When you create anything, be it a novel, a play, a piece of art, a record, or a film, making sure that your creation is legally protected is extremely important. Copyrighting your work is the most basic form of protection, and that protection exists from the moment you create something fixed and tangible.
While you do not have to register your work with your country’s copyright office to have it protected under the copyright law, doing so gives you extra legal power if someone were to steal your content.
Sounds pretty straightforward, right? You have ownership of the content you create, and if anyone steals it, they are breaking the law.
However, when you get into the area of creating for other people, ownership becomes a little iffy. In the 1989 case, Community for Creative Non-Violence v. Reid, it was stated that “work made for hire” by an employee is owned by the employer. But what defines someone as an “employee” was unclear within the court case, as well as what kind of work falls under the confines of the case’s precedent.
While I personally have never had an issue with who owns what between my clients and me (I’ll explain why a little later), I have known people who are constantly battling with their clients over copyright. And let me tell you, that creates some seriously strained working relationships.
Please keep in mind that the following is not legal advice, just education. If you are experiencing trouble with copyright, seek out a lawyer.
The Root of the Copyright Problem
Ownership battles tend to be a bigger problem with photographers and graphic designers, who create images or designs that can be easily modified.
Say you are a photographer who has been hired to capture a couple’s engagement. They love the pictures and decide to use them on their wedding invitations. However, when you see the invitations, you find that your photos have been altered in ways you did not want them to be altered, AND they don’t credit you anywhere on the invitations. What do you do? Send them a cease and desist? Sue them for copyright infringement? I mean, they did steal your images.
This happens with writers, too. Perhaps you’ve written content for a blog or website, and then the blog owners take the content, edit it as they wish, and post it without crediting you, or even post it under someone else’s name, essentially stealing your work.
Or maybe they decide to compile all the blogs you’ve written for them and turn it into a bestselling book, but fail to give you any of the profits. This is possibly the worst-case scenario, as you’re losing out on some serious cash.
Except your clients probably had no idea they were breaking a law.
All your clients know is that they paid you for a product or service, and you delivered. In industries that aren’t “creative,” when a client pays for something, they own it. So, why wouldn’t it be the same for blog posts, photos, and audio recordings?
Well, it’s really not that different from any other industry.
Say you get this incredibly ugly Belle doll from the Disney Store.
You own the doll, but Disney still owns the copyright. So you can’t change the doll’s hair or fix its horrifying face and then claim you created the doll.
A California artist did actually fix the doll (thank goodness) and sell it for a pretty penny, but if another artist decided to fix the doll as well, he couldn’t sue them for stealing his idea, since he doesn’t actually own Belle, Beauty and the Beast, or the doll’s design. On the artist’s listing on eBay, he clearly states that it is Disney’s doll, and not his own, and that he is only responsible for the redesign.
Clients and creatives alike simply cannot repurpose content that isn’t theirs and then pass it off as their own.
But, as I said before, your clients may not know that. Heck, you might not even know that. Not everyone is a copyright lawyer.
It’s up to you, the original owner of the content, to make sure you understand what falls under copyright laws and come to an agreement before you start creating for them. Luckily, the creation of one simple document can solve that.
Before completing any work for a client, you should have a contract in place. A contract is a binding document that defines the terms of a professional relationship and protects both parties from any legal complications that may come up down the road.
A contract between a creative and their clients can stipulate a number of things, including:
- What kind of work will be done — whether it be copywriting, editing, social media management, photography, or other services as requested.
- When the work will be completed — what the turnaround time will be for the service, be it 24–48 hours, a week, or a month.
- Payment — what the hourly or fixed rate is for the service, and how payment will be delivered.
- Protocol for termination or cancellation — what qualifies for the termination of a contract and what needs to be done to prior to ending the contract/service.
- Nondisclosure / Confidentiality Agreements — an agreement to keep each other’s secrets.
- A liability waiver — protects you from any losses incurred by your client as a result of the work you have completed, meaning they can’t make you reimburse them for a lost account.
- Waiver protection / Severability — if one section of the contract is unenforceable or waived by either one of you, this protects and enforces the rest of the contract.
- Dispute resolution — if there is a problem that arises that cannot be solved between creative and client, this item assures that you won’t go to court, but instead use arbitration or mediation.
- Jurisdiction — where the contract applies and where any disputes will be solved.
- AND MOST IMPORTANTLY… Intellectual property rights — who owns the rights to what and what they can do with the content you provide.
