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Five Tips for a Great Legal Writing Assignment

September 25, 2012 By Lee Burgess 2 Comments

• Follow the format outlined by your professor. It is likely your legal writing professor has given you instructions for the overall format of your legal writing assignment. In addition, your professor may have given you formatting instructions for the body of your assignment, such as that you need to follow IRAC. Whatever the instructions, follow them . Sure, you may think it is an overly formal or a frustrating way to write—but to be honest, no one cares. You need to write for your professor . It is more important to write in the way your professor has outlined, than as you personally prefer. And it is not going to be the last time your writing will need to conform to someone else’s rules. As a working attorney you often need to write in the format requested by your boss or even by the court. So get used to it!
• Remember, your writing doesn’t need to be full of legalese—the best legal writing is often simple! So many law students make the mistake of thinking that to “sound like a lawyer” they must use every possible legal term out there. This is just not the case. Often the most effective legal writing is very clear and concise and only uses legal terms or “legalese” when appropriate (say, when you are using a term of art). It is also important to work on writing in a clear, concise way because your assignments may have maximum word count. So using extra words to sound “more professional” won’t really help your grade in the end.
• Answer the question asked by your assignment. Often students get so caught up in writing their assignment that they forget to focus on the question that was asked of them. It is important to read and re-read (and even read again) the assignment sheet. You don’t want to make a mistake and write something off topic. Remember, answering the question is key to getting a good grade!
• Plan before you write. A great legal writing assignment is organized. And for most of us this means that you need to plan your paper just as you would plan an essay or any other project. Organization is key and it takes time to sit with the research and develop your answer. Make sure you build this time into your plan of how you are going to get your assignment done.
• Proofread and double-check citations. As an attorney-in-training, it is very important to present yourself in a professional way. That means that you need to proofread your assignments to present yourself in a professional way to your professor as well. If your assignment is riddled with typos, it is distracting for the professor and likely will cause your grade to drop. Also, students often are lax when handling citations. You are typically graded on the accuracy of your citations. Citations are not hard, but you must be detail oriented and look things up! I have seen many a legal writing grade go down because students didn’t spend adequate time or energy on citations. Don’t let this happen to you.

Legal writing, like most things, gets easier the more that you do it. So do every practice assignment assigned and get as much feedback as you can. This will help you become an excellent legal writer, which is a critical skill in our profession.

Check out these other helpful posts:

• Surviving the first weeks of law school .
• Law school exam prep 101 .
• Getting feedback on past exams is critical .
• Pay attention in class, it can save you time !

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About Lee Burgess

Lee Burgess, Esq. is the co-founder of the Law School Toolbox , a resource for law students that demystifies the law school experience and the Bar Exam Toolbox , a resource for students getting ready for the bar exam. Lee has been adjunct faculty at two bay area law schools teaching classes on law school and bar exam preparation. You can find Lee on Twitter at @leefburgess , @lawschooltools , & @barexamtools .

Reader Interactions

Thank very much for the tips i have just read they been beneficial to me because am a distance law school student.

I need more guide to legal writing because am lecturing this course for Magistrates

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Master the Legal Memo Format

September 20, 2022

[Bloomberg Law’s Essential Career Toolkit can help you excel in class and jump-start your legal career to successfully transition from law student to lawyer.]

What is the legal memo assignment?

The legal memo is an objective memorandum that provides you the opportunity to review and research relevant case law, investigate relevant facts using available resources, analyze those facts under that law, and impartially assess the potential outcome of a matter. The legal memo is an assignment that law firm associates are frequently asked to provide to senior attorneys.

Far too often, however, the assigning attorney takes one look at the result and replies, “I knew this already.” To prevent this outcome, it’s important to write a legal memo with sufficient understanding of audience, scope, purpose, and format. With proper planning, law firm associates can maximize the odds of favorable reception at the outset.

Bloomberg Law can help you understand and apply legal issues to your legal memo assignment, so your final product addresses all relevant points right out of the gate.

What’s the difference between a closed legal memo and an open legal memo?

A closed legal memo is an assignment where you are given the case law or other primary law to be used in your writing. Far more challenging is an open legal memo, where you will need to research and identify the relevant law, investigate and analyze the most legally significant facts involving a particular client, and provide a critical assessment of how the court may apply the law to the matter.

By extension, unlike a court brief, the legal memo is not the place to wager a legal opinion or argue facts. The legal memorandum serves as an objective standalone document and identifies the risks and any unknown facts that need investigation. It should maintain an impartial tone, with no implied preference for one side or the other.

What’s the standard legal memo format?

Generally, a legal memorandum comprises six sections, with the following information:

1. Heading or caption

A section, titled, “Memorandum,” identifies the recipient (To: _______), the author (From: ____), the assignment submission date (typically in MMMM DD YYYY format), and subject of the memo (Re: __________).

2. Question presented

A brief one-sentence statement that defines how the law applies to the legal question at hand, and the jurisdiction where the matter will be decided. The question presented is specific and impartial and doesn’t assume a legal conclusion.

3. Brief answer

A quick-hit legal prediction to the question presented, based on a short (four to five sentences) explanation that references relevant law and facts.

4. Statement of facts

A concise, impartial statement of the facts that captures the heart of the legal matter, as well as current and past legal proceedings related to the issue. The facts can be chronological or grouped thematically, whichever format presents the facts in the clearest manner.

5. Discussion

Restates the main facts and delineates the overarching legal rule. Several paragraphs outline the various legal topics to be addressed in the case and provide an analysis of the legal issues, usually ordered in subsections.

