“But that belongs to the business”: who owns the work when staff and contractors leave

Why “we paid for it” isn’t the whole answer

When a key person leaves, most owners assume the work they made stays with the business. You paid for it, so it’s yours. The reality is less comfortable.

This comes up in a few recurring patterns:

• the developer who built your app and has now left to start something similar;
• the staff member who wrote your training manuals and website copy; and
• the freelance designer behind your logo and branding.

Whether you own their work, and whether you can stop them using it elsewhere, turns on a few questions most owners have never had reason to ask.

Who owns work an employee makes?

For genuine employees, the starting position favours you. Where an employee creates certain works as part of their job, the law makes the employer the copyright owner.¹ But two things have to line up:

• the person must actually be an employee, not a contractor; and
• the work must have been made as part of what they were employed to do, not just while they happened to be on the payroll.²

Courts look closely at what the person was really engaged to create.³

So your employed developer’s day-to-day work on your app almost certainly belongs to the business. A side project they built at home, on their own initiative, may not.

This is less predictable than it sounds. In one case, the business had paid the worker, deducted tax from her pay, paid her super and covered her under its workers compensation policy. It still couldn’t show it owned the training materials she wrote, because writing them wasn’t part of what she was employed to do.⁴

What if they were a contractor, not an employee?

The employee rule only helps you with employees.

A contractor or freelancer generally owns what they create, even where you commissioned it and paid the invoice.⁵ Copyright only passes to you if they sign a written assignment.⁶

So the freelance designer may still own your logo. Paying for the work doesn’t automatically buy you the copyright.

Without a signed assignment, you may hold only an implied licence to use the work for the purpose it was made for, not a right to adapt it, exploit it or sell it on.⁷

“I own the copyright.” Can I do whatever I want with the work?

Not necessarily. Alongside copyright, the individual creator keeps moral rights, mainly the right to be credited as the author and the right to object to derogatory treatment of their work.⁸

These rights stay with the person who created the work. They can’t be bought or assigned.⁹ They can only be dealt with by the creator’s written consent to specified acts.¹⁰

You might own the copyright in your training manuals outright and still cross a line by gutting and rewriting them while leaving the author’s name on them, or by removing their credit, unless you have the right consent. The same goes for quietly re-badging the designer’s work.

Owning the thing isn’t the same as being free to do anything with it.

“They didn’t take a file, they just used what they learned.” Is that mine?

This is the hardest line in the area.

A former worker is entitled to use the general skill, knowledge and experience they built up with you. That’s theirs to take to the next job. What they can’t use is your confidential information or trade secrets.¹¹

To stop someone using information, you generally have to show that:

• you can identify the information specifically, not just in general terms;
• it has the necessary quality of confidentiality;
• it was received in circumstances importing an obligation of confidence; and
• it has been, or is about to be, used without your permission.¹²

The first point is where many claims fail. “Our know-how” or “our client relationships” won’t do. You need to be able to say exactly what the information is.

Your developer’s coding ability is theirs. A specific, closely guarded system architecture, method or costing model may be yours. The line is genuinely hard to call. In one recent case, a trial judge’s finding that certain supplier contacts weren’t confidential was overturned on appeal and sent back for a retrial.¹³ If courts can disagree that sharply, a business is in no position to diagnose its own exposure from the outside.

Isn’t there a law that stops them using company information after they leave?

There’s more than one.

A person who was an officer or employee must not improperly use their position, or information they gained in the job, to gain an advantage or cause the company harm. The duty about information expressly continues after they’ve left.¹⁴

Separately, a restraint or non-compete clause can bind a departing worker, but only as far as is reasonable to protect a legitimate business interest. Anything wider is unenforceable.¹⁵

So an ex-employee who solicits your clients or trades on your confidential pricing may well be exposed. Whether your restraint clause actually holds is a separate question, and many are drafted too broadly to work.

The ground here is also shifting. In September 2026 the Federal Government released an exposure draft bill that would ban non-compete clauses for employees earning at or below the high income threshold, and ban clauses stopping any employee from poaching co-workers.¹⁶ It isn’t law yet. If it passes, it would start on the first quarter day after Royal Assent, and apply to contracts made or varied from then on.¹⁷ The Government’s own materials point employers towards confidentiality clauses instead, which makes getting those right more important, not less.¹⁸

What can I actually do about it right now?

