The Sex Tape Litmus Test

Like most creative professionals my command of Intellectual Property law is woefully inadequate. I wouldn’t even be aware of this if I wasn’t for the constant reminders of lawyer friends who a) know much more about IP than me, and b) consider their own knowledge inadequate.

As someone whose livelihood depends in many ways on Intellectual Property, what am I to do? The answer, of course, is to devour information, learn from your mistakes, and get professional advice.

In the meantime, here’s a short story about the invention of a heuristic invented by my friend Andrew. It’s called the Sex Tape Litmus Test:

After a year of working at Sony Computer Entertainment the standard employment contracts were changed and employees were asked to agree to new terms. This took the form of a nagging email reminder that sent you to an ‘Accept’ button on the company intranet. The problem was that the new contracts had a much broader definition of IP.

The gist of the original contract was:¹

Sony has the right of first refusal on any video game related IP you develop in your own time.

The new agreement said something along these lines:¹

Any IP you develop at any time over the course of your employment belongs to Sony.

After reading the terms and ignoring the emails for a few weeks a “Sarbox Compliance Officer” was assigned the unenviable task of harranging me into clicking the button. This brought on a conversation with Andrew and a subsequent discussion with Human Resources in which Andrew offered a delightfully ridiculous test of the new terms:

“If I make a sex tape with my girlfriend, according to this agreement the IP automatically belongs to Sony.”

And with that, was born a new bare minimum heuristic for overly restrictive IP clauses in employment contracts: The Sex Tape Litmus test: don’t get caught with your pants down.²

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