6. Conclusion

The assigning attorney will likely read this section first. It predicts how the court will apply the law, and how confident you are in your prediction based on the data. With an impartial advisory tone, you identify next steps and propose a legal strategy to proceed.

How to write a legal memo

Legal research memos can come in many forms—from broad 50-state surveys to more nuanced research on a particular point of law—but whatever the format, it’s important that you fully understand the task entrusted to you before you start typing.

If you tackle your assignment by following the recommended approaches in the legal memo example below, you’ll be more likely to find an appreciative supervising attorney, deliver better work product, cut down on the number of drafts required to arrive at a final product, and, most importantly, please the client.

Learn the essentials of litigation writing, research, and document review with our Core Litigation Skills Practical Guidance Toolkit , available to Bloomberg Law subscribers.

Legal memorandum sample assignment

Assignment:  Prepare an open legal memo on whether, under the Fourteenth Amendment’s Due Process Clause, there is personal jurisdiction over a foreign car manufacturer involving a products liability case.

Step 1: Understand the legal issues

Review legal memo assignment materials.

In an open legal memo, you will be tasked with researching relevant primary and secondary resources, such as from national, single, or multiple state entities, as well as appeals circuits, to include in your analysis.

Locate secondary sources

Secondary sources, such as books, treatises, law reviews, legal analysis publications, and Practical Guidance are a great starting point to assist with your legal memo research. Although secondary sources are not binding on courts, meaning courts are not required to follow these sources, they are still helpful tools to use when you know little about a topic.

However, remember that while you may know little about a topic, the same may not hold true for your audience. Readers like law partners and assigning attorneys will already know general law. Identify your audience’s presumed level of knowledge, then the most mission-critical questions to address. These identified gaps will inform your fact-finding and research.

Use secondary resources to better fill in the main legal topics and issues as they relate to the facts in the legal memo assignment. Your legal research should help frame the issue and lead to other relevant materials, including cases and statutes.

Throughout, utilize legal memo space wisely. Remember, legal memo length varies by subject. Some topics require only a short summary, while others compel long-form treatment. For guidance, search your firm’s office document management system for previous legal memos.

Sample assignment – Step 1

Understand the legal issues:  Legal research depends on the right search terms. In the case, for example, you can use the keywords: (“personal jurisdiction” and manufacture!)) to locate relevant resources on the Bloomberg Law platform.

More broadly, while your search into secondary sources may span books and treatises, law review articles, and other legal analysis publications, make sure to vet all legal authorities for relevance.

[Research tip: It can be challenging to know all relevant keywords. Bloomberg Law provides a convenient search results page, where relevant article blurbs showcase additional keywords to explore. Based on targeted keywords, you can better gather the most relevant background information to assist with your analysis.]

Step 2: Develop a research plan

Identify primary law.

Primary sources can often be identified with research tools, such as court opinions searches for relevant case law. However, primary sources are not always apparent. In such cases, work your way backward. Reviewing secondary sources can help you identify a list of relevant primary law resources, like case law and related statutes. Keep your research organized and create a research plan to identify key resources. The research plan will list the relevant primary law and how the case or statute relates to your comprehensive legal analysis.

Stay organized

Save the relevant cases and statutes to a designated workspace. Bloomberg Law provides a streamlined and secure digital working area where you can add your notes as well as upload and store your drafts to keep organized.

Sample assignment – Step 2

Develop a research plan:  In the  assignment, some legal research may mention cases on what contacts a foreign defendant must have for the court to have personal jurisdiction over it, such as Ford Motor Co. v. Montana Eighth Judicial District Court .  Read through these articles to reveal additional relevant cases and statutes to support your analysis.

Step 3: Confirm your legal memo research

Once you have your research plan, you want to verify all your research to make sure you’re relying on the most current case law available. Bloomberg Law’s litigation tools like the BCite citator tool help you work smarter and faster to validate your case law research—specifically, to determine whether a citation still represents good law and can be relied upon—and helps you to conduct additional research to find more cases and resources that support your legal memo’s findings and conclusions.

Robust verification should ensure you know the following information:

• Composite analysis – the overall treatment of the cited case by other courts.
• Direct history – How a cited case has moved through the court system.
• Case analysis – Cases that have subsequently cited to the case.
• Authorities – Cases relied on by the court in the main case.
• Citing documents – Legal materials, such as court opinions, administrative decisions, and secondary sources that reference your case by citation.

Sample assignment – Step 3

Confirm your research:  To see whether  Ford Motor Co. v. Montana Eighth Judicial District Court  is still good law, you will of course need to pull up and review the case status. As part of this verification, you should review how other courts have treated the case. Once you have verified case status, you can better find additional secondary cases and other sources that cite to your case.

[Research tip: Carefully review whether case law citation can be relied on in your legal memo. While a legal memo is written for internal stakeholders like the assigning attorney, and not for the court system, it may nonetheless serve as a primer for future material.]

Attorneys may later incorporate any case law citations within the legal memo into court filings in support of their arguments. Given this broad potential reach, it’s imperative to verify all case law within your legal memo. Any unverified case law that later makes its way into public documents will result in an admonition from the court.

It is also important not to cherry-pick case citations. Remember the legal memo’s purpose is to inform, not to argue the facts. The legal memo must therefore provide an objective summary of all relevant case law and how it applies to the facts at hand. The omission of negative case law only compromises future legal strategy and heightens client legal exposure.

