Freelancers' Questions: Who owns copyright in these images?
: I've been working as a freelance assistant and
photographer for about three years, mainly for a company specialising in
architectural photography. They have some big name clients on their books,
such as a well-known fast-food chain and a range of high-end end estate agents.
There was no formal discussion when I started freelancing for them on
copyright or intellectual property, and I signed nothing either. I just invoice
them each month for work done; be it assisting or directly shooting myself.
Initially the owner of the business said I could use the work I'd shot for my portfolio and possible website. But just recently he has said I cannot use these images as they are not mine to use, even though he has actually used one of the high-end estate agency images I've shot for his website. Throughout the assignment, I’ve used my own equipment and I didn't edit the work myself. Where do I stand on copyright, and can I use these images to further my self-employed career?
Expert’s Answer: I am sorry to read about your predicament. The fact you had an oral agreement with the client that you could use the work for your website and portfolio, does constitute an oral contractual term. Therefore you should be able to use the images produced before the client changed his mind - unless you were notified of any terms and conditions by the client to the contrary.
You would probably need proof of the client having acquiesced and known about you using the work on your website and portfolio if you were, however, to argue this in court. After your client changed his mind, it’s a matter for negotiation and a signed agreement should now be negotiated.
To protect yourself with any future jobs, ensure that from day one, a signed agreement is in place that clearly stipulates the final ownership of all copyright and intellectual property rights.
Outlined below is a short explanation of IP rights and how these can be granted to others:
· Retaining All Rights
The author of the material retains all rights unless expressly given / sold to someone else. It is possible, for instance, to grant a ‘one time’ rights. Any further use or desired distribution can then be further negotiated.
· Exclusive Agreement
‘Exclusive’ means no one else may hold those rights to the intellectual property.A freelancer may be able to negotiate a higher fee for selling the IP rights exclusively.Exclusive agreements must be in writing.
· Non-Exclusive Agreements
‘Non-exclusive’ means someone else might hold the same rights and you have a ‘privilege’ or licence to use the property non-exclusively.
The freelancer is able to charge a licence fee for the non-exclusive use. Be careful of the language used when granting a licence, as certain terms, for instance, ‘sell’, ‘transfer’ or ‘assign’ are synonymous with ‘rights’ under a contract and should not be used in a licence.
This does not need a written agreement for it to be effective but we would recommend one to protect all sides, particularly as you don’t want to be confronted with an exclusive rights issue if the other party had wrongly assumed they had exclusive rights.
The expert was Mark Kingsley-Williams, director at Trade Mark Direct.
14th November 2011