The Copyright Trap: Navigating Intellectual Property and Freelance Work

In the past year, 53 million Americans – 34 percent of the U.S. workforce – have engaged in freelance work. From the project-based graphic designer to the moonlighting ride-share driver, the freelance economy is changing the face of work.

Indeed many marketing departments rely on this freelance economy for original creative materials and content without the overhead that comes with hiring an employee. However convenient and cost-effective contracted work may be, without due diligence and knowledge of intellectual property ownership, you may be walking into a copyright trap.

Work Made for Hire

A traditional employer-employee relationship falls under the category of “work made for hire.” In this case, the copyright belongs to the employer. An example of this would be an article written by a staff writer of a newspaper.

However, freelancers fall outside of this definition. As the creator of a work, a freelancer (independent contractor) owns the original copyright in the work. Without an agreement, even though the work was bought and paid for by you, the contracting agency, legally you do not have the right to copy, alter, or distribute it beyond the original understanding between you and the freelancer. For example, producing a revised version of an article for a second newsletter may violate the freelancer’s copyright.

How do you avoid this ownership mess?

Plan for Intellectual Property. Before beginning any project with a freelancer, get an assignment or license of the freelancer’s copyright (and other intellectual property) rights. It doesn’t have to be terribly complicated, just enough to establish who owns the work and what rights belong to each party – a list of the parties, what each party is giving each other, details of the project, and the specific rights being transferred.

Set Your Terms. Depending on your use, the terms and degree of copyright transfer can vary. You can request a full transfer of ownership, negotiate a one-time use agreement or, as is the case with many magazines, retain the right to a first North American printing, wherein the rights would revert back to the creator.

Don’t Take Risks. Since it is up to the copyright owner – whether an individual or organization – to protect and uphold its copyright, potential issues may never reveal themselves. Even so, the small amount of time it takes to secure copyright ownership or a use license is nothing compared to the risk of being on the receiving-end of a copyright infringement suit.