Freelancing and Copyright Law
August 10, 2008 |
What You Need to Know About Copyrights
Copyright law is very complicated and beyond the scope of this web site, but we wanted to give you a sense of what a freelancer’s rights are to the work that they produce for others.
When you are employed by an organization as an employee, there is usually a clause in your employment contract that states that any product produced by you while under employ by the company becomes the sole property of the employer. This generally extends to intellectual property as well. This is known in the copyright law as “works made for hire“.
In the case of freelancers, this rule does not apply unless you are commissioned to do the work.
Generally speaking, the work that freelancers produce is considered owned by them by copyright laws. Section 201(a) of Title 17 of the U.S. Code states: “Copyright in a work protected under this title vests initially in the author or authors of the work.” Other countries usually observe this convention as well. In common practice, however, the client will ask the freelancer to relinquish all rights of ownership to their work without further consideration or institute a “works made for hire” clause as a condition of the contract. This might not be an issue for you if you will be producing new work on the client’s time. Try at least to get the rights to reference work you produce for your portfolio or other marketing effort.
What about work produced on your own time, as might be the case of with a program subroutine you’ve written that can be incorporated into a new client’s program, or an illustration technique that you’ve branded as your own? In those cases, you’ll have to negotiate your rights as part of the contract.
There is also the issue of electronic rights. When a freelancer agrees to produce something for print media, there is a tacit understanding that the piece has a limited exposure value. However, if that work then is posted onto the Internet or is syndicated and widely distributed on CD-ROM, the question arises whether the author should be compensated with a royalty because of its use beyond the original scope. This issue was at the center of controversy during the Hollywood screenwriters’ strike at the end of 2007, although in that case, it had to do with being compensated for the extended use of their work by producers who collected rental fees when the shows they wrote were released on DVD. The U.S. Supreme Court has upheld the rights of freelancers to prevent use of their work (or require additional compensation) in electronic media in two court cases.
The American Society of Journalists and Authors has published an article that summarizes freelancer’s rights nicely. Although it is targeted primarily to writers, the rights it references apply to other professions as well. A good source for additional information on copyrights, intellectual property, patents, trade secrets, and trademarks can be found at the excellent Intellectual Property Advisor web site.