Guide to Copyright for Freelancers: Who Owns What and Things to Look Out For

As a freelancer, you've spent a lot of time figuring things out on your own. From invoicing and finding clients to handling taxes, you're a one person show trying to keep up with all aspects of your business.

And if you're a creator, you also have the added pressure of thinking about your intellectual property rights. However, with all the information out there, it's not easy to know for sure whether or not your work falls under the domain of copyright law.

So, if your work mostly consists of creative solutions under freelance contracts, you've come to the right place. Here's what you need to know about your rights, copyright ownership, and how to ensure copyright protection of your creative work.

What we'll cover

1. What is intellectual property
   • 4 most common examples of intellectual property
2. What is copyright
   • Rights protected under copyright law
   • What doesn't fall under copyright laws
   • Types of works protected under copyright law
3. What about fair use?
4. How copyright ownership works
5. Copyright and work for hire
   • What happens without a freelance contract
6. Copyright and licensing
7. What you can do about copyright infringement

What is intellectual property?

Intellectual property (IP) is a legal concept dedicated to protecting creative works. Simply put, intellectual property means that your inventions, art, or knowledge are legally protected. Think of it as owning a car: if it's yours and somebody steals it, you get to pursue legal action.

What are the most common examples of intellectual property protection?

While intellectual property covers a broad range of original work, there are four types you've definitely heard about before. These are:

• Patents. If you want to protect your rights to an invention, you'll need to file for a patent. This gives you exclusive rights to profit off of it for a limited time period, usually 20 years.

• Trademarks. When it comes to protecting the uniqueness of your business, product, or service, you can file for a trademark. You can trademark a distinctive symbol, word, phrase, logo, design, or any combination of those. That way, you can protect your brand identity and reputation against unauthorized use.

• Trade secrets. Secret knowledge that gives your company an advantage over your competitors is also protected against unauthorized disclosure. For example, if your company keeps a secret recipe, you can ask employees to sign confidentiality agreements. Should they then disclose the trade secret to a competitor, you can take legal action against them.

• Copyright. Finally, copyright laws are here to protect original work. They guarantee that the rights to any recorded expression of your own idea automatically belong to you.

When it comes to these four ways of protecting your intellectual property, it's important to note that some of them come with time limitations. For example, patents usually last for 20 years, whereas copyright ownership lasts for the duration of your life plus an additional 70 years. On the other hand, trademarks and trade secrets don't come with a specified time limit.

What is copyright?

As we already mentioned, copyright law serves to protect the author's rights to their original work. It's a right that you don't have to file for because it is automatically implied. For example, you could draw an image of a cow riding a rocket, and the copyright to it belongs only to you. 

That said, copyright can be established only after meeting the three criteria for it to be valid. These are:

• Originality. In order to qualify for copyright, your work needs to be original. This doesn't mean it needs to never be seen before (as with patents), but it cannot be a copy of somebody else's work.

• Creativity. For a work to be considered copyrighted, it needs to involve at least some degree of creativity.

• Fixation. Simply getting an idea and saying it out loud doesn't mean you own the copyright to it - it needs to be in tangible form.

So, remember the cow riding a rocket idea from before? Anyone reading this can take the idea and draw their own image based on it. Each person would then become the copyright owner of their own rendition of the same idea.

What rights are protected by copyright?

Establishing that copyright protects an author's rights to their original work isn't very useful if you don't know what those rights are. Let's say you've written an article and published it on your own website. A few days later, you see someone has copied it to their own website without your permission. What can you do?

According to copyright laws, you can ask them to take it down or negotiate a fee for them to keep it up. Should they refuse, you can take legal action. This is because, as the copyright owner, you have the rights to:

• Reproduce your own original work

• Create derivative works from it

• Distribute copies of your work

• Perform your work publicly

• Display your work publicly

What doesn't fall under copyright protection?

While copyright laws can vary from one country to another, as a rule of thumb, nobody can own copyright over facts and ideas. This means that you can't own the copyright to:

• Ideas and concepts. Copyright law protects the specific way you've expressed an idea, but not the idea itself. For example, if you wrote a book about space travelling, copyright would protect the specific story you've written. However, copyright law does not prevent others to take the idea of space travelling and creating their own story based on it.

• Facts. Another thing you can't copyright are historical events, scientific discoveries, or basic information. Collecting and compiling information into an Excel sheet is not enough grounds for copyright. However, if you present or arrange the facts in a creative infographic, the infographic itself is subject to copyright protection.

• Short phrases and titles. On its own, copyright doesn't protect short phrases, titles, or taglines. That said, protecting slogans as branding elements can be done under trademark law.

• Public domain works. Anything in the public domain can be used freely by anyone. Works enter the public domain either because their copyright protection period has expired or because the author decided to place them there. And once something is in public domain, it means copyright no longer applies.

Types of copyright protected work

While copyright does guarantee the author the exclusive right to the use of their work, the definition of what constitutes creative work could mean different things to different people. That's why the US law recognizes the following eight types of works protected by copyright:

• Literary works, such as books, short stories, essays, articles, poems, etc.

• Musical compositions, such as songs, sheet music, scores, arrangements, etc.

• Dramatic works, such as plays, screenplays, scripts, educational presentations, etc.

• Choreographic works, such as dance routines, performance art, tutorials, etc.

• Graphic and sculptural works, such as monuments, prints, digital art, infographics, etc.

• Audiovisual works, such as movies, TV shows, video games, commercials, etc.

• Sound recordings, such as audiobooks, live concert recordings, podcasts, etc.

• Architectural works, such as plans, blueprints, renderings, designs, etc.

