As the reach of technology has expanded in the digital age and an increasing amount of commerce has gone online, many Americans have decided to leave the 9 to 5 routine and work for themselves as freelancers, also known as independent contractors.
It cannot be denied that making the move to freelancing certainly has its perks. By having the freedom to make your own decisions, you can set your pay with your clients, avoid daily commutes and long, boring staff meetings, and dress any way you want, among other benefits.
On the other hand, working as a freelancer comes with a price. Freelancers are not covered by most of the workplace laws that protect regular company employees and are not provided health insurance and paid vacation days. In addition, the Americans with Disabilities Act and the Civil Rights Act of 1964 provide no protections, health and safety standards do not apply to work, and there is no defense against age discrimination.
There are also crucial questions related to copyright protection for the work you produce for your client as a freelancer. As a freelancer, do I have any freelance copyright protection? Do I need a freelance writing contract? If so, what terms should I accept or reject? These are among the many questions related to copyrights that freelancers must consider.
What do Copyrights Protect?
Briefly stated, copyrights protect creative works, also referred to as intellectual property, and standard examples include books, music, plays and movies. In addition, copyrights encompass all “original works of authorship,” which covers everything from computer software to architecture.
Owning a copyright gives you the exclusive right to publish, copy or otherwise reproduce the work. It also gives you the exclusive right to prepare a derivative of the original work, such as translating it into another language or writing a movie script based on your novel. If someone does these kinds of things without your permission, they are infringing on your copyright.
To meet the standard for copyright protection, your work must be “original,” something you actually created, rather than simply copying work done by someone else. And originality also requires some degree of a “creative spark.” If you wrote a list of phone numbers, for example, that would not be creative enough to be protected under copyright law.
Finally, the work must be fixed, meaning that it must be permanently preserved or recorded in some way. As an example, a live musical performance could not be copyrighted unless it was preserved in some way for posterity.
An Automatic Copyright
A common misunderstanding about copyrights concerns how you get one. Many believe that to have a copyright, you must apply for one from the U.S. Copyright Office. In reality, a copyright happens automatically the minute you set something into a fixed form. You own the copyright to anything you create as soon as you produce it.
So, if you are a freelancer and you blog, take photographs, publish music or produce other copyrightable material, you own that content. You have what amounts to a freelance copyright to your material, and it is your decision whether or not you want to allow others to use what you have produced.
That said, if your work has even a minimal spark of creativity and has taken significant amounts of time and effort to create – like a book, a play, or a musical composition – it deserves an official copyright from the U.S. Copyright Office. The process is simple, inexpensive and relatively quick. And while not strictly required, using the services of an experienced copyright attorney will give you the peace of mind of knowing the process was done properly.
It should also be noted that officially registering your copyright allows you to:
- Legally establish yourself as the copyright owner of the work.
- Legally establish the date of creation.
- Take legal action against someone who infringes on your copyright.
That last point is extremely important, because in most jurisdictions, you cannot sue someone for infringing on your copyright unless your copyright is registered.
Writer for Hire Contracts
Complicating the copywriting situation for freelancers is the emergence of writer for hire, or works for hire, contracts. In the early 1990s, as the modern digital era took shape, clauses began appearing in freelance contracts asking freelancers to grant publications the right to publish their work on CD-ROMS and websites. Over time, this kind of contractual request has become increasingly common in freelance contracts. Agreeing to these terms that grant the client full rights over your work means you no longer have a freelance copyright, and all copyright for the work now belongs to the client from the moment of creation.
Some refer to these contracts as “rights grabs” that prevent freelancers from licensing their work to multiple publications, profiting from translations, or book or screen adaptations of their work. That, in turn, leaves freelancers with fewer ways to supplement their incomes from work they have produced.
Copyright and Intended Purpose
In the absence of a writer for hire (or work for hire) clause in a contract, the freelancer retains the copyright to what they’ve produced, and the client has the license to use the work for its intended purpose, the intention they had in mind when they hired the freelancer.
As an example, in the absence of a writer for hire clause, a freelancer might produce blog posts and other materials for the client’s website. That is the intended purpose, writing that is to be placed online for the benefit of the client. If, however, the client later compiles the blog posts into an eBook and begins selling it for their profit, a case could be made that the client is violating the freelancer’s copyright.
Do I need a freelance writing contract?
That is a difficult question to answer definitively, and it depends on the nature of the project. If as a freelancer you’re working on a short-term, one-and-done project involving relatively slight amounts of time and money (a small amount of freelance web content, for example), perhaps not. In that case, a verbal or “handshake” agreement might well suffice.
On the other hand, if your freelance project involves work stretching over weeks, months or even years, a written contract clearly spelling out all contractual arrangements would be in order. In that situation, you should consider consulting an experienced copyright attorney before entering into an agreement involving intellectual property issues or entering into a writing for hire agreement. An experienced attorney can provide valuable advice on how best to craft the agreement to ensure maximum protection for your rights.