Step 4: Write an objective analysis

The legal memo showcases your critical legal thinking skills. Use your research plan and research materials to help organize your analysis. Remember to clearly state the law and the facts, in the active voice, and present your analysis in a logical manner.

Even with the IRAC legal memo format (Issue, Rule, Application, and Conclusion), it can be a challenge to write with precision. For example, it may not be clear which details to include in the statement of facts. Skilled legal memo writers often begin with the discussion. With complementary considerations of legal authority and factual criteria, this section clarifies the most legally significant facts and informs other earlier sections like the question presented and brief answer.

Across all stages, Bloomberg Law provides a vast trove of articles and resources to assist you in preparing your legal memo. Whether this is your first or fiftieth legal memo assignment, you can showcase clear and impartial legal analysis in your legal memo and other writing assignments in ways that establish you as a strong legal mind.

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10 Strategies For Writing Law Assignments Like A Pro

Are you a law student who’s struggling with writing law assignments? You’ve got a tough assignment coming up. You’re nervous, and you’re not sure how to write it.

Well, you’re not alone, most law students often struggle with law assignments and prefer to seek law assignment help . This is because law school assignments are quite different from other types of written work. They require in-depth research and a good understanding of the subject. Plus, you also need to present your ideas clearly and concisely in a way that made sense to the audience.

But don’t worry! We’ve got some great tips to help you write like a pro, no matter what type of law assignment you’re dealing with. Whether you’re learning about the law of torts, contract law, or property law, these strategies will help you tackle any type of legal assignment.

And best of all? They won’t take much time out of your busy schedule. So let’s start exploring proven strategies to write an outstanding law assignment!

How To Write Law Assignments Like A Pro?

Whether you’re a student or a lawyer, here are 10 strategies to help you write like a pro:

1.   Read, Take Notes, And Then Read Some More.

The first step in writing a law assignment is to read the question carefully. In order to write an effective answer, you need to understand the question first. Read it over and over again, looking at each word and phrase for meaning.

Look at the assignment instructions as well—are there any specific formatting requirements? What kind of format do you need to follow?

Read relevant case law, legislation, or other sources of information that might help make your argument stronger. It’s important to know where in these documents you can find what you need. So when it comes time for writing your own version of an argument, everything fits together nicely!

Take notes as you go along—this will help keep track of all those details about what was said where (and when). Then review those notes before moving on. Make sure they are clear enough so you can understand them without too much trouble too!

1.   Break It Down Into Steps And Set Yourself Deadlines.

In law school, assignments are often long and complicated. This makes it easy for us to get overwhelmed by the amount of work we have on our plates. To help stay organized and focused, break down your assignment into manageable steps and set yourself deadlines for each step.

Also, Be consistent with your writing style and tone. You don’t want your reader confused by whether they’re reading someone who’s trying really hard or someone who doesn’t care about their work or their audience at all.

2.   Use Different Sources And Be Critical Of Them.

If you’re writing a law assignment, it’s important to use multiple sources. This helps give you a balanced view of the material and makes sure that you get all sides of an argument. While this can sometimes feel like too much work, it will pay off in the long run by giving your reader access to an accurate representation of what happened in court cases or legislative debates.

You should also be critical when evaluating these sources: check their dates of publication. Make sure they were written by experts on their topic. Ensure they are unbiased (not taking sides). Determine if they’re credible (whether or not they have credibility within their field).

3.   Plan Your Essay Before You Start Writing.

When you’re writing an essay, it can be tempting to dive right in and start writing. But this is a mistake because it leads to writer’s block and procrastination. Instead, plan your professional law essay help before you start writing!

Planning helps you stay on track by giving your brain something familiar to focus on during the process of creating new sentences and paragraphs (instead of being stuck on one word). Planning also helps prevent writer’s block from happening. Once you have an outline for your paper or assignment, there are no more excuses for not being able to write anything else—you’re just doing what needs doing!

4.   Make A Schedule And Stick To It

Making a schedule and sticking to it is one of the most important things you can do when writing law assignments.

• Make sure that you set aside time each day for writing. It’s easy to get distracted by other things, so make sure your schedule includes breaks in between writing sessions!
• Don’t try to do too much at once—it’s more productive if you take breaks and spread out your workload over several hours or days instead of trying to complete everything all in one go (or even worse, procrastinating and ending up doing nothing).
• One of the best ways to stay organized is by using a planner or calendar. This will help you plan out your assignments so that you don’t get overwhelmed by all the work that needs to be done.
• It’s also important to make sure that your schedule takes into account any other commitments or responsibilities in your life—such as part-time jobs, etc.

5.   Take A Break And Come Back To It With Fresh Eyes.

You don’t have to keep writing until you finish the assignment. It’s fine if you take a break every few pages or so and come back with fresh eyes. There are many ways that taking breaks can help improve your writing.

First, it gives you time to think about what you’re doing and how it makes sense. Second, taking breaks allows writers to process information better than if they were just sitting behind their computers all day long trying desperately not to fall asleep.

When you’re writing, it’s easy to get distracted by social media or TV shows, but don’t make the mistake of thinking that these things will help you write better. Instead, use them as rewards after your work is done!

6.   Don’t Forget About The References!

References and citations are essential for your assignment. Make sure to format your references correctly and cite them correctly, too. Be sure to include citations in the body of the text, and use them correctly. For example, if you cite a case, put the citation in parentheses after the quote. If you cite an article, put it in square brackets after the quote.

