What Do Contractors Own? A Guide to Freelance Copyright
When I was a young teenager, I used to write songs with my best friend.
We knew that one day we’d be famous songwriters (because, of course we would), and we didn’t want to fight about who owned the songs when we were famous.
So, at 13 years old, my friend and I looked up copyright laws to see what our rights were … I’m not kidding.
Although a bit upset that I’m not a famous songwriter, learning about copyright laws turned out to be useful in my writing career.
For any freelancer, or company looking to hire a freelancer, it’s important to understand federal and state copyright laws that impact your ability to use work you’ve created or paid for.
Here, we’ll review the basic copyright laws regarding freelance work.
As a freelancer, you own the copyright to most of your work unless you’ve signed a contract specifically stating that you’re transferring ownership to the client. The default copyright owner of any work you produce is you.
Additionally, some states have other laws regarding intellectual property that protect freelancers. For instance, New York passed the Freelance Isn’t Free Act that requires companies to use a written contract for higher paying freelance jobs.
If you’re working as a freelancer, you might consider doing research in your state to see if there are any other copyright laws protecting your rights.
So, when wouldn’t you own the copyright to your work?
If you’re doing “work for hire” jobs and you’ve signed a contract to that effect.
Under the U.S. Copyright Act of 1976, if you sign a “work for hire” contract, the client, or person paying for the work, owns the copyright.
“Work for hire” is defined as:
- A work prepared by an employee within the scope of his/her employment
- A work that is specially ordered or commissioned for use as:
- A contribution to a collective work
- A compilation
- A translation
- A part of a motion picture or audiovisual work
- A supplementary work
- Instructional text
- A test or answer material for a test
- An atlas
However, even if the work you do falls under these categories, you’d still need a written agreement that said you produced “work for hire.” If you’re an employee within an organization, then a “work for hire” agreement isn’t needed because it’s assumed the employee has already agreed to this by accepting the job.
Let’s say that you produce “work for hire,” but you still want credit for the work. In that case, you’d need to specifically ask for credit and have it written in your contract. Otherwise, the client isn’t obligated to give you credit.
But what if the work you produce isn’t under “work for hire”?
If work that you do isn’t one of the categories of “work for hire,” you can still transfer copyright ownership. You’ll need to have a valid written agreement using language that transfers copyright to the client before the client can use your work.
Without a written agreement, it’s assumed that the copyright for the work produced belongs to the author and that they’ve merely licensed use of that work to the client for a limited time and purpose.
If the client starts to use that work for other purposes, the author can successfully claim infringement of their copyright. However, even if the client uses the work as intended, if there isn’t any written agreement, the author can publish and sell it elsewhere as well.
One important caveat in freelance copyright laws is that ideas are not protected. So, as a freelancer, if you go into a meeting discussing an idea for a client’s website copy, they don’t have to hire you and they can still use your ideas.
This is why freelancers need to sign a contract before producing work for anyone. At a minimum, these contracts should detail the work you’ll perform/produce, who owns the copyright, the pay for the work, and the date you’ll get paid.
Copyright protections for “work for hire” last 95 years from the first year of publication or 120 years from the year of creation. Copyrights for an author last for the life of the author plus 70 years.
While these are the basic rules of copyright, if you haven’t registered your copyright with the U.S. Copyright Office, then you might not be able to enforce these rights in a court of law. Without registration, you don’t have the means of filing a lawsuit.
Who Owns Website Content?
If you’ve hired a freelancer to write content for your website and you haven’t signed any written agreement, then they might own the copyright for your website content.
However, if you want to own the website copy produced by a freelancer, all you need to do is sign either a “work for hire” agreement or a transfer of copyright ownership agreement. These agreements will transfer copyright ownership to you.
But, be aware that a freelancer doesn’t have to transfer the copyright to you. If they don’t, they retain copyright ownership. It’s also possible to sign a license agreement, which gives you license to use their work for a limited time and purpose.
Overall, many freelancers choose not to sign “work for hire” or copyright transfer agreements. As a freelancer, you need to decide what works you want to retain copyright over and what works you don’t. When producing any work, the freelancer and client need to be on the same page, so it’s always important to sign a contract or agreement of some kind.
This article does not constitute legal advice. You should seek your own legal advice and copyright counsel to ensure you follow the correct process.
Originally published Dec 5, 2019 11:12:00 PM, updated December 06 2019