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I am a research scientist with a state university in the United States. I am an at-will employee, not tenured or tenure-track.

Currently I am in the process of developing an academic book in my area of expertise, which is also the area I work extensively in for my employer. The book will be developed on my own time during evenings, weekends and vacation time.

Does my employer automatically have a claim to the proceeds if this book ever gets published? How can I verify? If they do have a claim, can I request a release and must I have a lawyer to do this for me? Can I represent myself?

For clarification, there was no contract signed at the beginning of the employment. Rather they pointed me to general bylaws of the university governing the type of position I am in and I was asked to verify that I agree to them. After examining the bylaws, I have not seen anything remotely related to copyright etc.

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    I would suggest searching harder within your university's broader policies, and/or asking the university's IP office. My experience is that US universities generally have policies whereby they disclaim copyright interest in academic works created by their employees. I would be rather surprised if yours does not. – Nate Eldredge Aug 13 at 17:19
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    Def. ask your University's IP office or legal office; they are there for your information. – BlueDogRanch Aug 13 at 17:49
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    Were you hired to specifically write that book? Was it a work assignment? If not, it is not technically work for hire so the copyright is copyright you. That does not fully answer the question because they could still have financial strings attached to things you copyright. – George White Aug 13 at 22:53
  • @GeorgeWhite No, the book is an offshoot based on my own initiative. The job requirements do not include writing the book. – cryptic0 Aug 14 at 0:31
  • Possibly related from academia: Patent Agreement in Order to Graduate. You would have signed something to the affect of acknowledging that the university has an IP claim. Some have it and some dont. – zero298 Aug 14 at 1:45
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Yes, but maybe no. In many state universities that I am familiar with, there are contractual guarantees that exempt regular academic staff from the "we pwn all your stuff" rule, which does not extend to other staff. (I had to toss back a contract for subcontracted work once because they asserted automatic ownership of copyright). It depends on your contract, entirely. Which, if it is non-existent, is a bit problematic.

Their claim would be based on "work for hire" law, 17 USC 101, where the central question is whether it is "a work prepared by an employee within the scope of his or her employment". If this is a work for hire, they have more than a right to the proceeds of the work, they own the work and can sue you for publishing without permission. Work for hire means they own the copyright, and only the copyright owner can authorize publication.

You do not legally have to have an attorney to request a release, but you should have one, because if you request a release, you are admitting that this is a work for hire. Your lawyer would tell you not to admit to such a thing. Of course, if you are reasonably certain that this is a work for hire and don't intend to contend otherwise, that kind of foot-shooting is not a concern. If your lawyer delivers a formal letter to your boss, the boss will almost certainly hand it to the university attorneys, and both parties will then take the hardest line possible, in defense of the interests of their clients.

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  • I need to establish whether the book I have planned will fall under the provisions of 'work for hire'. I did find some more information on the website of the IP office at the university. I will post an update to my original question and any other information I learn from that office. – cryptic0 Aug 13 at 18:56
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I am posting my own answer here because while @user6726's answer is quite relevant, my circumstances turned out to be rather different.

After contacting the IP law office of my university employer, I was told that the "work for hire" does not apply to copyrightable academic works created by the university employees such as professors and scientists. This assumes that university resources were not used to produce this work, nor was time on job. The only exception being patents.

The "work for hire" provision only applies at my employer if an employee was hired specifically produce the academic work, in which case the university owns the copyright 100%.

Long story short, if I write this book on my personal time without using any university resources, I will own the copyright 100%. It's time to shop for a new iMac.

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    For what it is worth, that is the customary practice in every non-profit and governmentally owned university of which I am aware. – ohwilleke Aug 19 at 0:25

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