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As a creative professional, your work is often governed by copyright law.
It’s not exactly a topic that most of your clients will be familiar with, so you need to make a point of having practical expertise. You don’t need a law degree to know the applications of copyright law in your particular niche, though it never hurts to take a class or two in this topic.
For the record, I am not a lawyer. You should certainly talk to a legal professional about the details of your own situation because no one offering advice over the internet is going to be familiar with the nuances of your particular situation. Furthermore, copyright law varies dramatically from country to country.
Here, we will be focusing primarily on U.S.-copyright law. There are similarities in most countries, but make sure you’ve got the details right for your locale. Intellectual property, particularly copyright, can mean big money, so you need to make sure you get it right.
But I can offer you a starting point when it comes to dealing with copyright questions.
The Basics of Copyright
As the creator of a work, you’re entitled to get the financial benefits that go along with what you’ve created. That includes reproducing the work, creating derivative works and displaying the work.
Works can be fairly diverse: an article you’ve written and a website you’ve designed are obvious examples of what can be copyrighted.
According to the Copyright Office, the following types of work can be copyrighted:
- Literary works
- Musical works, including any accompanying words
- Dramatic works, including any accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
Ideas, however, cannot be copyrighted, nor can anything that contains no original authorship, like a list taken from public documents. If you discuss ideas with a client and he goes out and hires another freelancer to implement them, unfortunately, you have no recourse when it comes to copyright law.
Any new works that you create are automatically protected from the moment you put them in tangible forms (i.e. write out an article or design a website) are protected from that moment to seventy years after your death.
If you’re concerned about the copyright of a work created before 1978, things start getting complicated. Depending on when the work was created, the copyright could last anywhere from 28 years to the lifetime of the creator plus seventy years. It can get complicated, because at various points registrations and renewals were required.
How to Protect Your Copyright
Today, it is not necessary, legally speaking, to register your copyright in order to make it official. Just the same, though, if you’re in a situation where there may be a court case regarding a copyright, registering a copyright through the Copyright Office can be important.
In my experience, only registering copyrights of works that I’m specifically worried about facing a copyright problem with has been enough.
You can now do so online at Copyright.gov. It may not be practical to register the copyright of every creative work you produce — as a freelance writer, registering each article I write would wipe out my profits. In my experience, only registering copyrights of works that I’m specifically worried about facing a copyright problem with has been enough. However, that’s a choice you should make for yourself.
There’s a belief that mailing yourself a copy of the material you want to copyright and leaving the envelope unopened acts as a sort of poor man’s copyright, proving that you had created a piece of work prior to the date stamped on the envelope by the post office. Unfortunately, this approach has no legal standing in a copyright case. If you’re concerned about being able to prove that you hold copyright to a particular work, register the copyright with the Copyright Office.
The Copyrights Your Clients Expect to Talk About
Exactly what copyright assignments are expected by your clients can depend on the industry you work in: magazine editors expect different options than small businesses hiring a web designer. It’s worth looking at sample contracts for your industry, if at all possible, to get a feel for what’s typical.
A License: In most cases, when you create a work for a client, you’re actually licensing that work to the client to use. Technically speaking, you might make a website design available for use by your client but still own the design and have the right to use it for other clients.
In many niches, the reality is that most freelancers get paid much better for providing unique work for clients, so such a situation rarely pops up, even if it’s the legal reality.
Specific rights: Freelance writers and photographers are the most likely to be asked to sign contracts that assign specific rights to a client. For instance, many magazines will request First North American Serial Rights, which mean the right to be the first publication to print your article in North America, after which the article reverts back to you.
You might see First British Rights, First European Rights and so on, depending on the clients you target. There are also Reprint Rights (which allow a publication to print your work after its initial printing) and One-Time Rights (which allow a publication to print your work just once).
Work for Hire: When you complete a project for a client that is considered a work-for-hire, the copyright for the work is immediately assigned to the client. Because such terms mean that you as the freelancer can’t reuse any part of the project in future work, (such as reprinting an article in another publication), many freelancers will charge a higher rate for any project that will be considered a work-for-hire.
Creative Commons: I have seen an occasional situation where a client expects to use work under a Creative Commons license, such as publishing an article as such or putting an entire site up as Creative Commons.
At the core, Creative Commons lets others use and remix works without needing a specific license or to even notify the creator. No matter your feelings overall regarding Creative Commons, you need to be sure that you’re doing the right thing for your career any time you release anything to a client under such terms.
Copyrights and Contracts
One of the reasons it’s a good idea to get a contract in place for every client you work with is that a contract gives you an opportunity to write out exactly what is the copyright status of any given piece of work you’ll be handing over to your client.
Don’t be surprised if your clients don’t have a clear idea of either contract or copyright law.
While it’s certainly possible to have an oral contract that includes your agreement to assign copyright to a client, such as through a work-for-hire arrangement, copyright cases often depend on the assumption that the person who created a piece of work has an inherent copyright to her work.
It’s in the client’s best interest to work out copyright ahead of time, too. Oddly enough, I’ve actually had a client cancel a project because I insisted on signing a contract. Don’t be surprised if your clients don’t have a clear idea of either contract or copyright law. It’s up to you to make sure that you’re both coming out with an equitable arrangement in writing.
Using Other People’s Copyrighted Material in Your Work
As a freelancer, there’s another side to the copyright issue. If you want to use material in your work that is copyrighted, you need to make sure that you follow procedures correctly — otherwise you need to stick to materials that are available under Creative Commons or are in the public domain.
At a bare minimum, you need permission in writing to use someone else’s copyrighted material. To be on the safe side, you should make it clear what client and what project their work will be used in. Many creatives will ask for payment in order to license their work (wouldn’t you?) and you should negotiate a fair rate.
Many stock sites compress these rights and can grant you a license to use work such as photographs or sound files without a direct discussion with the creator. Make sure you read the licensing agreements thoroughly, and ask any questions you have before making payment. Some agreements limit where, when and how many times you can use a creative work.
While you shouldn’t need to be the copyright enforcer, most freelancers these days have horror stories about clients wanting them to violate someone else’s copyright in some fashion. Copyright law is a little complicated, so your clients may have an excuse for such suggestions.
Just the same, you don’t want to be in a position where someone thinks that copyright infringement of any kind was your idea. Educate yourself on alternatives you can offer your clients, so that both of you can stay out of trouble.
Treat other copyright holders as you want to be treated; respect their ownership of their work and you’ll be able to manage most situations that come up.
You should always seek independent financial advice and thoroughly read terms and conditions relating to any insurance, tax, legal, or financial issue, service, or product. This article is intended as a guide only.