Freelancers' Questions: Who owns the copyright, me or the client?
Until a few months ago, I was happily freelancing for a magazine publishing company for whom I took photographs, mainly for their in-house projects. Due to the quite standard payment terms that they agree with freelancers, I unfortunately lost out on two months’ pay when the company was forced into administration. At my rates, that’s about £2,000.
Very recently though, I had contact with the company’s former director who took me on for a day’s work to work on a shoot for a few magazines. I was also offered £50 for handing over up to three sets of old images that I had previously taken (before administration), but which I had never handed to the design department. The £50 has yet to emerge in my bank account.
Since then, the company have reformed under a new name and have sold three magazines but still own another at least two other titles. A trustworthy designer who was with the business initially as an employee but who is now freelancing for it has told me that the new brand are using a “fair few” of my old images.
Does the business, whether or not it is under new name, have the right to use my old images? Surely if I never received payment for them then they're still my intellectual property, as I only created and relinquished them for a fee. Nobody at the company has recently asked my permission to use the old images and the new venture hasn’t approached me either, despite apparently using my images. So where do I stand legally? Should I ask for compensation or renegotiation for a fee for all the images? Or are they entitled to use the images?
Ownership of copyright differs for employees and freelancers.As an employee, copyright in all works created by you in the course of employment will vest in your employer. As a freelancer, copyright in all works created by you during the course of your work will vest in you.
Any use of your copyright material by the old company (which went into administration) or the company you are currently dealing with would need to be authorised by you.This authorisation would usually be in the form of a licence (implied or express) or an assignment of rights. However, it would usually be pointless pursuing the old company if it is in administration.
If you granted a licence for the use of your copyright material to the new company for an agreed fee, your remedy would usually be determined by the contents of the licence. If the licence to the new company was an expressed licence and was subject to your fee being paid by a certain date you would have (1) a claim of copyright infringement against the company currently using your copyright material from that date in the licence; and (2) a claim for breach of contract prior to that date.
Again, if you have an implied licence, where you simply orally agreed to allow the new company to use your copyright material you can withdraw your consent (licence) in writing from the new company and make a claim against them for, (1) breach of contract for the period prior to revoking your consent and (2) copyright infringement for the period after you have withdrawn your consent (if they continue to use you copyright material after consent has been withdrawn).
Please note, I can only provide limited information based on the facts you outline. However, we can offer a full review of the facts and a robust copyright infringement/breach of contract letter out for a fixed fee.Please contact us with reference to this article if you would like to explore this option.
The expert was Owen Ross, on the intellectual property team at Lawdit Solicitors.
27th June 2012