“At Any Time During My Employment”

Here’s a tidbit from the Bratz doll litigation that I hadn’t noticed previously.

In its opinion from last October (go here for a PDF copy), the Ninth Circuit said the following about the phrase “at any time during my employment” (footnote omitted):

The district court disagreed, holding at summary judgment that the agreement assigned to Mattel “any doll or doll fashions [Bryant] designed during the period of his employment with Mattel.” It was therefore irrelevant “whether Bryant worked on [Bratz] on his own time [or] during his working hours at Mattel.” We again review the district court’s construction of the contract de novo. See L.K. Comstock, 880 F.2d at 221.

The phrase “at any time during my employment” is ambiguous. It could easily refer to the entire calendar period Bryant worked for Mattel, including nights and weekends. But it can also be read more narrowly to encompass only those inventions created during work hours (“during my employment”), possibly including lunch and coffee breaks (“at any time”). Extrinsic evidence doesn’t resolve the ambiguity. For example, an employee testified that it was “common knowledge that a lot of people were moonlighting and doing other work,” which wasn’t a problem so long as it was done on “their own time,” and at “their own house.” She agreed when asked, “Was it your understanding that if you designed dolls when you were at home at night that you owned them?” However, another employee testified, “Everything I did for Mattel belonged to Mattel. Actually, everything I did while I was working for Mattel belonged to Mattel.”

That’s something to consider when addressing IP rights in employment agreements. Can you think of any nuances to bear in mind?

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.