The best way to avoid plagiarism is by following the proper citation method of author, title, page number(s), year published, and name of publisher or journal (if possible). For example: “Chapman & Hall Law Review article by Bhatia v. State of Texas (2016)”

The key is to ensure that when your reader looks at your paper they know where to find what you’re talking about. If ever you have any doubts about what a source says in its reference section then check it with another source first before quoting it directly.

7.   Proofread And Proofread Again.

Proofreading is the most important step in writing law assignments as a professional. It is a key part of writing and should be done before you submit your work for review

Make sure you have a good grasp of the material before proofreading and make sure to use a dictionary and grammar checker. If you’re not careful, your work could be riddled with errors that make it hard for the reader to understand what you have written.

You can ask a friend or family member to read your paper before your professor grade it. You can also pay someone else to do this work for you or maybe even hire an expert proofreader at an hourly rate!

8.   Know When To Ask For Help

If you’re struggling with an assignment, don’t hesitate to ask for help. It’s perfectly fine to reach out and ask your professor or classmates for assistance in completing the assignment. If there are no other options available, though, don’t hesitate to reach out to senior students who might have more experience than you do with this type of writing assignment.

Finally, think about taking advantage of resources outside of class. Library staff members will often feel happy simply by hearing from their peers that they need some extra help!

9.   Make Sure You Don’t Forget Your Priorities

It’s important to remember that you can’t always be writing . You also have to eat, sleep, and exercise—you need your body to be healthy so that it can do its job.

You should also make sure you’re not neglecting other important things like going out with friends or having fun!

If you find yourself struggling with writer’s block, don’t feel like it’s a sign of failure. It can happen to anyone, even professional writers. The most important thing is to remember that you’re not alone—and there are plenty of ways you can overcome it!

If possible, go back and check your research sources again before starting on your paper—you might find something new!

10. Turn Your Law Assignments From Nightmares Into Manageable Tasks.

The k step to turning your law assignments into manageable tasks is staying on top of things. You can do this by setting deadlines, sticking to them, and keeping everything organized—like your research material. As long as you keep focused and stay on top of things, you can turn your law assignments from nightmares into manageable tasks.

Here are some tips for managing your time effectively:

• Keep track of when you’re going to write each assignment. This will also help prevent procrastination from creeping up on you!
• If possible, try scheduling breaks during working periods instead of staring at a computer screen all day long. This will help keep your mind fresh and you can give proper attention to your task.

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When a person aims to complete a law assignment without mistakes or minor inconsistencies, it is necessary to structure one’s paper right by using relevant legal terms that are supported by statistical evidence. Likewise, a student must be familiar with the responsibilities that each person has during the court hearing and the background of the legal documents among other things. Unfortunately, spending two or three hours is not enough, and only a law expert can provide a solution. Why not take some rest and spend your time differently? Let us assist you with your legal assignment writings and help you avoid any trouble or exhaustion that always comes along with such type of homework.

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Civil Legislation – if your case belongs to disputes and violations that do not relate to external or international issues, as well as criminal law, it is most often related to civil law. As a rule, civil studies will involve at least two individual sides or organisations that deal with disputes. For example, when you are dealing with court study cases, it may deal with family issues, divorce cases, commercial law’s use for business matters, property disputes, and more. If you are dealing with law homework in this area, it will relate to case study analysis, labour law, and claims of civilians.

Criminal Law. It is all about criminal offenses that fall under laws. At the same time, criminal law may deal not only with the crimes per se but with the rehabilitation of prisoners.

Corporate Law. Also known as the legislation related to corporations (Companies Act 2006), it includes not only substantive legal matters but regulations that are related to corporative practices of dealing with real estate, business law disputes, and more.

Common-Law. It can be encountered only as a unique field of legislation. If you are new to this field, you might have heard about Case English Law. Contrary to the name, it’s not only related to constitutional law or statute of. The majority of help with law assignment that is requested here relates to careful analysis of legal precedents, which revolve around judicial decisions that have been made in certain scenarios. Statutory Legislation. In simple terms, it relates to those parts of law that have already been made static with the help of proper analysis and exploration. It means that we are mostly dealing with theoretical knowledge of how something must be done instead of focusing on case study writing. If you were told to compose a legal paper dealing with statutory legislation, it means that you should provide references to certain laws and policies like existing Migration Law or anything else, depending on your objectives.

Construction Law. It consists of six primary fields, which include the Contract Law, Law of Tort, Legislation based on Statutes, Breach of Statutory Duty cases, Law of Restitution, and the Criminal Law since we are dealing with criminal activities as well, encountered in Construction Law field.

International Law. If we have more than one country involved, it relates to international law. It can also be the post-Brexit legislation changes or dealing with cloud services and cybercrimes. Make sure to refer to international legislation as well for arbitrary decisions and global organisations.

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What Writers Need to Know About Copyright Law

For poets, novelists, screenwriters, playwrights, journalists, and other wordsmiths.

We created this Copyright Law for Writers webpage to provide information about copyright law as it applies to poets, novelists, short story writers, journalists, bloggers, and other creators of written works.

On this page, we explain what rights writers have under copyright law, why it is important to register written works with the U.S. Copyright Office, and how to deal with copyright infringement. We also provide several resources for writers about copyrights in the writing and publishing contexts. Feel free to jump to a specific section:

What Rights Do Writers Have?

• Should Writers Register Their Works with the U.S. Copyright Office?

