Who Owns the Copyright
Published Thu Oct 16, 2014 | Posted in On Writing | By Linda Jenkinson |
One of the questions new freelancers often ask is, "Who owns the copyright when the work is done?" Keeping in mind that I am not a lawyer, here is my view on copyright ownership and transfers.
With a few exceptions, any intellectual property that can be put into a tangible form is copyrighted from the time of completion by its author or creator whether or not it contains a copyright notice.
A common copyright misunderstanding is that when you contract to write or design for a client, it‘s a work-for-hire and your client automatically owns the copyright. In most cases, that simply isn‘t true. According to the US Copyright Office ‘work for hire‘ applies to independent contractors (such as freelancers) only "if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."
Yet, when clients commission and pay for work, they expect to own the rights to the work when it‘s completed. Commonly the freelancer transfers his copyright to his client. The transfer of all rights to a work is "exclusive copyright", but keep this in mind: Copyright isn‘t just one thing. It‘s a set of intellectual property rights that can be transferred in whole by tendering exclusive copyright or transferred in part with specific licenses and permissions.
Some issues you should consider and address before you transfer your copyright include:
- Will the rights be transferred for both electronic and print publication?
- Will I retain the right to show the work in my portfolio?
- Will my client receive the right to resell the work?
- Will my client receive the right to alter the work?
- The transfer should also contain warrants of originality and a disclaimer that protects both parties in the transaction.
For instance here is an example similar to the warrants I use in transferring copyright.
(Your Client) warrants that all material furnished to (Your Name) for the completion of (the described work) is the sole intellectual property of (Your Client) and does not infringe on any copyright, violate any property rights or contain any scandalous, libelous, or unlawful matter.
(Your Name) warrants that the completed Work is original and that to the best of (his/her) knowledge, the Work does not infringe on any copyright, violate any property rights, or contain any scandalous, libelous, or unlawful matter. As such, (Your Name) additionally warrants that (she/he) has complete authority to transfer any and all intellectual property rights associated with this Work to (Your Client).
After these two warrants in my agreement, I transfer all or part of the copyright to my client.
Again, please keep in mind that I am not a lawyer and the validity of the paragraphs above has not been tested in a court of law (thankfully!) However, a contract written on a napkin may be considered valid by a court, as long as you and your client both agree to the terms. The hard part of do-it-yourself contracts of any kind is making sure your agreement has all the bases covered and that both parties have a mutual understanding of the terms.
Please share your thoughts in the comments below.
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