I’m about to sign an offer letter but it contains a covenant not to compete clause and I have a product that could probably be claimed as competing that I would like to release for profit in the future

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I’m about to sign an offer letter but it contains a covenant not to compete clause and I have a product that could probably be claimed as competing that I would like to release for profit in the future

I recently received an offer to join a game development company in LA but it has a non-compete clause in it stating that I cannot

Asked on August 2, 2017 under Employment Labor Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If you are relatively soon to release your own game which are developing, don't take this offer. The issue is not the non-compete itself: as you correctly note, California (you state you will be working in LA, which I presume is Los Angelos) does not enforce non-compete agreements. So as long as you stay in CA, the non-compete should not bind you.
The real problem for you is that the presumption that anything you work on in the company's line of work which you develop during your employment with them belongs to the employer, as well as the related presumptions that if you used *any* work resources  on the product (e.g. worked on it at all using a work computer, servicer, tablet or phone, etc.), it belongs to the employer, or if you used any proprietary business information (e.g. information about their code, or about how they distribute,market or release games), you are stealing their property. While it may be possible to overcome these presumptions with facts showing that work on your product pre-dated your employment, that you did not use company resources or knowledge, etc., at the least, if they were to chose to take legal action against an employee who released his own game while working there, they could state a reasonable, credible case and force you to spend time and money defending against it--and moreover, there is always the chance you'd lose (i.e. even when you feel that you factually have a good defense, no case is ever 100% certain).
In addition, if the agreement contains any language which states that anything you develop during your employement is theirs--which many such agreements do--that would be enforceable against you.
In short: if you are working on and soon to release your own game, don't work for a game designer while doing it. Take a non-game job until you finish your product and release it.


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