How to Know When a Written Work is Published or Unpublished?

Do writers own the copyright to the works they author, how long does copyright protection for a written work last, fair use for writers, copyright infringement for writers, common copyright law questions for writers, copyright resources for writers.

Copyright protection for literary works applies automatically when a work is originally authored and fixed in a tangible form , such as writing something down on paper or typing up a document and saving it on the computer . Copyright law does not protect facts, ideas, themes, or tropes used in written works, but instead protects the way these things are expressed in writing.

When a written work is protected under copyright law, the copyright owner has several exclusive rights : (1) the right to reproduce the work, (2) the right to distribute the work, (3) the right to create derivative works of the work, (4) the right to publicly perform the work and (5) the right to publicly display the work.

Should Writers Register Their Written Works with the U.S. Copyright Office?

As previously mentioned, copyright protection for written works begins as soon as the work is fixed in a tangible medium. Therefore, a writer does not need to register a written work with the U.S. Copyright Office for that work to be protected by copyright. However, there are many benefits to registering with the Office. These benefits include keeping a public record of the writer’s copyright so that others know who to seek permissions from if they want to use the work and preserving a writer’s ability to sue if copyright infringement occurs. More information about how to register literary works can be found on the Copyright Office’s literary works registration page.

In order to fully and correctly complete a registration application, a writer will need to know some important information about the work, such as:

• What type of work is being registered;
• Whether anyone else has a copyright ownership interest in the work;
• Whether the work has been published, and if so, when;
• Whether the work contains pre-existing materials.

Knowing these details and others will help the writer correctly complete the copyright registration application form and reduce delays in the registration process caused by any back-and-forth communication with the Copyright Office. In addition to completing the application, the applicant will also need to submit at least one copy of the written work along with a registration fee to the Copyright Office.

Knowing whether a work has been published and what date it was published is important for many reasons. Writers need to know the publication status of a written work in order to completely and accurately submit a registration application to the Copyright Office and the publication year will be important to determining the term of copyright protection for an anonymous or pseudonymous work and for a work made for hire .

Under the Copyright Act, publication of a written work occurs when:

• the copyright owner distributes or authorizes someone else to distribute copies of the work to the public or;
• the copyright owner offers or authorizes someone else to offer to distribute copies of the work to a group of persons for the purposes of further distributing copies of, publicly performing, or publicly displaying the work.

Importantly, a public performance or display of a work does not itself constitute publication. For example, a blog post on a website is a public display of work and is therefore not considered to be published. However, if the blog post is not just displayed but is also distributed by, for example, allowing others to download it or including the blog post into a book that is sold in bookstores, then the blog post would be considered to be published.

When a copyright owner restricts distribution of copies of a work to a selected group with a limited purpose and without the right of anyone in that group to diffuse, reproduce, distribute, or sell the work that is considered to be a “limited publication.” A “limited publication,” is another way of saying that a work is unpublished. For example, a writer might send a copy of a written work to her agent or perhaps circulate copies to other writers to review, but unless the writer authorizes recipient(s) to further distribute copies of the work, the work would be considered by a “limited publication” and therefore be unpublished.

We completely understand if the distinction between published and unpublished is confusing. Even the foremost experts in copyright at the U.S. Copyright Office concede that the legal definition is extremely difficult to understand. We encourage writers to check out our Published v. Unpublished FAQ page and an answer from the Copyright Office about Published v. Unpublished Registrations for more information.

At times, copyright ownership of written works can get confusing and a writer’s copyright interest can depend on many factors surrounding a particular creative project. A written work can have multiple authors, writers can license or assign works, or an employer might actually own the copyright in the written work as what is called a “work made for hire.”

To avoid confusion over ownership issues, at the beginning of any project it is important for writers to know their rights, understand the intent of all involved parties, memorialize any important agreements or understandings, and to carefully read over any agreements that may be presented to them.

Joint Authorship and Copyright Ownership

Jointly authored works are works where two or more creators contribute to a written work and the creators intend for their contributions to be inseparable from one another. In a joint work, each creator holds an undivided, equal share to the copyright in the written work. Thus, the default rule is that each creator has an equal claim to all the exclusive rights in the joint work—the right to reproduce, distribute, create derivative works, and publicly perform or display—unless they separately agree among themselves that the shares or division of rights or profits should somehow be different.

When writers contribute written works that they do not intend to be inseparable from a bigger, overall work, the overall work would be considered a collective work or a compilation. In a collective work or compilation, each author or copyright owner of an underlying, separable copyrighted work retains their copyright to that specific work. The rightsholder to the overall work would have a separate copyright in the overall work based on the selection, coordination, and assembly of the underlying works. The Copyright Act presumes that the rightsholder to the collective work or compilation has the right to reproduce or distribute the individual work so that it can be incorporated and used in the overall collective work or compilation.   

Oftentimes, writers may collaborate with other writers, illustrators, editors, dramaturgs, and various experts when developing a certain work. In a collaboration, it is best to express and memorialize in a written contract whether the creative relationship is a joint authorship. Without an express agreement, writers may later find themselves arguing with one another over whether they all intended to be joint authors for copyright purposes.

Is the Work a Work Made for Hire?

A work is considered a work made for hire if it is:

(1) created by an employee within the scope of employment, or

(2) a special type of work (translations, contribution to a collective work, compilation, instructional text, test materials, atlas, etc.) which has been specially ordered or commissioned.

