FYI: Do You Know Your Freelancing Rights?
Posted August 29, 2008 in Business, Tools/Resources 10 Comments »
Do you know what your legal rights are when you work for hire?
Do you know where you are covered and why?
How do you get a copyright? Is it expensive? Can it be taken away from you? How long does it last?
Do you really know what you are giving away every time you’re paid to create a masterpiece?
All of these are questions that you need to know by heart if you are freelancing. Read on for more information.
Legal Artistic Protection
Copyright laws are pretty specific about what they cover and what they don’t. According to the website www.copyright.gov:
“Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the ‘original works of authorship,’ including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.”
But what does this mean to us? It means that under normal circumstances our creations are our own to do with as we please. No one else can beg, borrow, or steal your work without repercussions. And the neat thing is that copyright is automatic. Whether you are creating music or writing the next best seller or creating a website, your work is automatically copyrighted, unless you create it for someone else.
An Important Exclusion
When you create a business card, brochure, website or anything else for another person, it creates what is called a “work for hire” situation. This is an actual exemption in the copyright laws and it says if you have a regular job working for someone and they have you make something, it belongs to them, not you. You don’t get to share in the glory or even have bragging rights unless they give you permission, right down to putting their name on it.
This also applies if you are a contractor or freelancer like most of us. Here’s the catch. In order for the exemption to apply, two things have to occur.
- It has to fall into one of the nine categories covered in the copyright laws.
- There has to be a written agreement between the parties about the work being done.
This means every time you write a work order or agreement to work for someone, you need to be specific about its usage. Do you plan to include this work in your portfolio or enter it in a competition? If you get paid, you need to have permission to use it in that manner. If you don’t write in provisions in to cover that, you can’t legally use it.
Legally, you can’t even put your name on something if you did not specify you wanted credit for the work. If you are in doubt, check out www.copyright.gov/circs/circ09.pdf Specifics are on Page 2. That will make you go HMMMMM, won’t it?
Sensible Precautions
It is for this reason, as freelancers, we have to be ever diligent about the legalities of our profession. Make sure your personal work is recorded and specifically written to keep you protected. If you are concerned about protecting what is legally yours, consider registering your copyright. This is different from having an automatic copyright. Registering your work creates a public record of what you have created. This protects you against infringement issues and lasts seventy years past the life of the author. There is a nominal fee of $35 if you file online and $45 if you file the old fashioned way (USPS).
If you’re just starting as a freelancer, make sure you know the rules of the game. If you’ve been doing this a while, make sure to keep up with the rules, because they change every year or so. All of us work too hard for our money to give it away and not even get a little credit in the byline. Ask or include a paragraph of permission about showing your work for hire projects in your portfolio or entering in contests. Make sure if your name goes on, it stays on. If you ask, most companies will agree to this without a fuss as long as they retain all the other rights. Keep track of written permission by putting it right on the work order or including it in the signed contracts and making sure the client knows it is there.
One last note on this, if a person or company does not pay for the service, it is illegal for them to use the work even if it is a work for hire. Until they pay for it, it still belongs to you and unless you authorize its use, they are the ones infringing on your copyrights. Protect yourself, protect your work, and protect your rights, all of them. You can find more information about copyrights by going to http://www.copyright.gov/title17/ to read up on your specific creation and how to protect it.
For those of you who are international freelancers, make sure you read this page: http://www.copyright.gov/fls/fl100.html for information about protecting your work internationally.
Lois Knight
******
About the author: Lois Knight has been a freelance writer and graphic designer for the last two years. She designs predominantly for small start up companies and non profits in need of design services that could not afford them otherwise.
