Freelancers' Questions: Am I liable for selling spec work?

Freelancer’s Question: I did some ‘spec’ (also known as Pro Bono) work for a company. I took on the project and received my deposit. I did the work but then they went quiet. A week later the owner thanked me for the provided template but said it was not what he wanted. That’s what the deposit is in place for, so fine. However thinking of the cash that I missed out on, I then posted a design, based on the rejected work but altered, for sale online. The depositor’s company name was removed and no connection to them can be made.

The good news is that the piece sold, but I have since been threatened with "legal action" by the depositor/client. They claim the template was created for them and should not be sold because it contains their 'intellectual property', despite the sold-design being markedly different from the one I initially created. No contracts were signed by me or the company now threatening me. The company is in the USA and I’m in the UK. What would a UK legal expert advise me to do, if anything?

Expert’s Answer: This is a situation that is difficult to comprehensively advise on in this format. That said, under copyright law you would be the author of the work. And as you are a contractor and not an employee, you would also be the first owner.

Moreover, if no contracts were signed or money transferred then on the face of it you still own the copyright. That’s because a copyright assignment i.e. transfer of copyright, has to be in writing and seemingly this has not occurred.

If they had paid for the work, then in the absence of a written agreement the courts may still have found an assignment, joint ownership or at the very least an implied licence. However if they have not paid, and there is no agreement in place between the parties, then it would appear that ownership of the copyright vests in you. As the owner of the copyright, you are well within your rights to sell the work on as you have done.

The expert was Jody Tsigarides, of the internet and e-commerce team at Lawdit Solicitors.


11th March 2010

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