If the work falls within one of these two categories, the “author” of the work for copyright purposes is considered to be the employer or the person who commissioned or ordered the work. Thus, it is that entity or person, not the original creator of the work, who owns the copyright. For a further explanation about works-made-for-hire factors check out our Works Made for Hire FAQ .

Is the Work Being Licensed or Assigned?

If a work is not a work made for hire, the writer(s) can license or assign their rights to the work to third parties. The key difference between a license and an assignment agreement is that in a license agreement, the writer only grants permission or authorizes others to use certain rights to the copyrighted work versus an assignment agreement where the writer transfers or “gives away” the rights from the writer to a third party.

In assignment agreements, the writer is effectively no longer the copyright owner of the work, unless the writer terminates those rights. Under copyright law, copyright owners have termination rights which allows them to terminate both licenses or transfers (assignments) of one or more of the exclusive rights of the copyright owner between 35 th and 40 th year after the license or transfer agreement went into effect.

But keep in mind, that if there are joint authors (unless there is a separate agreement between all authors), each author has the equal right to license or assign his/her own rights to the work without permission from any of the other authors—as long as an accounting of profits is provided to the other authors. However, in the case where one of the authors of a joint work wants to grant an exclusive license (more on that below) of a right(s) to the joint work, this could impact and restrict the rights of the rest of the authors and so permission from the other authors would be needed.   

Are the Rights in the Work Being Transferred Exclusively or Non-Exclusively?

An important concept that writers should be aware of relates to exclusivity provisions in license agreements. License agreements can have exclusive provisions, meaning the licensed third party is the only party who has the licensed right(s) (for example, the exclusive right to publish a work for three years or the exclusive right to create audiovisual works of the written work). In an exclusive license, the copyright owner gives the other party the entirety of the right(s) subject to the contract, and the copyright owner is effectively no longer the copyright owner of those rights.

License agreements can also have non-exclusiv e provisions meaning that the writer(s) can license that same right to other third parties or use the right themselves. Under a non-exclusive license, a writer could grant a third party one or more of the exclusive rights.

Copyright protection for a written work lasts for the life of the author plus an additional 70 years. If the written work is jointly authored, the copyright term lasts for life of the last surviving joint author plus an additional 70 years.

The term of protection is a bit different for works made for hire created by corporations or businesses as well as anonymous and pseudonymous works. That’s because for these types of works there is no “life” by which to measure the term. For these works, the term of copyright is 95 years from year of first publication or 120 years from year of creation of the work—whichever is shorter.

Fair use is an important exception in copyright law that allows writers and others to use a copyrighted work without the copyright owner’s permission and without paying the copyright owner. The Copyright Act provides several examples of what kinds of uses may qualify for the fair use exception, such as works of criticism, comment, news reporting, and scholarship. Ultimately, whether something qualifies as a fair use is determined on a case-by-case basis by balancing four factors:

• The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work.

All four of these factors have to be evaluated; no single factor can determine whether something is a fair use or not. The fair use exception can be a bit confusing to understand, but here are some pointers as writers think more holistically about fair use in the writing and publishing contexts:

Under Factor 1

• Works of parody are more likely to qualify for the fair use exception than a work of satire because they criticize or provide commentary on the underlying work. Check out our FAQ and a blog further discussing works of parody and satire in the fair use context.
• If a particular use of a copyrighted work is transformative, this would weigh in favor of a fair use finding. A transformative use is one in which the use has a fundamentally different purpose than from the purpose of the original underlying work and does not act as a substitute for the original use of the work. For example, some courts have found that where a copyrighted work or a portion thereof, is used to critically enhance historical information in a biographical work, the use can be found as sufficiently transformative. For example, the Second Circuit court in Bill Graham Archives v. Dorling Kindersley Ltd. found that a defendant’s use of copyrighted images of band concert photos and tickets in a historical timeline in a biographical book about the band was transformative because it “enhance[ed] the biographical information in [the defendant’s book], a purpose separate and distinct from the original artistic and promotional purpose for which the images were created.”

Under Factor 2

• Use of nonfiction or factual works may move the needle on this factor in favor of a finding of fair use, especially when the use is transformative under the first factor and when the unprotectable facts and ideas (which factual works contain more of) are the elements being used in the unauthorized work. To be clear , this does not mean that an unauthorized use of a nonfiction or factual work will always weigh in favor of fair use. Nonfiction and factual works still contain copyrightable expression, such that if the expression of the factual work is used, a court could find that the use was not a fair use. For example, excerpted subjective descriptions and portraits of public figures as expressed by the author in his memoir, were still considered to be very expressive, exceeding mere factual value. On the flip side, use of fictional works moves the needle on this factor in favor of a finding that the use is not a fair use since the user is very likely using copyrightable expressive parts of the underlying work.
• Use of an unpublished work would weigh this factor against a fair use finding. The Supreme Court emphasized that the right of an author or a rightsholder publication right to his or her work was critical to the rightsholder’s ability to exercise full creative and quality control over his or her work.

Under Factor 3

• If a small portion of the copyrighted work is used that may weigh in favor of fair use. There is no specific number or amount (e.g., 10% or 2 pages) of a copyrighted work that can be used as it is decided on a case-by-case basis. Even if only a small portion of a work is taken, the use may not qualify for the fair use exception if it takes the “heart” (i.e., fundamental, crucial expression) of the underlying work.

