Tools of the trade, software implications My understanding of the general legal principle of "tools of the trade" is that tools which are necessary for the exercise of a profession are the inviolate property of the tradesman and cannot be taken away from him either by bankruptcy or by employer or by the state or by anyone else. A tradesman has absolute ownership over tools necessary to conduct his trade. For example, imagine a machinist makes a clamp at his workplace. Even if he uses company materials and time to make the clamp, the machinist still owns the clamp, because it is a generic tool, not a workpiece. If he leaves and goes to work for a different company he can take the clamp with him and he owns it forever. That is my interpretation of the "tools of the trade" principle. This would not apply to a special tool only usable at a particular employer. For example, if the tool would only work on one employers specific machine, then it is not a "tool of the trade", because it is not generic. My question is whether this principle applies to software as well. For example, lets imagine a programmer writes a sorting algorithm. Such an algorithm is generic and can be used at any employer. Does the programmer have the right to retain and use that sorting algorithm while working for other employers because it is a "tool of the trade"?
Your framing of the issue is basically wrong. There is an exemption, which varies from state to state, from unsecured creditors (but not creditors that take the goods as collateral) in bankruptcy and in debt collection outside of bankruptcy (not always the same exemption), for tangible personal property owned by the debtor which constitutes the debtor's tools of the trade, but that varies from state to state, is a creature of state statute (and the bankruptcy code), is not universal, and is usually limited in dollar amount. Moreover, the exemption only applies when the tradesman actually owns the tools of his trade which is customary in some professions, but not automatic. It is only the case when the tradesman buys his own tools. There is no generic v. non-generic distinction. In the software field, education and the public domain can always be accessed. But, intellectual property, that can be protected, that is developed for the employer, is usually work for hire and belong to the employer. This default rule is subject to the terms of the agreements between the parties entered into contractually.
Such clauses are called "copyright assignment", "invention assignment", and/or "works for hire" clauses, partly depending on the clause's intent and wording. They're pretty common in employment contracts for software development and some creative positions. Frankly, the clauses don't actually do much, at least in the US -- copyright law already recognizes the concept of works made for hire (which belong to the employer), and claims too far beyond that are often rejected if they aren't obviously related to company business. With that said, your hypothetical programmer's painting is safe unless it depicts, say, the contents of an email from the CEO. :) Even if the clause technically entitles the employer to claim ownership, the employer has no legitimate interest in doing so. Likewise, that app created outside work is safe as long as it is created using no company resources and is unrelated to the employer's business. If the app is obviously related, that's where things get hairy.
It is conceivable that A's employer would claim that the intellectual property was actually created by A in the course of their employment rather than B. That would be a question of fact for the lawsuit to determine. Realistically, assuming A and B both testify that B created the intellectual property with no input from A and A's employer had only the IP address as evidence, it is pretty unlikely that the fact finder would find that A created the intellectual property. A's employer would almost certainly need to provide some additional evidence that would show that the balance of probabilities favored the employer's position (i.e. A works at FedEx writing software for package logistics, B is a 12 year old kid with no formal computer science training, and the intellectual property in question involves the implementation of sophisticated graph traversal algorithms that would be common in package logistics applications).
