James Governor's Monkchips

A Clause to Keep Your Own Ideas: Consultants, “Background IP” and Covering Your Rs

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RedMonk does a lot of work with major tech firms. These companies tend to have a lot of lawyers, and ask you to sign terms and conditions that mean they will own every future idea you and your descendants ever have. Obviously we can’t sign up to these contracts without making our case clear.

One way to protect your intellectual property is to invoke an intriguing legal term called Background IP, like so:

Intellectual Property – all work product shall be considered Background IP.

Background Intellectual Property shall mean Intellectual Property, proprietary information or confidential know-how relevant to the Project which is in the possession of a party prior to the commencement of the Project or generated after commencement of the Project but independent of the Project. Such product remains property of the Vendor [that’s you, the consultant], including, but not limited to ideas, inventions, improvements, discoveries, software design, software coding, charts, drawings, specifications, notebooks, tracings, photographs, negatives, draft or final reports, findings, recommendations, data and memoranda.

Works published under copyright during the term of the service agreement and this SOW will remain copyright of Vendor, unless explicitly agreed within a statement of work, or licensing agreement. Vendor retains all rights to work undertaken under the term of the agreement, unless published under a community license such as the Creative Commons, in which case ownership may pass to the community. No client content shall be so published without written permission.

Its very important to stress that I am not a lawyer, and as such I make no promises beyond the fact this clause has worked for us a couple of times. Big Company legal have signed the clause, which makes it very clear IP is not transferred in the course of carrying out client work.

Good luck Abbie!

disclosure: thanks for the image hughelectronic.


  1. Interesting idea; good to hear that it has proved acceptable to some of your client organisations.

    Out of interest, have you ever had occasion to try it on a publisher? I’ve recently been surprised at how sweeping their ‘transfer of copyright’ terms can be for things like white papers.

  2. Very helpful James – Just about to cross this bridge where it is my IP that the client is buying

  3. A Clause to Keep Your Own Ideas: Consultants, “Background IP” and Covering Your Rs:
    Martin Koser A Clause .. http://bit.ly/2pik9S
    This comment was originally posted on Twitter

  4. A much simpler solution is to redline and initial the IP section in contracts if you find it objectionable.

    More than seven years and we have yet to hear a single complaint from legal in instances where we had to use it…including the big guys. Reality is, if they want to do business with you, and value your guidance enough, they’ll live with the risk.

    Failing that, your approach seems reasonable. If we feel the risk [of loss of IP] is unacceptable we simply walk.

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