Under Factor 4

• A use that causes market harm to the underlying work would weigh against a finding of fair use. But it’s important that writers understand that courts will consider the kind ofmarket harm. If a work substitutes for the original work in a market for the original work, a court would weigh this factor against a finding of fair use. But if someone uses a copyrighted work in a criticism or review of the work, which drives the public away from purchasing the copyrighted work, this would not count as market harm for the purposes of analyzing the fourth fair use factor.

For additional guidance on how to consider the four fair-use factors and how it affects writers’ copyright interests, please watch Copyright Alliance’s fair use educational videos for free, or join our free membership to watch in-depth webinars on fair use.

Copyright infringement occurs when someone engages in using one or more of a copyright owner’s exclusive rights without the owner’s permission and there is no exception or limitation in the copyright law that otherwise allows for that particular use. The infringing act might be innocent, but that doesn’t excuse the fact that it is implicating someone else’s rights.

Copyright infringement for writers can take on all sorts of shapes and forms, but again, when evaluating whether infringement has occurred, the writer must remember that exceptions like fair use might excuse that otherwise infringing activity. Additionally, a writer should also remember that copyright law protects expressions and not ideas and therefore it does not protect general plot or storylines, historical or scientific facts, data points, themes, ideas, and character tropes.

Once a writer determines that the material is indeed an infringement of the writer’s copyrighted work, there are some steps the writer can take to try to stop the infringement and/or get compensated by the infringer. The writer can contact the infringer directly to request that the infringer cease the infringing activities, take down the infringing material (if its online), and/or be compensated for the infringing use (including and damages incurred by the writer). If contacting the infringer directly does not work, the writer may consider sending a Digital Millennium Copyright Act (DMCA) takedown notice to the platform that is hosting or linking to the infringing material and ask for it to be taken down and/or to sue the infringer in federal court or the Copyright Office’s small claims court.

Sending a DMCA Takedown Notice

If a writer discovers that their work is being infringed on a web service or platform (and the writer determines that there are no other copyright law exceptions that apply (like fair use), they can send a DMCA takedown notice to the online platform or service where the infringing material is found, requesting that the material be taken down. For example, if an infringement is found on Facebook, the writer could send a DMCA notice to Facebook by filing out an online form requesting the infringing materials be taken down. The DMCA Takedown Notice process does not guarantee the infringer will stop the infringing activity. But at a minimum, it does put the infringer on notice that they are making use of a copyrighted work without the copyright owner’s consent.

There are a number of elements that should be included within the notice, such as a signature, contact information, and identification of the work being infringed upon. It is important to know what a DMCA takedown notice should include. Many popular social media platforms and online service providers will have their own DMCA forms and tools that writers can use to enforce their copyrights.

Suing the Infringer

If the infringer refuses to take down the material and the platform or online service provider agrees with the infringer, then the only way for the writer to get the infringing material removed (and to get damages stemming from the infringement) is to sue the infringer in federal court. Federal courts have jurisdiction over copyright infringement cases, which means that a writer cannot bring a claim in state court. As discussed before in the registration section, writers should remember that in order to sue in federal court, the U.S. Copyright Office must have made a registration determination regarding the writer’s work.

As an alternative to suing in federal court, a writer can sue for infringement in the small claims court located within the U.S. Copyright Office. The small claims court, which is called the Copyright Claims Board (CCB), can award damages, but cannot order the infringer to stop (unless the infringer agrees). There are other differences between federal court and the small claims court, including the fact that the infringer can opt-out (in which case the writer’s claims will be dismissed) and that there is a cap on damages. Learn more about the copyright small claims court process on our FAQ page about the CCB . 

Can a Work be Used Without Permission if Credit to the Author is Given?

Giving credit for the use of someone else’s work is a great way to avoid committing plagiarism, but it has no impact on copyright infringement. Infringement is infringement, whether credit is provided or not. Learn more from our blog about Plagiarism and Copyright

Can a Book Title Be Protected by Copyright?

Since copyright law protects the original, fixed expressions—a book title, list of ingredients in a cookbook, or similarly situated short phrases or lists of procedures may not contain enough of that original, creative expression. As a result, book titles and other short phrase are almost never protected by copyright. However, in some cases, they may be protected by trademark law. For more discussion on what copyright law does not protect, check out our Copyright Law Explained page and our FAQ to a question related to this topic.

How can Images, Videos, and Other Content in Blogs or Other Online Written Works be Used Legally?

If a use doesn’t qualify for an exception like fair use, usually, asking the copyright owner of the work is the best way to legally incorporate other works in a blog or other forms of written works online. There are also other ways of finding content to legally incorporate into a blog or other online written works. Just check out our blog on this topic for additional tips and guidance.

There are a number of ways to stay informed about how copyright law works for writers and the publishing industry in general. For starters, we recommend that creators join the Copyright Alliance for free and visit the U.S. Copyright Office’s website .

Some Additional Copyright Law FAQs for Writers

• Do I have to use my legal name to register a work?
• Several poems from my book were previously published, should these poems be registered individually?
• If an image is inside of a registered work, like a book, is the image also registered? Similarly, if the registered book required a renewal registration, is the image’s registration also renewed?
• At what point in the creative process do you register a copyrighted work that is continuously being updated or revised, like a screenplay?
• Does the Copyright Office continue to recommend including content titles for their unpublished works?
• If a creator uses works in the public domain (e.g. Shakespeare play, the Bill of Rights, etc.), how does this affect the copyright registration application process?
• What rights do I have to prevent my co-writer to change our copyright registration?
• What is the difference between “Published” vs. “Unpublished” works, why does it matter, and how does the difference relate to Online vs. Print publishing?
• What is the Copyright Office policy regarding registration of published and unpublished works?
• What is the Copyright Office’s definition of “published”?
• I found an article in an online newspaper that I want to share with my colleagues. Can I copy and paste the article into my company’s internal newsletter or upload it onto the company’s intranet?
• Can I post or upload news articles from an online publication that I subscribe to onto my company’s intranet or network?

