As a freelancer, it’s important to educate yourself about intellectual property so you can protect yourself and your work. Experienced freelancers will tell you that it’s a question of when (not if) a client will infringe on your intellectual property rights. By educating yourself, you will know what to do when it happens.
In this post, we focus on protecting your ownership rights when working with clients. You’ll learn about intellectual property in the freelance industry, measures to prevent copyright infringement, and the correct actions to take when it occurs.
What is intellectual property?
The World Intellectual Property Organization is a global forum for intellectual property information. WIPO refers to intellectual property as “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.”
Intellectual property can be protected by:
- Trademarks: A company’s rights over the signs that identify their brand
- Patents: An inventor’s exclusive rights over their inventions
- Copyrights: A creator’s rights over their artistic or literary works
Freelancers are mainly concerned with copyright law, as they generally work in creative fields, such as graphic design, writing, and web or software development.
Under copyright law, you hold the rights to your creations. Often, a client will want full ownership of your work, but keep in mind that handing over exclusive rights to your client means giving up any future benefits. This is why it’s important to know your options and take steps to protect your work.
Taking preventative measures
As mentioned above, copyright law gives the creator ownership of their creations, although there are some exceptions to this rule. For instance, the rights to “works made for hire” belong to the client.
In the United States, your creation can be considered a “work made for hire” if you produce it within the scope of your employment. Your creation can also be categorized as such if it falls under a specific category, such as a contribution to a collective work or instructional text. A common example of a work-for-hire arrangement is ghostwriting, where you produce a piece of writing, such as a book, that will be published under your client’s name.
If a client wants you to sign a work-for-hire agreement, first confirm that your work falls under one of the specific categories. If it doesn’t, then it’s not a work made for hire, and you can try to negotiate licensing rights with your client.
Of course, there are times when it’s perfectly acceptable to hand over the full rights to your work. For example, if you’re being sufficiently compensated, you’re looking to gain experience, or you’re doing work for a charity. Just ensure your agreement explicitly states that you are handing over the full rights to your work.
If your contract states that you’ll retain the copyright to your intellectual property, consider giving your client the right to use any digital images (for personal or commercial use) with a Digital Image License.
What to include in your contract
Depending on your situation, you may want to grant minimal rights to your client, as this makes it more difficult for them to steal your intellectual property. In some situations, you may find companies expect that you submit work without a contract. If you find yourself in this circumstance, carefully review the company’s submission requirements to check whether they will be claiming partial or full ownership of your work.
Some questions to ask yourself when structuring your ownership rights in your contract may include:
- Do you want to sell your intellectual property outright, or allow your client to use it for a given period of time?
- If you’re handing over limited rights, are you granting serial rights (rights to the first publication in a geographic region)?
- Are you giving reprint rights or just one-time publication rights?
- If you’re selling the full rights to your work, do they pass to your client as soon as you’ve submitted your completed work, or only once you’ve been paid?
- If you’re licensing the rights, when will ownership revert back to you?
- Which files will your client have rights to, all working files, or just final versions?
- Do you have the right to display your work in a portfolio?
As you can see, there are many things to think about when drawing up a contract with a client. If your client provides you with a prewritten contract, make sure you read it carefully. Don’t be afraid to ask questions and discuss any terms you’re not comfortable with. Some clients may even be open to contract negotiations.
Aside from creating an ironclad contract, there are other steps you can take to prevent intellectual property theft. Here are some additional tips:
- Research the company you’re working with: If they’re in the habit of stealing intellectual property, chances are one of your colleagues has written about it.
- Ask for a Non-Disclosure Agreement: If a potential client wants to discuss ideas or strategies or requires work samples before formalizing a contract, you can ask for a simple NDA to ensure your ideas and work are kept confidential. Alternatively, mark anything you send them as confidential, with a note in the email, on top of the design, or in the header of your files.
- Use a watermark: If a client requires work samples before signing a contract or asks for drafts, protect your work by using a watermark, only uploading excerpts, or reversing lines in your code.
Related documents: Non-Disclosure Agreement
What to do if your intellectual property is stolen
As a copyright holder, you have the right to produce and sell copies and derivative works, display your work publicly, and sell or license your rights to others. If these rights are violated, you have the right and responsibility to take action.
If you freelance long enough, it’s almost inevitable that someone will steal your intellectual property. From using designs without your permission to plagiarizing your web content, there are many ways to steal intellectual property. Using or displaying your work without paying you also violates your right to sell your creations.
It’s best to assume that it’s a simple misunderstanding and escalate matters slowly. Sometimes, simply demonstrating your awareness of the infraction to your client can put an end to it. Start by phoning or sending an email to your client. Let them know that they’ve violated the terms of your contract and infringed on your copyright. Politely request that they rectify the situation or compensate you fairly.
If that doesn’t work, send a letter or another email, and attach a copy of your signed contract to remind them of what they agreed to.
As a last resort, you can send a Cease and Desist Letter to demand that the copyright infringement stops immediately. Your Cease and Desist Letter should give precise details about the theft, provide a timeline for removing the material, and include a notice of further action if the material isn’t removed. If all goes well, the threat of legal action will prompt your client to fix their error.
If that doesn’t work, it may be time to research other options or contact an attorney.
Knowing your rights
In working for yourself as a freelancer, you have the responsibility to learn about intellectual property and how to negotiate ownership rights with a client. There will be people who’ll try to take advantage of you, but you can prevent copyright infringement by educating yourself and remaining proactive.