Freelancers' Questions: What if a client objects to my copyright clause?
Freelancer’s Question: A new customer I am building a website for has rejected my copyright agreement that is normally accepted by my clients, but the new customer says copyright should be vested with him -- and not me as the agreement states.
The clause, which I know other website/graphic designers use, being objected to states: “Copyright is retained by (me) on all design work including words, pictures, ideas, visuals and illustrations unless specifically released in writing and after all costs have been settled.
“Where a choice of designs are presented, only one solution is deemed to be given by (me) as fulfilling the contract. All other designs remain the property of (me), unless agreed in writing that this arrangement has been changed."
As far as I’m concerned, the client is paying for my services and I will build the site and hand it over to him, as long as I am able to showcase the site in my portfolio. But if the client owns the copyright does that mean I am forbidden from featuring it as ‘my’ work, or telling others I produced it?
Expert’s Answer: The
law on copyright is
governed by the Copyright, Designs and Patents Act 1988. Section 11 states that
the first owner of copyright in a work is the author, with section 9(1) helpfully
defining the author of a work as “the person who creates it”.
So the law is crystal clear on this point – if you, as a graphic designer, have created something, then the copyright belongs to you in the first instance. Bear in mind that this is only the case because you are a freelancer/contractor -- if you were an employee who created something as part of your employment then it would belong to your employer (section 11(2) of the Act).
It is worth bearing in mind that this is the default position under the Act but there is nothing to stop you agreeing that the copyright will be owned by the client. If, however, you want to own the copyright in any commissioned works for any reason then you are perfectly entitled to do so under the law.
I suspect that your client’s position is taken from a commercial perspective; he wants to own the copyright in the graphic design because he’s paying you to create it. If your main concern is being able to showcase your work to future potential clients, then there are options available to you. You could retain the copyright, as you have done to date, although this will be a deal breaker for some clients and unfortunately for you, there is no shortage of talented graphic designers eager to take on new clients.
Alternatively, you may wish to rely on moral rights. Moral rights are a group of rights which include the right for an author of a work to be identified as such, even where the copyright has been transferred to somebody else. Moral rights can’t be transferred (section 94 of the Act), although they can be waived (section 87(2)).
From my experience, the most common way of getting around your problem is to assign the copyright to the client, but agree in writing beforehand how you can showcase your work. Most clients understand that freelancers need to seek out new work once a contract has been fulfilled and that the best way of doing this is by showing others what you’re capable of. Clients are also generally more concerned with competitors poaching their IP than with contractors seeking out new clients.
The expert was Aasim Durrani of Lawdit Solicitors, a legal advisory specialising in intellectual property.
Editor’s Note: Further Reading –
1st May 2014