What about fair use?

Under fair use (i.e., fair dealing), you can use copyrighted materials without the copyright owner's consent. However, fair use only applies if you're using the copyrighted materials to serve public interest by promoting creativity, education, or commentary.

That said, the concept of fair use is not clearly defined and is determined on a case-by-case basis. To determine what is considered fair use, you'll have to ask yourself:

• Am I using the materials for the purposes of criticism, commentary, news reporting, education, or parody? If the answer is yes, it's fair use.

• Does the work maintain its original purpose? If the answer is yes, it's fair use.

• Am I using only a small portion of the material? If the answer is yes, it's fair use.

• Does the use harm the original copyright owner's ability to profit from their work? If the answer is yes, it may not be fair use.

While fair use does rely on the analysis of the above factors, it's not simple to determine. In other words, failing to meet one of the criteria does not automatically mean copyright infringement. Because of this complexity, fair use disputes can present a legal challenge where the final decision usually depends on how well you can defend your use as fair.

How copyright ownership works

An important thing to note about copyright ownership is that you can sign it away completely or partially. When it comes to freelance jobs, this is usually handled by having a written agreement. For example, freelance writers doing work for hire stop owning the copyright to their work as soon as their client pays for it.

Alternatively, you can also allow others to use your work while keeping the copyright ownership through licensing. For instance, if you're a freelance photographer, you can sell the rights to use your photos to anyone for a fee.

This works similarly to buying computer software. When you buy a license for Microsoft Word, you're free to use it, but Microsoft still owns it. The same goes for the photos: paying the license fee lets your customers use the photo, but it doesn't make them the copyright owners.

How work for hire affects copyright

While under a freelance contract, what you're doing is usually defined as work for hire. This means that your work is especially commissioned or ordered for use as:

• Contribution to a collective work, such as magazines, newspapers, websites with multiple authors

• Part of a motion picture or other audiovisual work

• Translation

• Supplementary work, i.e., anything that enhances the work that is the primary focus of the project

• Compilation

• Instructional text

• Test

• Answer material for a test

• Atlas

Under a work for hire arrangement, the copyright ownership belongs to the person who commissioned the work. In simple terms, this means that, as a freelancer, even if you are the work's creator, the copyright doesn't belong to you as long as there is a written agreement.

What happens if there is no written agreement?

If you and your client fail to sign a written agreement or contract, the situation changes. A commissioned work can be considered work for hire only if there is a written contract in place. 

If there is no written agreement or contract, original creators are copyright owners by default. In practical terms, this means that you as a freelancer can publish and sell your work to whomever else you choose.

For example, a freelance graphic designer could create a graphic for a client's homepage without signing a contract. Even if the client pays for it, the designer is the copyright owner because there is no written agreement. As a result, the designer can continue selling the same work to however many other parties they want.

Work for hire and crediting

If you and your client have a freelance agreement that defines your creative work as work for hire, you no longer own the copyright. This means that your client decides how your work is used and whether or not you get the credit.

For example, a freelance writer could be commissioned to write a blog post for a company website. After the work is done, the company is the copyright owner and isn't obligated to credit the original author.

This is why independent contractors should always go through the entire contract before producing any work for anyone. At the end of the day, you can make sure you get credit for your creative work only if you have a valid freelance contract.

How licensing affects copyright

Licensing plays an important role in copyright because it gives you control over your work. It's a way for you to grant permission and impose restrictions on how your work is used. What's more, it allows you to profit off your work while still remaining the copyright owner.

Keep in mind that the type of license you choose will have an impact on how your work is shared, used, and distributed. The most common licenses are:

1. All rights reserved, which is the default copyright status for creative works. This means you retain all copyright privileges and nobody can use your work without explicit permission.
2. Creative commons licenses (CC), which mean you remain the copyright owner, but you don't have to give explicit permission to another party to use your work. Creative commons licenses can come in various forms, such as:
   • Attribution (BY), meaning anyone using the work has to give the original author credit
   • Non-commercial (NC), meaning the work can only be used for non-commercial purposes
   • No derivatives (ND), meaning nobody is allowed to create derivative works based on the original
   • Share alike (SA), meaning all derivative works have to be shared under the same terms as the original work

What you can do about copyright infringement

As a copyright owner, someone using your original work without your permission can be frustrating. However, before you take action, you'll need to consider whether or not your copyright has been violated. If you believe that the use doesn't fall under fair use, you can take the following steps.

1. Get in contact with the infringer

More often than not, people don't intentionally violate the rights of a copyright holder. Since everything is available online, they might have done it by accident. In cases like this one, politely informing them of the copyright violation is the best course of action. You can also request that they either stop using your work or that they get the appropriate license.

2. Send a cease and desist

If you've failed to resolve the matter amicably, you can take it up a notch by sending a formal cease and desist letter. Make sure to outline the infringement, state your rights as the copyright owner, and demand they stop using your work immediately.

3. Submit a DMCA takedown notice

For digital copyright infringement, you can submit a DMCA (Digital Millennium Copyright Act) takedown notice to the service provider hosting the infringing content. If someone is using your work illegally on a website or social media, this requires the service provider to remove it as soon as possible.

4. Take legal action

If all else fails, you can always file a copyright infringement lawsuit. However, copyright lawsuits can be complicated and expensive, so make sure the benefits outweigh the cost.

Wrapping up

Navigating the world of copyright as a freelancer is essential for protecting your creative work and understanding your rights. Copyright protections not only safeguard your original creations, but also provide you with the legal tools to control their use. With a solid understanding of copyright and intellectual property, you can protect your creative output, assert your rights, and make informed decisions about your work.