer at law firm Browne Jacobson.