Side project is close to something your employer is doing. Now what?

Q: Over the past six months, I've been publishing an SEO-specific newsletter tied directly to my name/brand. My employer runs something similar (I'm not involved), and it hasn't been an issue to date. If at any point my company asks me to consolidate newsletters or to forgo my own personal newsletter, should I feel obligated to do so?

Nick LeRoy, owner

NickLeRoy.com and #SEOForLunch Newsletter

A: From your inquiry, it appears that you consider yourself to be an employee of a company while also having a business on the side. Do you have a "work for hire" agreement with this company?

The general rule is that an author may rightfully claim a copyright to any of his or her original ideas once it is put into a fixed form (whether it be pen to paper, print or electronic manuscript). Unfortunately, the exception to that rule is "works made for hire." The courts have interpreted that phrase to mean the work belongs to the employer — even if an employee did the work. Simply by working for an employer, whatever you create during that employment — whether inside the office or outside the office — belongs to them absent an agreement to the contrary.

As you point out, your employer runs something similar to your business and newsletters. If they discover you have had success in publishing your own SEO-specific newsletters and they are now getting suspiciously close to doing what you have been doing, they could argue that your work belongs to them. They might ask you to consolidate your newsletter with theirs. As "agents" of employers, employees have certain duties. The duty of loyalty that an employee owes his/her employer is well-known. You cannot serve two masters at one time; at least, not without each master's permission. For example, a board member of Pepsi could not be a board member of Coca-Cola at the same time — unless both Pepsi and Coke were notified and both approved.

Your best bet would be to talk to your company now and tell them what you have been doing and get their permission to keep doing it. Maybe you can avoid particular topics or strategies to avoid hurting their business, and they could do the same.

Dawn Swink is an associate professor of ethics and business law at the University of St. Thomas Opus College of Business.