As a freelancer, you probably encounter a variety of relationships where the ownership of your work product or another party’s work product may be in a gray area. To make sure that you and the parties you work with are on the same page, it’s best to clearly address the ownership issues at the beginning of the relationship. That way reasonable expectations are set, and you can prepare for a smooth delivery. After all communication is key, right?
Below are examples of several contractual scenarios that you are likely to encounter as freelancers:
- contracts for services
- independent contractor agreements
- employment agreements
- and licensing agreements.
In each scenario, I’ll discuss the intellectual property implications and how you can take proactive steps to stay ahead in the game.
Contracts for Services
Contracts for services are the agreements that you, as a service provider, sign along with your clients that state the services you will perform and what you expect to receive in return.
As a freelancer, a crucial piece of this contract will discuss ownership of the created content that you provide to the client in the course of services and also ownership of any other intellectual property outside the course of this particular agreement.
For example, if you are a writer and a magazine hires you to draft a listicle of the Top 50 Barbecue Restaurants in Central Texas, check the contract for clarification of who actually owns the finished article, if you retain any rights of ownership as the author, and at which point the ownership transfers (if at all).
Independent Contractor Agreements
Independent contractor agreements apply to a variety of project-based professional relationships, including service providers who perform actual work for your clients (ex: another writer you hire to draft an article for a client under your company’s name) and those you hire to do a specific job, but who won’t act as an extension of your company by performing work for your clients (ex: a web designer you hire to build your company’s website).
If you’re the one doing the hiring (principal), you want to make clear that any creations that come about in the course of the project your contractor (agent) is working on belong to you. For instance, if you outsource a graphic designer to create a logo for one of your clients, you need to clarify who ultimately owns the logo once it’s complete – your company, the designer, or the client. You may want to offer the client the ability to use the logo however they want in the course of their business, but only after paying your fee in full. You may also want to preserve the ability for you and the designer to feature the completed logo in a portfolio of your work.
If you are the contractor, study the agreement to determine whether your creations on behalf of the principal will be owned by you or the principal. If they will be owned by the principal, check whether you will be able to use the creations in your portfolio as examples of past work. Verify that any other work that you do outside of this relationship belongs to you and not to the principal or their clients.
Employment contracts can be similar to independent contractor agreements, but they are intended for full-time or part-time employment rather than a project-based relationship. If you are the employer, make sure the contract clearly and thoroughly defines the employee’s work product that will belong to your company. If you are the employee, study the contract to ensure that it does not reach beyond what is necessary and attempt to claim ownership of your separate work product outside the scope of your new job.
Licensing language is frequently included in all of the above types of contracts, granting the licensee (person authorized to use the content) permission to use the licensor’s (actual content owner) intellectual property within certain limited circumstances.
For example, if you previously wrote the Top 50 Barbecue Restaurants article for your own publication and a magazine from New York wants to republish it, you can grant the New York magazine a limited license to publish your article for a certain price and a certain number of times. Licensing can be a very attractive option for freelancers because it can expand your reach without giving up ownership of your work product.
Licensing terms can include usage authorization that’s broad, very limited, or something in between, so be cognizant of the terms in place and don’t gloss over this section of the contract, even though it can be full of legalese that is surely not as exciting as your barbecue listicle.
Primary terms to define in a licensing agreement are duration of the license (how long does it apply), how the license is acquired or terminated, and how broad is the scope of usage (in which contexts can the licensee use the licensor’s material). As the licensor, you will likely want the terms to be as narrow as possible allowing for limited use, while licensees will want them to be broad and allow unlimited use.
Don’t Sign Before You’re Ready
Before you sign a contract, have the agreement reviewed by a licensed attorney. Written contracts are vital to reaching a common understanding of an agreement between two or more parties. When the contract involves your livelihood, don’t jeopardize your security and welfare by signing a document that you don’t fully understand. Hiring an attorney can be cheaper than you think, and may afford you the invaluable asset of peace of mind. And remember, any contract is negotiable and can be edited so long as both parties are in agreement.
For additional questions on this topic or other small business issues, please contact Emily Morris, JD.
* This is the fourth of several installments related to intellectual property laws for freelance workers. Read the the entries on trademarks, copyrights, and trade secrets at the Freelance Austin website here.
- Intellectual Property for Freelancers: I Created It, So I Own It …. I Think - July 29, 2016
- Trade Secrets:The “Dark Side” of Intellectual Property - May 20, 2016
- Copyrights for Copywriters and Other Freelancers - March 15, 2016