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Copyright in Freelance Writing: What Freelancers Need to Know

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Manish Jindal

December 6, 2023

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Copyright in Freelance Writing: What Freelancers Need to Know

Both seasoned wordsmiths and aspiring writers must navigate the complex world of copyright in the freelance writing field.

To know how to protect your rights and the value of your creative work, it is crucial to understand all aspects of copyright law.

This piece explores the nuances of copyright in freelance writing, illuminating the essential ideas and real-world issues that any freelance writer should be aware of.

Understanding Copyright in Freelance

As a freelancer, you usually own the rights to your work, unless you’ve agreed to give them to the client in a contract. Normally, you are the one who owns the copyright to what you create.

In certain locations, additional laws exist to safeguard the intellectual property of freelancers.

For example, in New York, they have a law called the Freelance Isn’t Free Act. This law makes companies use a written contract for bigger freelance jobs.

If you’re freelancing, it’s a good idea to check if your state has any other laws that help keep your rights safe.

But when might you not own the copyright to your work?

If you have signed a contract that empowers you to perform “work for hire” activities.

If you sign a “work for hire” contract assign the copyright to the person who pays for the work. This is in line with the U.S. Copyright Act of 1976.

“Work for hire” means:

  • Something you make while you’re an employee doing your job
  • Something you’re asked to make for a specific use, like part of a bigger work or a translation
  • Part of a movie or video
  • Extra material for something
  • Instructions or tests
  • An atlas

But even if your work fits these categories, you need a written agreement that says it’s “work for hire.”

If you’re already an employee in a company, you don’t need a special agreement because it’s already understood that your work belongs to the company.

Understanding Copyright Ownership in Freelance Work

When a copyright is granted, it belongs to the person who created the work, not the one who paid for it.

In simple terms, if you don’t mention in the contract what will happen to the copyright of the work that’s created, the freelancer will usually own it.

This is true even if you paid them to create it.

The main exception is if you’re in the United States and you have a “work for hire” agreement with the freelancer. In this case, it’s assumed that the person paying for the work owns the copyright.

Under a “work for hire” agreement, if the freelancer is paid by the hiring business, the copyright goes to that business. If there’s no payment, the copyright stays with the freelancer.

Suggested Reading: Contract of Service and Contract for Service in Copyright

Copyright Doesn’t Automatically Transfer to Clients of Freelancers

It’s a common misconception that once you pay a freelancer for their work, you own it. But in reality, without a clear agreement in place, the ownership of the work’s intellectual property doesn’t automatically go to you.

Even if you’re paying for the use of the work, the copyright still remains with the freelancer. This means they still have control over it, and they could even ask you to stop using it if they wanted to.

Additionally, they might use the work in other projects or showcase it in their portfolio without needing your permission. Legally, it’s considered their work, so they have the right to use it as they see fit.

So, unless your contract states otherwise, you’re essentially compensating the freelancer for their work without gaining any ownership or control over it.

It’s important to have a clear agreement in place to avoid any misunderstandings or surprises down the road.

What if Your Work Isn’t “Work for Hire”?

Even if your creation does not qualify as “work for hire,” you are still able to assign the copyright to it.

To do this, you need a written agreement that clearly states the transfer of copyright to the client. This agreement needs to be in place before the client can use your work.

Without a written agreement, it’s assumed that you, as the creator, still hold the copyright for the work.

The client is then considered to have a limited license to use the work for a specific time and purpose.

If the client uses the work beyond that scope, it could lead to copyright infringement claims by you.

However, even if the client uses the work as intended, without a written agreement, you might have the right to use and sell the work elsewhere too.

It’s important to know that freelance copyright laws don’t protect ideas. So, if you discuss an idea for a project with a client, they can use that idea even if they don’t hire you.

This is why freelancers should always have a contract before starting any work. At the very least, these contracts should cover the work details, copyright ownership, payment terms, and payment dates.

The copyright protection duration varies.

The “work for hire” materials’ copyrights lapse 95 years after the year of their initial publication or 120 years after their production.

For authors, copyrights are valid for their lives plus an additional 70 years.

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It is important to note that without registering your copyright with the U.S. Copyright Office, you may not have full access to legal recourse.

Why Demanding All Rights to a Freelancer’s Work Might Not Be Ideal

This section could also be titled, “Why Freelancers Shouldn’t Give Up All Rights to Their Work.”

