Your most senior litigator has been at the firm for nine years. Six hundred and forty briefs filed. 212 depositions taken. 18 partner-level mentees. Last year she figured out that if she pasted her last 40 briefs into Claude, set up a project with custom instructions written in her own voice, and tuned it against her own editorial preferences for a weekend, she could draft a first cut of a federal motion in 22 minutes instead of six hours. [S: the firm owns Saturday.]
She kept tuning. By the end of the year, the project had become a personal artifact that colleagues started calling “her skill.” Half a joke, half a description.
She is leaving for another firm.
Your VP of Sales has been at the company for five years. She built a parallel artifact on a parallel arc. Her own deal memos. Her own follow-up patterns. Her own objection-handling moves. Custom instructions tuned against her own sense of how a deal should sound. She runs the skill on her personal Claude account. She does the work on weekends. She is at her desk on Monday morning and she does not yet know she is leaving (the recruiter has not called) but in nine months she will.
Each of them believes she owns the skill. Each of them is about to discover that the question is harder than that.1
The companion problem
This is the flip side of Who Owns You. There, the company built an artifact from the patterns it had captured passively over years of recorded work. Here, the employee built an artifact deliberately, on her own time, with her own judgment, in her own voice.
The patterns the company captured do not belong to the employee. The skill the employee built does not belong to the employee either. The artifact lives in a place the law does not reach in the way the people building it expect.
Three doctrines that govern the answer
Work-for-hire under 17 U.S.C. § 101. Copyright in a work created by an employee within the scope of employment vests automatically in the employer. The test is the Reid factors: control over the work, the nature of the relationship, the use of company tools, the work being part of the employee’s regular duties. A skill drafted by the litigator on her firm laptop, refining her firm-issued briefs, used to draft firm work product for firm clients, is a work-for-hire under any honest reading. The skill is text. The instructions are text. Both belong to the firm.
The pre-invention assignment in the offer letter. Every modern PIIA sweeps in “all inventions, works of authorship, improvements, discoveries, methods, processes, techniques, formulas, ideas, and know-how” conceived or developed during employment, using company resources, or related to the company’s business. Half the PIIAs in circulation use the phrase “or any combination of the foregoing.” If the employee’s skill is not an “invention,” it is a “method.” If not a method, a “technique.” If not a technique, a “work of authorship.” The clause was drafted to be a net. The skill swims into it on every reasonable construction. [M: “or any combination” does the work.]
The state carve-outs. California Labor Code § 2870, with siblings in Illinois, Minnesota, Washington, North Carolina, Kansas, Utah, and Delaware, carves out things an employee develops entirely on her own time, without using company equipment, supplies, facilities, or trade secret information, and that do not relate to the employer’s business or to actual or demonstrably anticipated research. Conjunctive. Every condition has to be met. A skill the VP built on her personal laptop, on weekends, but trained on calls she made for the company, fails the third condition. A skill the litigator built on Saturday, but trained on briefs filed under the firm’s name for the firm’s clients, fails the third and fourth. The carve-out is real. It almost never applies to the artifact the employee actually built. [S: every condition is a fail.]
The doctrines stack. Work-for-hire on the text. PIIA assignment on the methodology. State carve-out failing across the board. The skill, as a unitary artifact, belongs to the company in almost every realistic case.2
What to do
For the company.
- Inventory every employee-built skill, project, custom GPT, agent, and configuration on every AI account the company pays for. If you do not know what your employees have built, you do not know what walks out when they leave.
- Update the PIIA to expressly cover AI artifacts. Name the categories: skills, system prompts, custom instructions, agent configurations. Do not rely on “method” or “work of authorship” to do the work. Half of these will be litigated. Make your version easier to win.
- Forbid the use of personal AI accounts for any work that would otherwise produce company property. Same point as the data-leakage piece, with a sharper edge: every minute the VP spends tuning her skill on her personal account is a minute of disputed ownership. Move the activity inside the perimeter you control. [S: every Saturday adds a hearing.]
- At separation, treat the skill as a deliverable. Add the AI artifact return obligation to the standard exit checklist alongside the laptop and the badge. Get the export. If the employee built it on a personal account, get a written certification that the artifact has been deleted.
For the employee. Read the offer letter. Read the PIIA. Read the AI use policy. Assume the skill is the company’s. If you want to build something portable, build it on your own time, on your own equipment, on your personal account, on subject matter that has nothing to do with your employer’s business. And even then, expect a fight.
Get counsel before the next employee builds one
This is not a question for the IT team or the engineering team or the AI committee. It is a question of copyright, agency, and contract. Three doctrines that intersect in a place none of them was drafted to cover.
The company’s PIIA was written before LLMs existed. The state carve-outs were written before “skill” was a noun in this sense. The work-for-hire test predates the kind of artifact your employees are building right now, on your hardware, on your accounts, on your time. The doctrine will catch up. Your facts will not wait.
If your company is building proprietary AI skills and the employment agreements predate that work, the IP assignment may not cover what matters.
Talk to a Talairis attorney →A closing thought
Who Owns You asked who owns the patterns the company captured. The answer was: the company.
This is the flip side. Who owns the skill the employee built?
Not the employee, in any version of the facts that gets to a real court.
Not cleanly the company, either, if the PIIA is a 2018 template and the AI policy is an unenforced page in a Notion handbook.
The skill is an artifact built on subject matter the employee never owned, with text the employer probably owns, in a state that probably does not save it, under an employment agreement that probably reaches it.
The litigator does not get to walk out with the brief-drafting skill.
The VP does not get to walk out with the deal-memo skill.
And what walks out anyway is the harder question.
That is the next piece.
- Every employee-built skill starts as a Saturday hobby. By month three it is a productivity multiplier. By month six the team is calling it “her skill” or “his skill,” half jokingly. By month nine the recruiter calls. By month twelve the lawyers do. ↩
- The skill question lives at the intersection of three doctrines that don’t usually meet. Copyright vests under one regime. PIIA assignment under another. State carve-outs under a third. Each was drafted before LLMs existed. The fact pattern walks through all three, and the employee loses on each. ↩