The courts have real remedies, including an injunction to stop the use and damages for the loss it caused.¹⁹ But urgent interim relief has to be earned on the evidence, and the court has a discretion whether to grant it.²⁰

In practice, the early steps matter most:

1. Move quickly. Delay can cost you an urgent injunction.
2. Preserve the evidence before it disappears, including emails, access logs and copies of what was taken.
3. Check the paperwork: employment contracts, contractor agreements, any IP assignment and any confidentiality or restraint clauses.
4. Get advice before you act. Confronting the person, altering records or firing off threats can quietly wreck an otherwise strong claim.

Will it affect other proceedings?

These questions don’t only come up as commercial disputes.

If a business forms part of the asset pool in a property settlement, and it isn’t clear who owns its core IP, such as a brand or app built by a contractor who never signed an assignment, the value of the business, and therefore the division, can be directly affected.²¹

An employee who copies or downloads company data on the way out can also move from a civil dispute into a criminal one. Unauthorised access to, or use of, restricted computer data is an offence in its own right.²²

In short

“We paid for it, so it’s ours” feels like an answer. Often it’s wrong, or at least incomplete.

Whether you can stop a former employee or contractor using the work they made for you comes down to:

• whether they were staff or a contractor;
• what their paperwork actually said;
• whether what they’ve taken is your property or their own skill; and
• whether your restraint and confidentiality terms were ever built to hold.

This is worth a conversation if you are:

• A software, app or SaaS business whose developer has left and is reusing code, architecture or a build.
• An agency or creative studio whose contractor is reusing brand assets, campaigns or content.
• A training, education or professional services business whose departing staffer has taken manuals, courses or methods.
• A sales-driven business whose employee has walked with client relationships, pricing or supplier terms.
• Any business that relied on freelancers for its website, branding or product design with no written assignment.
• A founder preparing to raise, sell or license, where ownership gaps tend to surface in due diligence.

If any of this sounds like your business, contact us or call 07 5522 5777. We can act on a live dispute, or review your contracts, policies and IP arrangements so a dispute is less likely to arise in the first place.

Legislation and cases

1. Copyright Act 1968 (Cth) s 35(6). ↩
2. EdSonic Pty Ltd v Cassidy [2010] FCA 1008, [41]. ↩
3. University of Western Australia v Gray [2009] FCAFC 116, [152]–[153], [195], applying the analogous ‘duty to invent’ principle governing employee inventions. ↩
4. EdSonic Pty Ltd v Cassidy [2010] FCA 1008, [42], [44]. ↩
5. Copyright Act 1968 (Cth) s 35(2). ↩
6. Ibid s 196(3). ↩
7. Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55, [59], [61] (Kirby and Crennan JJ). ↩
8. Copyright Act 1968 (Cth) ss 193, 195AI. ↩
9. Ibid s 195AN(3). ↩
10. Ibid s 195AWA(2)–(3). ↩
11. Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37. ↩
12. Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 17 IPR 545, 560 (Gummow J); Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 47 (Megarry J). ↩
13. New Aim Pty Ltd v Leung [2023] FCAFC 67, [11]–[12], orders [1], [4]; on the findings at first instance see New Aim Pty Ltd v Leung [2022] FCA 722. ↩
14. Corporations Act 2001 (Cth) ss 182–183; the duty under s 183 continues after the person stops being an officer or employee. ↩
15. Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1891–94] All ER Rep 1, 18 (Lord Macnaghten); Herbert Morris Ltd v Saxelby [1916–17] All ER Rep 305, 310 (Lord Atkinson). ↩
16. Exposure Draft, Competition and Fair Work Legislation Amendment (Banning Unfair Non-Competes) Bill 2026 (Cth) sch 2 item 7, inserting proposed ss 333Z–333ZC, 333ZF–333ZH into the Fair Work Act 2009 (Cth). ↩
17. Ibid cl 2; Exposure Draft Explanatory Materials, Competition and Fair Work Legislation Amendment (Banning Unfair Non-Competes) Bill 2026 (Cth) [2.20], [2.129]. ↩
18. Exposure Draft Explanatory Materials, Competition and Fair Work Legislation Amendment (Banning Unfair Non-Competes) Bill 2026 (Cth) [2.12]. ↩
19. Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37. ↩
20. Australian Broadcasting Corporation v O’Neill [2006] HCA 46, [65] (Gummow and Hayne JJ). ↩
21. Family Law Act 1975 (Cth) s 79. ↩
22. Criminal Code Act 1899 (Qld) sch 1 s 408E; see also Criminal Code Act 1995 (Cth) sch 1 s 478.1. ↩