The freelance sector in the UK continues to expand, with millions of workers attracted by the flexibility, autonomy, and diversity freelancing offers. Despite its benefits, working freelance presents unique challenges, not least when it comes to protecting your intellectual property. If you do not understand how intellectual property is generated and what it protects, you may unintentionally lose the right to control or even use your own work.
In this guide, our expert intellectual property solicitors help you navigate the intellectual property issues faced by freelancers. We explain who owns the rights in your work and how to protect them. We describe the different ways you can allow clients to use your work and the steps you can take if someone uses your work without permission.
Contents:
- Do I own the rights to the work I create as a freelancer?
- How can I protect my intellectual property rights as a freelancer?
- How do I protect the copyright in my work?
- How do I protect my work as a trade mark?
- What specific IP clauses should I include in an agreement with a client?
- Waiver of moral rights
- How can I protect my intellectual property rights before I start a project?
- Can a client demand exclusive rights to my work, and how should I handle such requests?
- What are the advantages of assigning the rights in your work to a client?
- What are the disadvantages of assigning your rights in your work to a client?
- What are the advantages of granting an exclusive licence to a client?
- What are the disadvantages of granting an exclusive licence to a client?
- Is there an alternative to granting exclusivity to a client?
- What should I do if I find someone using my work without permission?
- Summary
Do I own the rights to the work I create as a freelancer?
Each time you create an original work for a client, it is protected by law as intellectual property. For most freelancers, copyright is the most important intellectual property right since it protects artistic and literary works, such as logos, computer programmes, and blog posts. Owning the copyright in a work allows you to control how it is used, so ensuring you understand copyright ownership is crucial.
As a starting point, when a freelancer produces work for a client, it is the freelancer rather than the client who owns the copyright in it. Crucially, most businesses who hire freelancers insist on their freelancers entering into an agreement detailing how the business relationship will operate, including who will own the intellectual property in the freelancer’s work.
Many freelance agreements contain clauses expressly assigning all intellectual property rights in the work created by the freelancer to the client. This means that by signing the contract, you effectively hand over all rights in the work. If you were to use that work again, you would infringe your client’s rights.
The importance of any contract you enter into with a client reflecting what you have agreed cannot be overstated. If you’re unsure, you should take specialist legal advice. Asking an expert intellectual property solicitor to prepare or review the agreement will ensure you do not give away more than you intended.
How can I protect my intellectual property rights as a freelancer?
As we have explained above, most freelance arrangements operate under the terms of a written agreement. If there is no agreement to the contrary, you retain the copyright in the work. You must still take proactive steps to ensure you can enforce your copyright should you need to.
How do I protect the copyright in my work?
Copyright arises automatically in the UK; you do not need to register your work for it to benefit from copyright protection.
If you need to enforce your copyright, proving you own it is key. To establish ownership, you’ll need evidence of how you developed the work, such as emails between you and the client, and documentation, such as initial drafts. While you do not need to include the copyright symbol © on your work to gain protection, doing so, along with your name and the date of creation, can be useful evidence of your ownership.
Proving you own the copyright in a work can be particularly problematic when you work with your client to produce it. For example, it’s not unusual for freelancers to work with a client’s in-house design team to refine and finalise a project. If the in-house team’s contribution was such that it amounted to a collaboration, your client, as their employer, may claim that they jointly own copyright with you. This is a thorny area of law, and can lead to lengthy, expensive disputes if not tackled from the outset. Where you anticipate client involvement in a project, ensuring copyright ownership is expressly addressed in a written agreement before you begin work is vital.
How do I protect my work as a trade mark?
You may develop materials for your freelance business that can be registered as trade marks. Trade marks inform consumers where goods or services originate from, and are incredibly useful for protecting a business’s branding.
Trade marks can’t protect works like written articles or software code since they don’t denote the origin of the goods or services. Although the can protect business assets like your business name and logo.
To register your freelance business name and logo as trade marks, you must apply to the UK Intellectual Property Office (UKIPO). The process is fairly straightforward, but preparing the application itself can be complex. You must check for any pre-existing trade marks that may impede your rights to use the branding and ensure you register the proper branding for the correct goods and services. Most businesses enlist the help of specialist intellectual property solicitors like ours when applying for a trade mark to give their application the best chance of success.