She has a background as an entrepreneur for over twenty years and has dedicated herself to educating people interested in graphics as a career. You can visit her on her new website http://www.shadetreedesigngraphics.com/
About the author: About the author: Lois Knight has been a freelance writer and graphic designer for the last two years. She designs predominantly for small start up companies and non profits in need of design services that could not afford them otherwise. She has a background as an entrepreneur for over twenty years and has dedicated herself to educating people interested in graphics as a career. She also wrote an ebook titled: I'm Tired of Being Broke A Freelancer's Guide to Working at Home
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10 Comments
Greg
August 29th, 2008 at 11:13 pmJust to make it clear: The employer owns the copyright if it is a work-for-hire contract. Work-for-hire is when you work for an employer (ie if you’re a graphic designer in a design firm), or if the contract SPECIFICALLY states that this is a work-for-hire. Otherwise–if you are a freelancer and are doing work for a client (not your employer)–you are the owner of the copyright. I thought the article was a bit too vague, but at least it brings up important questions for freelancers to consider.
kb241
August 30th, 2008 at 4:20 pmAwesome article. I’m glad you brought this important subject up. Just to clarify, if I (as a freelancer) do work for someone for free (without contract), do I retain ownership of the copyright? Here’s my specific situation. I did a website for a family member for free out of “family service”. I took their logo and created a custom web design and code for the entire site! I then hosted the site on my server for 2 years. They became frustrated with me “personally” and asked to no longer be associated with me and asked for their “website files”. I told them that those are my files and that if they want them they need to pay for them. Am legally protected by making such claims?
Lois K
September 1st, 2008 at 8:39 amHi everyone,
@ Greg-If you work for someone else and they pay you for it, it becomes their property and they can lay total claim to it. Like some of the articles I write. Because I work for hire, I specifically ask for a byline (credit) even though I agree to give the copyrights to the people that hire me. I also have permission to show them in my portfolio to other prospective clients. Thanks for the question!
@kb241-Do a little more research on the copyright website listed above, but it sounds like you might. When all else fails, consult a qualified attorney for specifics. At any time did you have anything in writing? Did they have to sign off on design specs or layouts? Even if its on a napkin and all the parties agree to it, it is still considered a contract. Good luck!
Matt
September 3rd, 2008 at 2:11 pmWhat if you are incorporated (LLC, S-corp, etc.) and it’s a business-to-business transaction? Are you working for hire at that point, or is it just a transaction between two corporations?
Lois K
September 3rd, 2008 at 5:28 pmMatt,
I really don’t know alot about LLC and S-Corp rules of copyright, but would suggest you look into it further. It is my understanding when you work for hire in a B2B, when the client pays you it becomes theirs. Check with your attorney to make sure though.
Larry Walsh
October 12th, 2008 at 8:32 pmLois,
I have read the article on copyright.gov. I have also spoken with an attorney about this. If you read the article it states that unless your are employed, or there is a written contract stating otherwise, YOU the independent contract OWN the copyrights. If there is no contract you own it, not the other way around. The copyright laws set in effect in 1976, give the independent contractor the benefit of the doubt, not the employer. So if there is no contract, once again, the independent contract NOT the “employer” own all copyrights.
When you are paid for a project as an independent contractor, you are being paid for a license to use the product, not the copyrights.
Check out this article entitled “I paid for it, shouldn’t I own it?” to make a long story short, if there was no written contract, then no, you don’t own it.
Here is the link:
http://www.irmi.com/expert/Articles/2003/Warren03.aspx
Thanks
Debra
July 24th, 2009 at 2:33 amHi! I recently parted ways with my boyfriend of 3 years(we lived together). While we were dating, but before he moved in, I spent 1000’s of hours building his website, completely unpaid: no money, no gifts, barely a thank you. The website words were his, he paid for the domain name, but the unpaid work and the html coding is mine. Don’t I own the work product? Especially since he didn’t pay me to do it?
We had no contract of any kind: written or oral. Would it be legal for me to go into his domain account and erase all of my work (the entire content of the website), since I own the work product?
He still has all of the original wording on his computer, so he would not be losing his words, just the work I put into building his website.
Thanks for any help! :-)
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