What you should aim for are two key points:

  1. Indefinite Usage License: It’s important and fair to secure an indefinite license to use the work for your business according to your needs. If you’re paying a freelancer to create something, it should serve your purposes for as long as required. Most freelancers would agree with this unless they’ve incorporated limited-term copyrighted materials into the work (like music with view or usage restrictions). In such cases, the license duration should match the shortest term in the work. Afterward, a renegotiation might be necessary.
  2. Non-Compete Agreement: Your freelancer should agree not to use the work in competition with your business. While they can showcase your logo in their portfolio, they shouldn’t create an identical logo for your competitor. There are clear reasons to avoid creating identical assets for rivals.

It’s important to note that, generally, freelancers provide a license for the final product, not for individual components. For instance, a freelance photographer might sell you edited JPEG images, but not the original RAW files.

Discuss intellectual property (IP) matters with your freelancer and work out an arrangement that aligns with their industry’s standard terms while benefiting your business fairly.

Sometimes digital authors sell full copyright to their clients. This makes sense when their writing is niche-specific and not likely to be reused.

It also maintains their credibility as the named author. They pay a bit extra for this full ownership compared to licensing. This setup suits both the writer and their clients.

However, other writers prefer licensing their work, as it matches their profile better. This diversity caters to the varied needs of potential clients who may not require complete rights over the provided work.

Navigating Work-for-Hire Agreements: Unveiling Challenges and Considerations

The conundrum of whether to accept or reject a work-for-hire agreement poses a significant question for freelancers.

Copyright laws lack the ability to distinguish ethical from unethical practices, allowing unscrupulous clients to exploit this ambiguity.

These clients tactfully coerce freelancers into unfavorable ‘work-for-hire’ agreements, ultimately infringing on their rights.

Opting for a work-for-hire agreement might not always be the optimal choice for freelance authors.

At best, it could be disadvantageous, and at worst, even illegal. However, if you decide to proceed, here are a few elements to be cautious of when scrutinising such agreements:

  1. Compensation Clause Absence: Be cautious of clauses that fail to specify appropriate compensation. These clauses might lead to relinquishing your right to showcase your work in your literary portfolio or promotional materials. This limitation could extend beyond public exhibitions and hinder your participation in literary contests as well.
  2. Vague Project Deliverables: Watch out for articles that hint at signing a purchase order without outlining precise project deliverables. This ambiguity could leave freelancers in a bind, unsure of their responsibilities and the scope of their work.
  3. Complex Legal Language: Be wary of ‘confusing legal jargon’ deliberately included to mislead freelancers. This manipulation could lead to misinterpretation of crucial agreement aspects, such as project scope, duration, and the ultimate holder of exclusive rights.

In essence, freelancers need to be cautious when dealing with work-for-hire agreements. Diligently reviewing and understanding the terms and implications is crucial to ensuring fair treatment and protecting your rights as a creator.

Conclusion

In the realm of freelance writing, understanding copyright is a vital aspect for both content writers and clients.

The distinction between default copyright ownership and ownership through agreements such as copyright transfer agreements or copyright ownership agreements should not be underestimated.

From content protection to avoiding copyright theft, freelance writers and clients alike benefit from knowing their rights and responsibilities.

Seeking legal advice and embracing contract terms are pieces of advice that can empower both parties to make informed decisions.

Whether you’re a creative freelancer, a business-savvy freelance writer, or a freelance web designer transitioning from employment to freelance, grasping the nuances of copyright can lead to long-term benefits.

In a world where digital authorship can pave the way for passive income, being an original author takes on new significance.

Ultimately, copyright is a cornerstone of the freelance business, preserving the value of creative work and establishing a strong foundation for the professional journey ahead.

FAQs

What is copyright ownership in freelance writing?

Copyright ownership in freelance writing refers to the legal rights held by the creator of written content.

By default, freelance writers retain copyright over their work unless they sign agreements transferring ownership to the client.

Can freelancers retain copyright even without written agreements?

Yes, freelancers automatically retain copyright over their work unless they’ve agreed otherwise. Without a written agreement, clients may have limited rights to use the content.

What protections do freelance writers have for their ideas?

Ideas are not protected by copyright, meaning clients can use discussed ideas without hiring a freelancer. It’s important to establish contractual terms before sharing ideas.

How long does copyright protection last?

Copyright protections vary. For “work for hire,” it lasts 95 years from the first year of publication or 120 years from creation. For an author, it lasts for the author’s lifetime plus 70 years in the U.S.

What’s the role of legal advice in freelance writing copyright?

Legal advice helps freelancers and clients understand copyright implications, choose appropriate agreements, and navigate potential disputes.

What’s the significance of contract terms in freelance writing?

Contract terms define copyright ownership, payment, scope of work, and other crucial aspects. Clear and comprehensive contracts protect both freelancers and clients.

Can freelance writers switch from employment to freelancing with copyright considerations?

Yes, freelance writers transitioning from employment to freelancing should understand how copyright ownership differs and how to negotiate agreements with clients.

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