Once your trade mark is registered, you gain a monopoly over its use in connection with the goods or services for which it is registered. Anyone using your trade mark or something similar without your permission may be liable for infringement, whether or not they were aware of your registration.
What specific IP clauses should I include in an agreement with a client?
It’s a good idea to develop a Freelance Agreement for use each time you undertake a project. Some clients will insist on using their own agreement, which you should thoroughly review, understand, and be happy with before signing.
With freelancers operating in industries as diverse as accountancy and web design, the terms of your agreement will depend on several factors, including the nature of your speciality and the project you are undertaking. However, whatever your specialism, every contract should contain IP-specific clauses, such as:
- A clause defining the scope of the work.
By defining the scope of the work clearly from the outset, you can prevent misunderstandings down the line over the materials in which you are assigning or licencing the intellectual property rights. - A clause defining ‘intellectual property’.
Your clients will no doubt want to ensure the definition of ‘intellectual property’ is as wide as possible to prevent you from making any ownership claims down the line. You must check that the clause is no wider than it needs to be. - A clause to assign or licence the intellectual property.
Your agreement must state whether you are assigning or licencing the intellectual property in the work you create.
When you assign the work, you effectively relinquish your rights. If you were to use the work in the future, you may be liable for intellectual property infringement.
When you licence the work, you permit the client to use it for a specific period or purpose. A licence can be exclusive or non-exclusive. An exclusive licence means nobody else (including you) can use the work while the licence is in place. A non-exclusive licence means other parties, including you, can use the work at the same time as the client.
Waiver of moral rights
Moral rights protect a creator’s personal interests rather than their economic ones. For example, they entitle the creator to be identified as such and to object to any ‘derogatory treatment’ of their work. Also known as a right to integrity, this right enables the creator to prevent others from altering the work in such a way that impacts their reputation.
You cannot assign or licence moral rights in the same way as you can copyright. You can agree to waive them in writing. If your client asks you to do so, you need to carefully consider the consequences of doing so.
Intellectual property rights are a key concern for clients and freelancers alike, and clear IP clauses are crucial to any effective Freelance Agreement. Given the potential for disputes over IP ownership if matters are unclear, taking expert legal advice regarding your contract terms is essential.
How can I protect my intellectual property rights before I start a project?
It can be incredibly frustrating to pitch an idea to a potential client only for them to produce something suspiciously similar themselves. Unfortunately, copyright cannot protect an idea; it can only protect the expression of an idea in a tangible format. As a result, you would struggle to hold a client who copied your idea liable for infringement.
One potential solution to this issue is to ask the client to sign a ‘Non-Disclosure Agreement’ before sharing your ideas with them. ‘Non-Disclosure Agreements’ or ‘NDAs’ as they are more commonly known are legally enforceable contracts prohibiting your client from using specific information. If the client were to breach the agreement, you could potentially bring court proceedings against them.
NDAs can be a useful tool in protecting your intellectual property, but they aren’t failsafe. Whilst businesses might be less inclined to use your ideas when doing so exposes them to court proceedings, enforcing an NDA involves potential legal action, which can be expensive. Many freelancers feel uncomfortable asking businesses with whom they are keen to work to sign a contract before discussions have even begun.
There are some practical steps you can take to reduce the risk of a potential client using your ideas, either on their own or in conjunction with an NDA. They are as follows:
- Do your homework on who you’re pitching to and their business practices. If you have any doubts about their integrity, you should consider using an NDA.
- Unless you have been asked to produce work specifically for the pitch, direct the potential client to your portfolio as proof of your expertise and experience.
- If the business asks you to prepare a specific piece of work for the pitch, you should include a copyright statement, the © symbol, the date you created the work, and your name on any documentation.
- Speak generally and refer to previous similar projects you’ve worked on rather than giving away your ideas for that particular project where possible. Don’t give away more than is absolutely necessary to seal the deal.
Can a client demand exclusive rights to my work, and how should I handle such requests?
A client can demand exclusive rights to your work, but whether you agree is your choice. As with most business deals, your decision will likely be based on several factors, including the nature of the project, your future intentions for the work, and your bargaining position.