Other Copyright Resources for Writers

• Literary Works Registration | U.S. Copyright Office
• Where the Authors Guild Stands on Copyright | The Authors Guild
• Writer’s Legal Guide | The Authors Guild
• Writers’ Resource Library | The Authors Guild
• Discussion Forums | Independent Book Publishers Association
• Policy Priorities for the Association of American Publishers | AAP
• Copyright Information for Writers | Poets & Writers
• Copyright Management Suite of Tools | RightsClick
• Find a Copyright Attorney | Copyright Alliance
• Find a Volunteer Lawyer for the Arts Group | Copyright Alliance
• Initiative to Promote Diversity in Copyright (IPDC program) | Copyright Alliance

Writer Creator Spotlight Blogs

The Copyright Alliance created the Creator Spotlight blog series to highlight creators’ careers and the copyright challenges they have faced. Below are some of the creator spotlight blogs that feature authors and writers:

YOU can participate in our Creator Spotlight Blog series too. Read these instructions to be featured!

We will continue to update this page as more resources become available on copyright law for writers, so keep checking back.

Individual creators, such as writers, can join our copyright community for free to stay up to date with all things copyright.

Writers, Join the Copyright Alliance!

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• assignments basic law

Assignments: The Basic Law

The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.

As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.

The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.

Basic Definitions and Concepts:

An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).

An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.

The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.

Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.

No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.

Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)

The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.

The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)

The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.

More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.

And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.

Novation Compared to Assignment:

Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”

A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.

Equitable Assignments:

An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.

In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.

An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.

Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .

But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.

Enforceability of Assignments:

Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.

In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.

After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.

Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.

Assignment of Contractual Rights:

Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.

If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.

In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).

On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.

The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.

Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.

A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.

Noncompete Clauses and Assignments:

Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.

A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.

Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.

Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.

A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.

Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.

A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.

Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.

It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)

It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.

Conclusion:

In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.

As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.

One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.

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Assignment is a legal term whereby an individual, the “assignor,” transfers rights, property, or other benefits to another known as the “ assignee .”   This concept is used in both contract and property law.  The term can refer to either the act of transfer or the rights /property/benefits being transferred.

Contract Law   

Under contract law, assignment of a contract is both: (1) an assignment of rights; and (2) a delegation of duties , in the absence of evidence otherwise.  For example, if A contracts with B to teach B guitar for $50, A can assign this contract to C.  That is, this assignment is both: (1) an assignment of A’s rights under the contract to the $50; and (2) a delegation of A’s duty to teach guitar to C.  In this example, A is both the “assignor” and the “delegee” who d elegates the duties to another (C), C is known as the “ obligor ” who must perform the obligations to the assignee , and B is the “ assignee ” who is owed duties and is liable to the “ obligor ”.

(1) Assignment of Rights/Duties Under Contract Law

There are a few notable rules regarding assignments under contract law.  First, if an individual has not yet secured the contract to perform duties to another, he/she cannot assign his/her future right to an assignee .  That is, if A has not yet contracted with B to teach B guitar, A cannot assign his/her rights to C.  Second, rights cannot be assigned when they materially change the obligor ’s duty and rights.  Third, the obligor can sue the assignee directly if the assignee does not pay him/her.  Following the previous example, this means that C ( obligor ) can sue B ( assignee ) if C teaches guitar to B, but B does not pay C $50 in return.

            (2) Delegation of Duties

If the promised performance requires a rare genius or skill, then the delegee cannot delegate it to the obligor.  It can only be delegated if the promised performance is more commonplace.  Further, an obligee can sue if the assignee does not perform.  However, the delegee is secondarily liable unless there has been an express release of the delegee.  That is, if B does want C to teach guitar but C refuses to, then B can sue C.  If C still refuses to perform, then B can compel A to fulfill the duties under secondary liability.

Lastly, a related concept is novation , which is when a new obligor substitutes and releases an old obligor.  If novation occurs, then the original obligor’s duties are wiped out. However, novation requires an original obligee’s consent .  

Property Law

Under property law, assignment typically arises in landlord-tenant situations.  For example, A might be renting from landlord B but wants to another party (C) to take over the property.   In this scenario, A might be able to choose between assigning and subleasing the property to C.  If assigning , A would be giving C the entire balance of the term, with no reversion to anyone whereas if subleasing , A would be giving C for a limited period of the remaining term.  Significantly, under assignment C would have privity of estate with the landlord while under a sublease, C would not. 

[Last updated in May of 2020 by the Wex Definitions Team ]

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Why australialawwriters.com/.

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Assignment Help Services

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Our Features

ON TIME DELIVERY

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Where everyone is connected, we Australia Law Writers extend our helping hand to you on a 24x7 basis where you can directly connect with our experts via email or live chat and avail our professional's servicesat any point in time.

4000+ PHD EXPERTS

We at Australia Law Writers have more than 400+ PhD or LLM experts who have excellent model paper drafting and reviewing skills.

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The Australia Law Writers provides you with the finest quality of services with several experts on board working for you around the clock. You get all these services atthe most reasonable and pocket-friendly pricing.

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