I’ve never had any disputes over copyright because I’ve either had a contract in place, or have explicitly agreed to either give up or keep my ownership rights. I would definitely recommend keeping a contract on file for when you get new clients; it’s worked for me so far.
All of the terms in your contract will make sure both of you understand each other’s expectations before going into business. If your client already has one, great! As long as their expectations line up with yours, you won’t need to provide a second contract.
A little note about those expectations, though…
You’re not gonna be too happy to hear this, but unless your client is super generous, they are probably going to want to have some ownership of the work you complete for them… and you’re going to have to give it to them.
If you’re a graphic designer, you can’t own every logo you create for businesses. Most businesses have their logos trademarked, and to do that, they have to prove they own it.
If you’re a writer, you can probably negotiate with your client about which articles they own and which are yours, but don’t be surprised if most of your clients want ownership of everything you write under their direction.
Just make sure you get properly credited (or compensated) for giving up your work to them, and make sure you can include the content in any portfolio you create for finding future work.
Remember the example I cited earlier about a client turning your words into a best-selling book? Well, you should probably put it in your contract that if the client decides to use your work for something other than their blog, they need to obtain permission from you.
If you’re a photographer, it should be much easier to maintain copyright over your work and get credited by your client. Still, don’t be surprised if you experience a little bit of pushback.
If you are reading this and getting freaked out because you don’t have a contract in place with your clients: Don’t worry! You can still introduce a contract to your client for all work moving forward, and even for work that has been done in the past (though many wouldn’t recommend backdating contracts, so be wary).
Unfortunately, introducing a contract requires that you have the talk with them, which might be anxiety-inducing.
If you haven’t established a contract with your client, or your client doesn’t understand what copyright is or what constitutes their content or yours, you’re going to have to explain it to them in a gentle, non-combative way.
You can’t just repeat over and over: “That’s my copyright, that’s my copyright, that’s my copyright,” without explaining what that means and why it is important to you. If you don’t give them more information, you’re going to have a confused, and probably angry, client.
To help you along in this endeavor, I’ve written a sample email that you can send to your client that explains your concerns and what they can do to help the situation. This specific example is for those creatives whose clients have infringed upon their copyright, but who do not already have a contract in place.
Hi [Client’s name],
It has recently been brought to my attention that some of the work I have completed for you/your company [hasn’t been properly credited/has been modified/has been used in ways that were not agreed upon]. As the creator, I would have liked to have been notified of these changes before they occurred, as they directly impact me and my work.
I am aware that we did not discuss ownership of content when my services were initiated, so there may be some confusion over copyright and usage. Therefore, I’d be happy to negotiate this with you in order to find a mutually beneficial solution.
I very much enjoy working for you, and I would like to continue our professional relationship.
While I technically own the copyright on this letter (*wink wink*), I give you written consent to use and change the sample letter however it suits your needs. Feel free to pass it off as your own—think of it as my gift to you.
In this letter, I avoid being overly accusatory, and I never mention that I own the copyright to the content. If you come out guns ablazing, it may offend them and lead to an aggressive response.
If you send this polite email and they do get aggressive, don’t be afraid to get a little bolder. If they ignore your request or claim that you have no right to the content, feel free to be explicit about the fact that you do own the copyright to the content, and that you never signed away your rights.
But hopefully, a letter like this will lead to a civilized discussion about ownership, and you can reach an agreement that satisfies both parties (ideally through a contract). If not, then you may have to end the relationship with that client, and, if it matters enough to you, decide whether to take further legal action.
Protect Your Heart
Actress and recent podcast star Anna Faris always likes to give this advice: “Protect your heart.” I think this phrase can apply to many things, including your content. Your creations are a part of you, and you don’t want your creations to be misused. It’s like you are being misused.
However, it’s important to consider the bigger picture when creating content for your clients. If you are writing a few blogs about beer for a brewery, it’s probably okay to give ownership to the client. However, if you are writing extensively researched, original articles that take a lot of time and effort, you may want to consider maintaining some form of ownership.
As stated above, this should all be decided via contract before you enter into a relationship with a client. If the client is unwilling to negotiate on copyright, then you have the right to not offer your services to them. It’s all about protecting yourself from unnecessary conflict.
If a conflict does arise and you don’t see a way to resolve it, try finding someone who has been through a similar conflict and ask for their advice. If it’s truly serious, however, don’t be afraid to consult a lawyer. They can advise you on how to proceed without actually needing a lawyer to defend you in court.
As long as you understand your rights, you should be free to work for as many clients as you want.
Now go forth and create some content!
Photo credit: zestmarina