You can grant exclusivity in one of two ways. You can assign the intellectual property in the work to the client, whereby you relinquish any rights over it. Alternatively, you can grant the client an exclusive licence to use the work until the licence expires, at which point ownership reverts to you.
Each arrangement has pros and cons, and the appropriate choice will depend on your circumstances.
What are the advantages of assigning the rights in your work to a client?
There may be circumstances in which you are happy to hand over the rights in your work to a client in return for an appropriate fee. For example, when you produce bespoke work for a client, such as a business logo, it’s usual for the client to own it outright.
Outright IP assignments have several benefits in the right situation, including:
- You can likely demand a higher fee for an assignment than a licence.
- They are straightforward. Once the client has paid you for the work, they own it.
- Agreeing to an assignment will preserve your business relationship and may lead to further projects.
What are the disadvantages of assigning your rights in your work to a client?
Assigning your rights comes with several risks, which include:
- Once you have assigned your rights, you cannot use your work. If you do, you may be liable for intellectual property infringement. This includes displaying the work in your portfolio. If you decide to assign all the rights in your work but wish to retain the right to display it, your agreement must state as such.
- An assignment generally covers the entire work and its individual elements. This means you can’t use any part of the work for other projects, which can be problematic for freelancers operating in some sectors. For example, if you are a web programmer, many of your projects may have overlapping components and features, and it may save you time and costs to reuse parts of code developed for one client for future jobs. In cases like these, you must think carefully about the ramifications of relinquishing your IP rights.
What are the advantages of granting an exclusive licence to a client?
If you are happy to grant exclusivity to a client for a specific period but wish to retain overall ownership, an exclusive licence may be the right option.
Exclusive licences offer several distinct benefits, including:
- When you grant an exclusive licence to a client, the rights in the work will revert to you when the licence ends. You can then licence the work to other clients, generating more revenue.
- If you grant exclusivity to a client in particular territories or for specific uses, you can simultaneously offer exclusive licences to other clients operating in different areas or sectors. This allows you to make more money, grow your client base, and expand your business.
- The licence should contain detailed terms dictating how, where, and when the client can use your work, so you to retain control. It may entitle you to have final say over any product featuring your work, so you can check it aligns with your vision.
What are the disadvantages of granting an exclusive licence to a client?
Before agreeing to an exclusive licence, it’s essential to understand the potential drawbacks. They include:
- When exclusively licensing your IP, you hand over your rights in the work for the period of the licence to the client. You cannot use the work while the licence is in place.
- Granting exclusivity means you relinquish control of your work for the duration of the licence.
- Effective exclusive licences depend on precise terms detailing the scope of the licence. Any ambiguity in this regard can lead to expensive legal battles. You must carefully consider the scope of the exclusivity you want to grant, how long for, and the royalty provisions.
Is there an alternative to granting exclusivity to a client?
You do not need to hand over your rights in your work entirely to a client. Instead, you can grant them a non-exclusive licence to use it.
Non-exclusive licences allow your client to use your work on strictly defined terms. You retain control of the work, meaning you can continue using it and licencing it to others.
What should I do if I find someone using my work without permission?
If someone uses your work without permission, their actions may amount to intellectual property infringement.
You can enforce your intellectual property rights through court proceedings, seeking an injunction to prevent any future use of your work and damages to compensate you for any losses. Although litigation should be a last resort.
Often, receipt of a letter from a well-known law firm like ours resolves the matter without the need to issue a court claim. Alternative dispute resolution methods like mediation are also incredibly effective in settling IP disputes quickly and cost-efficiently.
If you discover that a third party is using your work, our intellectual property solicitors will advise you on your options and help you enforce your rights swiftly and cost-efficiently.
Summary
The freelance landscape allows professionals the freedom and flexibility to work on their own terms. Being your own boss means you are wholly responsible for protecting your interests, including your intellectual property. Understanding your rights and taking steps to safeguard them is essential.
Many freelancers seek expert legal advice to ensure a proposed contract does not give away more than they need or intend. For a modest initial outlay, you can ensure that any arrangements make commercial sense for you and build your business with peace of mind that your IP is properly protected.