Ownership is a fundamental concept in property law which can be difficult to apply to software, such as computer games. A physical record of information, such as a game disc, a piece of paper with a product key on it, or a computer hard drive with software installed on it, is personal property (chattels). You own these things. However, copyright law restricts what you can legally do with them. For example, the copyright holder generally has the exclusive right to make a copy of a program, which would generally include downloading (and saving) a game ISO. In recent decades, anti-circumvention provisions have been added to national copyright laws. These generally make it illegal to use cracks and other techniques for circumventing DRM, even if you “own” a copy of the software. What is “owned” is the right to assert a claim in court (a chose in action), which is also a kind of property. Specifically, the right to use proprietary software, or software license, is generally understood as a bundle of contractual rights, often documented in an end user license agreement. (While these contractual rights are a kind of property that can be owned, “ownership” of software can also refer to the rights of the copyright holder, which the more limited rights of a licensee are derived from.) Actually determining the legal effect of a software license is complex. As it is intended to create contractual rights, the terms of the contract (license agreement) are important, but not determinative. Consumer law may impose standard “fair dealing” terms which could have complex effects on the rights associated with a digital product in a particular jurisdiction. Because of the low money value involved, these complex legal issues are rarely tested in court. The specific questions you pose all appear to breach copyright or anti-circumvention law. However, you may have acquired contractual rights, including implied rights associated with your purchase of chattels, or dealings with a platform operator like Steam, which limit the copyright holder’s ability to take action against you. You may also have the right to do things that fall within a fair use or fair dealing exception in your jurisdiction. Again, the law is often untested, especially outside of the United States, because it is rarely in the parties’ interest to litigate. However, the exceptions to anti-circumvention law are often different to, and less permissive than, the exceptions to copyright. To further research your questions in a particular jurisdiction, I would look for exceptions to copyright and anti-circumvention law which protect consumers’ rights, if any, to back up or resell copies of licensed software.
A legal measure that can protect you is called a contract. See What is a contract and what is required for them to be valid? A formal contract will codify that you own the IP, they are working for hire, they are not to use or share the code with anyone else, etc., and will outline the penalties under international and Pakistani law. But good luck enforcing your copyright or suing for damages if they do take your code for their own. See Copyright law of Pakistan - Wikipedia.
The constitutional basis for all US patents is Article I, Section 8, Clause 8, of the US Constitution, which grants Congress the power: To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. See &quot;Intellectual Property Clause&quot; from Cornell's WEX Legal Information Institute. US Patent law requires an applicant to include with a patent application &quot;disclosures&quot;. As the page &quot;Patent Disclosure: Everything You Need to Know&quot; from UpCounsel states: [A] patent disclosure is a public claim of data about an invention. In general, it is any part of the patenting process in which data regarding an invention is disclosed. A good disclosure tells someone else how to create the product. [Emphasis added] The U.S. Constitution gives Congress the right to offer exclusive rights to people for their inventions for set periods of time. This is only if and when the inventor agrees to adequately disclose the invention in writing. [Emphasis added] A formal patent disclosure ... stipulates a set of claims regarding the invention, as well as other data that reveals the unique nature of the product. It should be expressed in writing with the United States Patent and Trademark Office (USPTO) as part of the patent application. What Is Included in a Patent Disclosure? The Specification. A primary disclosure or &quot;specification&quot; is a main document in a patent application. It describes the ways in which the invention is innovative compared to similar inventions and explains the scope of monopoly the applicant believes he or she has to the invention. The specification describes the item and the way to make and to use it, in clear and exact terms. Someone in the field must be able to reasonably create it with these instructions. Further, the specification notes the patent application filing date on which inventor can the rely. It also offers evidence that the invention belongs to the person in question. The Enablement. This explains how to create the object and how someone in the field can do so. The instructions cannot be vague or unclear, but must be exact and detailed. When the patent expires, the enablement should still be usable. This section should include any figures or drawings, with explanations. Again, you will want to show how your invention is special. So, you might want to include many details and different variations of the invention. Later, many of these variations may be deleted from the document as unnecessary. This section may be numerous pages long. Best Mode Requirement. The path revealed must be the best way of creating the item within the author's awareness at the time of filing. Therefore, it may include specific or unique techniques. There should be no concealment. A poor-quality disclosure can risk the appearance of concealment. [Italics added] Claims. This area tells the reader the exclusive rights the patent offers to the inventor.... The official page &quot;Duty of Disclosure, Candor, and Good Faith&quot; from the USPTO cites 37 CFR 1.56 on the duty to disclose information material to patentability. This regulation provides, in the relevant part: A patent by its very nature is affected with a public interest. The public interest is best served, and the most effective patent examination occurs when, at the time an application is being examined, the Office is aware of and evaluates the teachings of all information material to patentability. Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section. The duty to disclose information exists with respect to each pending claim ... These disclosures include the state of prior art, as kown to the applicant and the applicant's associates. The page &quot;BEST MODE: Noncompliance with the Duty of Disclosure is Not an Option&quot; states: When you apply for a patent in the United States, you have a legal duty to disclose prior art that could be used to reject your application — in essence, information that may be used against you by the examiner of your application. While persons accused of a crime have a right to remain silent, so as to avoid self-incrimination, inventors applying for a patent have no such right. To the contrary, an inventor’s failure to comply with the duty of disclosure risks any resulting patent being unenforceable. The page &quot;THE PATENT BARGAIN AND THE CURSE OF RETROACTIVITY&quot; states: One of the requirements for the USPTO to issue a patent is that the applicant’s claimed invention be fully disclosed in the application and published in the patent. This is sometimes referred to as the “patent bargain.” This is at the opposite end of the spectrum from trade secrets law, under which a company can sue for © misappropriation of a trade secret but only if it takes reasonable measures to maintain confidentiality of the trade secret. ... Under patent law an inventor must fully disclose his or her invention before enforceable patent rights come into being. This disclosure requirement is sometimes termed the “patent bargain,” under which an inventor gains the right to exclude others from practicing a patented invention in exchange for disclosing the invention so that it may be known by the public and indeed practiced after the patent term has expired. ... [Emphasis added] In general a patent application is not just a description of a specific industrial process. It includes the research by which that process was discovered or developed. That research can benefit others in the same field, and so &quot;promote the progress of science and the useful arts&quot; in helping others to do further research and make further discoveries, which can often be done without infringing the patent itself. Of course, once patent protection expires, anyone may use the patent, and the final patent documents are supposed to include sufficient information that &quot;one skilled in the art&quot; will be able to build the invention or use the process that had been patented. This is in contrast to the situation which would exist had the inventor retained the discovery as a trade secret. In that case no one would have been able to use the patented discovery until some other person independently discovered and disclosed it.
Note that an essential element of the offense here is &quot;with purpose to use it criminally.&quot; The specifications in B allow a presumption of such purpose, but such a presumption is rebuttable. The tools of a locksmith are somewhat different from those of a criminal &quot;cracksman&quot;, I understand, and would probably not be considered &quot;designed or specially adapted for criminal use&quot;. But even if they were, proof of regular employment as a locksmith would tend to rebut the presumption of criminal intent. Possession of tools with the intent of lawfully opening one's own lock would not be criminal intent, but a judge or jury might not be convinced of that.
Under United States law, copyright is normally held by the creator of a work. There is one major exception to this rule: the "work for hire." If something is considered a "work for hire" under the copyright statutes, the copyright is held by the employer. Whether something qualifies as a work for hire is a complex analysis: here is a Copyright Office circular covering some of the basics. To be clear, I'm not giving an opinion (and I don't have enough information to give an opinion) on whether any specific works you or your fiance may create or commission qualify as "works for hire." It's a narrower test than you probably think it is. If the work is not a work for hire, the copyright holder owns the copyright, and anyone else can use it only with a license from the copyright holder. A license can be implied by the parties' behavior and communications--but it shouldn't be. If you're in a situation where you need to know, for example: That you are allowed to use the artwork forever, and the artist can't ask you to stop later; That you are allowed to change the artwork if you need to, even a simple change like cropping or adding a filter or text; or That, if your product is successful, the artist won't be able to sell another license to someone else to compete with you; then you need a written contract spelling out who owns the copyright and what the rights of the other party are. A lawyer can draw up a simple, re-usable form contract for you cheaply that will prevent the problems you're worried about. Remember: even if this is a work-for-hire situation, if you need to prove that down the road, it may require a trial, or at least preliminary motion practice, to do so. That's a lot more expensive than getting your ducks in a row now will be. tl;dr: Get a lawyer. If you're in a major city, there may be a local arts law organization that will provide you with free help for a simple job like this one. (Volunteer Lawyers for the Arts operate in several East Coast cities, and I know many top commercial lawyers who do pro bono for them).